Brown v. Moore Application for Stay of Elections and Civil Contempt; Order on Plaintiffs' Motion

    IN THE 

SUPREME COURT 

OF THE UNITED STATES 

  

John L. Moore, et al., 

Appellants, 

Y. No. 78-357 

Leila 6G. Brown, et al., 

Appellees. 

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On Appeal From The United States 
Court Of Appeals For The Fifth Circuit 

APPLICATION FOR STAY OF ELECTIONS AND STAY 

OF CIVIL CONTEMPT SANCTIONS PENDING APPEAL 
  

To Mr. Justice Powell, as Circuit Justice: 

Appellant School Commissioners of Mobile County ("School 

Board") hereby apply for a Stay of the elections scheduled for 

November 7, 1978, pursuant to District Court orders (Jurisdictional 

Statement, App. B, pp. 53b-56b, pp. 61b-65b; App. D, PP. sa-7ay 1.1 

and for Stay of civil contempt sanctions ordered by the District 

Court on October 20, 1978, for failure of the School Board to 

"elect" by October 7, 1978 one of two Court-named Commissioners 

to serve as Chairman of the Board, with power to vote only as a 

tie-breaker, as directed by the District Court (attached hereto 

as Exhibit A). 21 

Relief is necessary pending disposition of the appeal on the 

merits in order to preserve the jurisdiction of this Court. 

  

1 / The underlying Orders of the District Court are printed as 

~~ Appendices to the Jurisdictional Statement. 
2/ A like Application has simultaneously been filed in the United 

States Court of Appeals for the Fifth Circuit. 

 



  

STATEMENT 
  

I.ike the case of City of Mobile, Alabama, et al. v. 
        

Bolden, et al., No. 77-1844 (probable jurisdiction noted by 

this Court on October 2, 1978), with which this case was tried 

consecutively to the same District Judge, the instant case 

involves the application of the "amorphous theory" Bf of 

dilution of minority voting strength, here in a challenge by 

black voters to at-large election of the School Board. Black 

voters, a minority of the School Board area's residents, seek 

representation for their race. The Order of the District Court 

from which relief pendente lite is sought was designed solely 

to achieve this desideratum, during the pendency of this appeal, 

in the shortest possible time: the only elections ordered in 

November 1978 are from the only 2 black-majority districts. 

The District Court held Mobile County's at-large electoral system 

unconstitutional, ordered that the County be carved into 5 single- 

member districts, and that Commissioners from the two predominantly 

black districts should be elected in the next regularly scheduled 

elections of November, 1978, 2/ but that election for the 3 

remaining districted seats be deferred. 

The orders of the District Court have to date been complied 

with by the Board and Commissioners in all respects save One: 

the School Board has failed to elect a eunuch Chairman, voteless 

except as a tie-breaker, from among the two present Commissioners 

selected by the District Judge. ° This tie-breaker must have been 

appointed by October 7, 1978 even though the ties among 6 

Commissioners cannot possibly occur until after the November 

1978 election. The Court's order that the School Board so act 

  

3/ Wise v. Lipscomb, Uu.s. 08 8.Ccr. 2493, 2502 (separate 

opinion of Mr. Justice Rehnquist). 

4 / Jurisdictional Statement, App. D., pp. 5d-7d. Appeal was taken 

Te to the U.S. Court of Appeals for the Fifth Circuit, which 

summarily affirmed on June 2, 1978. (No, 77-1583). Appeal was 

taken to this Court on August 18, 1978, and awaits further act 

  

ee o£ ——— TE —————— 

 



  

arises from the complex restructuring of the Board and the manner 

of its election in which the Court engaged, and ‘emphasiies the 

compelling need for a Stay from this Court not only of the civil 

contempt sanctions, DJ but of the Court-ordered elections of two 

Commissioners by single-member district. Such a Stay is indis- 

pensable to preservation of this Court's jurisdiction pending 

appeal. 

ARGUMENT   

The status quo here to be preserved is the 5-member School   

Board elected at-large by all the voters of Mobile County, with 

each Commissioner fully and equally empowered to act on behalf 

_6/ of his constituents. The Court-ordered "remedy" will, unless 

stayed, produce a strange amalgam of at-large and district 

Commissioners, 6 in number, one of whom will serve as Chairman 

deprived of the full voting power which went with the office to 

which he or she was elected. This situation would obtain until 

after the elections to be held in November, 1980 (Jurisdictional 

Statement, App. D, p. 5d). 

