Defendant City of Mobile's Brief in Response to the Amicus Curiae Brief of the United States

    C. B. ARENDALL, JR. 

T. MASSEY BEDSOLE 
THOMAS G. GREAVES, JR. 

VIVIAN G. JOHNSTON, JR. 

PAUL W. BROCK 
ALEX F. LANKFORD, I 
EDMUND R. CANNON 

LYMAN F. HOLLAND, JR. 
J. THOMAS HINES, JR. 

DONALD F. PIERCE 
LOUIS E. BRASWELL 

HAROLD D. PARKMAN 
G. PORTER BROCK, JR. 
STEPHEN G. CRAWFORD 
JERRY A. MCDOWELL 
WwW. RAMSEY MCKINNEY, JR. 

A.CLAY RANKIN, IL 

Mr. 

HAND, Misi BEDSOLE, GREAVES 

LAWYERS 

3000 FIRST NATIONAL BANK BUILDING 

R O. BOX i123 
EDWARD A. HYNDMAN, JR. 
MICHAEL D. KNIGHT 
G. HAMP UZZELLE, Il 
G.L.LEATHERBURY, JR. 
WILLIAM C.TIDWELL,II 
WILLIAM C. ROEDDER, JR. 
EDWARD S. SLEDGE, II 

J. HODGE ALVES, II 

CAINE O'REAR,IL 
RONALD L.DAVIS 

VIVIAN G. JOHNSTON, II 
W. ALEXANDER MOSELEY 
KATHY DUNSTON JONES 

NEIL C.UOHNSTON 
GEORGE M.WALKER 
DAVIS CARR 

MOBILE, ALABAMA 

36601 

(2058) 432-5511 

August 4, 1980 

Gilbert F. Ganacheau, Clerk 
United States Court of Appeals 

For The Fifth Circuit 
600 Camp Street, Room 102 
New Orleans, 

Dear 

Louisiana 70130 

Re: Wiley L. Bolden, et al. wv. 
City of Mobile, et al. 

Case No. 76-4210 
  

Mr. Ganacheau: 

& Bond ~ 

CHAS. C. HAND 

(180-1280) 

TELEX: 505430 

CABLE: HAB 

Attached for filing please find the original and seven 
copies of Defendant City of Mobile's Brief In Response To 
The Amicus Curiae Brief of the United States. 

Very truly yours, 

ORIGINAL 

William C. Tidwell, 

sNED 1 

WILLIAM C. TIDWELL 

Ii 
For The Firm 

WCT .wh 

Enclosures 

CC: J. U. Blacksher, Esquire 
Edward Still, Esquire = 
Jack Greenberg, Esquire «— 
Honorable Wade H. McCree, Jr. 
Drews S. Days, III, Esquire 

 



  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 76-4210 

  

WILEY L. BOLDEN, ET Al., 

Plaintiffs-Appellants, 

versus 

CITY OF MOBILE, ET Al.., 

Defendants-Appellees 

  

On Remand From The United States Supreme Court 

  

DEFENDANT CITY OF MOBILE'S BRIEF IN 

RESPONSE TO THE AMICUS CURIAE BRIEF 
OF THE UNITED STATES 

  

 



® ed » 

  

Most of the arguments raised by the amicus curiae brief 

of the United States have already been addressed by Defendants 

in their original brief. However, an additional argument is 

asserted which has not been previously addressed. 

On page 13, in footnote 6, it is argued that the act es- 

tablishing specific city-wide responsibilities for the three 

city commissioners for the first time, Act 823 (1965 Alabama 

Acts at 1539), locked into the election system the use of at- 

large elections. This, it is argued, affords circumstantial 

evidence of the "possible racial motivation" behind the main- 

tenance of an at-large system. Defendants submit that this 

argument is not persuasive for two reasons. 

First, the evidence surrounding the adoption of this act 

was examined by Judge Pittman, who then stated: 

The commissioners are elected to direct one of 
the following three municipal departments: public 
works and services, public safety, and department 
of finance. 

[Footnote 2 states:] 

When adopted in 1911, Mobile's commission govern- 
ment did not specify that a candidate must choose 
the particular commission position for which he 
was running. Alabama Act No. 823 (1965) at 1539, 

however, inter alia, required candidates to run 
  

for a particular numbered position with specific 
duties. Each commissioner holds that position 
during the four years tenure with the mayorality 
rotating between commissioners every sixteen 
months. 

