Supplemental Memorandum in Support of Motion of Defendants-Appellants for Leave to File Brief

    HE 
* ® 

IN THE 

  

UNITED STATES COURT OF APPEALS 

FOR THE PIFTH CIRCUIT 

  

No. 76-4210 

  

WILLEY I. BOLDEN, ET AL., * 

Plaintiffs-Appellees, % 

Vs. | vi 

CITY OF MOBILE, ET AL., * 

Defendants-Appellants. * 

  

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAM 

  

SUPPLEMENTAL ‘MEMORANDUM IN SUPPORT OF 
MOTION OF DEFENDANTS-APPELLANTS FOR LEAVE 
TO FILE BRIEF EXCEEDING FIFTY (50) PAGES 
  

On April 6, 1977, counsel for Defendants-Appellants was noti- 

fied by the printer that Defendant oAppel lante" brief would exceed 

both the typewritten manuscript and the page limitations of Rule 

28(9), F.R.A.P. Counsel thereupon hurriedly filed a motion for 

leave to file a brief exceeding those limitations. 

This is a case of enormous public importance. The District 

City Commission form of government under which Mobile has operated 

for sixty-six (66) years. The District Court's Orders would command 

Mobile to switch to a mayor-council form of government which has 

twice been proposed in referenda and twice rejected by City voters.       
 



  

N tebe 
The District Court itself acknowledged the far-reaching con- 

sequences of its decision, stating: 

"...The Court recognizes that the order- 
ing of the change of the city form of govern- 
ment has raised serious constitutional issues. 
Reasonable persons can reasonably differ...." 
423 F.Supp. at 404. 

Indeed, on April 7, 1977, the District Court granted a stay 

of its Orders and Judgment (stay of April 7, 1977, attached) pend- 

ing the appeal which this Court has ordered (on February 14, 1977) 

be expedited. This most recent action of the District Court lends 

additional emphasis to the significance of the case, and of the 

 ngorbance of full expos ieion of the issues raised by this case. 

Pefendints-Apelldnte urge that the complex and important 

issues involved here necessitate consideration of the full analysis 

which is presented in thaly Brief, and urge the Court to grant 

their motion for leave to file that Brief in excess of the page 

limitations of Rule 28(q), F.R.A.P. The unavoidable circumstances 

through which the page limitation has been exooeded are set forth 

in Defendants-Appellants' motion, filed on April 6, 1977. 

Respectfully submitted, 

      
 



  

OF COUNSEL: 

Hand, Arendall, Bedsole, 
Greaves & Johnston 

P.O. Box 123: 
Mobile, Alabama 36601 

Legal Department of the 
City of Mobile 

Mobile, Alabama 36602   
iIRhyne & Rhyne 

1400 Hill Building 

i Bul: Washington, 20006 

Dated: 1977 Bpril 12, 

    

By: 
1 

i 

C.B, Arendall, Jr. 
William C. Tidwell, 111 

Travis M. Bedsole, Jr. 
P.O. Box 123 
Mobile, ‘Alabama 36601 

Fred G. Collins, City Attorney 
City Hall 
lobile, Alabama 36602 

Charles S. Rhyne 
William S. Rhyne 
Donald A. Carr 

Martin W. Matzen 
400 Hill Building 
Washington, D.C. 20006 

'§ 
. 7) L/ 

0 y Et a ( 
YL TIER AY hori NTT YY A) 
  

Attorneys for Defendants-Appellants 

  

 



b | | 

CERTIFICATE OF SERVICE 
  

  

I do hereby certify that I have on this 12th day of April, 

1977, served a copy of the foregoing SUPPLEMENTAL MEMORANDUM IN 

SUPPORT OF MOTION OF DEFENDANTS-APPELLANTS FOR LEAVE TO FILE BRIEF 

EXCEEDING FIFTY (50) PAGES, on counsel for all parties to this pro- 

ceeding, by mailing the same by United States mail, properly 

addressed, and first class postage prepaid. 

Vd 

/ 7 4 } EW 
¢ j 

hy J ry ; 74 5 Fy 0 0. MIA, 
# { Xf X / ¥ 4” ¥ Nery 

» \ [ +, 
  

Charles S. Rhyne & 
Attorney for Defendants-Appellants 

      
 



  

IN THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION . 

WILEY I. BOLDEN, REV. BR. 1. 
HOPE, CHARLES JOHNSON, JANET 
0. LeFLORE, JOHN L. LeFLORE, 
CHARLES MAXWELL, OSSIE B. 
PURIFOY, RAYMOND SCOTT, 
SHERMAN SMITH, OLLIE LEE TAYLOR, 
RODNEY O. TURNER, REV. ED WILLIAMS, 
SYLVESTER WILLIAMS and MRS. F. C. 
WILSON, 

Plaintiffs, 
CIVIL ACTION 

Y. 
No. 75-297-P 

CITY OF MOBILE, ALABAMA: GARY 
A. GREENOUGH, ROBERT B. DOYLE, JR., 

and LAMBERT C. MIMS, individually 

and in their official capacities 
as Mobile City Commissioners, 

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Defendants. 

