Plaintiffs' Memorandum of Law Supporting Petition for a Permanent Injunction; Plaintiffs' Petition for a Permanent Injunction
Public Court Documents
May 7, 1982

20 pages
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Case Files, Bolden v. Mobile Hardbacks and Appendices. Plaintiffs' Memorandum of Law Supporting Petition for a Permanent Injunction; Plaintiffs' Petition for a Permanent Injunction, 1982. 4745548f-cdcd-ef11-8ee9-6045bddb7cb0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4bfb55a1-7779-4f0d-9f17-99e4a4d15781/plaintiffs-memorandum-of-law-supporting-petition-for-a-permanent-injunction-plaintiffs-petition-for-a-permanent-injunction. Accessed June 13, 2025.
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA WILEY |. BOLDEN, et al., ) Plaintiffs, ) VS. ) CIVIL ACTION NO. 75-297-p CITY OF MOBILE, ALABAMA, ) et al., Defendants. ) PLAINTIFFS' MEMORANDUM OF LAW SUPPORTING PETITION FOR A PERMANENT INJUNCTION At the hearing on Plaintiffs' Rule 59 motion on April 26, 1982, the Court asked the parties to make known their positions on the authority of the Court to issue immediately an appealable order or judgment. The Court also indicated that it will not be inclined to cut short the terms of the incumbent City Commissioners and order new elections sooner than Auqust 1985. Accordingly, by way of a response, Plaintiffs have filed a petition for a permanent injunction. ; # This memorandum of law will address reasons why the injunction should be granted. However, should the Court deny the injunction, it is Plaintiffs' present intention immediately to appeal, so that there may be a timely resolution of their claim to expeditious relief. ’ An Injunction Should be Entered Where the Court Retains Jurisdiction For the Legislature to Enact a New Statute The Supreme Court has explicitly disapproved the procedure of withholding an injunction against an unconstitutional or unlawful State statute while inviting the Legislature to respond with its own remedy. Gunn Vv. University Committee to End the War in Viet Nam, 393 U.S. 383 (1970). This is because "until a district court issues an injunction, or enters an order denying one, it is simply not possible to know with any certainty what the court has decided ..." 1d. at 383, Rule 65{(d), Fed.R.Civ.P., was designed to eliminate confusion when a federal court determines that a State statute is unconstitutional in certain respects. ld. at 389, That requirement [of Rule 65(d)] is essential in cases where private conduct is sought to be enjoined, as we did in [Longshoremen's Assn. Local 1291 v. Philadelphia Marine Yrade Assn., 359 U.5. 54, 7/9 (1957}]. Tt 1s absolutely vital in a case where a federal court is asked to nullify a law duly enacted by a sovereign State. The restraint and tact that evidently motivated the District Court in refrain- ing from the entry of an injunctive order in this case are understandable. But when a three-judge district court issues an opinion expressing the view that a State statute should be enjoined as unconsti- tutional -- and then fails to follow-up with an injunction -- the result is un- fortunate at best. For when confronted with such an opinion by a federal court, state officials would no doubt hesitate long before disregarding it. Yet in the absence of an injunctive order, they are unable to know precisely what the three- Judge court intended to enjoin and unable as well to appeal to this Court. Gunn supra, 399 U.S. at 389-91 (citation omitted). Garza v. Smith, 450 F.2d 790 (5th Civ. 1971), cited by the Defendants, failed to take notice of the Supreme Court's instructions in Gunn, which was decided a year earlier. More recently, the Fifth Circuit has distinquished Garza in a manner that directly implies disapproval of its precedential value. United States v, Mississippi Power & Light Co., 638 F.2d 899, 903, n.4 (5th Cir. 1981). There the Court of Appeals accepted appellate jurisdiction over a decision of the district court, even though the lower court had failed to enter an injunction and had relied instead "on the wh y declaratory force of [its] decisions and on the good faith o Sd + the parties." Id. at 903. The Fifth Circuit refused to follow Garza, because the orders appealed from concerned issues that had been remanded to the district court after an appeal to the Supreme Court and were, therefore, "in effect a continuation of the first appeals." 