Plaintiffs-Appellees' Motion for Order Restoring Injunction with Cover Letter
Public Court Documents
April 18, 1977
66 pages
Cite this item
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Case Files, Bolden v. Mobile Hardbacks and Appendices. Plaintiffs-Appellees' Motion for Order Restoring Injunction with Cover Letter, 1977. 7509dc73-cdcd-ef11-b8e8-7c1e520b5bae. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cbaab897-c419-4cf7-b926-8d35fb45d9a3/plaintiffs-appellees-motion-for-order-restoring-injunction-with-cover-letter. Accessed August 27, 2025.
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CRAWFORD, BLACKSHER, FIGURES & BROWN
ATTORNEYS AT LAW
1407 DAVIS AVENUE
MOBILE, ALABAMA 36603
VERNON Z. CRAWFORD TELEPHONE 432-1691
JAMES U. BLACKSHER AREA CODE (205)
MICHAEL A. FIGURES
W. CLINTON BROWN, JR.
GREGORY B. STEIN
LARRY T. MENEFEE
April 18, 1977
Honorable Edward W. Wadsworth, Clerk
U.S. Court of Appeals, Fifth Circuit
Room 102 - 600 Camp Street
U.S. Court of Appeals Courthouse
New Orleans, Louisiana 70320
Re: Bolden, et 2) vy. Ciry.. of Mobile, et al.
Dear Mr. Wadsworth:
Please file the enclosed motion for order restoring injunction
in the subject appeal. I am informed that, because the Court
has expedited its appeal and scheduled oral argument on the
June docket, this motion can be submitted to the same panel
who will hear and determine the merits of the appeal. If this
is not the case, we suggest that it might be appropriate for
the Court to withhold consideration of the enlcosed motion
until it can be submitted to a panel designated to hear the
merits, so long as this would not result in undue delay.
Best regards.
Sincerely,
CRAWFORD, BLACKSHER, FIGURES & BROWN
AIL i eloles ~
7 U. Blacksher
JUB:bsm
Enclosure
cc: All Counsel
Non Partisan Voters League
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 76-4210
CITY OF MOBILE, ALABAMA, et al.,
Defendants-Appellants,
VS.
WILEY 1. BOLDEN, et al.,
Plaintiffs-Appellees.
On Appeal From the United States District Court
For the Southern District of Alabama
Southern Division
PLAINTIFFS-APPELLEES'
MOTION FOR ORDER RESTORING INJUNCTION
Plaintiffs-Appellees Wiley L. Bolden, et al., on behalf
of themselves and the class of black citizens they represent,
move this Court for an Order restoring the injunctions issued
in favor of Plaintiffs-Appellees by the United States District
Court for the Southern District of Alabama on October 21,
1976, and March 9, 1977, which injunctions were stayed pending
appeal by the District Judge on April 7, 1977.
Alternatively, Plaintiffs-Appellees move the Court for
an Order modifying the aforesaid stay of the District Court
by enjoining the holding of elections of any kind for the
government of the City of Mobile, Alabama, for a specific
period of time or pending this Court's decision on the merits
of this appeal.
As grounds for their motion, Plaintiffs-Appellees would
show as follows:
1) This action was filed in the District Court on
June 9, 1975, by fourteen (14) black citizens of the City
of Mobile, Alabama, claiming that the at-large system of
electing Mobile City Commissioners bridges their rights and
the rights of other black citizens under the First, Thirteenth,
Fourteenth and Fifteenth Amendments to the Constitution of
the United States; under the Civil Rights Act of 1871, 42
U.5.C. §1983; and under the Voting Rights Act of 1965, 42
U.5.C. §1973. The Defendants are the City of Mobile and its
three (3) incumbent City Commissioners in their individual
and official capacities.
2) This case was tried before the District Judge
on July 12-2], 1976, and the District Court entered its
findings of fact and conclusions of law in favor of the
black Plaintiffs on October 21, 1976. Bolden v. City of
Mobile, 423 F.Supp. 384 (1976). In its thorough and exhaustive
opinion, the District Court made extensive findings following
the formula of Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.
1973) (en banc), aff'd sub nom. East Carroll Parish School
Bd. v. Marshall, 424 U.8. 636 (1976). Ir found that the
political process leading to election is not open to blacks,
been
that the at-large elected city government has not/and is not
responsive to black citizens on an equal basis with whites,
and that past official discrimination continues to contribute
to dilution of black voting strength. Among Zimmer's
1 "enhancing factors," the court found that the at-large election
system involves a district that is as large as possible, that
City Commissioners must be elected by a majority vote, that
a numbered place provision has to some extent the same results
as anti-single-shot voting provisions, and that there are
no residency requirements for City Commissioners. 423 F.Supp.
at 399-402.