ORDER GRANTING STAY 
  

The defendants City of Mobile, et al. (City of Mobile), 

filed a motion for a stay of this court's order requiring elec- 

tion of City officials under the mayor-council form of govern- 

ment in August, 1977. 

The court, by order and opinion dated October 21, 

1976, and March 9, 1977, granted the relief sought by the 

plaintiff class, holding that the present three member commission 

form of city government, as practiced in Mobile, unconstitutionally 

and invidiously discriminated against black Mobile residents. 

The only practical relief possible was granted - an affirmative 

injunction prohibiting further elections under the commission 

form of government. Elections, at the regular election time, 

on the third Tuesday in August, 1977, were ordered pursuant to 

a mayor-council plan adopted by the court in its March 9, 1977, 

order. Barring further orders of this or an appellate court, 

election of a mayor and .nine council members would proceed on 

 



  

that date. 

The City of Mobile has appealed the court's order. 

Expedited consideration by the Fifth Circuit has resulted 

in probable June, 1977, oral arguments. Deliberation time 

by the Fifth Circuit is an unknown factor, but plaintiffs 

assert expedited consideration would require a maximum of 

several months (Plaintiffs' Supplemental Brief, filed 

April 1, 1977. at 3). 

The City of Mobile petitions this court to issue a 

stay of its order requiring a mayor-council election in 

August, 1977. Primarily, they cite confusion that would be 

caused by proceeding with a mayor-council election, if this 

court's mayor-council plan was reversed on appeal. Such a 

reversal would necessitate a subsequent election under the 

commission form. The city suggests three alternatives for 

the court's consideration: 

1. unlimited stay of elections with the present 

commissioners present eg office being extended by the 

court, 

2. commission elections in August, 1977, 

3. mayor-council elections a August, 1877. 

The plaintiff class members claim as much confusion 

would be caused by granting a stay and allowing the August, 

1977, election to be held under the commission form, with the 

probability of a later election being held in which a mayor 

and council members were elected. Plaintiffs suggest two 

options in addition to the three mentioned by the city: 

4. limited stay to allow application of a stay to 

the Court of Appeals, and 

5. delay of elections for a specified period of 

time. 

Rule 62(c), FRCP, grants the trial court discretion 

 



  

when determining if a stay should be granted: 

"When an appeal is taken from an 
interlocutory or final judgment 
granting, dissolving, or denying 
an injunction, the court in its 
discretion may suspend, modify, 
Yestore, or grant an injunction 
during the pendency of the appeal 
upon such terms . ., . as it con- 
siders proper ..... . ." Rule 62(c), 
FRCP. 

The Fifth Circuit in Belcher v, Birmingham Trust   

National Bank, 395 F.2d 685 (5th Cir. 1968) adopted Virginia     

Petroleum Job Ass'n. v. Federal Power Commission, 104 U. S,   
  

App. D.C. 106, 259 F.2d 921. 825 (1958), which outlined four 

judicial factors to be considered in determining whether to 

grant "the extraordinary remedy of stay pending appeal." 

Belcher, supra, 395 F.24 at 635. The four Belcher factors     

provide merely considerations to be balanced when determining 

  the propriety of granting a stay. Long v. Robinson, 432 F.2d 

977, 981 (4th Cir. 1970), cited with approval in Beverly v.   

United States, 468 ¥.24 732, 741 n.13 (5th Cir. 1972). Tor   

the court to follow an iron-clad rule requiring a significant 

showing by the movant of all four factors would be applying 

form ger substance. 

One of the four factors is concerned with whether a 

refusal to grant the stay would result in irreparable injury 

to the applicant. The city claims the actual election and 

institution of the mayor-council form of government would 

create great confusion and disruption if the appellate court 

reverses. This court agrees. If an August, 1977, mayor-council 

election were conducted and these officials took office, 

governmental administration would change significantly. New 

department heads and subordinates may or may not result under 

the mayor -council government, but for the mayor @and council to 

institute broad personnel changes, with the possibility of 

subsequent election under the commission form, would create 

3 

 



  

substantial confusion and resulting harm in the operation 

of the city government, not because some employees and 

elected officials may be replaced but because of attendant 

inefficiency caused by a possible two changes in the form 

of government. See Reeves v. Eaves, 415 F. Supp. 1141 

(N.D. Ga. 1976), where substantial court ordered changes in 

Atlanta's police force could temporarily affect the quality 

of the police service, with resultant Yharm that cannot be 

undone" if the court order was reversed on appeal. An in- 

junction was issued to walatals the status quo. Reeves, supra, 

415 P,: Supp. at 1145, 

Significantly, the probability of some confusion 

inherent in the adoption of the mayor-council plan was recog- 

nized by plaintiffs as reflected in their proposed final in- 

junction submitted to the court. Pointing to the potential 

conflict between the court's mayor -council plan (issued 

March 9, 1977) and local acts of Alabama denting with the 

present commission form of government, the plaintiffs re- 

quested the court to retain jurisdiction for two years for 

this court to resolve those conflicts. The court, in its 

March 9. 1977, order, at 3, retained jurisdiction for two 

years so this court could venolve any. conflicts. 

