Brown v. Moore Contingent Motion of Defendants-Appellants for Extraordinary Relief Pending Decision of the Remand; Memorandum in Support of Motion; Affidavit of John Moore; Order

    IN -THE 

UNITED STATES COURT OF APPEALS 

FOR THE ‘FIFTH CIRCUIT 

  

NO. 77-1583 
  

LEILA G. BROWN, et al., 

Plaintiffs—-Appellees 
Cross- -Appellants, 

JOHN L. MOORE, et al., 

ROBERT 1 ILLIAMS, et al., Zu
) 

& 

Defendants—-Appellants 
Cross—-Appellees 

  

On Remand From the Supreme Court 

Of The United States 

  

NDANTS-APPELLANTS 

ELIEF PENDING 

E REMAND 

CONTINGENT MOTION OF DESE 

FOR EXTRAORDINARY Fk 

ECISION OF TH 

+
 

es
 

HE
 

x
 

  

Defendants—-Appellants respectfully move for the entry 

of an order -- contingent upon a determination by this Court 

that such action is necessary to preserve the freedom of 

this Court or the District Court on remand from this Court 

to effect or begin the dismantlement of the district elec- 

toral system created by the District Court's judgment and 

the reinstitution of an-at-large electoral system with this 

year's election -- directing that the primary elections to 

select candidates of the Democratic and Republican parties 

for Mobile County School Commissioner representing District 

5, now scheduled for September 2, 1980, be postponed pending 

 



  

further order of this Court or the District Court. A pro- 

posed form of order is attached 

  

The factual basis for our request is stated in the 

vy do dn wy) 
actcact 1ed affidavit of John L. Moore and the considerations 

that we believe sup; pport the motion are stated in an attached 

memorandum. 

  

oy P| 
oF 
// 

{ 

{ 7 / p 

A i a. # v ) \ A : { ’ if = / L i on \ 
  

WILL¥YAM H. ALLEN 

Covington & Bur: : 
888 Sixteenth Street, N.W. 

Washington,. D.C. 20006 

       

Ni? , 
CAMPBELL} Bh | 

Sintz, Pike, Camphell & Duke 
3763 Professiona¥ Parkway 
Mobile, Alabama 36609 

   

Attorneys for Appellants 

 



  

CERTIFICATE OF SERVICE 
  

I certify that a copy of the foregoing Contingent Motion 

to the United States Court of Appeals for the Fifth Circuit 

has been served by placing the same in the United States 

mail with proper postage prepaid, addressed to all opposing 

Honorable Wade H. McCree, Jr. 

Solicitor General of the United States 

Department of Justice 
Washington, D. C. 20530 

Edward Still, Esquire 
Suite 400 Commerce Center 

2027 First Avenue North 

Birmingham, Alabama 35203 

sreenberg, Esquire 

LC hiaenty Esquire 
lumbus Circle 

New York, New York 10019 

Armand Derfner, Esquire 
Post Office Box 608 

Charleston, South Carolina 29 402 

J. U. Blacksher, Esc 

Larry T. Menefee, E 
P. OO. Box 1051 

Mobile, Alabama 36601 

gu lire 

Su ire 

  

T
I
N
 

  

RT C. bei 1h i}, TTT 

AR) for Appl lants 

 



  

DEFENDANTS~-APPELLANTS' 

EXTRAORDINARY 

UNITED STATES COURT OF APPEALS 

FOR THE FIPTH CIRCUIT 

  

NO. 77-1583 

  

LEILA G. BROWN, et al., 

Plaintiffs-Appellees 
Cross-Appellants, 

JOHN L. MOOI 

ROBERT R. WILLIAMS, et al., 

fendants-Appe e 

ross—Appellees O 

  

1 

Remand From the 

Of The | 

On Supreme Court 
C3 de oy 
States 

3 
(@! A Unite 

  

MEMORANDUM IN SUPPORT OF 
CONTINGENT 

PENDING 

MOTION FOR 

RELIEF DECISION ON REMAND 
  

The 

mitted was 

caution. 

Court act 

assume tha 

deliberate 

parties on 

However , 

Season 

realize. 

motion in 

whatever 

t 

they 

support of which this memorandum is sub- 

by us out of what we hope is abundance of 

Both we and t ve urged that this 

expeditiously on the remand from the Supreme Court 
- 4 

— disposition it makes of the case —-— and we 

th will act as promptly as mature and 

consideration of the arguments offered by the 

the Se remand permit 

days slip by, and especially in the summer 

have a way of slipping by faster than any of us 
i 4 x ond - 

 



  

: 

Alabama's primary elections will be held this year on 

September 2, 1980. As the accompanying affidavit of John 

L. Moore indicates, primary elections in Mobile County this 

vear will include elections to select candidates of the two 

major parties for School Commissioner from District 5. 

As the Court is aware, we have urged that the Court on 

the remand should reverse the judgment of the District Court 

and remand the case to it with instructions to dismantle the 

single-member electoral district system established by its 

judgment and provide for an orderly and expeditious return 

to an at-large electoral system. We recognize that the 

Court may disagree with us that this is the proper disposi=- 

tion of the case. However, even 1f the case were to be 

returned to the District Court for further substantive 

proceedings, one of the possible outcomes of those pro- 

ceedings would be a decision that the court's original 

judgment should be set aside and an at-large electoral 

system re-established. 

We are concerned by the possibility that the problem of 

OO
) dismantling the district electoral system created under the 

District Court's judgment and returning to an at-large elecC- 

toral system may be complicated if, because of the passage 

of time, an election of a single school commissioner from 

District 5 this year becomes a fait accompli as a result of 
  

the holding of the primary elections. If that were to hap- 

pen and if the final judgment on remand were that the at- 

large electoral system should be restored, there would be at 

least room for argument that full restoration would have to 

We realize that, even if the scheduled District 5 elec- 

tion were held, steps, such as a special election, could be 

ordered to effect an expeditious return to an at-large 

system. If the occasion arises, we shall urge such steps. 

The premise of our motion, however, is the belief that this 

 



  

: ! 4 . 

Court (Or the District Court) should be free to act this 

year in the most orderly way to begin and perhaps complete 

the return to at-large elections if the decision on the 

merits 1s that the at-large electoral system should be 

restored. 

Our motion is styled as contingent. The contingency is 

this Court's understanding of whether it or the District 

Court will have completed action on the remand before the 

date for the primary election has arrived and Mobile County 

may have been committed by the mere passage of time to a 

nn
 ingle~-member district election for school commissioner this 

year. 

The order would be addressed to three County officials 

who were named as defendants by the plaintiffs because they 

compose the County's election boards. Though they were not 

active in defense of the suit and did not join in the School 

Commissioners' appeal, they are parties in this Court and F Y E 

subject to this Court's process if for no other reason than 

their being appellees on plaintiffs' cross-appeal. 

Our proposed order would postpone the primary elections 

pending further order of this Court or the District Court. 

If that further order reflected a judgment that one or more 

school commissioners should be elected at-large this year, 

it would of course have to include provisions for allowing 

candidates to qualify and the like. The deadline for 

qualifying for the District 5 primaries is July 3, 1980. 

Our motion is filed before that date. We recognize that the 

Court cannot reasonably be expected to act by that date. 

For that reason, we have not asked for an order extending 

the deadline. We submit, however, that no inequity would 

result from a subsequent enlargement of the deadline as a 

part of an order directing that the school commissioner 

 



Fe é » 

  

election this year not be restricted to Distric 

13 oT od 3 <r “v1 Fm $e Respectfully submitted, 

fC AAA / ik 

  

WILLIAM H. ALLEN 

Covington & Burling 
888 Sixteenth Street, N.W. 

Washington, D.C. 20006 

ROBERT C. CAMPBELL 
Sintz, Pike, Campbg 
3763 Professional” Pa 
Mobile, Alabama 366( 

  

  

Attorneys for Appellants 

 



  

IN THE 

QMPMATRQ 
LA 1 E UNITED NS) 

1 
FOR “THE PIF 

VS. 

JOHN L. MOORE, et al., * 

Defendants * 

ROBERT R. WILLIAMS, et al., 

- 

Defendants—Appellants 

STATE OF ALABAMA) 

COUNTY OF 

AFF1D 

COURT OF APPEALS 

PTH CIRCUIT 

NO. 77-1583 

AVIT 
  

MOORE, being duly 

Judge 

SF I am one of three 

appointing board for election 

election supervisors 

Count The 
| 98 

L. Y LJ 
4 

fd
 

other members are 

of Mobile County. Our 

under the laws of Alabama to 

tions in Mobile County extends 

Democratic and Republican part 

Under Alabama law and 

District for 

case entitled Leila G. 

official 

to certify election res 

a sworn, deposes 

Mobile 
~~ 
3 

Ss who serve the : as 

Officials and as the board of 

xlts for Mobile 

the Circuit Clerk and the 

authority and responsibility 

supervise the conduct of elec- 

to primary elections of the 

ies. 

the judgment of the United 

Southern District of Alabama 

Brown, et al. vs. John L. 
  

Civil al.,   

primary elections of 
iL 

Action No. 75-298-P, entered on January 

the 
Sed d No Democratic and Republican 

 



  

parties to select 

Commissioner from 

wherein it 

declaration of 

before the date of 

as a candidate in 

1980. 

  

My commission 

17 Chapter 16 Section 

states 

candidacy 

  

candidates for Mobile County School 

District 5 will be conducted in accordance 

11 of the Code Alabama 

that candidate: st file their 0) 5 oc 

no later 60 days 

primary. The last day for qualifying 

the primary elections is on or about 

i \ 
{ \ 

{ | A 
1 J / \ | 

a Ii 
i tet <i | 1 /1 A bh a 
§ £1 or) - i \/ | f Fy a a ’ { (2 YY en hee} LW, Nn J J a 

  

  

JOHN L. MOORE 

Pe E.~ 

{ 
| oO / . 

SUBSCRIBED AND SWORN TO before me this LT Bay Of 

980. 

{ A \../ 7) ( 

tL i ! | L CAs ~ A A AN Crd VC 
      

fT NOTARY PUBLIC 

 



  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

LEILA G. BROWN, et al., * 

Plaintiffs—-Appellees * 

JOHN L. MOORE, et al., * Case No. 77-1583 

Defendants * 

Defendants—~Appellants * 
A 

John L. Moore, Probate Judge of Mobile County; Maurice 

W. Castle, Circuit Clerk of Mobile County; and Thomas J. 

Purvis, Sheriff of Mobile County, who together serve as the 

O O Oo
 = pt
 

ting board for election officials and as the board of 

election supervisors for Mobile County and who were named a he
t 

efendants in the proceeding below and as such are parties 

to the appeal and cross-appeal in this Court, are hereby 

ordered, pending further order of this Court or of the 

District Court on remand from this Court, not to proceed 

with the conduct of primary elections to select candidates 

of the Democratic Party and the Republican Party for School 

Commissioner of Mobile County from District 5.