Motion for Stay of Mandate with Memo in Support of Motion

    ” — ( 21 A 

a HAND, ARENDALL, BEDSOLE, GREAVES 8... CHAS. C. HAND 
SrHomas G. GREAVES, JR. 

OF COUNSEL 
VIVIAN G. JOHNSTON, JR. LAWYERS 
PAUL W. BROCK 

ALEX F, LANKFORD, Il 30TH FLOOR FIRST NATIONAL BANK BUILDING MAILING ADDRESS 
EDMUND R. CANNON PO. BOX I23 
LYMAN F, HOLLAND, JR. 

J. THOMAS HINES, JR. MOBILE, ALABAMA 2260) 

DENALD FLBIEROE AREA CODE 205 432-5511 CABLE SDDS 
LOUIS E. BRASWELL HAB 
HAROLD D. PARKMAN 

G. PORTER BROCK, JR. 
STEPHEN G, CRAWFORD . 

JERRY A, MCDOWELL April 10 r 1978 
W. RAMSEY MCKINNEY, JR. 
A. CLAY RANKIN, IT 
EDWARD A. HYNDMAN, JR. 
MICHAEL D. KNIGHT 
G. HAMP UZZELLE, IT 
G.L.LEATHERBURY, JR. 

WILLIAM C. TIDWELL, II 
WILLIAM C. ROEDDER, JR. 
EDWARD S. SLEDGE, II 
TRAVIS M. BEDSOLE, JR, 
J. HODGE ALVES, IT 
CAINE O'REAR, II 

JAMES B, NEWMAN 
RONALD L.DAVIS 

VIVIAN G. JOHNSTON II 

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

Re: Bolden v. City of Mobile 
Nos. 76-4210, 77-2042 
  

Dear Mr. Greenberg: 

Enclosed is a copy of the Motion For Stay Of Mandate 
and the Memorandum In Support Of Motion For Stay Of Mandate 
that we are filing in the above captioned matter. 

Very truly yours, 

LO oan nll 
William C. Tidwell, III 
For The Firm 

WCT.wh 

Enc. 

 



  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

Nos. 76-4210, 77-2042 

  

WILEY L. BOLDEN, ET AL., 

Plaintiffs-Appellees, 

ver sus 

CITY OF MOBILE, ET AL., 

Defendants-Appellants. 

  

Appeal from the United States District Court 
for the Southern District of Alabama 

  

MOTION FOR STAY OF MANDATE 

  

Appellants City of Mobile, et al., move pursuant 

to Rule 41, F.R.App.P., for this Court to stay issuance of 

the mandate from its decision rendered on March 29, 1978, 

pending application to the Supreme Court for writ of certiorari, 

on the grounds that: 

l. By its decision of March 29, this Court affirmed 

the judgment of the District Court holding unconstitutional the 

 



City's existing commission form of government and at-large 

  

electoral system, and ordering their replacement with a mayor- 

council government elected by single-member cistrict. 

2. This case represents the first of which counsel 

are aware in which this, or any other Court has affirmed an 

order "abolishing the commission government and expounding a 

mayor-council plan." Manuscript op. at 4. So drastic a 

remedy -- the abolition of the form of government maintained ) 

by the City of Mobile for over 67 years -- should not be tle 

mented until the City has had an opportunity for review of the 

complex legal and factual issues here present. 

3. Recognizing the utter disruption that implementation 

of its order would have upon the political processes and govern- 

mental functions of the City if its decision were reversed, the 

District Court stayed its own order pending appeal to this Court. 

Apparently in deference to the "intensely local appraisal" of 

the Court below, and in light of the fact that even Appellees 

urged as appropriate a stay of all elections, this Court "stayed 

the holding of any city elections pending this appeal." Manu- 

script op. at 4. 

4. The same considerations which merited these 

earlier stays are equally valid now, and should move this Court 

to stay issuance of its mandate pending application by the City 

to the Supreme Court for writ of certiorari. Indeed, unless 

mandate is stayed, the formation of a new mayor-council govern- 

ment and the election of nine councilmen each with a single- 

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member district constituency, all pursuant to District Court order, 

will surely have the effect of mooting this case and defeating the 

jurisdiction of the Supreme Court. 

