Appellants' Opposition to Motion to Vacate Stay of Election

    IN THE UNITED STATES 

COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

WILEY L. BOLDEN, et al., 

Plaintiff-Appellees, 

Vv. Nos. 76-4210 and 77-2042 

CITY OF MOBILE, et al., 

Defendant-Appellants. 

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APPELLANTS' OPPOSITION TO MOTION 

TO VACATE STAY OF ELECTION 
    
        

  
        

On October 5, 1978 Plaintiffs (Appellees here) filed in both 

the Supreme Court of the United statesy’ and this Court, Motions 

to Vacate an Order staying elections pendente lite issued October 
  

3, 1978 by the District Court (S.D. Ala.) below. 

For the reasons set forth in the attached Memorandum in Op— 

position filed today in the Supreme coare® , Appellants urge this 

court, if it does not defer to Appellees' simultaneous filing in 

the Supreme Court of the United States, to deny the Motion to 

Vacate, and to summarily affirm the October 3, 1978 Order of the 

District Court staying pendente jite elections under its remedial 

  

Order. 

  

1/.. Cliey of Mobile v. Bolden, No. 77-1844, probable jurisdiction 

noted Oct. 2, 1978, to review Nos. 76-4210 and 77-2042 (5th 

Cir.). 

2/ Subscribing counsel has not yet received by mail service a 

= copy of pPlaintiff-Appellees' moving papers in this Court. In 

the interest of time, counsel, informed that Plaintiffs’ 5th 

circuit papers duplicate their Supreme Court papers, files 

in this fashion. 

 



  

Respectfully submitted, 

Lu ol 
€>~3. Arendall, J 
William C. Tidwell, 111 

Travis M. Bedsole, Jr. 

Post Office Box 123 

Mobile, Alabama 36601 

  

Fred G. Collins 

City Attorney 

City Hall 

Mobile, Alabama 36602 

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

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 Appellants' Op- 

position to Motion to Vacate by placing this JO day of October 

1978, the same in the United States mail with proper postage pre- 

paid, addressed to: 

J. U. Blacksher, Esquire 
Larry T. Menefee, Esquire 

Crawford, Blacksher, Figures 

& Brown 
1407 Davis Avenue 
Mobile, Alabama 36603 

Edward Still, Esquire 
601 Title Building 

Birmingham, Alabama 35203 

Jack Greenberg, Esquire 

_ Eric Schnapper, Esquire 

Suite 2030 
10 Columbus Circle 

New York, New York 10019 

Hon. Wade H. McCree, Jr. 

Solicitor General of the 

United States 

Department of Justice 

Washington, D. C. 20530 

Drews S. Days, 11 

Assistant Attorney General 

Brian K. Landsberg 
Walter W. Barnett 
Dennis J. Dimsey 
Miriam R. Eisenstein 

Attorneys 

Department of Justice 
Washington, D. C. 20530 

(ig, S Flys 
    

William S. Rhyne 

Counsel for ropeitante] 

 



CW 

IN THE SUPREME COURT 
OF THE UNITED STATES 

  

  

CITY OF MOBILE, ALABAMA, et al., 

Appellants, 

No. 77-1844 
Vv. 

WILEY L. BOLDEN, et al., 

Appellees. 

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

  

APPELLANTS' OPPOSITION TO 
MOTION TO VACATE ORDER STAYING ELECTIONS 

  

To Mr. Justice Powell, as Circuit Justice: 

STATEMENT 
  

Appellees, in their October 5, 1978 Motion, do not set forth 

the full chronology of the District Court's Order here appealed. -3/ 

On October 2, 1978, this Court noted probable jurisdiction 

to review both the underlying question of constitutionality 2/ and 

  

1 / That Appellees have made no showing of, or even attempt to show, an 
~ abuse of discretion in the issuance, by the District Court below in 

its power to superintend relief in accordance with its opinion of 
unconstitutionality, of the Order here appealed, is treated infra. 

2 / No. 76-4210 (5th Cir.); Order (as affirmed, Juris. St. la-173) 
appealed from, at Juris. St. 1b-47b, lc-3c. 

 



  

the appropriateness of remedy. 2 That day, Plaintiffs (Appellees 

here) sought a hearing with the District Court below to move that 

the May 31, 1978 Order (staying elections if, but only if, review 

was noted by this Court) —4/1e vacated and, necessarily, that a new 

Order be issued that elections be held in November 1978. 

On October 2, 1978, the District Court heard argument from all 

sides on Plaintiffs’ notion. The Motion was denied, and elections again 

were stayed, by Order of October 3, 1978. 2 

This extraordinary appeal and motion of Plaintiff-Appellees, 

then, seeks review of the third Order in this case, following the 

underlying judgment that Mobile's at-large Commission form of govern- 

5/ 
ment is unconstitutional, which stayed elections pendente lite. 

  

ARGUMENT   

Each Order, as of the date of its issuance, constitutes that 

2/ 8/ "intensely local appraisal” of the considerations for and against — 

immediate implementation of a Court-ordered remedial electoral change. 

Each Order reflects an evaluation of the confusion and dislocation of 

  
3/ No. 77-2042 (5th Cir.); Order (as affirmed, Juris. St. la-1l7a) 

™ . appealed from, at Juris. St. 14-634. 
4/ Order (not attached to Plaintiff-Appellees' moving papers here) 

— printed at Juris. St. le-3e. 
5/ Attachment "C" to Plaintiff-Appellees' moving papers here. 

~6/ The three Orders, of the District Court (April 7, 1977 and October 
— 3, 1978) and of the Court of Appeals (June 14, 1977) below are 

Attachments "A," "C" and "B" respectively, to Plaintiff-Appellees’ 

moving papers here. 
7/ White v. Regester, 412 U.S. 755, 769 (1973). 
8/ E.g., Wise v. Lipscomb, U.S. ; "98:8.C¢t, 15, 18-19 (1978) 

  

    
(Mr. Justice Powell as Circuit Justice). 