The District Court reached this result by the following 

reasoning. Upon determining that the present at-large electoral 

system was unconstitutional, but that the holding of special 

elections to implement’ immediately a 5-member districted plan 

was inadvisable (Jurisdictional Statement, App. B, pp. 50b-51b), 

the District Court determined to phase in single-member districting 

beginning with elections in the two predominantly black districts 

  

5 / The District Court imposed a $500 a day sanction upon the 

NE Commissioners until such time as they vote to install as 

Chairman one of the two Commissioners selected by the Court. 

(Exhibit A, pp. 4-5). 

6 / It is ironic that the District Court below so disrupted the 

Eo workings of the Board pendente lite and ordered contempt 

sanctions pendente lite in an effort to preserve as much of 

this status quo as possible (Jurisdictional Statement, App. B, 

p. 50h). 

  

  

  

3 

 



  

in November, 1978, while allowing all but the one Commissioner 

residing in one of these districts (who would, of course, have 

to stand for election) to serve out his or her term (Id., p. 52D). 

However, election of two new members in 1978 from majority black 

districts, in addition to the four whose terms would not as yet 

have expired, would yield a Board of 6, which the Court felt 

"would lend itself to possible tie votes of three to three." 

(Id.) Thus, the Court concluded, one of the present at-large 

Commissioners must be deprived of his plenary power to vote, 

except where "absence, abstention, or any other reason" produced 

a tie among the remaining 5 full-fledged Commissioners (Id.) 

The Court thereupon ordered the School Board, "on or before 

one month prior to the general election in 1978," fi 74 to elect 

as Chairman with limited voting power one of two present 

Commissioners designated by the Court: 

"The Chairman to be elected is 
either Commissioner Alexander Or 

Commissioner Drago, the two 
members of the present Board with 

the least remaining years of 
service in their elected term." 
(Jurisdictional Statement, App.D, 

Po. 44). : 

On September 27, 1978, the School Board met and addressed 

itself to the election of a Chairman pursuant to the Court's 

order. The vote was taken, and "contrary to the court's order" 
      

three members failed to vote for either Commissioner Alexander 

or Commissioner Drago. (Exhibit A, pp. 2-3, emphasis in original). 

After hearing on October 20, 1978, the District Court held that 

these three School Board members had "contravened this court's 

explicit orders" and held each in civil contempt, imposing a 

  

7 / The Court gave no reason why the Chairman could not be 

er elected by the Board after the 1978 elections, when the 

two Commissioners from the majority black districts had 

been seated and could participate in the selection of the 

Chairman. 

 



  

fine of $500 per day thereafter for failure to comply with the 

Court's orders directing their votes for Chairman of the School 

Board {(I4d., pp. 3-5). 

The District Court's order, and its enforcement through 

civil contempt proceedings, represent flagrantly improper exercises 

of the Federal judiciary's remedial powers, even if one assumes 

arguendo that the Court's basic constitutional holding is sound.   

"[L]local autonomy of school districts is a vital national 

tradition,” Dayton Board of Education v. Brinkman, 433 U.S. 406, 
  

410, a tradition which yields to Federal judical power only to 

the extent necessary to remedy constitutional violations, e.g. 

Pasadena City Board of Education v. Spangler, 427 U.S. 424, 434-   

35. Entirely absent here is the rational nexus between this 

aspect of the Court's order — that the Commissioners vote as 

the District Judge directed to install a eanvioi Chairman of 

limited voting power — and the Court's efforts to assure the 

election of black Commissioners through Thi use of single-member 

districting (Jurisdictional Statement, App. B, Bh 47h) . 

Here, too, as in the cases where a Federal Court might 

become involved in directing State officials in the making of 

discretionary appointments, there are "delicate issues of federal- 

state relationships underlying this case." Mayor of the City of   

Philadelphia v. Educational Equality League, 415 U.S. 605, 615;   
  

James v. Wallace, 533 F.2d 963, 965 (5th Cir. 1976). For the 

District Court to directly order the School Board Commissioners 

not only to strip one Commissioner of his plenary voting powers, 

but to dictate that their votes be cast for either Commissioners 

Alexander or Drago, is to intrude far more deeply into the powers 

and operations of the Board than any remedial need can possibly 

warrant. 

