Order Granting Stay
Public Court Documents
April 7, 1977

7 pages
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Case Files, Bolden v. Mobile Hardbacks and Appendices. Order Granting Stay, 1977. 844bc1de-cdcd-ef11-8ee9-6045bddb7cb0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b2014fe8-0b10-45c3-8b16-a4101c7ec828/order-granting-stay. Accessed July 31, 2025.
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILEY 1. BOLDEN. REV. R., L. HOPE, CHARLES JOHNSON, JANET 0. LeFLORE, JOHN L. LeFLORE, CHARLES MAXWELL, OSSIE B. PURIFOY, RAYMOND SCOTT, SHERMAN SMITH, OLLIE LEE TAYLOR, RODNEY O. TURNER, REV. ED WILLIAMS, SYLVESTER WILLIAMS and MRS. F. C. WILSON, Plaintifls, CIVIL ACTION y. No. 75-297-P 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, Defendants. N e So o So No A No N A S e A Nd No Se So So So No SN No N N N A ORDER GRANTING STAY The defendants City of Mobile, et al. (City of Mobile), filed a motion for a stay of this court's order requiring elec- tion of city officials under the mayor-council form of govern- ment in August, 1877. The court, by order and opinion dated October Zi" 1976, and March 9, 1977, granted the relief sought by the plaintiff class, holding that the present three member commission form of city government, as practiced in Mobile, unconstitutionally and invidiously discriminated against black Mobile residents. The only practical relief possible was granted - an affirmative injunction prohibiting further elections under the commission form of government. Elections, at the regular election time, on the third Tuesday in August, 1977, were ordered pursuant to a mayor-council plan adopted by the court fre drs March 99,1977, order. Barring further orders of this or an appellate court, election of a mayor and nine council members would proceed on that date. The City of Mobile has appealed the court's order. Expedited consideration by the Fifth Circuit has resulted in probable June, 1977, oral arguments. Deliberation time by the Fifth Circuit is an unknown factor, but plaintiffs assert expedited consideration would require a maximum of several months (Plaintiffs' Supplemental Brief, filed April 1,.1977, at 3). The City of Mobile petitions this court to issue a stay of its riley requiring a mayor-council election in August, 1977. Primarily, they cite confusion that would be caused by proceeding with a mayor-council election, if this court's mayor-council plan was reversed on appeal. Such a reversal would necessitate a subsequent election under the commission form. The city suggests three alternatives for the court's consideration: 1. unlimited stay of elections with the present commissioners present terms in office being extended by the court, +2. commission elections in August, 1977, 3. mayor-council elections in August, 1977. The plaintiff class members claim as much confusion would be caused by granting a stay and allowing the August, 1977, election to be held under the commission form, with the probability of a later election being held in which a mayor and council members were elected. Plaintiffs suggest two options in addition to the three mentioned by the city: 4. limited stay to allow application of a stay to the Court of Appeals, and 5. delay of elections for a specified period of time. Rule 62(c), FRCP, grants the trial court discretion when determining if a stay should be granted: "When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal pon Such terms . . . as it con- siders proper .. .. . .» ‘Rule 62(c), FRCP. The Fifth Circuit in Belcher v. Birmingham Trust National Bank, 395 F.2d 685 (5th Cir. 1968) adopted Virginia Petroleum Job Ass'n. v. Federal Power Commission, 104 U. S. App. D.C. 106, 259 F.24 921, 925 (1938), which outlined four judicial factors to be considered in determining whether to grant "the extraordinary remedy of stay pending appeal.” Belcher, supra, 395 F.2d at 685. The four Belcher factors provide merely considerations to be balanced when determining the propriety of granting a stay. Long v. Robinson, 432 F.2d 977, 981 (4th Cir. 1970), cited with approval in Beverly v. United States, 463 F.24 732, 741 n.13 (5th Cir. 1972). For the court to follow an iron-clad rule requiring a significant showing by the movant of all four factors would be applying form ovevisdbitonds. One of the four factors is concerned with whether a refusal to grant the stay would result in irreparable injury to the applicant. The city claims the actual election and institution of the mayor-council form of government would create great confusion and disruption if the appellate court reverses. This court agrees. If an August, 1977, mayor-council election were conducted and these officials took office, governmental administration would change significantly. New department heads and subordinates may or may not result under the mayor-council government, but for the mayor and council to institute broad personnel changes, with the possibility of subsequent election under the commission form, would create =3.. substantial confusicn and resulting harm in the operation of the city government, not because some employees and elected officials may be replaced but because of attendant inefficiency caused by a possible two changes in the form of government. See Reeves v. Eaves, 415 F. Supp. 1141 (N.D. Ga. 1976), where substantial court ordered changes in Atlanta's police force could temporarily affect the quality of the police service, with resultant "harm that cannot be undone" if the court order was reversed on appeal. An in- junction was issued to maintain the status quo. Reeves, supra, 415 F. Supp. at 1145, Significantly, the probability of some confusion inherent in the adoption of the mayor-council plan was recog- nized by plaintiffs as reflected in their proposed final in- junction submitted to the court. Pointing