 



  

423 F.Supp. 384, 386-87, n. 2 (S.D. Ala. 1976). Judge Pitiman 

did not find any evidence of "possible racial motivation" in 

the enactment of Act 823. 

Second, the argument asserted by the United States is 

contrary to the evidence introduced by one of Plaintiffs’ 

leading witnesses, Joe Langan. Mr. Langan was presented by 

Plaintiffs as an expert on Mobile politics and voting patterns, 

having served in both the Alabama House of Representatives and 

the Senate, on the Mobile County Commission, and on the Mobile 

City Commission. 

Mr. Langan testified that he had long sympathized with the 

rights blacks had been seeking. Further, Plaintiffs used the 

testimony of Mr. Langan to establish that racial factors were 

a major issue in his political defeats (Tr. 325), and in fact, 

Judge Pittman found that Mr. Langan's re-election campaign in 

1969 "foundered mainly because of the fact of the backlash 

from the black support and his identification with attempting 

to meet the particularized needs of the black people of the 

city." 423 P.Supp. at 388. An@ ‘Judge Pittman Further found 

that Mr. Langan "was again defeated in an at-large county com- 

mission race in 1972 [wherein] the backlash because of the 

black support substantially contributed to his defeat." Id. 

 



  

Mr. Langan testified that it was his recommendation that 

the duties of the commission be designated. Tr. 329. He 

stated: 

Q. What was the next change [after a change in 
1939] of any substance in the City government's 
operation? 

A. Well, later on, I recommended to the legis- 
lature that they change the method of designation 
of the commission. In other words, even though, 
in my first legislature, I had made them all run 
at the same time, we had them running for post 
one, two and three without any designation of 
duties. I feel that the people should have an 
idea of what job a man was going to do and how 
well he was qualified to do that particular job 
and, therefore, in making an intelligent choice 
by the voter that they should know who they were 
going to vote for and what he was going to do and, 
of course, that was brought out most emphatically 
during my third term in City Hall in that, at that 
time, we had vitally related positions. 

In other words, I was in charge of the public 
works and had the engineer under another Commissioner 
and I couldn't talk to the engineer without talking 
to the Commissioner just to go to talk to the en- 
gineer and there was just a world of departments 
that worked together day by day that were under 
different commissioners and there wasn't any way 
to co-ordinate the efforts. 

I aksed [sic] the legislature to pass legis- 

lation to provide for establishment for the three 
positions, one being a finance commissioner, public 
works and public safety commissioner so that we could 
correlate and bring together the various functions of 
the City government and under one commissioner. 
(emphasis added). 

  

Tr..:329-330. 

 



oh ne 

  

Thus, it is clear that the motivation behind the assign- 

ment of specific duties to commissioners was to promote "good 

government." There was no evidence or any hint of racial 

overtones. Therefore, it is implausible to argue that the 

passage of the act affords circumstantial evidence of "possible 

racial motivation," in light of Mr. Langan's testimony that it 

was he, who had been defeated because of his support by blacks, 

and who had long sympathized with blacks and attempted to help 

them establish their rights, who advocated the changes affected 

by Act 823. 

Respectfully submitted this ¢ YA day of August, 1980. 

  

ding THEW, fou ft 
C. B. ARENDALL, JR. 

Ln Ge Lon? 
WILLIAM C. TIDWELL, 

Post Office Box 123 

Mobile, Alabama 36601 

OF COUNSEL: 

HAND, ARENDALL, BEDSOLE, 
GREAVES & JOHNSTON 

FRED G. COLLINS 

City Attorney, City Hall 
Mobile, Alabama 36602 

LEGAL DEPARTMENT OF THE 
CITY OF MOBILE 

 



  

CHARLES S. RHYNE 

WILLIAM S. RHYNE 

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

RHYNE & RHYNE 

CERTIFICATE OF SERVICE 
  

I certify that I have on this ¢ day of August, 1980, 

served a copy of the foregoing brief on counsel for all par- 

ties to this proceeding by United States mail, properly ad- 

dressed, first class postage prepaid, to: 

J. U. Blacksher, Esquire 

Messers. Blacksher, Menefee & Stein 

Post Office Box 1051 
Mobile, Alabama 36601 

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 

Honorable Wade H. McCree, Jr. 

Solicitor General of the 
United States 

Department of Justice 
Washington, D.C. 20530 

Drews S. Days, III 

Assistant Attorney General 

Department of Justice 
Washington, D.C. 20530 

VO te. <I