Indeed, a less intrusive, and far more practical remedy 

would have been simply to order in 1978 full elections of all 5 

Commissioners by single-member district, thus giving all the 

County's voters, and not just its black voters, officials with the 

«5 

 



  

allegiance to a particular district's intatents which the District 

Court apparently felt was essential to constitutionally sufficient 

representation. This would have avoided the enlargement of the 

Board from 5 to 6 members from 1978-1980, and the problems 

attendant to creating an amalgam Board of single-member and at- 

large Commissioners during this period. 

The clear excesses of the District Court's orders, and 

their tendency unless stayed to deprive this Court of effective 

jurisdiction over the School Board's pending appeal, militate 

for a stay by this Court not only of the limited element of the 

District Court's orders requiring election of the School Board 

Chairman and enforcing it with civil contempt sanctions, but also 

of the upcoming School Board elections (in two districts only, 

these being the 2 black-majority districts) pursuant to Court 

Order. 

Upon this Court's noting of probable jurisdiction in the 

| City of Mobile case, supra, the November elections of City 
  

Councilmen by single-member district were stayed by the District 

Court in order to avoid the severely disruptive effects which 

would surely occur if elections in 1978 were to be followed by 

reversal in 1979 of the judgment forming the basis for such 

elections. 1 8/ The same need for stay of elections exists not 

only as to the City's councilmanic elections, but as to the 

County's School Board elections. And the lower Court's application 

of "dilution" theory to invalidate the County's at-large electoral 

system is error equally egregious to that this Court will soon 

- 

be reviewing on appeal in the City of Mobile case.   

  

8 / See Jurisdictional Statement of the City of Mobile in No. 

77-1844, App. E, p.3e. 

 



  

CONCLUSION   

For the foregoing reasons, this Court should promptly 

act to Stay elections for the Mobile County School Board 

scheduled for November 7, 1978, and to Stay also the $500 per 

day per Commissioner civil contempt sanctions ordered by the 

District Court on October 20, 1978, for failure of the School 

Board to elect as Chairman now one of the two persons named by 

the Court in the manner directed by the District Court. 

Respectfully submitted, 

an Qe — 
Daniel A. Pike 
Robert Craig AT. IlY 

3763 Professional Parkway 
Mobile, Alabama 36609 

  

Charles S. Rhyne 

William S. Rhyne 
Donald A. Carrx 

Martin W. Matzen 

1000 Connecticut Avenue, N. W. 

Suite 800 
Washington, D. C. 20036 

Attorneys for Appellants 

 



  

CERTIFICATE OF SERVICE 
  

I certify that I have served the foregoing Application 

for Stay of Elections and Stay of Civil Contempt Sanctions 

Pending Appeal in the manner agreed to by Counsel for Appellees, 

J.U. Blacksher, i.e. by hand delivery to Mr. Barry Goldstein, 

NAACP Legal Defense Fund, 733-15th Street, iN W., Washington, D. C. 

20005, and by placing the same in the United States Mail with 

proper postage prepaid, addressed to: 

J. U. Blacksher, Esquire 

Larry T. Menefee, Esquire 

Crawford, Blacksher, Figures 

& Brown 
1407: Davis Avenue 
Mobile, Alabama 36603 

on this 2% day of October, 1978. 
  

Noun S we 
  

William S. Rhyne 

Counsel for aT 

 



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Fe bat 

IN THE UNITED STATES < COURT 
FOR THE SOUTHERN DISTR RICT OF ALABAMA 

SOUTHERN DIVISION 

LZILA G. BROWN, ET AL, = 

PLAINTIFFS, : ) 

VS. Li 3 wl Cathe yaa ERR hi) ko AN EY CIVIL ACTICN : iat 3 id 

JOHN L. MOORE, individually and in ) ... No. 75-298-P oe 
rk, 

Sug § his official capacity as Probate 
Judge of Mobile County; ROBERT R. .:):'% 
Wik LIAMS,: DAN C. ALEXANDER, JR. ow 

    

   

    

    

HOMER L. SESSIONS, individually i 
and in their official capacity rr 
as School Commissioners of © ap 
Mobile “County, Alsbamay. at ali, : rs 

