Covington v. Edwards Brief of Respondents in Opposition to Petition for Writ of Certiorari

    CRAWFORD, BLACKSHER, FIGURES & BROWN 

ATTORNEYS AT LAW 

1407 DAVIS AVENUE 

MOBILE, ALABAMA 36603 

VERNON Z. CRAWFORD 

JAMES U. BLACKSHER 

MICHAEL A. FIGURES 

W. CLINTON BROWN, JR. 

TELEPHONE 432-1691 

AREA CODE (203) 

GREGORY B. STEIN 

LARRY T. MENEFEE 

December 21, 1976 

Mr. Edward W. Wadsworth, Clerk 
United States Court of Appeals 
Fifth Circuit 
Room 102 - 600 Camp Street 
U.S. Court of Appeals Courthouse 
New Orleans, Louisiana 70130 

Re: City of Mobile, et al. vw. Wiley L. Bolden, “et al. 
Appeal No. 76- 4210 | hit 
  

Dear Mr. Wadsworth: 

Enclosed for filing is the original and three (3) copies of 
appellees' (plaintiffs below) response to suggestion of 
appellants with respect to appellate review of this cause in 
conjunction with Blacks United For wml Leadership, Inc. 
et al, v, City of RRegveRorE, et al., Number 76-3619. 
  

  

Sincerely, 

CRAWFORD, JErACAIARR, FIGURES. & BROWN. 
Lh 

ly U. Blacksher 

JUB:bm 

"Enclosures 

cc: Charles B. Arendall, Esquire 
Charles S. Rhyne, Esquire 
S. R. Sheppard, Esquire 
Neil Dixon, Esquire 
Hilry Huckabv Esquire 
Honorable Virgil Pittman 
Edward Still, Esquire 
Charles Williams, Esquire  



IN THE 
UNITED STATES COURT OF APPEALS 

POR THE 
PIFTH CIRCUIT 

NO. 76-4210 

— 

CITY OF MOBILE, ALABAMA, GARY A. 
GREENOUGH, ROBERT B. DOYLE, JR., and 
LAMBERT C. MIMS, individually and in 
their official capacities as Mobile 
City Commissioners, 

~~ 

Appellants,  - 

VS. od 

WILEY 1..- BOLDEN,"REV. BR. L. HOPE, 
CHARLES JOHNSON, JANET O. LeFLORE, 
JOHN L.-LeFLORE, CHARLES -MAXWELL; 
OSSIE B. PURIFOY, RICHARD SCOTT, 
SHERMAN SMITH, OLLIE LEE TAYLOR, 
RODNEY O. TURNER, REV. ED WILLIAMS, 
SYLVESTER WILLIAMS and MRS. F.>C. 

Appellees. 

Appeal From the United States District Court 
For the Southern District of Alabama 

Southern Division 

APPELLEES' (PLAINTIFFS BELOW) RESPONSE TO 
SUGGESTION OF APPELLANTS WITH RESPECT TO 

APPELLATE REVIEW OF THIS CAUSE IN 
CONJUNCTION WITH BLACKS UNITED FOR LASTING 

LEADERSHIP, INC., ET AL. Vv. CITT OF 
SHREVEPORT, ET ar= NUMBER. 76-3619 

  

  
  

  

Plaintiffs-Appellees respectfully show: 

1. On December 14, 1976, defendants-appellants, 

City of Shreveport, et al., in Appeal No. 76-3619 filed their  



  

; # » 

motion to expedite appeal, their suggestion for consolidation 

with the instant appeal, and their suggestion for en banc 

hearing. 

2. On.or about December 18, 1976, defendants- 

appellants, City of Mobile, et al., filed in the instant appeal 

their suggestion that this appeal and appeal No. 76-3619 ("the 

Shreveport case') be heard on the same day by the Court sitting 

en banc or, alternatively, by the Sane panel of judges. 

3. Appellants-Defendants, City of Mobile, et al. 

have not suggested that the district judge's exhaustive findings 

of fact, upon which he based his conclusion that the current 

at-large system of electing City Commissioners unconstitutionally. 

dilutes the voting strength of black citizens, are clearly 

erroneous. 

4. At the hearing held on December 17, 1976, the 

district judge indicated his desire to interfere as little as 

possible with the legislative prerogatives of the State of 

Alabama and to order a mayor-council form of government only 

as an interim measure in the event the Alabama Legislature 

fails to provide a new, constitutionally sound form of government 

prior to the August 1977 City election. 

