Application for Stay and Recall of Mandate Pending Certiorari

    IN THE SUPREME COURT 

OF THE UNITED STATES 

October Term 1977 

  

  

CITY OF MOBILE, ALABAMA, et al.,   Petitioners, 

Vv. No. A- 
  

WILEY L. BOLDEN, et al., (Nos. 76-4210 and 77-2042, 
Beh Cir.) 

Respondents. 

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Pending Petition for Writ of Certiorari to the United 

States Court of Appeals for the Fifth Circuit 

  
  

APPLICATION FOR STAY AND RECALL OF 
MANDATE PENDING CERTIORARI 
  

  

  

To MR. JUSTICE POWELL as Circuit Justice: 

Petitioners, City of Mobile, et al., ‘apply, pursuant to 28 

} U.S.C. §2101(f) and Rules 27 and 50-51 of the Rules of this Court, 

| for an Order staying the Order of the 5th Circuit of March 29, 

1978 and recalling the Mandate, transmitted April 24, 1978 by the 

5th Circuit to the United States District Court for the Southern   District of Alabama. This Order of Stay and Recall is necessary 

| to preserve the effective jurisdiction of this Court on certiorari 

and to prevent irreparable harm pending final disposition of this 

case. 

The irreparable harm is similar in nature to — and greater 

in degree than — the harm found sufficient to justify a Stay and   
Recall in Wise v. Lipscomb, U.S. 1208 :S Ct, 15 (3977) 

  

(Powell, J., as Circuit Justice). The harm, and the likelihood 

of certiorari being granted, are set forth more particularly 

in the attached Memorandum of Points and Authorities in support 

| of this Application. 

| The United States District Court for the Southern District 

of Alabama on October 21 and 22, 1976, found the Commission form 

of government operating in Mobile since 1911 to impermissibly       
 



  
  

  

| pp. 109-110), set budget procedures (J. App., pp. 120-130) and 

  

procedure for runoff elections (J. App. pp. 98-100), the compen- 

118), the time of Council meetings (J. App. pp. 106-108), the 

provided in detail the duties and supervision of City officials 

who were not even to be elected, such as the Finance Director 

districts. But the Commissioners' executive duties (Each Commis- 

dilute the votes of black Mobilians and ordered elections to 

Mayor and Councilmen from 9 single-member districts to be held 

August 1977. 423 F. Supp. 384, 404 (5.D. Ala. 1976). The Court 

recognized the reasonable debatability of the constitutional 

necessity of ordering a change in the City's form of government, 

423 F. Supp. at 384, and encouraged expeditious appeal. Id. 

The District Court on March 9, 1977 issued an order imple- 

menting in detail the change the Mayor-Council government (5th Cir} 

J APPer DD. 52-145) This Order established the power, duties 

and terms of office of the Mayor and Councilmen; the Court retain- 

ed jurisdiction for 6 years (J. App., P. 94). The Court: drew the 

district lines (J. App., pp. 96-97), established the time and 

sation of election Councilmen and Mayor (J. App. pp. 101-105, 113-1} 

power and limitations in the Council to grant franchises (J. App..,} 

{J. ApP., Dp. 130-138). 

The scope of the implementing Order could not have been other: 

wise. For this was not merely a change from electing councilmen aj 

large to electing them from several, smaller districts. This was 

a Court-ordered change from Commission to strong-Mayor form of 

government; Commissioners could not be elected from single-member 

sioner heads a department: Public Works and Services, Public 

Safety, and Finance, see 423 F. Supp. at 386) had to be fit into a 

Mayor-Council scheme. 

  

1/ For the convenience of the Court, copies of the October 1976 
= and March 9, 1977 Orders of the District Court (as printed 

in the Joint Appendix before the 5th Circuit), as well as the 
Stay Orders of April 7, 1977 {(8.D. Ala.) and June 14, 1977 
(5th Cir.), the 5th Circuit's opinion and Order on the merits 
(slip op. 3408, with companion cases at slip op. 3373, 3419 
and 3431, not here involved) and the Order of the 5th Circuit 
denying stay of mandate (April 24, 1978) are attached.   
 



  

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The District Court on April 7, 1977 stayed its Order of 

October 1976 and implementation Order of March 9, 1977. The 

Court cited the confusion and irreparable harm if its Order of 

Mayor-Council elections was reversed after elections had been held 

(Order, pp. 2-3). Two changes in the form of government (first 

to Mayor-Council, then back to Commission upon possible vacation 

i of the District Court's implementing Order on appeal), with the 

| attendant changes in appointed officials and operations (as pro- 

vided in the District Court's detailed impelementation Order) were 

seen as inefficient and threatening the very delivery of vital 

government services. (Order, p. 4). The District Court expressly 

balanced the speculative harm to black Mobilians of continuing, 

pending appellate review, under a government elected under an 

at-large system found by that Court to be unconstitutional. On 

balance, the equities were in favor of staying implementation of 

the Order changing to a districted Mayor-Council system (Order, 

p. 5) pendente lite. 
  