SUTTER ORDER ONC PLAINTIFFS' MOTION TO oon : 
<2 750 SHOW CAUSE WHY SCHOOL BOARD MEMBE 

SHOULD NOT BE HELD IN CONTEMPT 

In its opinion and order of December 9, 19758, in 

fais case, this court ordered the Folicwins steps be ‘£aken: 3 

Evra eden a District 3 to Bava Shot 
_. one other Board member's term must be shortenad 
cor modifified. Proceeding on the premises 
above stated of shortening or modifying member 
terms wno had the Soest remaining time “of service, 

.:.. the choice narrows to Commissioners Alexander sper 
: rn and, Dra 230. in nd Six hes = és TE REE — Wil a : . 3 - 2 et og LRA or 

“Tt Zppear ars more equitable to the court to ae 
modify one commissioner's powers and duties: SRA 
and allow that commissioner to complete his 
term rather than shorten it. For the remain- 
Ing four commissioners, presently in office, 
aguas 1378, to complete their currently elected 
erms with new commissioners to be elected for 

Pioteints 3 and 4 in 1978, would make a Board 
consisting of six members. A six member board 
would lend itself to possible tie votes of three 
to three. The Board could be rendered ineffective 
und2r such conditions. * * * [T]he Board, by a- 
majority vote on or before one month prior to the 
genaral election in 1978, shall elect a Chaiwman 
ocr Prasgiaent (Chairman) of the Board, and 
immediztely report the results of the election 
to this court, to serve to the end of the term 
in 1980 for which that person has been elected. 
Tire Chairman to be elected is to be either Com- 

.milssrlonzy Aléxzander or Commissioner Drago, the 
two MemPzrs of the present Board with the least 
rebalniing vaars of service in their elected 

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EXHIBIT A   “.- 
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Brown v. Moore, 428 F. Supp. 1123, 1145%(S.D. Ala. 1976) 

AfFf'4d, 575 F.2d 298 (5: cic. 1978). "Each member of the Board 

hzd notice of this order. | : 

On Wednesday, September 27, 1973, the Selon Board 

met at 10 AM. for its regular meeting. At that time the Board 

Ral + attempted, but failed, K to elect the chairman. 

The plalnnifis filed a Potion to show cause why 

the defendant members, yi Alexander, Mr "Bosar rge and Mr. Sessions, 

of the School. Board should not be. held in evil contempt of tha “5 

  

ERE orders of this ‘court in its 1976 order. La 

          

    
  

wn 

ber 27, 1978, il     
   

tual vote on _Septent 

casting er
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their votes for certain Board members. The minutes of the meeting 

reveal, "Mr. Bosarge stated he personally is nct going to disagree 

: 1 
with the Judge in settin ng an election date, ,but he Is not goin 

vote for the person whom the Judge mandates. Mr. Sessions, concurrin 

wich Mr. Dosscge, stated his sentiments are the sama," (Plaintiffs? 

Exhibit No. 1, D. 16). From the witness stand in the procz2dings 

on coptenDe in this case, both Mr. Bosarge and Mr. Pegsions a cknow- 

'ledged aot the above- od portion a the minutes ref flects sub- 

stantially what was ‘said by them. “The vote was then taken; contrary   

go. me court's or las. and Mr. Bosarge an Mr. Sessions voted for Mr. 
  

Boszrge for Chairman. Mr. Homer Sessions vas a School Board member 

at the time of this court's decree dated December 9, 1975 and con- 

fod adh 
3-1 0 Mm Lv

 0 ( Tr. Hiram Bosarge is a successor in o 

Board members Mrs. Drazo and Dr. Berger voted for Mr. 

for Cnairz=an in compliance with the court's order. 

LAREN and hogs Ee SESE STARS, 5%  



  

: a re 
Br - 

  

Mr. Alexander chose to abstain from voting. Among 

otner things he made this statement as recorded by the minutes 

4) 

of the meeting "...he could vote for Mrs. Drago and comply with 

the court order, but if he takes this action he would be follcwing 

the dictates of the Judge in voting." (Plaintiffs Exhibit No. 1, 

pp 18-19.) It'is the opinion of this court that Mr. Alexander's 

abstention constituted non- -compliance with this court's explicit of 
. RE 

orders on SYsetion of non-voting chairmas. Tr TEREL 

  

* CONCLUSTONS OF LAW. i + mii ney Sok 
- ae Re x iy . ho oT Tar 8 

Sar S53 AT Sab a 

Circuit announced “In ‘the’ ‘recent decision” 

  

ar 3 on =,     

  

Tn vi SLavart 571 F. 2d 958 Go h iz; 1978): 
Xf: Lge y i . 