1d. It concluded that the interests of justice and efficiency demanded immediate resolution of the case. 638 F.2d at 903, citing Gillespie v. United States Steel Corp., 379 U.S. 143, 152-53 (1964) (which dictates that the Court of Appeals should give the finality requirement a "practical rather than a technical construction" and that the chief countervailing considerations are "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other"). In any event, Plaintiffs have now acted to eliminate any uncertainty by petitioning for a permanent injunction. Without question, the dissatisfied parties may appeal under 28 U.S.C. §1292(a) (1) if the Court either grants or denies the injunctive relief asked for. United States v. Mississippi Power & Light Co., supra 638 F.2d at 903. Where, as in the instant case, the timing of relief is a critical issue, the parties are entitled to a ruling that may be appealed immediately. Plaintiffs Are Entitled to Early Interim Elections If the Alabama Legislature fails or refuses to provide a constitutionally acceptable remedy after it next convenes, Plaintiffs and the class of black citizens they represent are entitled to immediate interim city elections by single-member districts, even though the terms of the incumbent commissioners must be cut short. Taylor v. Monroe County Board of Supervisors, 421 F.2d 1038 {5¢h Cir. 1970), is squarely on point. There the district court had entered an order in April 1969 that the Board of Supervisors must be reapportioned. The incumbents had begun new terms in January 1968, which were due to expire in January 1972. The district wv court refused to order interim elections, the plaintiff appealed, and the Fifth Circuit, on January 14, 1970, reversed and remanded with instructions to hold interim elections on or before July 1, 1970, if possible. The 1967 elections had taken place while the case was pending on an earlier appeal. Then the Supreme Court extended one person, one vote requirements to local governments in Avery v. Midland County, 390 U.S. 471 (1967), and the Fifth Circuit had reversed the judgment of the trial court and remanded with instructions that a reapportionment be ordered. ld. at 1039. In the second appeal, the Fifth Circuit noted the teaching of Reynolds v. Sims, 377 U.S. 533 (1964), "that the holding of court ordered elections is undesirable at best caer? 421 F.2d at 1041, But, consistent with the mandate of Reynolds that "judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do $0," 377 4.5. at 586, the Fifth Circuit concluded that the trial court should have ascertained "expeditiously" just how much time and effort would be involved in preparing for and holding a special election which would certainly have committed legally elected officials to have served at least more than half the current term of office. 422 F.2d at 1041. The court noted that at the time the district court had denied interim elections 31 of 48 months of the incumbents' terms of office were still to run, whereas less than 24 of the 48 months remained at the time of the Fifth Circuit's decision. 421 F.2d at 1039, n.l. This made the choice of equities "more difficult perhaps than it might have been if the appeal had been expedited ...." 421 F.2d at 1039. Of special relevance to the instant case is the following passage from Taylor: Much comfort, it seems, can be taken by Plaintiffs-Appelliants from the language of this Court in its prior decision. Where we spoke of “further proceedings expeditiously conducted consistently with the holdings of the Supreme Court and for appropriate relief grounded thereon," we surely meant something more than correcting the abuse in time for an election for a term to commence three and a half years in the future. 421 F.2d at 1042, Surely, in light of the history of this case, blacks in Mobile are entitled to no less expeditious a remedy. The incumbent city commissioners began their new, four-year terms on October 5, 1981. As of now, they stil] have three years and five months of their present terms to serve. Jo delay Plaintiffs' relief any longer than the end of the next legislative session would be contrary to the importance placed on constitutional voting rights by the Supreme Court in Reynolds and by the Fifth Circuit in Taylor. Rodgers v. Commissioners Court of San Augustine County, 483 F.Supp 779 (E.D.Tex. 1980) (J. Robert HM. Parker), summarized the teaching of Taylor v. Monroe County Board of Supervisors: Where a Court approved reapportionment 1s implemented, the general rule is that the Plaintiffs do not have a right to an immediate election under the newly drawn precincts; similarly, the present County Commissioners are not entitled to complete their terms as a matter of right. Rather, the Court is to weigh several factors where the Plaintiffs move for a special election under the new apportionment scheme, including the extent of malapportionment existing under the invalid boundary lines: tl he expense, Co d rx S| sill time, and effort that would be expended by the County Commissioners Court if a special election were held; the number of citizens that will be deprived of an opportunity to he Court declines to shorten the ounty Commissioner's term; and vote if t present C the basic equities of the respective posi- tions of the parties. 