The District Court's analysis is as correct now as it was on 

April 7, 1977. The District Court expressed no doubt about the 

correctness of its findings and conclusions; but it was sufficient} 

to merit a Stay that the points were reasonably debatable. (Order, 

P. 6). 

At oral argument, the 5th Circuit expanded the District 

| Court's Stay by staying all elections pendente lite. (Order,   

June 14, 1977). The case was argued June 13, 1977 and decided 

March 29, 1978. No modification of the District Court's or Court 

' of Appeals' stays was sought by Plaintiffs. 

This Court of Appeals' June 1977 stay Order was dissolved 

Hon March 29, 1978 (slip op. 3408, 3418). On April 24, 1978 the 

  

5th Circuit (Tjoflat, J.) denied a Motion to Stay the issuance 

of the Mandate pending certiorari. This Motion satisfies the 

requirements of Rules 27 and 51(2) of the Rules of this Court. 

  
The mandate has been transmitted to the District Court below by 

  

   



  
  

  

denial of Motion to Stay Mandate. It would be futile and irre- 

parable, time consuming and wasteful to move again for a Stay 

before both the District Court and Court of Appeals below. 

Therefore, this Application for Stay and Recall is timely 

and ripe. 

Petitioners ask only for the continuation of a stay already 

found by the District Court and Court of Appeals below to be 

merited. The status quo of a stay of elections pending appellate   

review, for 1 year, produced no demonstrable harm to Plaintiffs 

(Respondents here); the status quo avoided the irreparable harm   

to black and white Mobilians alike recognized by the two Courts 

  

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below as ineluctable. 

WHEREFORE, petitions urge that the revival (by Order of the 

Court of Appeals, March 29, 1978) of implementation Order of 

March 9, 1977 and the underlying Order of October 1976 be stayed, 

and the mandate be recalled, pending disposition by this Court of 

Petition for Certiorari, due on or before June 27, 1978. 

Respectfully submitted, 

  

Clone) pth x 
C. B. Arendall, Jr. 

Williams C. Tidwell, Fo 

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 
(202) 466-5420 

Attorneys for Petitioners 

  
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| entered Stays indistinguishable from the Stay sought herein.= 

IN THE SUPREME COURT 

OF THE UNITED STATES 

October Term 1977 

  

CITY OF MOBILE, ALABAMA, et al., 

Petitioners, 

Vv. A- 
  

WILEY 1... BOLDEN, et al., (Nos. 76-4210 and 77-2042, 

5th Cir.) 

Respondents. 

  

Pending Petition for Writ of Certiorari to the United 

States Court of Appeals for the Fifth Circuit 

  

MEMORANDUM OF POINTS AND 
AUTHORITIES IN SUPPORT OF 
APPLICATION FOR STAY AND 
RECALL OF MANDATE 

  

  

  

  

  

The Application sets forth the scope of the Orders of which 

review 1s to be sought in this Court; the Application also indi- 

cates that both the District Court and the Court of Appeals below 

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In order to maintain the status quo (a stay of election and change to   

| Court-ordered Mayor-Council form) by Order of this Court, Peti- 

tioners must show: (1) irreparable harm, and (2) a "reasonable 

probability that four members of the Court will consider the issue 

sufficiently meritorious to grant certiorari." Wise v. Lipscomb,   

28 8.Ct. 15,119 (1977) (Powell, J., as Circuit Justice), guoting 

from Graves v. Barnes, 405 U.S. 1201, 1203 (1972), rev'd sub nom.   

White v. Regester, 412 U.S. 755 (1973). 
  

  

1/ This Stay is necessary because the Judgment of the 5th Circuit 
to be reviewed, slip op. 3408, 3418, dissolved both stays and 
reinstated the broad implementing Order of elections and 
operations under a Mayor-Council form of government. 

The Recall of Mandate is necessary because of the denial on 
April 24, 1978 by the 5th Circuit (Tjoflat, J.) of Petitioners 

Motion for Stay of Mandate. 

  

 



  

  
  

This case presents the same issues present in Lipscomb and 
  

Graves: whether a particular at-large electoral system dilutes 

the votes of black citizens in a way prohibited by the 14th Amend- 

ment. 