5. As in Wise v. Lipscomb, B.S. 7. 98 S.Ct. 15 
i — 

  

(1977) (Powell, J. as Circuit Justice) staying judgment in 551 

7.24 1043 (5th Cir.1977), the probability that the case will be 

mooted unless stay issues constitutes an irreparable injury which 

warrants a stay. 98 S.Ct. at 19. In Wise, the stay pending 

certiorari operated only to prevent the need for election of a city 

council entirely by single-member districts, where three of the 

eleven existing council members had been elected at-large. Id. at 

16-17. The likelihood of such irreparable injury is clearly far 

greater here, where Mobile's commission form of government is to be 

supplanted entirely unless stay issues. One necessary factor for 

stay of mandate -- irreparable injury -- is clearly satisfied. 

6. The other -- reasonable likelihood that certiorari 

will be granted -- is equally clear. Wise, supra, 98 S.Ct. at 
  

18-19. As this Court knows well, this case involves adjudication 

of constitutional drinoipled which are as complex and difficult 

of application as they are vital to the fabric of our society. 

Only recently has this Court expressly held, as the District Court 

below did not, that proof of invidious racial purpose is an essen- 

tial element of proof in voting dilution cases such as this. Yet 

this Court, like every other, must still cope with the still 

developing legal standards of proof of such intent. And the 

Supreme Court has recently found it necessary to accept numerous 

Sn 

 



  

cases turning upon this important issue. E.g., Village of Arlington: 
  

Heights v. Metropolitan Housing Development Corp., U.S. ’ 
Sn   

97 S.Ct. 555 (1977); United Jewish Organizations of Williamsburgh, 
  

Inc. v. Carey, U.S. r 97 S.Ct. 996 (1977); Austin Independent 
  

  

  

School District v. United States, U.S. 1: 97:.8.Ct. 517 (1976), 
  

vacating 532 R24 380 (5th Cir. 1976) ("Austin II"). 
  

  

7. This case takes on still more importance not only for 

its effect upon "a major city that has adhered to its tradition of 

at-large elections" and commission government since 1911, Wise, 

supra, 98 S.Ct. at 19, but for its probable impact upon every com- 

mission government in a locality with a substantial minority popu- 

lation. This is indeed a case with nationwide implications of just 

the sort which are likely to move the Supreme Court to grant review. 

8. For these reasons, and others developed more fully 

in the accompanying Memorandum, Appellants submit that it is both 

necessary and proper for this Court to stay its mandate pending 

their application for a writ of certiorari. Because this case is 

clearly one which the Supreme Court is likely to accept for consi- 

deration, it is also in the interest of judicial economy for this 

Court to stay its mandate and retain the record for transmission 

to that Court instead of returning the entire matter to the District 

Court. And because of the importance and complexity of the issues 

to be presented to the Supreme Court, Appellants urge that the 

Court's stay allow them the full 90 days permitted by 28 U.S.C. 

$2101 (c) in which to. file their petition. 

ol] 

 



  

WHEREFORE, Appellants City of Mobile, et al., move that 

this Court stay issuance of the mandate from its decision of 

March 29, 1978, for 90 days from said date in order to allow 

Appellants to petition the Supreme Court for writ of certiorari. 

Respectfully submitted, 

  

C.B. Arendall, Jr. 

Williams 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 

 



  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

Nos. 76-4210, 77-2042 

  

WILEY L. BOLDEN, ET AL., 

Plaintiffs-Appellees, 

versus 

CITY OF MOBILE, ET AL., 

Defendants-Appellants. 

  

Appeal from the United States District Court 
for the Southern District of Alabama 

  

MEMORANDUM IN SUPPORT OF MOTION 

FOR STAY OF MANDATE 

  

The judgment in this case will, unless reversed, put 

an end to Mobile's existing commission form of government which 

it has maintained continuously since 1911, when it was adopted 

with racially neutral purposes of promoting good government 

run by officials with both city-wide responsibilities and 

accountability. The City has a clear and overwhelming interest 

in maintaining its chosen form of government unless it is 

repugnant to the Constitution. 

 



  

Stay of this Court's mandate is now sought, and is 

now essential, to protect this vital interest from total loss 

pending the City's application to the Supreme Court for writ 

of certiorari. Unless stay be granted, implementation of the 

District Court's order abolishing Mobile's present government 

and substituting another will moot this case and defeat the 

jurisdiction of the Supreme Court to review the important and 

complex legal issues here present. 

