Memorandum from Eileen K. McLoughlin to Adisa Douglas-Reese Re: Explanation of Differences in 1984 and 1985 Voter Registration Project Budgets

    IN THE UNITED STATES DISTRICT COURT FOR 
THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY A. BOLDEN, et al., 

Plaintiffs, 

vs. : CIVIL ACTION NO. 75-297-P 

CITY OF MOBILE, ALABAMA, 

et al., 

Defendants. 

DEFENDANT CITY OF MOBILE'S 
RESPONSE TO PLAINTIFFS' PETITION 

FOR A PERMANENT INJUNCTION 
  

I. INTRODUCTION 
  

Defendant City of Mobile responds to Plaintiffs’ 

Petition for a Permanent Injunction as follows: 

: fF The Order and Opinion entered by the court on April 

15, 1982, is not final within the meaning of 28 U.S.C. § 1291. 

2. This court acted properly in withholding remedial 

relief pending legislative action. 

0 Plaintiffs present no legal authority that supports 

the entry of a permanent injunction; Plaintiffs' petition must 

therefore be denied. 

Il. DISCUSSION 
  

Any action by this court with respect to Plaintiffs' Petition 

for a Permanent Injunction is immediately appealable to the 

Eleventh Circuit Court of Appeals pursuant to 28 U.S.C. § 1292(a) 

(1). Plaintiffs have advised the court that such an appeal will 

be effected if the requested injunctive relief is denied. There- 

fore, a lengthy discussion of whether the court has entered an 

otherwise appealable order is unnecessary. As discussed in 

Defendants' previous brief, there is presently no order from 

which plaintiffs may appeal. 

 



  

Plaintiffs’ reliance upon the Supreme Court's decision 

in Gunn v. University Committee to End the War in Viet Nam™ is 
  

misplaced. The Gunn opinion does not address the question 

of finality and is wholly inapplicable to the instant “acts. 

Plaintiffs accusingly maintain that the Fifth Circuit 

to take notice" of Gunn when it rendered its decision in Garza 
  

aD ; : 
Vv. Smith. Defendant concedes that there is no reference to 
  

Gunn in the Garza opinion. Indeed, any such reference would 

be inappropriate because the cases are substantively and 

procecdurally dissimilar. In Gunn defendants appealed directly 

to the Supreme Court pursuant to 28 U.S.C. § 1253; the Court 

dismissed the appeal for want of jurisdiction because "there 

was no order of any kind either granting or denying an injunction 

4 : ; 
iy The Gunn district court had -- interlocutory or permanent. 

concluded that defendants were "entitled" to injunctive relief, 

: cosy 5 ; 
but the "rather discursive per curiam opinion"~ failed to enter 

such an order. The Supreme Court characterized the district 

court's opinion in the following manner: 

The complaint in this case asked for 
an injunction "[r]estraining the 
appropriate Defendants, their agents, 
servants, employees and attorneys and 
all others acting in concert with them 
from the enforcement, operation or 
execution of Article 474." 1Is that 
the "injunctive relief" to which the 
District Court thought the appellees 
were "entitled"? If not, what less was 

  

399 U.S. 383 (1970). 

2 450 F.2d 790 (5th Cir. 1971). 

3 28 U:S:C: § 1253 provides in pertinent part that ' 'any 
party may appeal frofit an order granting or denying . . . 
an interlocutory or permanent injunction . . . heard and 
determined by & district court of three judges." 

4 399 y.5. at 387: 
5 

I4. 

 



  

to be enjoined, or what more? And against 
whom was the injunction to run? Did the 
District Court intend to enjoin enforcement 
of all the provisions of the statute? Or 
did the court intend to hold the statute 
unconstitutional only as applied to speech, 

including so-called symbolic speech? Or 
was the court confining its attention tc 

that part of the statute that prohibits 
the use, in certain places and under 
certain conditions, of "loud and vociferous 
. « « language"? The answers to these 
guestions simply cannot be divined with 

any degree of assurance from the per curiam 

opinion. 

Plaintiffs, referring to Gunn, maintain as follows in 

their Memorandum of Law: 

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 1ts own 
remedy. . . . This is because "until a 
district court issues an injunction, it 
is simply not possible to know with any . 
certainty what the court has decided. . . ." 