483 F.Supp at 781, citing Taylor and Dollinge: Jefferson sm em — County Commissioners Court, 335 F.S\ r 40, 3 (E.D.Tex. 1971). In the weighing of equities, special elections 11 should more readily be ordered "in the context of racial inequalities or hinderances." Graves v. Barnes, 343 F.Supp. 704, 736 { 1972}, aff'd in part sub nom.White v,. Regester, 4] S 755 (1973), citing Connor v. Johnson, Sims v, Amos, 336 F.Supp 924 (M.D. Ala. 1972), aff'd 409 u.s. ¢ (1972). In Sims v. Amos, the three-judge court acknowledged its power to order mid-term elections, 336 F.Supp. at 940 (see cases cited), but declined to do SO, because In the facts of that particular case, it would have ‘place[d] too great a burden on the State's election officials." There are no similar mechanical difficulties preventing the conduct elections for the City of Mobile. Undersigned counsel has been unable to} Cases where the federal appellate courts have approved postponement of a remedy for unconstitutional elections much as three years beyond the judgment of unconstitutionality. In Ely v. Kahr, 403 Y4.5. 108 (1971), the Supreme Court affirmed the district court's decision to allow 1970 legislative elections go forward in Arizona under the old, malapportioned plan, but the Court instructed the trial court to "make very sure that the 1972 elections are held under a constitutionally adequate apportionment plan.” 403 U.S. at 114-15. More recently, the three-judge court in Cosner v. Dalton, 522 F.Supp 350, 364 (E.D.Va. 1981), permitted impending elections to go ahead as scheduled in 1981 under the following conditions: Because Virginia's citizens are entitled to vote as soon as possible for their representatives under a constitutional apportionment plan, we will 1imit the terms of members of the House of Delegates elected in 1981 to one year. We also will direct the state election officials to conduct a new election in 1982 for the House of Delegates under the General Assembly's new Act or our own plan. 522 F.Supp at 364 (emphasis added). For all of the aforegoing reasons, Plaintiffs pray that the Court will grant their Petition for a permanent 10 injunction. . . ry ~ Respectfully submitted this “/ day of 1982. BLACKSHER, MENEFEE & STEIN, 405 Van Antwerp Bidg. P. 0. Box 1051 Mobile, Alabama 36633 ! ‘4 / £7 /) BY XY IL hold 7A fA Y3 2 Lhe » J IFA £5 U. BLACKSHER \/ LARRY T. MENEFEE EDWARD STILL Reeves & Still Suite 400, Commerce Center 2027 First Avenue, North Birmingham, Alabama 3520 JACK En sanERS NAPOLEON B. ILLIAMS Legal tose Fund Suite 2030 10 Columbus Circle wv New York, New York 10019 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I do hereby certify that on May 7, 1982 a copy 11 3 foregoing document was served upon counsel of record: Charles B. Arendall, Jr., Esquire, William C. Tidwell, ~ [+] Jedsole, Greaves & Johnston, P. Esquire, Hand, Arendall, Box 123, Mobile, Alabama 36601, Roderick P. Stout, Esquire, City Attorney, City Hall, Mobile, Alabama 36602, Charles Rhyne, Esquire, and William S. Rhyne, Esquire, 1000 Connecticut Avenue, N.W., Suite 800, Washington, D.C. 2003 J ’ Paul F. Hancock, Esquire and J. Gerald Hebert, Esquire, Civil Rights Division, Department of Justice, 10th and Constitution Avenue, N.W., Washington, D.C. 20530. b ] y DY iil, 0. S. depositing same in the United States mail, postage prepaid or by hand. A TE : / 7 [Ly / ) If JV AV ¢ fig Ul A ATTORNEY FOR PLATHTIFF T - \ 12 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILEY L. BOLDEN, ef al., ) Plaintiffs, ) VS. ) CIVIL ACTION NO. 75-297-P CITY OF MOBILE, ALABAMA, ) et al., Defendants. ) PLAINTIFFS' PETITION FOR A PERMANENT INJUNCTION Plaintiffs Wiley L. Bolden, et al., through their undersigned counsel, would show unto the Court as follows: 1. On April 15, 1982, this Court entered its Opinion and Order making findings of fact and conclusions of law as directed by the Court of Appeals, which vacated and remanded this Court's earlier judgment of October 22. 1976. In said Opinion and Order the Court held that the present at-large plan for electing Mobile City Commissioners violates Section 2 of the Voting Rights Act of 1965 and the fourteenth and fifteenth amendments. It withheld entry of a remedial order to provide the State an opportunity to enact a constitutional election plan "reasonably prior to a city election in August, 1983." The Court further announced that it will develop and implement its own remedial plan, upon motion of one of the parties or on its own motion, if it appears that the legislature will not respond in time for the 1983 elections. 2. On April 20, 1982, Plaintiffs filed a motion pursuant to Rule 59, Fed.R.Civ.P., asking the Court to 1 : | certify pursuant to Rule 54(b) that its ruling on the unconstitutionality and unlawfulness of the at-large system was final and appealable, notwithstanding the pendency of other claims in this action. 