Two factors, both present here, should guide this 

Court's discretion in granting stay of its mandate. Where, 

as here, there is reasonable likelihood that certiorari will 

be granted, and irreparable injury will befall the petitioner 

unless mandate is stayed pending his application for review, 

such a stay should be granted. E.g., Wise v. Lipscomb, _ U.S. _ 
  

98 S.Ct. 15 (1977) (Powell, J. as.Circuit Justice), recalling 
  

mandate and staying judgment in 551 F.2d 1043 (5th Cir. 1977); 
  

and see Annot., 2 A.L.R.¥ed. 657 (1973). 

THE PROBABILITY THAT CERTIORARI 
WILL BE GRANTED IS SUBSTANTIAL 

As in Wise v. Lipscomb, supra, this case involves 
  

the government of a "major city that has adhered to its 

tradition of at-large elections" for over 65 years. 98 S.Ct. at 

19. Indeed, unlike the situation before Justice Powell in 

Wise, the continued existence of Mobile's commission government 

requires the use of such an electoral system. 

- iD iw 

 



  

The basis upon which the City's form of government 

is to be abrogated involved adjudication of constitutional 

principles which are both complex and difficult of application, 

especially so in light of the unique facts of this case. 

For example, the District Court had found that black 

Mobilians were able freely to register, vote, and seek office 

(423 F.Supp. at 387, 399), yet no serious black candidate had 

ever run for the City Commission and carried predominantly black 

wards only to be defeated by racially polarized voting (423 

F.Supp. at 388). Yet the record clearly demonstrated that black 

citizens enjoyed and used real electoral power, with all candi- 

dates actively seeking black votes which in fact constituted the 

"swing vote" in the City's most recent election. Appellants’ 

Brief 8-10. 

To conclude on such facts that black Mobilians are 

"denied access" to the City's political processes is to improperly 

equate the purported difficulty of black voters in electing black 

officials with the existence of a constitutional violation 

  

contrary to the teachings of Whitcomb v. Chavis, 403 U.S. 124, 

149 (1971), Beer v. United States, 425 U.S. 130, 136 n.8 (1975), 
  

and United Jewish Organizations of Williamsburgh v. Carey, 
  

U.8, 4,97 8.Ct., 996, 1010 (1977). Indeed, this case is 

totally unique in its finding of "dilution" where no black candi- 

date viable even with black voters has ever run for election. 

Quite apart from the issue of whether the Court could 

properly hold Mobile's electoral system discriminatory in effect, 

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the further issue is whether any such effect is the result of 

invidious racial purpose. This Court has now correctly held, 

as the District Court did not, that proof of such a purpose is 

an essential element in voting dilution cases such as this. 

Yet the legal standard of proof of such intent applied by the 

Court in this case is in conflict with the principles enunciated 

by the Supreme Court in several recent cases. 

The essence of this Court's holding is that where 

application of the criteria set out in Zimmer v. McKeithen, 
  

485 F.2d 1297 (5th Cir. 1973) (en banc), affirmed sub. nom. 
  

East Carroll Parish School Board v. Marshall, 424 uU.S8. 636 (1976), 
    

indicates a current condition of voting dilution, the maintenance 

of such a system without affirmative corrective action compels 

the inference of purposeful ‘dilution. Manuscript op. at 10-11. 

Yet it is clear that even where minority voters are 

in fact substantially disadvantaged in their ability to elect 

minority candidates by an existing electoral plan in the presence 

of racially polarized voting, no per se constitutional violation 

exists and there arises no constitutional or statutory duty of 

"affirmative action" by the legislature to correct the situation. 

United Jewish Organizations, supra, 97 S.Ct. at 1010; Beer, supra, 
    

425 U.S. at 141 (Voting Rights Act requires only that changes 

not be retrogressive).* Yet this Court's decision in effect 

  

* Indeed, the action of the Alabama legislature in assigning 
specific functions to the City Commissioners, which this Court 
found so "probative" of racial purpose, was clearly a non- 
retrogressive enactment. Act 283 in fact merely codified the 

ra BR 

 



retroactively imposes just such a duty. 

