Plaintiffs' Opposition to Defendants' Application for Stay Pending Appeal

    V7 

5 J 

  

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY L. BOLDEN, et al., ) 

Plaintiffs, ) 
CIVIL ACTION 

VS. ) 

NO. 75-297-P 
CITY OF MOBILE, et al., ) 

Defendants. ) 

PLAINTIFFS' OPPOSITION TO DEFENDANTS’ 
APPLICATION FOR STAY PENDING APPEAL 

Plaintiffs Wiley L. Bolden, et al., through their 

undersigned counsel, herein oppose the application for stay 

pending appeal filed by defendants City of Mobile, et al. on 

or about March 18, 1977. Defendants' application urges the 

Court, pending final determination by the Fifth Circuit of 

its pending appeals, to stay the Orders of October 21, 1976, 

and March 9, 1977, and also to stay all elections, even those 

under the present scheme of government. As grounds for their 

opposition, plaintiffs would show as follows: 

The Application for Stay Properly Should 
be Submitted to the Fifth Circuit 
  

  

1. The gravamen of defendants’ application is the contention 

that this Court erred and probably will be reversed because it 

held that Washington v. Davis, 426 U.S. 229 (1976), does not 
  

apply to voter dilution cases and, in any event, did not require 

 



  

judgment for the defendants in the instant case. 

2. But defendants cannot seriously deny that this Court's 

  

  

    

  

are all post-Washington Vv. Davis voter dilution cases from 
  

the Fifth Circuit. They uniformly reject defendants' argument 

herein that Washington v. Davis and its progeny have under- 
  

mined the voter dilution standards of Zimmer Vv. McKeithen, 
  

485 F.2d 1297 (5th Cir. 1973)(en banc), aff'd, East Carroll 
  

Parish School Board v. Marshall, 96 5.Ct. 1033 (1978). This 
  

Court's conclusions of law followed the teaching of Paige Vv.   

Gray, supra, distinguishing racial gerrymandering cases, which 
  

require proof of racial motivation, from voter dilution 

decisions of the Supreme Court and the Fifth Circuit, which 

should be handled by the multifactor test enunciated in 

Zimmer. 538 F.2d at 1110. As this Court noted, 423 F.Supp. at 

395 n.10, Paige v. Gray, states in no uncertain terms that 
  

"{tlhe Zimmer standards ... are still controlling in this 

circuit." "538 F.2d av 1110 n. 4. 

3. In light of the clearly established law in this 

circuit rejecting defendants' argument that Washington Vv. Davis 
  

requires in voter dilution cases proof of racial motivation 

in the enactment of the electoral scheme, it would be in- 

appropriate for this Court to stay its well-reasoned opinion 

and injunction when defendants suggest no other ground on 

which there is a likelihood of reversal by the Fifth Circuit. 
  

Under these circumstances the Fifth Circuit is the appropriate 

court to hear defendants' argument that it should reconsider 

its en banc decision in Zimmer or that Zimmer and the other 

 



  

Fifth Circuit voter dilution cases have been overruled by 

Washington v. Davis. 
  

4. For these controlling reasons, defendants' application 

for stay pending appeal should be denied. Thereafter, there 

is ample time for defendants, if they choose, to press their 

application for stay in the Court of Appeals. 

5. Alternatively, plaintiffs would not object to the 

Court granting a short-term temporary stay of its decrees 

just long enough to provide defendants a reasonable 

opportunity to have their motion for stay considered by the 

Court of Appeals. 

6. Although, in light of the settled law in the Fifth 

Circuit concerning the standards governing voter dilution 

cases the Court need not consider them, plaintiffs will 

hereinafter state their additional grounds for opposing the 

application for stay. 

Other Grounds 
  

7. Defendants have the burden of establishing the 

existence of all four (4) factors for the granting of a 

stay set out in Pitcher v. laird, 4135. F7.24 743, 744 {5h Clix. 
  

1969), and Belcher v. Birmingham Trust National Bank, 395 F.2d 
  

635, 686 (5th Cir. 1968). Defendants have failed to carry 

this burden. 

8. There is no likelihood that the defendants-appellants 

will prevail on the merits of this appeal. As stated ab ove, 

Paige v. Gray, Nevett v. Sides, and McGill v. Gasdsen County 
  

  

Commission, reject the defendants' constitutional theory.   