  

  

dnd oF oS Fi 

"Civil Contempt: is  eorediols tha ents 
serves to enforce compliance with a court 
ordsr.... *® * * Further, civil contempt Is 
a facet of a principal suit.,..” 

It is the opinion of this court that its directive 

on the election of a non-voting chairman - the voting procedure: 

and the eligible candidates (Drago and Alexander) was unamoigzuous 

1. 

001 Board encdant members of Sch 

and their suc cessors in office of their duties under the decree. 

The actions of Mr. he Mr. Cian: Ae Sessions in the 

September 27 vote on the Board Chairman contravened this court's 

ex»licit orders and this court should hold the named three in civil 

contempt of its orders to enforce compliance with its previous order 

The court has found, after a Bearing with due notice 

that Dan C. Alexander, Jr., Hiram C. Bosarge and Homer L. Sessions, 

shila County School Commissioners, individually and collsctively, 

ava violated an order and judg ment of this court enterad December 

1976, and January 18, 1977, respectively, and neither of thet 

*ave shown good cause why he should not be held in civil contempt, 

is therefore, 

oS pn ry FU a Ws AR ts 
SIN SEA pr LEP 

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ht, J ag A rie Lr rea) Ra 
. ra Aes, Maddie vouly ; : i . : . % . 

A NF ef LF WE 2a FRILY, 4 IRI of 

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OPDERED, ADJUDGED AND DECREED as follows: 

1) That defendant Dan C. 2lexander, Jr. 1s enjoined 

from failing to give notice today, October 20, 1978, to the 

maabers of the School Board that a meeting will be held tomorrow, 

Saturday, October 21, 1978, for the express purpose of electing 

z chairman in compliance with this ccurt's orders; 

2) That each Mobile County School Board member is 

enjoined from failing to athend tommorrow 8s, October 21, 1978, 

  

meeting; | HE 

+3)% That ‘each Mobile County School Board meaber Is 50 

wo a iE MR LE es oa se: '% = SSR ED ps Sy Sint 5 = ‘ : : nah 

enjoined from failing to vote solaly for either Hr. Tan C. ph avs) 

Alexander, Jr. or Mrs. "Ruth F. Drago as chairman of the Mobile 

County School Board in the eledtions 

£4) That the defendant Mobile County School Cortttaelin 

Board is collectively as a Board enjoined from failing to elect 

M>». Dan C. Alexander, Jr. or Mrs. Ruth F. Drago as its chairman;. 

5) That Dan C. Alexanders /0Ratrran of the Mobile 

County School Board (Board) is enjoined from failing to inform 

rhe Court in writing of the Board's and its individual member's 

actions pursuant to this court's order on Monday, Ccicber 23, 

1678 and each Hednosday. Friday and Monday thereafter waril this 

court's orders herein has been complied with. 

Jr. job 
6) That Mr. Dan C. Alexander, /Mr. Hiram C. Bosarge 

and Mr. Homer L. Sessions, individually and as defendant School 

Board Commi ssioners are hereby held in civil contempt of this 

court's orders on the election of the Mobile County School Board 
Jr, : 

Chairman. Mr. Dan C. Alexander, /Mr. Hiram C. Bosarge and Mr. Homer 

,. Sessions, individually and as Mobile County School Commissicners 

 



  

    
    

  

   

  

shall be bien to a fine of FIVE HUNDRED DOLLARS ($500.C0) 

per day for each day after this date, Friday, October 20, 1978, 

if either one fails to obey the orders of this court entered 

December 9, 1975 and January 18, 1977, or fails to day the 

instant order 

This order reiterates and coniirm ms the order of this. 

     

        

court given orally in open court, : 
WR Dr rs FR AS Hex —s 

5) has been adde ed.’ gi Ee 

A copy of ‘this order and the judgment to be entered } 

£ the tobile County School Board - EE = 
5H Lk i - Any frp giv . Foy re ak “ 

Commissioners. ; ; : : 

DONE this the 20th day of October, 1973. Re 

AR a 
ONITED STATES DISTRICT JUDGE 
    
    

  

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