Recent cases also contradict the Court's apparent 

notion that either action or inaction, coupled with awareness 

of racial impact, compels the inference of racial purpose. 

For example, if awareness of racially disproportionate impact 

were equivalent to an invidious intent to accomplish such 

impact, the outcome of Washington v. Davis, 426 U.S. 229 (1976), 
  

where the police department continued to administer its employ- 

ment test despite its awareness that a disproportionate number 

of black applicants failed, 426 U.S. at 252, would necessarily 

have been different. Similarly, in Village of Arlington Heights 
  

v. Metropolitan Housing Development Corp., U.S. + 97 5.Ct. 
  

555 (1977), zoning officials were well aware that existing 

policies had the effect of maintaining the "nearly all white" 

status of the village, and the Court of Appeals had held that 

they "could not simply ignore this problem." 97 S.Ct. at 560. 

Yet the Supreme Court doheld the maintenance of these policies 

for reasons racially neutral, despite their exclusionary effect. 

Id. at 566. 

Where ,as in Mobile, the official policy or action 

  

longstanding practice of the commissioners undertaking of 

specific functions, archetypal of the commission form of 

government. It merely added a functional designation to the 

already numbered place on the Commission for which every candi- 

date had to announce and run. 

BT  



challenged is both facially neutral and serves legitimate 

governmental interests, it is the clear teaching of these cases 

that an invidious racial purpose may not so lightly be inferred. 

Particularly because the legislative action necessary here to 

avoid this Court's condemnation would have required not merely 

redistricting but a complete restructuring of Mobile's existing 

system of government, the evidence here in no way warrants such \ 

an inference. Indeed, the anomalous result here is that the 

City's long history of commission government has become a factor 

used to rationalize its abolition. Manuscript op. at 8. 

In sum,the ultimate outcome of this action is of 

vital importance not only to the City, but to every local govern- 

ment with the need or traditional preference for at-large 

elections. The constitutional issues neko presented are sub- 

stantial and important, and of precisely the nature which 

frequently moves the Supreme Court to grant review. 

MOBILE WILL SUFFER IRREPARABLE 

HARM UNLESS STAY IS GRANTED 

Upon issuance of this Court's mandate, the District 

Court must proceed to implement its order disestablishing 

Mobile's existing form of government and substituting therefor 

a mayor-council form elected by single-member district. From 

this changeover, if it occurs, there is no practicable return. 

Recognizing the utter disruption that implementation 

of its order would have upon the political processes and govern- 

mental functions of the City if its decision were reversed, the 

- 6 -  



District Court stayed its own order pending appeal to this Court. 

Apparently in deference to the "intensely local appraisal” of 

the Court below, and in light of the fact that even Appellees 

urged as appropriate a stay of all elections, this Court "stayed 

the holding of any city elections pending this appeal." Manu- 

script op. at 4, 

The same considerations which merited these earlier 

stays are equally valid now, and stay of this Court's mandate 

is clearly necessary to avoid the mooting of this case and 

consequent defeat of the jurisdiction of the Supreme Court. 

This very sort of irreparable injury was the basis 

of the stay granted by Circuit Justice Powell in Wise v. Lipscomb, 
  

supra, 98 S.Ct. at 19. There, however, the stay pending 

certiorari operated only to prevent the need for election of a 

city council entirely by single-member districts, where three 

of the eleven existing council members had been elected at-large. 

14. at 16-17. The degree of harm is clearly far greater here, 

where Mobile's commission form of government is to be supplanted 

entirely unless stay issues. 

Only by such a stay can the City's right effectively 

to petition for review of the important issues here at stake 

be preserved. 

CONCLUSION 

For the foregoing reasons, this Court should grant 

Appellants' motion and stay issuance of the mandate from its  



  

decision of March 28, 1978, pending application by the City to 

the Supreme Court for writ of certiorari. 

Respectfully submitted, 

  

C. B. Arendall, Jr. 
Williams 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 

 



  

CERTIFICATE OF SERVICE 

I certify that a copy of the foregoing Motion 

for Stay of Mandate and Memorandum in support thereof have 

been served upon opposing counsel of record, and upon Amicus, 

by placing the same properly addressed in the United States 

Mail with adequate postage affixed thereto this day of 

April, 1978. 

  

Attorney for Appellants