3) The District Court rejected the Defendant City
Commissioners' primary defense, that because disenfranchised
blacks were not a political factor when the present at-large
elected City Commission form of government was created by
the Alabama Legislature in 1911, Washington v. Davis, 426
U.S. 229 (1976), precluded judgment for plaintiffs because
initial discriminatory purpose could not be shown. The court
held that Washington prohibits as unconstitutional facially
neutral statutes that are applied in a purposefully dis-
criminatory fashion:
There is a "current" condition of dilution
of the black vote resulting from intentional
state legislative inaction which is as
effective as the intentional state action
referred to in Keyes [v. School District No.
1,413 10.8, 180 (1973). 7.
423 F.Supp. at 398 (emphasis supplied by the court).
4) The District Court reached its conclusion in
favor of the black Plaintiffs by following the teachings of
White v. Regester, 412 U.S. 755 (1973); Dallas County v. Reese,
421 U.S. 477 (1975); Zimmer v. McKeithen, supra; Fortson v.
Dorsey, 379 U.S. 433 (1965); and Whitcomb v. Chavis, 403 U.S.
124 (1971).
In summary, this court finds that the
electoral structure, the multi-member at-
large election of Mobile City Commissioners,
results in an unconstitutional dilution of
black voting strength. It is "fundamentally
unfair,” Wallace [v. House, 515 F.2d 619,
630 (5th Cir. 1975), vacated on other grounds,
425 U.S. 947 (1976)], and invidiously dis-
criminatory.
423 F.Supp. at 402.
5) Because City Commissioners combine within
themselves both legislative andy IR254E1S, or administrative
powers, the District Court agreed with the Defendant
Commissioners that election of City Commissioners from single-
member districts "would at a minimum be anomalous and
probably unconstitutional.’ 423 F.Supp. alt 420 n.19.
Accordingly, the court ordered the City of Mobile to change
its form of government to a strong mayor-council system.
423 F.Supp.at 403-04.
6) Finally, the District Court certified its
October 28, 1976, Order for interlocutory appeal pursuant to
28 U.S.C. §1292(b), and gave the following admonition to
the Defendant City Commissioners:
It is the court's desire that if
this order is appealed, such an appeal
be taken promptly in order to provide
the appellate courts with an opportunity
to review, and, if possible, render a
ruling prior to the campaign and election
for the city government offices as
scheduled for August, 1977.
423 F.Supp. at 404.
7) However, eschewing the District Judge's
invitation promptly to appeal within the ten (10) days
allowed for appeals under 28 U.S.C. §1292(b), the Defendant
Commissioners did not appeal the District Court's October
21 decision until November 19, 1976 (apparently relying on
28 U.S.C. §1292(a)).
8) Following his October 21, 1976, decision the
District Judge appointed a blue-ribbon committee of prominent
Mobile citizens to formulate and recommend a strong mayor-
council plan of government. The court requested the
Plaintiffs and Defendants to submit proposed district
boundaries; the Plaintiffs complied, but the Defendants
declined to file a plan. When the blue-ribbon committee
submitted its recommendation to the court, the district judge
asked the parties and all members of the Mobile County
Legislative Delegation to make their recommendations. The
attorneys for the Plaintiffs and one member of the Mobile
County Delegation accepted the court's invitation and made
recommendations, many of which were ultimately incorporated
in the district court's final plan, entered by Order dated
March 9, 1977. The court ordered that the mayor-council
plan, which is modeled after strong-mayor plans presently
in use in Birmingham and Montgomery, be placed in effect
in time for the August 1977 city elections. A copy of the
District Court's March 9, 1977, Order is attached To {his
motion as Attachment A.
9). On or about March 18, 1977, the Defendant
City Commissioners filed an application for stay pending
appeal urging the District Court "to order that all elections
and electoral changes in Mobile's present scheme of government
be stayed pendente lite and that Its Orders of October 21,
1976, and March 9, 1977, be vacated pendente lite." A
copy of Defendants' application for stay in the District
Court is attached to this motion as Attachment B.
10) On or about March 23, :1977, Plaintiffs filed
their opposition to the application for stay pending appeal.
In it, Plaintiffs asked the District Judge to deny the stay
altogether or, alternatively, to grant only a temporary
stay of its Orders for the short time necessary for the
Defendant Commissioners to present their petition for a stay
to this Court, if they chose to do so. A copy of Plaintiffs"
opposition 1s attached to this motion as Attachment C. Also
attached as Attachment D is the proposed temporary stay of
injunction Plaintiffs suggested to the District Court.