Nor have defendants alleged in their application there is any 

likelihood this Court will be reversed with respect to its 

 



  

findings of fact. The Fifth Circuit has said it will give 

great deference to the district court's determination of 

the Zimmer factors. See Paige Vv. Gray, supra, 538 F.2d at 
  

gE 

9. By denying the suggestions of defendants herein 

and the defendants-appellants in B.U.L.L. ¥. City of Shreveport 
  

Appeal No. 76-3619, the Fifth Circuit has further indicated 

its disinclination to reconsider the en banc Zimmer opinion. 

  

10. Contrary to defendants' assertion, Village of Arlington 

Heights Vv. Metropolitan Housing Development Corp., 97 S.Ct. 
  

555, 50 L.Ed.2d 450 (1977), does not extend the scope of 

the intent or purpose principles enunciated in Washington Vv. 
  

Davis. If anything, the Supreme Court's discussion of 

Washington v. Davis,and Arlington Heights represents yet 
  

  

another opportunity the Court did not use to extend Washington 
  

v. Davis, to Whitcomb v. Chavis, 403 U.S. 124 (1971), White 
  

  

v. Regester, 412 U.S. 755 (1973), or their progeny. As this 
  

Court noted in its own opinion, reference to these voter 

dilution cases by the Supreme Court is conspicous by its 

absence. 423 F.Supp. at 394-95. Even if, arguendo, Washington 
  

v. Davis were applicable to this case, defendants’ application 
  

does not allege that there is a substantial likelihood of 

reversal with respect to this Court's finding of "a 'current'’ 

condition of dilution of the black vote resulting from 

intentional state legislative inacrion," by which this Court 
  

reconciled its decision with the principles enunciated in 

Washington v. Davis. 423 F.Supp. at 393. 
  

11. Further, defendants' application does not allege 

there is a likelihood this Court will be reversed with 

respect to its ruling that plaintiffs have stated a cause 

of action herein under the Voting Rights Act of 1965, 42 

 



  

U.S.C. §1973. Even if Washington v. Davis were to apply to   

voter dilution cases, and even if the district court erred 

in finding legislative intent to discriminate sufficient to 

satisfy the standards of Washington v. Davis, plaintiffs are 
  

not required to demonstrate discriminatory intent or motivation 

to establish their right to relief under 42 U.S.C. §1973. 

12. Contrary to defendants' assertions the Court should 

not grant the stay requested on grounds that the appeal 

presents ''movel questions.' Certainly the issues on appeal 

in the instant case do not approach the degree of novelty 

presented by the questions adjudicated in Reynolds v. Sims, 
  

377 U.S. 533 (1964), wherein the Supreme Court announced 

for the first time the substantive rule of one-man-one-vote, 

yet refused a petition for stay pending appeal, see 377 U.S. 

at 553; or White v. Regester, 412 U.S. 755 (1973), where the   

Supreme Court affirmed for the first time a finding of voter 

dilution, yet had denied a petition for stay pending appeal, 

405 U.8.: 1201; or Cicy of Richinond v, United States, 95 3.(Ct. 
  

2296 (1975), where, after the Court had denied a stay pending 

appeal, 95 S.Ct. at 2300 n.4, it reversed a lower court 

ruling that a critical annexation to the City of Richmond 

had not unlawfully diluted the voting strength of blacks in 

that city. 

13. Contrary to defendants' assertion that "this Court 

has taken the extraordinary step of proscribing [sic] in 

every detail the government that must be used by the City," 

the Order of March 9, 1977, expressly provides that nothing 

in it ''shall prevent the defendants or Legislature of Alabama 

from changing the powers, duties, responsibilities, or terms 

of office of the city council and mayor, or changing the 

boundaries of wards or districts, or changing the number of 

 



    

wards," provided only that such changes comply with the 

constitutional principals enunciated by the Court. Indeed, 

it is the defendants' refusal to respond to the Court's 

repeated invitations to seek to eliminate the racially 

discriminatory features of the current election system that 

has forced the Court to prescribe an interim form of govern- 

ment. 

14. In ordering a specific form of government to be 

used by the City of Mobile pending affirmative action by 

local politicians and the Legislature, the Court has carefully 

avoided unnecessary interference with established state 

policies. Its mayor-council plan is closely modeled after 

plans prescribed by the Legislature for the other large 

cities in Alabama. Defendants should be estopped from 

attacking the "strong mayor" features of the Court's plan 

when at trial they in part based their defense on the 

1 undesirability of the ''weak mayor" form provided by the general 

Alabama law. 