5. This appeal presents no novel issues of law. As 

intimated in the suggestion for joint hearing filed by defendants- 

appellants herein, and as will more fully bo apparent when the 

appellants’ brief is filled, the district judge found the at-large 

Ye 

 



election of City Commissioners to be unconstitutional on the 

basis of the principles established in White Vv. Regester, 414 
  

U.S. 755 (1973), and Zimmer v. McKeithen, 485 F.2d 1297 (5th 
  

Cir. 1973)(en banc), aff'd sub nom., East Carroll Parish School 
  

Board v. Marshall, 96°S.Ct. 10833, 1085 (1978) (“but without 
  

approval of the constitutional views expressed by the Court of 

Appeals"). This Court has subsequently reaffirmed the vitality 

of Zimmer v. McKeithen on several occasions. Paige Vv. Gray, 
  

  

F.2d (5th Cir. September 16, 1976); McGill Vv. Gadsden 
  

County Commission, 335 F.2d 277 (5th Cir. 1976); Nevetct v." Sides, 
  

  

533 P.2d 1361 (5th Cir. '1976): ‘:- Consequently, there is no 

occasion for this appeal to be heard en banc. 

6. The plaintiffs-appellees intend at the earliest 

appropriate opportunity to suggest that the instant appeal be 

transferred to the Sutpaty calendar, pursuant to Local Rule 18, 

and that the district court's judgment there be affirmed. 

WHEREFORE, plaintiffs-appellees suggest that the Court 

defer ruling on the motion and suggestion of defendants-appellants 

in the Shreveport case and the suggestion of joint hearing by 

defendants-appellants in the instant appeal pending consideration 

of the motion for summary affirmance which plaintiffs-appellees 

intend to file immediately upon the filing of the brief of 

defendants-appellants. Should this Court then summarily affirm 

the judgment of the district court, the suggestions of an 

expedited appeal, consolidation of appeals and hearing en banc 

will be rendered moot.  



In the event plaintiffs-appellees' motion for summary 

affirmance is denied, “plaintiffs- =2ppel lens will then interposer 
oY On 

no objection to an expedited briefing. schedule and to @:joint, 

hearing of this appeal with Tthe Shreveport case. 

Respectfully submitted this 21st day of December, 1976. 

- 

lL LCD 

CRAWFORD, BLACKSHER, FIGURES .& BROWN 
1407 DAVIS AVENUE 
MOBILE, ALABAMA 36603 Leadin 

| enh rd 
“Tr” BLACRSHER 
\RRY T. MENEFEE 

  

EDWARD-STILL, ESQUIRE 
SUITE 601 - TITLE BUILDING 
2030 THIRD AVENUE, NORTH 
BIRMINGHAM, ALABAMA 33203 

JACK GREENBERG, ESQUIRE 
CHARLES WILLIAMS, ESQUIRE 
SUITE 2030 
10 COLUMBUS CIRCLE 
NEW YORK, N.Y. 10019 

Attorneys for Plaintiffs-Appellees 

 



CERTIFICATE OF SERVICE 

I do hereby certify that on this the 21st day of December, 1976, I served a copy of the foregoing pleading upon counsel of record, Charles B. Arendall, Esquire, Post Office Box 123, Mobile, Alabama 36601, Charles S. Rhyne, Sr., Esquire, 400 Hill Building, Washington, DB. C. 20006 and S. R. Sheppard, City of Mobile, Legal Department, City Hall, Mobile, Alabama 36602, by depositing same in United States Mail, postage prepaid. 

1 further certify that a copy of the foregoing pleading has this day been mailed to counsel for parties in Case No. 76-3619, Neil Dixon, Esquire, 425 Lane Building, Shreveport, Louisiana 71101 and Hilry Huckaby, III., Esquire, Suite Br 2600 Jewella Avenue, Shreveport, Louisiana 71109, by depositing same in United States Mail, postage prepaid. 

I further certify that a copy of the foregoing pleading has this day been HAND DELIVERED to the Honorable Virgil Pittman, United States District Judge, United States District Court, 213 Federal Courthouse, Mobile, Alabama 36602. 
[4 

rr _ : / / gondii. 
JfECeTny Tor Plaintiffs-Appelleces