 



  

a change back to at-large Commission form if the underlying judgment 

of unconstitutionality is reversed, and of the equitable posture of 

the Plaintiff class. 

The possibility of a change back to a= ate elections (with 

the attendant dislocation and harm to all Mobilians, black and white 

alike) is enhanced by this Court's note of probable jurisdiction. 

No abuse of discretion in the District Court's October 3, 1978 Adoniion 

of this view is asserted in the moving papers here. 

The District Court on October 2-3, 1978 perforce evaluated the 

assertions (Motion to Vacate 12, Oct. 5, 1978) of harm to campaigners .—2f 

No abuse of discretion is asserted. It should be noted that the District 

Court's May 31, 1978 Order put all on notice that elections would be 

stayed if this Court noted review. Moreover, under the three Orders 

attached to the moving papers here, no election has been held in Mobile 

since the District Court's October 1976 opinion and judgment of 

unconstitutionality. No abuse of discretion in maintaining the status 

quo pendente lite has been asserted. 
  

Rather, Plaintiff-Appellees assert here that the District Court 

is without jurisdiction to superintend elections pendente lite (Motion 
  

to Vacate 410, Oct. 5, 1978). That is, having submitted themselves 

on October 2 to the District Court's remedial jurisdiction (seeking 

vacation), and having been unsuccessful, Plaintiff-Appellees on October 

5 deny the jurisdiction of the District Court. 

Plaintiffs were correct on October 2. 

  

_9/ No proof of the assertions in {12 is proffered. 

 



  

The mandate of the Court of Appeals 10/ was merely that the 

District Court superintend elections under its remedial plan; no date 

for elections was set by the Court of Appeals. No civeomsoriptionis, 

of the District Court's inherent equitable power to superintend the 

execution of its remedial order was expressed or implied. 

pursuant to mandate, the District Court on May 31, 1978 super- 

intended by setting elections with automatic stay on granting of 

12/ 
review by this Court. No review of this "self-destruct" clause 

was sought, then or now. The October 3, 1978 Order merely republishes 

the stay clause of the May 31, 1978 Order. 3/ 

CONCLUSION 
  

The Plaintiff-Appellees have not shown that the District Court 

abused its discretion in denying on October 3, 1978 the same motion 

they make here. Plaintiff-Appellees' appeal could have been taken 

  

10/7 March 29, 1978, issued April 25,1978: see Juris. St.’ lla. 

11/ Cf., Parnell v. Rapides Parish Sch. Bd., 425 F.Supp. 399, 402-03 

Tos (W.D.La. 1976), recounting actions as follows. In 1974, the 

District Court implemented a single-member district plan; in 

February 1975, the Court of Appeals (5th Circuit) reversed and 

vacated, ordering a return to a multi-member district plan; the 

Court of Appeals enforced its mandate by granting a writ of 

mandamus to order multi-member elections. 

Therefore, the mandate in this case is properly read as 

returning the case to the District Court for exercise of the full 

panoply of equitable remedial power, including the power to stay 

remedial elections pendente lite. 

12/ Jurise St. le~3e, 

  

  

13/ Therefore, Plaintiffs are out of time, both under the Federal Rules 

(Fed. R. App.P. 4(a)) and the Rules of this Court (Rule 51(2)). 

 



  

after May 31, 1978 and any urgency in their case is self-inflicted. 

On the other hand, to order pendente lite a change of government form,   

only to undo the change if the judgments are reversed, would harm all 

Mobilians. This, the District Court below found (April 7, 1977 Order) 

and found again (October 3, 1978 order) .12/ No reason to the contrary 

has been put forth. 

The Motion to Vacate should be denied. 16/ The District Court's 

October 3, 1978 Order staying elections should be given final and 

certain effect by summarily affirming it. 

Respectfully submitted, 

LL ee 
C. B. Arendall, Jr{ 
William C. Tidwell, III 
Travis M. Bedsole, Jr. 

Post Office Box 123 
Mobile, Alabama 36601 

  

Fred G. Collins 
City Attorney 
‘City Hall 
Mobile, Alabama 36602 

Charles S. Rhyne 
William S. Rhyne 
Donald A. Carr 
Martin W. Matzen 

1000 Connecticut Avenue, N. W. 
Suite 800 
Washington, D. C. 20036 

Attorneys for Appellants 

  
14/ Attachment "A" to moving papers here. 
15/ Attachment "C" to moving papers here. 
16/ As a protective filing, Appellees have filed today with the 

Fifth Circuit a Memorandum in Opposition incorporating this 

Memorandum. 

14/ 
a, — 

 



  

CERTIFICATE OF SERVICE 
  

I certify that I have served the foregoing Appellants' Op- 

position to Motion to Vacate by placing this [0 day of October 

1978, the same in the United States mail with proper postage pre- 

paid, addressed to: 

J. U. Blacksher, Esquire 
Larry T. Menefee, Esquire 
Crawford, Blacksher, Figures 

& Brown 

1407 Davis Avenue 

Mobile, Alabama 36603 

Edward Still, Esquire 
601 Title Building 
Birmingham, Alabama 35203 

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

Hon. Wade H. McCree, Jr. 

Solicitor General of the 

United States 

' Department of Justice 
Washington, ‘D. C. 20530 

Drews S. Days, III 

Assistant Attorney General 
Brian K. Lansberg 
Walter W. Barnett 
Dennis J. Dimsey 
Miriam R. Eisenstein 
Attorneys 

Department of Justice 
Washington, D. C. 20530 

IWS. Ph 
  

William S. Rhyne 
Counsel for Me