The first statement is simply wrong. The Gunn Court held only 

that a district court must actually enter or deny an injunction 

before a section 1253 appeal is available. Similarly, Plaintiffs’ 

prefatory use of "This is because" in the second statement destroys 

the intended meaning of the quoted language. In fact, the Gunn 

court observed as follows: 

One of the basic reasons for the 
limit in" 28 u,5.C. § 1253 upon our 
power of review is that 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 =-- 
a state of affairs that is conspicuously 

evident here. 

  

Thus, Gunn has nothing to do with whether in some circumstances 

a court should defer remedial relief pending possible 

corrective action by the legislature. 

  

® 14. at 388. 

7 Plaintiffs' Memorandum of Law at 2 {citation to Gunn 

anitted). 

8 
399 U.S. at 388 (emphasis added). 

 



  

Plaintiffs' mischaracterization of the Gunn holding 

reflects the general tenor of their Memorandum.’ This 

court's qualified deferral to possible corrective action 

by the Alabama legislature is proper. In the Supreme l_.urt's 

consideration of Bolden Justice Blackmun concluded that 

plaintiffs had proved purposeful discrimination, but concurred’ 

with the plurality's reversal of the case. Justice Blackmun 

voted for reversal because this court's previous remedial relief 

"was not commensurate with the sound exercise of judicial 

10 
discretion.” Furthermore, this court's action is entirely 

r proper under the Supreme Court's 1978 decision in 

Wise v. Lipscomb, which provides in pertinent part as follows: 
  

The Court has repeatedly held 
that redistricting and reapportioning 
legislative bodies is a legislative task 
which the federal courts should make every 

effort not to pre-empt. . . When a federal 
court declares an existing apportionment 
scheme unconstitutional, it is therefore, 
appropriate, whenever practicable, to afford 
a reasonable opportunity for the legislature 
to meet constitutional requirements by adopting 
a substitute measure rather than for the 
federal court to devise and order into effect 
its own plan. The new legislative plan, if 
forthcoming, will then be the governing law 
unless it, too, is challenged and found to 
violate the Constitution. "[A] State's 
freedom of choice to devise substitutes 
for an apportionment plan found uncon- 
stitutional, either as a whole or in part, 

  

? Plaintiffs state at pages 3 and 4 of their Memorandum that 
the Fifth Circuit "directly implie{d] disapproval" of Garza when 
it "refused" to follow Garza in United States v. Mississippi Power 
& Light Co., 638 F.2d 899 (5th Cir. 1981). In fact, the Fifth 
Circuit distinguished Mississippi Power fram Garza because of the 
former's unusual procedural history. The Mississippi Power court 
noted that "[o]Jur review of these orders does not raise the 

usual problems attending piecemeal review because it can be 
labeled 'piecemeal' only in a distorted sense of the word.” 
Id. at 903. Contrary to the court's actions in Garza, the 
Mississippi Power district court had fully decided every issue. 
Rather than formally issuing the injunction, the Mississippi 
Power district court had relied upon the declaratory force of its 

on and the good faith of the parties to enforce the decree. 
fth Circuit observed that " [t]he orders would be undeniably 

ii. 1f the court had either granted or denied the injunctive 
relief asked for. . . instead of retaining jurisdiction to 
issue injunctions later if needed." Id. In contrast, the district 
court here has not "fully decided every issue" since the issue of 
the appropriate remedy remains open. 

10 city of Mobile v. Bolden, 446 U.S. 55, 80 (1980). 

  

  

  

  

  

  

  

 



  

should not be restricte 
commands of the Equal P 

a
d
 

Certainly, at least as much deference 1s owed to corrective 

legislative action providing for a form of government as for the 

redrawing of legislative district lines. 

III. CONCLUSION 
  

Despite Plaintiffs' efforts to maintain otherwise, this 

court has not entered a final order. Similarly, Plaintiffs 

cannot seriously maintain that the court's adherence to Wise 

is improper. It is clear that Plaintiffs are frustrated that 

this court did not dismantle Mobile's existing form of government 

in the Order and Opinion of April 32. This frustration 

does not warrant the entry of ‘an immediate permanent injunction 

contrary to the teachings of Belden and Wise. 

Plaintiff's motion must be denied. 

0, Go Dtontl 
ARENDALL ’ 

W ai C. in dy y 111 
RAYFORD L. ETHERTON, JR. 

  

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have served, on this {9 day 

of Vhoae , , 1982, a copy of the foregoing pleading   

on counsel of record for all parties to this proceeding by 

depositing same in the United States mail, properly addressed 

and first-class postage, prepaid. 

  

  

11 
437 U.S. 535, 539-40 (1978).