The need for a Stay is more severe in this case than in 

} Lipscomb or Graves. Those cases involved an Order changing only   

the composition of the electorate voting for a particular office- 

holder. This case involves as well an Order changing the form, 

nature and duties of the officeholder. Commissioners, campaigningj 

and serving as functional experts in a combined legislative-exe- 

cutive role, are to be replaced by a Council with strong Mayor. 

The ordering of salaries and duties of an entire City government 

is a quantum more dislocating than the mere division of electoral 

districts from one into nine. 

At stake here is Mobile's existing form of government, not 

| merely the manner of its election. 

  

    

  
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| must proceed to implement its order disestablishing Mobile's 

|| existing Commission form of government and substituting therefor 

| a Mayor-Council form elected by single-member district. From 

i Plaintiffs here, as there, assert harm from delaying remedy. Here, 

| as there, the issue of the constitutional appropriateness of the 

| the holding of elections pursuant to the remedial Order. 

black and white Mobilians, only to be fired and divested upon 

MOBILE WILL SUFFER IRREPARABLE 

HARM UNLESS STAY IS GRANTED 
  

  

Upon issuance of th¢mandate, the District Court 

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

The balance of equities here fits the pattern of Lipscomb. 
  

Orders of the District Court below would be effectively mooted by 

To the balance in favor of maintaining the status guo must 
  

be added the irreparable harm to all Mobilians of tentative imple- 

mentation pendente lite of an Order that a complete executive 
  

branch of City government be hired, paid, invested with powers 

defined by Court Order and entrusted to respond to the needs of 

reversal of the Court of Appeals. 

According to the "intensely local sppraisaindd of the Dis- 

trict Court below (acceded to by the 5th Circuit at oral argu- 

ment), this was irreparable harm not to be imposed pending appeal by requiring 

a showing of certain error in the issuance of the Order subject 

to appellate review. Nonetheless, reviewable and reversable 

error there is. 

  

2/ White v. Regester, 412 U.S. 755, 770 (1973). 
    
 



  

  

  

  

  

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II. 

THE PROBABILITY THAT CERTIORARI 

WILL BE GRANTED IS SUBSTANTIAL 
  

  

As in Wise v. Lipscomb, supra, this case involves the gov- 
  

ernment of a "major city that has adhered to its tradition of 

at-large elctions" for over 65 years. 98 S.Ct. at 19. Unlike the | 

situation in Lipscomb, the continued existence of Mobile's commis 
  

sion government requires the use of such an electoral system. 

The Court of Appeals below recognized a continuum of accept- 

ability of at-large voting systems. Court-ordered remedial plans 

presumptively must be single-member districts. Greater deference 

is accorded at-large plans established by State or local legisla- 

tive or electoral act; greater deference still is accorded at- 

large plans adopted long ago. 

This case represents a further step on the continuum of 

deference: at-large plans adopted long ago, not simply because of 

an intrinsic preference for at-large plans to assure City-wide 

perspective, but because Commissioners constitationalive) must 

be elected at-large. To order a change in Mobile is to undo not 

just at-large elootions?’ but a form of administration of 67 

yvears' standing. 

To be sure, locally adopted at-large plans can be undone. 

But only on an evidentiary showing which increases along the 

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continuum of deference.= 

    3/ The District Court below so found. 423 F. Supp. 384, 387 

(S.D. Ala. 1976). 

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4/ Cf., Zimmeyr v, MoXeithen, 485 F.2d 1297, 1301 (3th Cir. 1973) 
(en banc), aff'd sub nom. East Carroll Parish School Board t 
v. Marshall, 424 U.85. 636 (1976) (at-large plan adopted in 
1968 to avoid one-man-one-vote difficulties). 

  

  

5/ This is merely a weighting of the interest of the State or 
3 City in maintaining its plan. The government's interest has 

been a principal factor in the dilution eguation since White 
v. Regester, 412 U.S. 755 (1973) as embellished by Zimmer, 
  

485 7.24 1297, 1305 (8th Cir. 1973) (en banc). 

  
 



  

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), vet 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). And 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 : 

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"swing vote" in the City's most recent election. (J. App. Z247~ 

250). 