11) On or about March 31.and April 1, 1977, the
City Commissioners and the black Plaintiffs, respectively,
filed supplemental briefs with the District Court. The
supplemental briefs are attached to this motion as Attachments
E and F. In their supplemental brief, Plaintiffs suggested
still another alternative to the District Judge, in the
event he was not inclined to deny the stay altogether:
staying all city elections for a specified term, possibly
three months. This last alternative would have avoided the
undesirable contingency of an early ruling by this Court
coming during the middle of an election campaign or shortly
after new commissioners had been elected. Setting a date
certain for expiration of the stay would have provided this
Court the flexibility needed either to rule on the merits
or extend the stay and would have served the important public
interest of avoiding confusion and unnecessary expense by
letting the electorate and aspiring candidates know what to
expect and when. See Attachment F, pp. 6-7.
12) On April 7,.1977, the District Court granted
the stay requested by the City Commissioners for an indefinite
period pending outcome of the appeal. A copy of the court's
stay order is attached to this motion as Attachment G. In
his Order, the District Judge agreed with the City Commissioners
that the actual election and institution of a mayor-council
government pending appeal would create great confusion and
disruption if this Court reversed. Order granting stay,
p. 3. The court acknowledged the standards for granting a
stay set out in Belcher v. Birmingham Trust Nat'l Bank, 395
F.24 685 (5th Cir. 1963). However, it concluded that the
Defendant Commissioners did not have to make a significant
showing with respect to all four factors. Id. Accordingly,
the court granted the stay requested even though it found
there was virtually no likelihood the City Commissioners would
prevail on appeal. Attachment G, p.6. It determined that
"[n]o substantial harm would befall plaintiffs," because,
even though the at-large system of electing commissioners
was unconstitutional, Plaintiffs would be suffering continuing
injury only for "a reasonably short time." Attachment G., p.
De
13) In its Order, the District Court 4id not reveal
its reasons for rejecting the option of staying all elections
pending appeal, thus avoiding the confusion, expense and
politically distorted circumstances that necessarily will
accompany August 1977 elections under either the Commission
or the Mayor-Council form of government. Rather, the court
announced:
This stay 1s 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.
Appendix G, p. 7.
14) Plaintiffs-Appellees respectfully submit that
the Honorable District Judge abused his discretion by granting
the stay requested by the City Commissioners, as a matter of
law and as a matter of equity.
Because The City Commissioners Are Unable
To Show Likelihood Of Reveral, Their
Application For Stay Should Have Been Denied
15) it its Order granting the stay, the Districrk
Court emphasized its "firm ... belief that its order granting
affirmative relief to the plaintiffs ... will be affirmed by
the appellate courts." Attachment G, p. 6. Notwithstanding
the absence of this first of the four factors prescribed by
Belcher v. Birmingham Trust National Bank, supra, for obtaining
a stay, the District Judge tnterprated this Court's decisions
as allowing him to balance the absence of one of the four
Belcher factors against the weight of other factors found to
be present. Attachment G, Pp. 3. In this respect, the court
erred as a matter of law. The four factors set out in Belcher
and Plecher v, Laird, 415 ¥.24 473, 744 (5th Cir. 1969). are
stated in the conjunctive mode, and the City Commissioners had
the burden of establishing the existence of all four factors
for the granting of a stay. The cases relied on by the district
court, Long v, Robinson, 432 ¥.24 977, 98 (4ch Cir. 1970).
cited with approval in Beverly v. United States, 468 F.2d 732,
74) n.13 (5th Cir. 1972), do not provide otherwise.
16) Indeed, there is no likelihood that the
Defendants-Appellants will prevail on the merits of this appeal.
~10.
This Court has previously stated that it will give great
deference to the District Court's "intensely local appraisal”
and determination of the Zimmer factors. See Paige v. Gray,
5383 7.24 1108, 1111 (5th Cir. 1976). The City Commissioners
do not seriously contend there is a likelihood that the careful
findings of fact made by the District Judge will be overturned
on appeal.
17) The City Commissioners' primary legal contention
also plainly is without merit. The Defendants cannot seriously
deny that the District Court's ruling on Washington v. Davis
follows the existing law established by this Court. Nevett wv.
Sides, 533 F.2d 1361 (5th Cir. 1976); McGill v. Gadsden County
Commission, 535 F.2d 277 (5th Cir. 1976); and Paige v. Gray,
supra are all post-Washington v. Davis voter dilution cases
from the Fifth Circuit. They uniformly reject Defendants’
argument that Washington v. Davis and its progeny have under-
mined the voter dilution standards of Zimmer v. McKeithen.
The Stay Should Have Been Denied Because
Of The Irreparable Injury Black Citizens
Will Suffer From At-Large Elections
18) The District Court found as a matter of law
and fact that black citizens' constitutional rights are
abridged by the at-large election of City Commissioners.