to the potential conflict between the court's mayor-council plan (issued March 9, 1977) and local acts of Alabama dealing with the present commission form of government, the plaintiffs re- quested the court to retain jurisdiction for two years for this court to resolve those conflicts. The court, in its March 9,.1977. order, at 3. retained jurisdiction for two years so this court could resolve any conflicts. There would be less confusion if this order is stayed. In the event of a reversal, a second election would not be required and the form of government would not have been changed from commission to mayor-council and back to commission forms of government. In the event of an affirmance, a second election will be required but the city will be re- quired to change only to a mayor-council plan from a commis- sion form of government. A second factor this court should consider is whether a stay of the injunction would result in substantial harm tc the non-movants, black citizens of Mobile. Assuming this court's order is upheld, the only harm to be encountered by plaintiffs is the additional time black Mobilians must reside under existing government, albeit unconstitutional. Affirmance by the appellate courtswould result in the order of mayor-council elections within a reasonably short time thereafter as provided by this stay order. No substantial harm would befall plaintiffs. A third and most important consideration is to determine whether granting a stay is in the public interest. The case is unlike Belcher v. BINB, supra, where only private interests are involved. To the contrary, the public interest is intimately involved. The City of Mobile operates with public funds and events adversely affecting the city adversely gffect its citizens, Expected administrative changes under the mayor- council form of government will, predictably, result in ephemeral confusion. Uncertainty, concomitant with any appeal, of the outcome of this litigation may make qualified persons shy away ‘from running for a position on the mayor-council government. This factor is intertwined with resulting confu- sion in a major change in the form of city government. To subject the citizens of Mobile to these possibilities would be against the interests of all persons, including plaintiffs and defendants. The last factor requires movants to demonstrate a significant likelihood of prevailing on appeal. It is not likely many trial courts would predict reversal of their own decision by the appellate court. It has been pointed out that when the basis of the trial court's decision deals with im- portant legal issues involving novel approaches and uncharted legal doctrine, the requirement of a significant ground for appellate success is relaxed. 7 Moore's Federal Practice Para. 62.05 at 62-25 (1976). The court is firm in its belief that its order granting affirmative relief to the plaintiffs through the implementation of the mayor-council plan follows the letter and spirit of decisional constitutional law and will be affirmed by the appellate courts. The evidence and con- trolling case law makes it clear to this court that the con- clusions of law and remedy are not only legally correct, but follow the letter and spirit of the precepts set forth in the Constitution. The legal basis upon which the Mobile City Commission was found to invidiously discriminate by race is solid. To find an unconstitutional structure of government as practiced without providing a remedy would be to deny justice. The strong mayor-council plan is the best remedy. In the October 21, 1976, Bolden order, Bolden v. City of Mobile, Alabama, 423 F. Supp. 384 (S.D. Ala. 1976), the court recognized the "serious constitutional issues" raised by the decree and that "[r]easonable persons can reasonably differ’ as to the constitutionality of the remedy. Bolden at 404. The court then ex mero motu pursuant to 28 U.S.C. §1292(b) granted the parties the right to an interlocutory appeal of the October 21, 1976, order. Plaintiffs claim that to maintain the status quo and go forward with the August, 1977, commission elections would tend to favor incumbents because few other persons would expend substantial sums on citywide commissioners’ races, with the possibility of being ordered out of office upon a find- ing that the mayor-council plan is valid. However, a consid- eration of all factors convinces the court that preparations for elections, svclnding qualifying for office under the city commission form of government, should go forward to be held as regularly scheduled in August, 1977, with the persons on so elected subject to termination of office in the event this court's order is affirmed. This stay is subject to review and change should the Fifth Circuit Court of Appeals affirm this court within a time prior to the August, 1977, elections for a meaningful campaign to be held under this court's prior order. In any event, if there is a final affirmance by an appellate court, elections shall be ordered to occur within a reasonable time thereafter in accordance with this court's prior orders. It is ORDERED, ADJUDGED, and DECREED that this court's prior orders are stayed subject to the conditions set out and subject to further orders of this court, save and except the injunction entered March 9, 1977, beginning with the last paragraph on page "3" and continuing through page "6 to wit, beginning "The defendants City of Mobile . . .. ®*% % the election of the city council and mayor." The dead- line for the Board of Registrars to accomplish their task is extended from May 1, 1977, to June 1, 1977. .Done, this the LT dey of April, 19717. ‘7 UNITED STATES DISTRICT JUDGE U. 8. DISTRICT COURT S00, DIST. AIA. i. FILED AND ENTERED THIS THE 777% DAY OF APRIL, 1977 MINUTE ENTRY NO. 43284 WILLI . O'CONNOR, CLERK BY - ye Wi / Deputy Clerk