15. Further, defendants should be estopped from attacking 

the Court's exercise of its equitable powers, given a finding 

of unconstitutional voter dilution, to change the form of 

government from a commission to a mayor-council in order to 

utilize single-member districts. The inappropriateness of 

imposing single-member districts on the commission form of 

government was one of the principal elements of the defendants’ 

defense at the trial of this action. 

16. A court-ordered change from one state-approved form 

of municipal government to another state-approved form of 

municipal government in order to provide a sound constitutional 

remedy is no more radical or novel a judicial act than the 

redrawing of municipal boundaries. The Supreme Court has made 

 



  

: i 

it absolutely clear that a federal district court must 

exercise its equitable powers in this manner whenever it 

finds an unconstitutional abridgement of black citizens voting 

rights. Gomillion Vv. Lightfoot, 364 U.S. 339 (1960). Indeed, 
  

defendants do not suggest in their application for stay that, 

given the finding that the current election system is 

unconstitutional, the Court should have adopted a different 

remedial plan than the one it has approved. 

17. The defendants have not proved or even offered 

evidence in an attempt to prove that the City of Mobile will 

suffer irreparable injury if the requested stay is not granted. 

Indeed, according to newspaper reports the financial expense 

of changing to the form of government and election system 

prescribed by the Court will cost but a fraction of the amounts 

defendants say they plan to spend to attack this Court's 

decision. Plaintiffs demand strict proof of defendants' claim 

of irreparable injury. 

18. Defendants concede the injury that will be done 

plaintiffs and the class of black voters they represent in 

the event the Court grants the requested stay. Defendants 

can only argue that the additional hardship to the plain- 
  

tiff class pales in comparison with the discrimination they 

have suffered for the past sixty-six (66) years. But the 

Supreme Court has instructed the federal courts to weigh 

unconstitutional impairments to fundamental rights of suffrage 

with the highest of priorities. The right to an unimpaired, 

equal vote is "a fundamental political right, because 

preservative of all rights.” Reynolds v. Sims, supra, 377 
  

U.8. at 362, quoting Yick Wo v, Hopkins, 118 U.5. 356, 370. 
  

Plaintiffs' right not to have their voting strength 

unconstitutionally diluted far outweighs any administrative 

 



  

inconvenience or expense the City might incur unnecessarily, 

in the event this Court is reversed. 

19. Defendants concede that the public interest is 

served when its government is elected in a constitutional 

fashion. Their only claim that a stay would serve the public 

interest is based on the erroneous assertion that the majority 

of Mobile's citizens favor the commission form of government 

over the form of government and election system adopted by 

the Court. In the first place, such an argument, even if 

true, is fundamentally unsound: The Constitution of the United 

States, which explicitly assigns a higher value to the 

unimpaired voting rights of a minority than to the will of 

the majority, best expresses the public interest. In any 

event, there is no evidence in the record of this case to 

show that the majority of Mobile citizens favor a city 

commission over a "strong mayor' council form of government. 

WHEREFORE, plaintiffs pray, for all the foregoing 

reasons, that the Court deny defendants application for a 

stay pending determination of an appeal to the Fifth Circuit. 

ALTERNATIVELY, plaintiffs pray that the Court grant only 

a temporary stay of its Orders for the short time necessary 

for defendants to present their petition for a stay to the 

Court of Appeals, if they choose. 

Respectfully submitted this 23rd day of March, 1977. 

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

/ 
S
R
 By: lr 72 " Lr AL 
  

JJ / ~ TBLACKSHER 
TARRY MENEFEE 

 



  

EDWARD STILL, ESQUIRE 
601 TITLE BUILDING 
BIRMINGHAM, ALABAMA 35203 

JACK GREENBERG, ESQUIRE 
ERIC SCHNAPPER, ESQUIRE 
10 COLUMBUS CIRCLE 
NEW YORK, N. Y. 10019 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 
  

I do hereby certify that on this the 23rd day of March, 

1977, I served a copy of the foregoing PLAINTIFFS' OPPOSITION 

TO DEFENDANTS' APPLICATION FOR STAY PENDING APPEAL, upon 

counsel of record, C. A. Arendall, Esquire, Post Office Box 

123, Mobile, Alabama 36601, Fred G. Collins, Esquire, City 

Attorney, City Hall, Mobile, Alabama 36602 and Charles S. 

Rhyne, Esquire, 400 Hill Building, Washington, D. C. 20005, 

by depositing same in United States Mail, postage prepaid 

or by HAND DELIVERY.