3. On April 26, 1982, the Defendants filed a response to Plaintiffs' Rule 59 motion, urging that said motion be denied and that this Court not enter a final and appealable judgment until it becomes necessary for it to enter a remedial injunction. 4. A hearing on Plaintiffs' Rule 59 motion was held on April 26, 1982, at which time this Court gave both sides additional time to respond to the aforesaid arguments of the Defendants regarding this Court's authority to issue an appealable order. At this hearing, undersigned counsel understood the Court to repudiate our interpretation of the April 15 Opinion and Order to the effect that the Court would require mid-term city elections in August 1983. We understood the Court to say that it had no intention of cutting short the terms of the present city commissioners, which do not expire until 1985, that in 1983 the Court will only specify the type of election plan it will order, and that the Court will likely stay such order pending the final outcome of an expected appeal by the .Defendants. The Court further indicated, at least tentatively, that it will not be inclined to issue an appealable order on the merits until it issues a remedial order in 1983. 5. To delay relief by way of single-member district elections until August 1985 would be inequitable and unjust to the class of black citizens whose fundamental constitutional and statutory voting rights are presently being denied. It would also work an intolerable inversion of constitutional priorities. Deference to the State Legislature in the remedial process must be properly balanced against the equally important requirement of providing a speedy remedy for constitutional wrongs. 6. Plaintiffs and the class they represent are entitled to mid-term elections in August 1983, whether those elections are held pursuant to a plan adopted by the Legislature or one adopted by the Court. Plaintiffs filed this lawsuit on June 9, 1975. A judgment that the at-large city election system was unconstitutional was originally entered on October 22, 1976. That judgment has now survived a lengthy appeal, a fundamental change in the standard of proof announced by the Supreme Court, and lengthy remand proceedings. This Court's Opinion and Order of April 15, 1982, reaffirms that black citizens were entitled to single-member district elections in 1977. 7. The provision of speedy relief from the existing unconstitutional and unlawful election system is an urgent matter. According to principles established by the Supreme Court, this Court should withhold that remedy only long enough to give the Legislature a reasonable opportunity to adopt its own constitutional election plan. There will Tikely be at least one Special Session of the Legislature in 1982. 8. The concern announced by this Court for preserving the full terms in office of the incumbent city commissioners, in light of the history of this case and in light of the fundamental importance of the constitutional wrong, is not an adequate justification for postponing remedial elections to August 1985. Plaintiffs did not oppose the conduct of at-large elections in 1981 pending the outcome of trial proceedings on remand because they shared the belief that the citizens of Mobile should not be unduly denied the opportunity to vote on their city officials. Plaintiffs were not informed by the Court at that time that the Court would be inclined to allow the at-large elected officials to serve out their full terms. If Plaintiffs had known that they were faced with a choice of opposing elections in 1981 or postponing the opportunity for remedial elections until 1985, they would have reluctantly sought a stay of the 1981 elections. 9. There is another important reason why this Court should enter a permanent injunction immediately against the existing at-large system. The Supreme Court has said repeatedly that, when State statutes are declared unconstitutional, it is critically important that the provisions of Rule 65(d), Fed.R.Civ.P., be fully complied with: Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained Without a permanent injunction specifying in what particulars the present Mobile city form of government and its election system are objectionable, the Defendants and the Alabama Legislature will not be provided adequate notice of what legislative response is constitutionally required. For example, there has already been speculation whether the necessary implication of this Court's April 15 Opinion is that the entire commission form of government is unconstitutional and unlawful. It has never been Plaintiffs’ contention that the commission form of government itself must be changed in order to provide black citizens adequate relief. Only the at-large election system needs to be changed to single-member districts. The Court's expression & of concern on p. 60 of its Opinion that imposing single-member districts on the commission form might cause One person, one vote problems can be remedied simply by enjoining that feature of the commission form of government which requires or permits the commissioners to assign themselves separate executive department head duties either before or after their elections. These questions illustrate the need for a specific permanent injunction to provide the State a fair opportunity to produce an adequate remedy. 