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 offi- 

cials with the existence of a constitutional violation, contrary   
+0 the teachings of Whitcomb v., Chavis, 403 U.S. 124, 149 (1571), 

  

Beer v. United States, 425 U.8. 130, 136 n. 8 (1976), and United 
    

ii Jewish Organizations of Williamsburgh v. Carey, 430 U.S. 144, 165+ me 
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67 (1977). Indeed, this case is totally unique in its finding 

of "dilution" where no black candidate 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, the 

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

racial purpose. For under the Fourteenth and Fifteenth Amend- 

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ments ,—~ the question is whether Mobile's commission form of 

  

6/ With this, the 5th Circuit agreed in the companion case to 
Mobile, Nevett v. Sides, slip op. 3373, 3382, 3385 f{Mar. 
29,1978).     
 



  

    
  

  

  

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government represents purposeful discrimination against, or a 

purposeful contrivance to dilute the voting strength of black 

citizens. See United Jewish Organizations, supra, 430 U.S. at 
  

179 (Stewart, J. concurring). The Court of Appeals has now 

correctly held, as the District Court did not, that proof of 

such a purpose 1s an essential element in voting dilution cases. 

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 the Court of Appeals' holding is that where 

application of the criteria set out in Zimmer v. McKeithen, 485   

F.28 1297 (5th Cir. 1973) (en banc), affirmed sub nom. East 
    

Carroll Parish School Board v. Marshall, 424 U.S. 636 (1976)     

("without approval of [its] constitutional views", 424 U.S. at 

638), indicates a current condition of voting dilution, the 

maintenance of such a system without affirmative corrective actior 

compels the inference of purposeful dilution. Slip op. at 3416- 

17. 

The Court, in proffering a circumstantial test of intent, 

did not distinguish between electoral plans newly created or 

UW changed, and those neutrally adopted and long maintained.-— i fio 

8/ melded cases involving Court-ordered districting— with cases 

involving maintenance of a system of administration, without 

  

7/ Nevett v. Sides (Nevett Il), slip op. 3373, 3393 (Mar. 29, 
1978): 
  

"The ultimate issue in a case alleging uncon- 
stitutional dilution of the votes of a racial 
group is whether the districting plan under 
attack exists because it was intended to di- 
mish or dilute the political efficacy of that 
group." (emphasis added). 

8/ E.g., Birksey v. Board of Hinds County, 554 F.28 139, 140     
(5th Cir. 19877) (en banc), cert. denied, U.S. 98 
S.Ct. 512 41977). 

    
 



  
  

    
  

  

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change and without prior judicial intervention, for 67 years. 

See Nevett II, slip op. 3373, 3384 n. 13 at 3385, 3387. Compare 

Wise v. Lipscomb, 98 S8.Ct, 15, 17 (1977) (Powell, J., as Circuit   

Justice). 

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 

o/ be retrogressive) .= Yet the Court's decision in effect retro- 

actively 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 depart   

ment continuted to administer its employment 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 Housingj 

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Development Corp., 429 U.S. 252 (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 

  

9/ Indeed, the action of the Alabama legislature in assigning 
specific functions to the City Commissioners, which the 
Court of Appeals found so "probative" of racial purpose 
{slip op. 3408, 341ll n. 2, 3416-17), was clearly a non-retro- 
gressive enactment. Act 283 in fact merely codified the 
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 
candidate had to announce and run.   
 



  

  

  
  

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Appeals had held that they "could not simply ignore this problem. 

429 U.S. at 260. Yet the Supreme Court upheld the maintenance of 

these policies for reasons racially neutral, despite their ex- 

clusionary effect. 

Where, as in Mobile, the official policy or action challengeq 

is both facially neutral and serves legitimate governmental in- 

terests, 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 the lower 

Courts' condemnation would have required not merely redistricting 

but a complete restructuring of Mobile's existing system of gov- 

ernment, the evidence here in no way warrants such an inference. 

Indeed, because this case is one in which black citizens plaved 

a significant role in the City's politics of racial coalition 

rather than supporting separate black candidacies, it is impos- 

sible to impute to the Commissioners an invidious intent to 

suppress black voting strength which might logically arise from 

serious challenges by black candidates for their posts. 

The factor of purpose — and the principle of the Court of 

Appeals below that purpose is shown by maintenance of a form of 

government innocently adopted — returns us in closing to the 

continuum of deference. Like Wise v. Lipscomb, supra, this case 
  

concerns the standards of judicial scrutiny applicable to a 

legislative electoral plan which utilizes at-large representa- 

tion to further a valid municipal interest. 98 S.C:-. at 17-18. 

But, in contrast to Lipcomb, the issues here revolve around the 

"constitutional liability" of Mobile's form of government to 

judicially-imposed change, rather than centering on standards for| 

court approval of legislative plans proffered to remedy on un- 

constitutional electoral system. 