There would be less confusion if this order is 

stayed. In the event of a reversal, a second election would 

not be required and the form of government would not have 

been changed from commission to mayor -council and back to 

commission forms of government. In the event of an affirmance, 

a second election will be required but the city will be re- 

quired to change only to a mayor -council plan from a commis- 

sion form of government. 

A second factor this court should consider is 

whether a stay of the injunction would result in substantial 

oti 

 



  

harm to the non-movants, black citizens of Mobile. Assumin 

this court's order is upheld, the only harm to be encountered 

by plaintiffs is the additional time black Mobilians must 

reside under existing government, albeit unconstitutional. 

Affirmance by the appellate courtswould result in the order 

of mayor-council elections within a reasonably short time 

thereafter as provided by this stay order. No substantial 

harm would befall plaintiffs. 

A third and most important consideration is to 

determine whether granting a stay is in the public interest. 

The case is unlike Belcher v. BINB, supra, where only private   

Interests are involved, To the contrary, the public interest 

is intimately tvnived, The City of Mobile operates with 

public funds and events adversely affecting the city adversely 

affect its citizens. 

Expected administrative changes under the mayor- 

council form of government will, predictably, result in 

ephemeral confusion. Uncertainty, concomitant with any appeal, 

of the outcome of this litigation may make qualified persons 

shy away. from running for a position on the mayor-council 

government. This factor is intertwined with resulting confu- 

sion in a major change in the form of city government. To 

subject the citizens of Mobile to these possibilities would 

be against the interests of all persons, including plaintiffs 

and defendants. 

The last factor requires movants to demonstrate a 

significant likelihood of prevailing on appeal. 1t is not 

likely many trial courts would predict reversal of their own 

decision by the appellate court. It has been pointed out that 

when the basis of the trial court's decision deals with im- 

portant legal issues involving novel approaches and uncharted 

legal doctrine, the requirement of a significant ground for 

 



  

appellate success is relaxed. 7 Moore's Federal Practice 
  

Para. 62.05 at 62-25 (1976). 

The court is firm in its belief that its order 

granting affirmative relief to the plaintiffs through the 

implementation of the mayor-council plan follows the letter 

and spirit of dedtutonnl constitutional law and will be 

affirmed by the appellate courts. The evidence and con- 

trolling case law makes it clear to this court that the con- 

clusions of law and remedy are not only legally correct, 

but follow the letter and spirit of the precepts set forth 

in the Constitution. The legal basis upon which the Mobile 

City Commission was found to invidiously discriminate by race 

is solid. To find an unconstitutional structure of government 

as practiced without providing a remedy would be to deny 
  

justice. The strong mayor-council plan is the best remedy. 

In the October 21, 1976, Bolden order, Bolden v. City of Mobile, 
  

Alabama, 423 F. Supp. 384 (5.D. Ala. 1976), the court recognized 

the "serious constitutional issues' raised by the decree and 
% 

that '"[r]easonable persons can reasonably differ" as to the 

constitutionality of the remedy. Bolden at 404. The court 

then ex mero motu pursuant to 23 U.S.C. §1292(b) granted the 
  

parties the right to an interlocutory appeal of the October 21, 

1976, order. 

Plaintiffs claim that to maintain the status quo 

and go forward with the August, 1977, commission elections 

would tend to favor incumbents because few other persons would 

expend substantial sums on citywide commissioners' races, 

with the possibility of being ordered out of office upon a find- 

ing that the mayor-council plan is valid. However, a consid- 

eration of all factors convinces the court that preparations 

for elections, including qualifying for office under the 

city commission form of government, should go forward to be 

held as regularly scheduled in August, 1977, with the persons 

0 

 



  

4 

so elected subject to termination of office in the event this 

court's order is affirmed. This stay is subject to review 

and change should the Fifth Circuit Court of Appeals affirm 

this court within a time prior to the Sundet 1977, elections 

for a meaningful campaign to be held under this court's prior 

order. In any event, if there is a final affirmance by an 

appellate court, elections shall be ordered to occur within 

a reasonable time thereafter in accordance with this court's 

prior orders. 

It is ORDERED, ADJUDGED, and DECREED that this 

court's prior orders are stayed subject to the conditions set 

out and subject to further orders of this court, save and 

except the injunction entered March 9, 1977, beginning with 

the last paragraph on page "3" and continuing through page "6 

1 to wit, beginning "The defendants City of Mobile . . . = % % 

. . . the election of the city council and mayor." The dead- 

line for the Board of Registrars to accomplish their task is 

extended from May 1, 1977, to June l, 1977. 
flr 

Done, this the Tas day of April, 1977. 

     
  

fF 

114 ar t. Fl — en 

Al 

UNITED STATES DISTRICT JUDGE 

1. 8. DISTRICT COURT 
SOU. DIST. AlA. 
FILED AND ENTERED THIS THE 
778 "DAY OF APRIL, 1977 

MINUTE ENTRY NO. ifordale   
WILLIAM. O'CONNOR CLERK 

BY ZT mrad, 

/Deputy Clerk