10. In addition, the permanent injunction should specify that remedial elections must take place as soon as practicable and in no event later than August 1983. This would not only make it clear that Plaintiffs and the class of black citizens would receive timely constitutional relief, but it would provide the State with sufficiently specific notice of when it must make a legislative response and would provide the Legislature an opportunity to design 1982 or 1983 elections into the law. 11. In addition, the permanent injunction prayad for herein should specify, by reference to Rule 54(b), Fed.R.Civ.P., or otherwise that it is an appealable order in order to provide a prompt opportunity for review of all aspects of this Court's judgment by the Court of Appeals. Plaintiffs submit that this Case was remanded by the Court of Appeals with instructions for a prompt consideration of the issues left open by the Supreme Court with the intention that resolution of these issues by the trial court be promptly reviewable on appeal. WHEREFORE plaintiffs pray that the Court will immediately enter a permanent injunction in the form specified by Rule 65(d), Fed.R.Civ.P., restraining the Defendants, their successors, officers, agents, attorneys, employees, and those acting in concert with them or at their direction, from: (1) conducting any further elections of Mobile City Commissioners on an at-large basis; (2) assigning separate executive duties or responsibilities to individual City Commissioners, either prior to or following their election; (3) failing to conduct new elections for the government of the City of Mobile as soon as practicable after the first special session of the Alabama Legislature in 1982, either utilizing a new method of election adopted by the State and approved by this Court as a constitutionally and legally adequate response to this Court's judgment or electing new city commissioners under the present form of government from three single-member districts. Plaintiffs further pray that said injunction contain provisions: (4) that on its own motion or the motion of the parties the Court will set a hearing at which the Court will consider proposals for the boundaries of three single-member commissioner districts, if after a reasonable time the Court has not approved a lawful and constitutional remedy adopted by the State; and (5) retaining jurisdiction of this action for subsequent consideration of the amount of attorneys' fees, costs and expenses to which plaintiffs are entitled and to insure full compliance with the orders and decrees of the Court. Plaintiffs further pray that the Court will promptly consider this Petition for a permanent injunction and, should it be inclined not to grant the relief requested herein, that it promptly enter an order denying this Petition in whole or in part, in order that Plaintiffs may promptly appeal and seek the speedy relief to which they are constitutionally and legally entitled. Respectfully submitted this 7/ day of May, 1982. BLACKSHER, MENEFEE & STEIN, P.A. 405 Yan Antwerp Bldg. P. 0. Box 1051 Mobile, Alabama 36633 EDWARD STILL Reeves & Stil] Suite 400, Commerce Center 2027 First Avenue, North Birmingham, Alabama 35203 JACK GREENBERG NAPOLEON B. WILLIAMS Legal Defense.Fund Suite 2030 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiffs CERTIFICATE OF SERVICE I do hereby certify that on _/ day of May, 1982 a copy of the foregoing PLAINTIFFS' PETITION FOR A PERMANENT INJUNCTION was served upon counsel of record: Charles B. 4 Arendall, Jr., Esquire, William C. Tidwell, }I1, Esquire, Hand, Arendall, Bedsole, Greaves & Johnston, P. 0. Box 123, Mobile, Alabama 36601, Roderick P. Stout, Esquire, City Attorney, City Hall, Mobile, Alabama 36602, Charles S. Rhyne, Esquire, and William S. Rhyne, Esquire, 1000 Connecticut Avenue, N.W., Suite 800, Washington, D.C. 20036, Paul F. Hancock, Esquire and J. Gerald Hebert, Esquire, Civil Rights Division, Department of Jus tice, 10th and Constitution Avenue, N.W., Washington, D.C. 20530, and William Bradford Reynolds, Esquire, Assistant Attorney General, Department of Justice, Washington, D.C. 20530, by depositing same in the United States mail, postage prepaid or by hand. [dr iis i nti asta: