Plaintiffs' Memorandum in Opposition to Motion for Stay of Mandate with Cover Letter

    Cable Address 

Edward Still “VOTELAW” 

aiiorney at law 601 Title Building 
Birmingham, AL 35203 

13 April 1978 205/322-1694 

Edward W. Wadsworth 

Clerk, US Court of Appeals 
600 Camp Street 
New Orleans, LA 70130 

IBF: BOLDEN v. CITY OF MOBILE 

NO. 76-4210 and 77-2042 

Dear Mr. Wadsworth: 

Enclosed are the original and three copies of the 
Plaintiff-Appellees' Memorandum in Opposition to Stay of the 
Mandate. I would appreciate your bringing this Motion and 
our opposition to it to the attention of the panel as quickly 
as possible because of the importance of the issue. 

Sincerely, 

oy / 
f/ 

/ 
Edward Still 

ES/g9j 
Encl. 

CC: J." UU, Blacksher 

C. A. Arendall 

Charles Rhyne 
Fred Collins 

 



IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 76-4210 

NO. 77-2042 

WILEY L. BOLDEN, et al, 

PLAINTIFFS-APPELLEES 

VS. 

CITY OF MOBILE, et al, 

DEFENDANT-APPELLANTS 

MEMORANDUM IN OPPOSITION TO MOTION 

FOR STAY OF MANDATE 

Delay Favors the Incumbents 
  

A stay of the mandate is not necessary to allow the 

City Commissioners to seek a writ of certiorari before the 

special election for a city council that will be ordered by 

the Digtrict Court. In fact, the stay will serve only the 

interests of the City Commissioners, and not the interests 

of the white or black citizens of Mobile. 

A brief review of the origin of the present stay is 

helpful in understanding the Commissioner's request for a 

further stay. After the District Court entered its order 

requiring the city of Mobile to reorganize its government 

into a mayor-council form, the City Commissioners appealed 

and asked for a stay of the injunction. The District Court 

entered a stay of its injunction under F.R.Civ.P. 62{(c). 

The practical effect of this stay was to allow a regularly 

scheduled at-large city commission election to occur in 
  

August 1977. The Plaintiffs-Appellees moved this Court to  



dissolve the District Court stay so that a city council 

election would be held in August under the District Court 

order or, in the alternative, to stay all elections pending 

a resolution of the appeal 1/. The Court chose the latter 

alternative and the City Commissioners, whose terms would 

have ended on the first Monday in October 1977, have been 

continued in office for 6 months beyond their normal terms 

by this Court's order. 

If the Commission takes the full 90 days 2/ allowed to 

seek certiorari (and they indicate they will, Motion for 

Stay of Mandate at 4), their petition for writ of certiorari 

will not be filed until 28 June. Even ignoring the time 

necessary for the Plaintiffs-Appellees to respond to the 

petition, the Supreme Court will have no time to consider 

the petition because it generally ceases to hold conferences 

on cases in mid-June. The petition would be held until the 

October Term began and the stay granted by this Court would 

remain in effect. FRAP 41. 

  

l/s he considerations which led this Court to grant 
the stay of all elections no longer exist. Between the time 
of the District Court opinion (22 Oct. 1976) and the order 

staying elections (13 June 1977), Village of Arlington Heights v. 
Metropolitan Housing Development Corp, 429 US 252 (1977), 
United Jewish Organizations v. Carey, 430 US 144 (1977), and 
Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.) (en 
banc), cert. denied 98 S.Ct. 512 (1977), had been decided. 
This court could rightly feel that it should review the 
complex facts and law of this case in light of these intervening 
decisions. The City Commissioners can point to no such 
intervening decisions now which cast doubt on the validity 
of this Court's decision. 

  

  

  

  

2/: FRAP 41(b) provides: "The stay [of the mandate] 
shall not exceed 30 days unless the period is extended for 
cause shown." No such cause has been shown.  



  

Thus a stay of 90 days will assure the Commissioners of 

tenure unitl January 1979, even if they are denied the writ 

of certiorari 3/. 

On the other hand, the denial of the stay will encourage 

the City Commissioners to file their petition with dispatch. 

The Commissioners could submit their petition by the end of 

April, the plaintiffs could reply by mid-May, and the Supreme 

Court could consider the petition in late May or early June. 

This would still be sufficient time to stay the election if 

the Supreme Court felt it was warranted. Plaintiffs—-Appellees 

will suggest to the District Court that the election be held 

on 5 September (the date of the primaries) to avoid the 

expense of a special election. If the District Court 

chooses that date, qualifications for mayor and council 

positions would be open from 15 June till 25 July. 

The City Commissioners are trying to delay the inevitable. 

Their interest thus conflicts with that of the City's residents 

who are being denied their state statutory right to elect a 

city government every four years. The black residents have 

an even stronger interest in expeditious elections because 

they have been denied access to the political process for so 

long. 

  

3/: If the Supreme Court denied certiorari on 2 October 
(the first Monday), an election could not be held for 82 days 
at a minimum, under the procedure established by the District 
Court order. This would put the election two days before 
Christmas, 1978. This does not take into account the delay caused 
by a motion for reconsideration in the Supreme Court. 

 



  

Mootness and Irreparable Harm 
  

The City Commissioners allege that the case will become 

moot if an election of the new city council is held. Motion 

For Stay of Mandate at 2-3. In numerous cases, this Court 

and the Supreme Court have set aside elections improperly 

held, e.g. Hadnott v. Amos, 394 US 358 (1969); City of Phoenix 
  

  

Vv. Kolodziejski, 399 US 204 (1970); Hamer v. Campbell, 358 
  

  

F.24 215 {5th Cir. 1966), cert. denied 385 US 851 (1966); 

Bell v. Southwell, 376 F.24 659 (5th Cir. 1967). Even if 
  

they chose to do so, the newly-elected City Council could 

not moot the lawsuit. There are four defendants: the City, 

and its three commissioners sued "individually and in their 

official capacities," Appendix at 1. The The individual 

defendants continue to confuse themselves with "the City." 

This "don't-moot-our-suit" argument is a variation on 

the theme of continuing the Commissioners in office. Suppose 

this Court had not granted a stay of election or had dissolved 

the District Court stay and the whole City Commission campaign 

had revolved around whether to continue to spend money on 

the appeal. Could the incumbents have sought an injunction 

to prevent the election because the election of at least two 

commissioners who wanted to drop the appeal would "moot the 

suit"? If the City Commissioners are so sure they embody 

"the City," why are they afraid that a democraticly chosen 

City Council will not likewise effect the will of the people 

(as expressed in September 1978) 7? 

 



  

A decision by a City Council to drop the appeal on 

behalf of the City of Mobile would leave the three Commissioners 

in the same position as the plaintiffs: without public 

funds to pursue the appeal. The prospect of a lack of 

monetary support from the public purse has not deterred at 

least one of the Commissioners from vowing his desire to 

continue the appeal 4/. 

The sole basis for the Commissioners' contention that 

an irreparable harm will befall the City of Mobile is Justice 

Powell's stay order in Wise v. Lipscomb, 98 S.Ct. 15 (1977).   

We submit that Justice's Powell's concern in Wise was not so 

much the irreparable harm to Dallas but what he perceived as 

a clear violation of Supreme Court precedents. 98 S.Ct. at 

17-18. 

The usual test applied by a Supreme Court Justice when 

considering an application for a stay is a two-part one: 

the likelihood of four Justices granting certiorari (or 

agreeing to hear the appeal) and the irreparable harm that 

can be done absent a stay. In cases in which the opinion 

below 1s not perceived in such sharp discord with Supreme Court 

precendents, elections following reapportionment have not 

taken on such an "irreparable" character. 

  

4/: In response to the question whether he would 
continue the appeal if he were not in office, Lambert Mims, 
one of the Mobile City Commissioners, answered that "his 
convictions would be the same. In or out of office Mims 
said he would still feel U.S. Judge Virgil Pittman's decree 
was unconstitutional because the judge assumed legislative 
responsibility." Mobile Register, 12 April 1978, page 1, 
section B. 

  

 



In Mahan v. Howell, 404 US 1201 (1971) (Black, Acting 
  

Circuit Justice), Justice Black held, 

The case is difficult; the facts are complicated; the 
four district judges [on two three-judge courts] deciding 
the case had no difficulty in reaching their conclucion 
on the constitutional questions or in devising a plan 

to correct the deficiencies found; the delay incident 
to review might further postpone important elections to 
be held in the State of Virginia should the stay be 

granted. 

In Graves v. Barnes, 405 US 1201 (1972) (Powell, Circuit Judge), 
  

Justice Powell first decided that review was unlikely 5/, and 

then never mentioned the "irreparable harm" of legislative 

elections. In fact, there is more danger of irreparable change 

when reapportioning a state legislature than a city government. 

A court-reapportioned legislature can repeal the old law under 

which their predecessors were apportioned and thus grant the 

plaintiffs the victory they sought even if the Supreme Court 

reverses. See, e.g., Sims v. Frink, 208 F.Supp. 431 (MD Ala. 
  

1962) (three-judge court), aff'd sub nom Reynolds v. Sims, 377 
  

US 533 (1964), in which the District Court was interested in 

breaking the strangle-hold of the small counties by its order 

so that the legislature could reapportion itslef. The City 

Council of Mobile could do no more than propose a referendum to 

the voters to select or reject a commission form of government.   

  

5/: Of course, he was wrong. White v. Regester, 412 
Us 755 (1973). 

   



It could not call a referendum on the adoption of a different 

  

form of mayor-council government because there is no statute 

allowing such a referendum 6/. Thus there is no chance that 

the new city council could moot the lawsuit by adopting an 

ordinance. 

The Commissioners' Rehashed Arguments 
  

The facts and the law have been explicated in briefs, 

reply briefs, supplemental briefs, and amicus briefs, not to 

mention the arguments and briefs of the parties in the 

companion cases. Despite the thorough opinion of the District 

Court and the detailed examination of the facts by this 

Court and the quartet of opinions outlining the law, the 

City Commissioners seek to replow the same ground. Their 

Motion for Stay of Mandate and the supporting Memorandum 

offer the same arguments the Court found "unpersuasive." 

Bolden, ms. 1. 

The Commissioners contend that blacks enjoy a 

vote in city elections -- and cite their own brief as authority. 

Memorandum at. 3. Yet the District Court found that blacks' 

success at electing favorable white candidates was precarious 

because too-obvious black support would cause a white backlash. 

Appendix 39. 

Next the Commissioners accuse the Court of equating the 

"difficulty of black voters in electing black officials with 

  

6/: There is no statute allowing the mayor-councel 
form to be adopted. Instead, all cities start out with 
mayor-council form, Ala. Code, §11-43-40 (1975), and may 

adopt a commission form. The only way to "adopt" the mayor- 
council form is to "abandon" the commission form, Ala. Code, 

§§ 11-44-150 et seq (1975), which means that the City must 

have a commission form at the time of the referendum. 

  

  

6 

 



I 

  

the existence of a constitution violation," Memorandum at 3, 

when this Court actually held, "Although the failure of 

black candidates because of polarized voting is not sufficient 

to invalidate a plan, *** jt is an indication of lack of 

access to the political processes." Bolden, ms. 6. The 

Commissioners continue the tactic they used in their first 

briefs: to take each componet of proof and announce it is 

insufficient and ignore the "aggregate." 

The Commissioners attack the Court's requirement of 

intent -- not because the Court did not require proof of 

intent but because the Court did not require proof of initial 

intent. This is the same "immaculate conception" argument 

they made in their brief and that the Court rejected. 

Bolden, ms. 11-13. 

The Commissioners state "the District Court below did 

not [hold] that proof of invidious racial purpose is an 

essential element of proof in voting dilution cases," Motion 

at 3. This Court noted in its opinion that it was affirming 

the District Court's finding of intent in the maintenance of 

the racially discriminatory form of city government. Bolden, 

ns. 12. 

At base, the Commissioners are really arguing that the 

City of Mobile's system of government is immune from constitutional 

attack because the Court's order "would have required not 

merely redistricting but a complete restructing of Mobile's 

existing system of government," Memorandum at 6. The 

Commissioners emphasize the change in the form of government 

 



  

that will take place and forget the oft-gquoted dictum, "The 

[Fifteenth] Amendment nullifies sophisticated as well as 

simple-minded modes of discrimination," Lane v. Wilson, 307 
  

US 268 (1939), which is equally applicable to the Fourteenth 

Amendment. The Court has already considered and rejected 

this argument. Bolden, ms. 13-14. 

Every factual and legal argument the Commissioners make 

in their Motion has been made to, and rejected by, this 

Court. 

Likelihood of Certiorari 
  

The City Commissioners argue that the Supreme Court is 

likely to grant a writ of certiorari because (a) this Court 

and the District Court were wrong about the facts; (b) this 

Court and the District Court were wrong on the law of proof 

Of intent; and (c) this is an important case involving 

"every local government with the need or traditional preference 

for at-large elections," Memorandum in Support of Motion for 

Stay of Mandate at 6. If the doom of the commission form is 

  

sealed by Bolden, why did this Court remand BULL v. Shreveport? 

The position of the City Commissioners seems to be that 

the Supreme Court will grant certiorari because "the Supreme 

Court has recently found it necessary to accept numerous 

cases turning upon this important issue [intent] ," Motion 

for Stay of Mandate at 3-4. Just because the Supreme Court 

has previously heard or remanded cases in which intent was 

not considered by the courts below that is no sign that the 

Supreme Court will grant certiorari to hear a case in 

 



which proof of intent was required by this Court. The mere 

  

invocation of Washington v. Davis, 426 US 229 (1976), has 
  

not moved the Supreme Court to grant certiorari in the 

following cases in which the Court of Appeals had utilized 

an intent standard to test the sufficiency of the evidence: 

NAACP v. Lansing Board of Education, 559 F.2d 1042 (6th Cir. 
  

1977), cert. denied 98 S.Ct. 631 (1977); United States v. School 
  

District Of Omaha, 541 F.28 708 (8th Cir. 1976), vac. and 
  

remanded 97 S.Ct. 2905 (1977), reconsidered 565 F.2d 127 

(8th Cir. 1977), cert. denied 46 USLW 3526 (21 Feb. 1978); 

Kirksey v. Board of Supervisors, 554 F.2d 139 (5th Cir.), 
  

cert. denied 98 S.Ct. 512 (1977); and Harkless v. Sweeney 
  

Independent School District, 554 F.24 1353 (5th Cir.), cert. 
  

denied 98 S.Ct. 508 (1977). 

Washington v. Davis is not the "open sesame" to the 
  

doors of the Supreme Court. We submit that the Supreme 

Court 1s not likely to grant certiorari to review this 

Court's holding in this case. 

As noted above, the City Commissioners are arguing that 

the Court below or this Court made incorrect factual findings. 

The Supreme Court is not going to "grant a certiorai to 

review evidence and discuss specific facts," United States v. 
  

Johnston, 268 US 220, 227 (1925), especially "to review 
  

concurrent findings of fact by two courts below in the 

absence of a very obvious and exceptional showing of error." 

Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 US 
  

271,:275 (1949). 

 



  

Conclusion 
  

The best way for this Court to insure that the City 

Commissioners are expeditious in submitting their petition 

for certiorari is to deny the Stay of the Mandate. There is 

ample time for both sides to brief the questions involved in 

the certiorari petition before the Supreme Court recesses. 

Then if certiorari is denied, single-member district elections 

can be held in September. On the other hand, if a stay is 

granted, the Commissioners will have no incentive to expedite 

their petition, the Supreme Court will not be able to consider 

the petition before October, and the incumbent, unconstitutionally- 

elected officials will be retained in office until next 

year. 

Alternatively, 1f the Court decides to grant a stay, 

plaintiffs urge it be limited to 30 days with no extensions. 

ray 24 4 

Sr AW = a 

  

EDWA RD STILL 

601 Title Building 
Birmingham, AL 35203 

J. U. Blacksher 

Larry Menefee 
1407 Davis Avenue 

Mobile, AL 36603 

Jack Greenberg 
Eric Schnapper 
Suite 2030 
10 Columbus Circle 
New York, NY 10019 

10 

 



CERTIFICATE OF SERVICE 

  

  

I, the undersigned attorney, do hereby certify that, 
prior to or immediately after filing the foregoing with the 

Court, I mailed or delivered a copy to the following: 

Charles A. Arendall, William C. Tidwell, III, Travis M. 
Bedsole, Jr., P. 0. Box 123, Mobile, AL 36602, 

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

Martin W. Matzen, Suite 800, 1000 Connecticut Avenue, 
NW, Washington, DC 20036, Fred Collins, City Attorney, 

City Hall, Mobile, AL 36602. 2 

DATE: / 3 Apnid [57% AY 
7 OF COUNSEL 
    

11