Brazier v. Cherry Appellant's Reply Brief

    CRAWFORD, BLACKSHER, FIGURES & BROWN 

ATTORNEYS AT LAW 

  

1407 DAVIS AVENUE 

MOBILE, ALABAMA 36603 

VERNOM Z, CRAWFORD TELEPHONE 432-1831 

JAMES U. BLACKSHER AREA CODE (205) 

MICHAEL A. FIGURES 

W. CLINTON BROWN, JR. 

  
GREGORY B. STEIN 

LARRY T. MENEFEE 

September 29, 1976 

Honorable Virgil Pittman 
United States District Judge 
United States District Court 
Post Office Box 1971 
Mobile, Alabama 36601 

Re: Bolden, et al. v. City of Mobile, et al. 
Civil Action No. 75-297-P 
  

Dear Judge Pittman: 

This is a brief reply to Mr. Arendall's letter of September 27, 
1976, introducing the two recent Fifth Circuit voting rights 
decisions, Paige v. Gray, No. 75-3314 (5th Cir., September 15, 
1976), and Wallace v. House, No. 74-2654 (5th Cir., September 17, 
1976). We agree that, as additional volumes to the growing body 
of law concerning racially discriminatory vote dilution, these 
cases deserve Your Honor's careful attention. We are confident 
that such attention will reveal to you, as it has to us, a 
radically different understanding of the Fifth Circuit's teachings 
than was received by opposing counsel. 

  

  

As we read Paige, it reaffirms plaintiffs' contention that 
Washington v. Davis does not require proof of racial motivation 
in the enactment of the 1911 statute authorizing the at-large 
election of Mobile City Commissioners. Mr. Arendall has 
misconstrued the Fifth Circuit's reference to "unlawful motive 
as applying to at-large dilution cases. To the contrary, Paige 
says "it is likely that the Supreme Court will require 
circumstantial proof of unlawful motive" in gerrymandering cases 
(Gomillion v. Lightfoot, Wright v. Rockefeller, and Whitcomb Vv. 
Chavis) but not in dilution cases (White v. Regester, Zimmer v. 
McReirhen, ete.). 8lip Op. at 5625-76, The opinion, citing 
McGill v. Gadsden County Commission, reaffirms that the Zimmer 

  

  

  
  

  

  

  

standards are still controlling in this Circuit. Slip Op. at 

 



September 29, 1976 
Honorable Virgil Pittman 
Page 2. 

5626 n.4. The inference is clear that in dilution cases the 
Zimmer standards contain all the necessary indicia of 
unconstitutional purpose required by Washington v. Davis. 

  

Indeed, we cannot distinguish the City of Mobile's "smoking gun" 
argument from the contention made unsuccessfully by the defendants 
in Paige that White v. Regester cannot be applied retroactively. 
The language used by the Fifth Circuit in rejecting this argument 
seems directly applicable here: 

  

Prospectivity in the context of an election 

law challenge relates to the current and 

continuing use of the challenged enactment, 
it does not look to the date of enactment 
alone. ... [T]he Supreme Court has 

never indicated that its dilution principles 
should only be used to test recently enacted 
provisions. 

  

Slip Op. at 5626. 

Mr. Arendall's letter further suggests that, with respect to the 
remedy question, although the defendants' generalized argument 
in Wallace v. House did not satisfy the "special circumstances" 
standard, the City of Mobile has proved four other factors that 
are "special." In reply, we would point out that the only 
specific examples contained in Wallace of what is meant by "special 
circumstances’ are those provided by Mahan v. Howell, and Zimmer. 
Mahan is the Supreme Court case that had to deal with census 
figures listing 30,000 naval personnel as living on the pier at 
Norfolk Naval Station. Zimmer suggested that the single-member 
preference might yield "where a district court determines that 
multi-member districts afford minorities a greater opportunity 
for participation in the political process than do single-member 
districts.” Slip Op. at 5666. Of course, neither of these 
circumstances is present in the instant case. The four factors 
cited in Mr. Arendall's letter simply rehash the City's. general 
defense of the present at-large system. In this regard, it is 
appropriate to notice the Fifth Circuit's warning in Wallace 
that, once the district court reaches the remedy stage of the 
litigation, it is not necessary to prove a proposed at-large 
or mixed plan is unconstitutional in order to reject it in favor 

  

  

  

 



September 29, 1976 
Honorable Virgil Pittman 
Page 3. 

of a single-member plan. Slip Op. at 5663. Indeed, the Court 
of Appeals plainly interprets the Supreme Court's instructions 
to mean that, once the present system has been found 
unconstitutional, in formulating a remedy, the district court 
"need pay no heed to the legislative preference for at-large 
districts. Slip Op.. at 5661. 

Plaintiffs respectfully submit that Wallace v. House adds support 
to their position on a constitutionally acceptable remedy rather 
than the City's position. 

  

Best regards. 

Very respectfully, 

CRAWFORD, BLACKSHER, FIGURES & BROWN 
A 77 

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cc: Charles A. Arendall, Esquire 
S. R. Sheppard, Esquire 
James C. Wood, Esquire 
Abram L. Phillips, Esquire 
Charles Williams, Esquire 
Edward Still, Esquire 
Ralph Kennamer, Esquire 
William''J., O'Connor, Clerk