This Court has correctly observed that "viable local gov- 

ernments may need considerable flexibility in local arrangements” 

in order to meet local needs. Abate v. Mundt, 403 U.S. 182, 

186-87 (1971). At-large electoral systems, integral and 

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constitutionally necessary to the commission form of government 

used by approximately 3% of this Nation's 18,500 municipali-   ties, 33 further valid governmental objectives and are entitled 

to at least "limited deference." Lipscomb, supra, 98 S5.Ct. at 
  

17:n.,.2. 

| The test of invidious intent applied below stands "de- 

| ference" on its head. The City's long history of Commission 

Government is anomalously used to rationalize its abolition. See 

slip op. at 3414-15. Fundamental changes of a city's form of 

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government are an exceptional event, and yet the Courts below 

have cast the unexceptional — homeostasis — into a racial mold 

i with apparent ease. The Court of Appeals here has applied a 

transparently "tort standard" of discriminatory intent which 

| affixes liability for conduct at most negligent and not invidiously 

motivated. 

At its worst, the "purpose-maintenance" test is an invita- 

tion to the City to proffer an affirmative defense to a showing 

of discriminatory effect 22 in much the same way that employment     
| discrimination cases demand a showing of job-relatedness to re- 

. 
1/ The necessity sist a clear showing of discriminatory effect. 

of at-large elections to the maintenance of the Commission form 

is that affirmative defense. It stands of record here, unrebutted     

10/ The Municipal Year Book, International City Management 
Association, Tables 2 and 1/1 (1976). 
  

  ll/ As pointed out above, the Findings of the District Court 
| below will not support even the ultimate finding of dis- 

criminatory effect. 

In passing, we note that findings of ultimate fact are 
entitled to none of the phlegmatic review given under the 
"clearly erroneous" standard. E.g., Causey v. Ford Motor 
Co., 516 P.28 416, 420-21 (5th-Cir., 1975). 

  

12/ The required strong showing has been absent in innocently 
ha adopted plans whose maintenance had the effect of maintain- 

ing the effects of other, unrelated, acts of discrimination. 
E.g., International Bro. of Teamsters v. U.S., 431 U.S. 324, 
    

356 (1977). 

          
 



  

  
  

  

  

  

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by the opinions of the Courts below. For even if the legislative 

choice to maintain Mobile's existing government were "motivated 

in part by a racially discriminatory purpose", this choice should 

have been upheld where the same decision "would have resulted" 

from other legitimate governmental concerns. Village of Arlingtor 
  

Helghts, supra, 42% U.S. at 271 n. 21. Neither the record nor 
  

the opinions below disclose any basis for the Courts' implicit 

and implausible assumption that Mobile's present form of govern- 

ment would be different but for a putative racial animus. The 

error below is palpable, as is its potential capacity to put in 

jeopardy historically at-large electoral plans wherever there 

exists a substantial minority population. 

The 5th Circuit took the occasion of Mobile's appeal and 

three companion case’ to rethink its approach to dilution 

cases.tt/ The large number of dilution cases, the necessity to 

resolve finally the application of the intent requirement of 

Davis and Arlington Heights, and the effect of weighing choices 
  

made by voters about their very form of government against the 

effect and intent of the size of electoral districts, all make 

this a case susceptible to review by this Court under 28 U.S.C. 

$1254{1) or (2), 

  

13/ Nevett v. Sides (Nevett II), slip op. 3373; Blacks United 
v. Shreveport, slip op. 3419; and Thomasville Branch, 
N.A.A.C.P. v. Thomas County, slip op. 3431 {all March 29, 
1978). 

    

    

    

l4/ The Court recognized the difficulty of District Courts in 
fe administering this area of constitutional law with imper- 

fect appellate guidance, Nevett II, slip op. 3373, 3391 
(addressing " . language in several opinions of this cir- 
cuit that has caused some apparent confusion in this changing 
and complex area of the law. . ."). 

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1 

In sum, the ultimate outcome of this action is of vital 

importance not only to the City, but to every local government 

with the need or traditional preference for at-large elections. 

The constitutional issues here presented are substantial and im- 

portant, and of precisely the nature which frequently moves the 

Supreme Court to grant review. 

Respectfully submitted, 

Cops 4 LEN 
C. B. Arendall,6 Jr. 

Williams C. Tidwell, 

Travis M. Bedsole, 4 

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.. CC. 20036 

Attorneys for Petitioners 

  
 



  

  

  

    

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CERTIFICATE OF SERVICE 
  

I certify that a copy of the foregoing Application for Stay 

and Recall 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 ny day of May, 1978. 

20.8 ¢ 
Attorney for Petiti