However, it accepted the Defendants' argument that blacks,
having suffered the unconstitutional deprivation of their
voting rights for sixty-six years, would not sustain substantial
harm by enduring this injury a little longer.
19) But the Supreme Court has instructed 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,
377 U.S. 533, 562 (1964), quoting Yick Wo v. Hopkins, 118 U.S.
356, 370. "When an alleged deprivation of a constitutional
right is involved, most courts hold that no further showing
of irreparable injury is necessary." 11 Wright & Miller,
Federal Practice and Procedure, Civil §2948, p. 440 (1973)
(footnote omitted). See Doe v. Monday, 514 F.2d 1179 (7th
Cir. 19753); A Quaker Aciion Croup v. Hickel, 421 F.2d 13111.
1116 (D.C. Cir. 1969); Keefe Vv. Geanakos, 418 F.2d 359 (4th
Cir. 1969); Henry v. Greenville Airport Commission, 284 F.2d
631, 633 (4th Cir. 1950).
Alternatively, This Court Should Stay
Blecrions Df Any Kind =~ ma oe
20) This appeal has been scheduled for expedited
Moder 4 :
briefing, and the case is set for oral argument on this
Appellants-City Commissioners’ brief was filed April 10,
1977; Plaintiffs-Appellees brief is due May 10, 1977.
~¥2.
Court's June Docket. Undersigned counsel has been informed
by the Clerk that where briefing and oral argument have been
expedited, it is this Court's practice also to expedite
deliberation toward reaching a decision on the merits.
21) The present qualificstion date for candidates
in a City Commission election will be the third Tuesday in
June, and elections will be held the third Tuesday in August,
with any necessary runoff the first Tuesday in September.
Title 37, §§34(74), 34(78), Code of Alabama (Supp. 1975).
Alabama general law provides that, under the mayor-council
form of municipal government, candidates must qualify by the
first Tuesday in July, and the election is to be held on the
second Tuesday in August. Title 37, §§34(21), 34(25), Code
of Alabama (Supp. 1975). Thus, under the District Court's
Order granting a stay, the campaign and election for City
Commission will be held after argument to this Court in June,
and there is a substantial chance that this Court will render
an opinion during the campaign or shortly after the elections.
22) A City Commission campaign and election
conducted under the uncertainty of this pending appeal will
greatly distort the normal political processes in Mobile.
No serious challengers will enter the contest against the
incumbent Commissioners. The cost of a
serious campaign (between $30,000 and $100,000) and the
probability that the Commission form is unconstitutional mean
that the victors will enjoy a very short term in office.
23) The mere administrative cost of voting
officials in conducting a city-wide election will be approximately
$250,000. Of course, the campaign costs for candidates could
easily approach hundreds of thousands of dollars. All citizens
will be greatly injured if such a costly process is declared
anullity shortly after or, possibly at the same time, the
election is held. Yet this is the most likely prospect if
Commission elections are allowed to go forward as regularly
scheduled. No other elections are normally scheduled to
be conducted with the August election of City officials.
Accordingly, postponement of the City elections would cause
no additional expense when, following determination of this
appeal, the stay were dissolved.
24) If City Commission elections are allowed to
go forward in August 1977, after the district court's judgment
is affirmed on appeal, the newly elected commissioners could
still complain that dissolving the stay before the end of
their four-year term would be inequitable because of the
financial losses it would cause both them (campaign monies
spent) and the City (the cost of new elections). Even if
the district court rejected these arguments, the Commissioners
might still keep themselves in office longer by successfully
appealing dissolution of the stay. Thus, allowing the
we, PR
Commission elections to go on, rather than staying elections
altogether, poses additional risks that Plaintiffs will
continue unconstitutional deprivation of their voting rights.
25) This Court and other federal courts have
previously approved the stay of municipal elections pendente
lite in situations where the voting rights of black citizens
were clearly being denied. In Hamer v. Campbell, 358 F.2d
215 (5th Cir. 1966), black voters were denied the right to
participate in municipal elections on an equal basis with
whites. Plaintiffs requested a preliminary injunction
against the town elections, and this Court held that it
should have been granted. The Court first held: "There can
be no question that a District Court has the power to enjoin
the holding of an election." 358 F.2d at 221. Next, the
Court held that because plaintiffs had established a deprivation
of their voting rights, reliance on reapportionment cases
allowing elections to go forward under an unconstitutional
plan was misplaced. In Reynolds v. Sims, supra, 377 U.S. at
585, "[t]he Court clearly warned that it 'would be the unusual
case in which a court would be justified in not taking
appropriate action to insure that no further elections are
conducted under the invalid plan.'" 358 F.2d at 222.
26) Although Hamer involved no at-large voting,
but discrimination in registration, the principles of that
~154
case are equally applicable here. As the Supreme Court has
indicated, at-large voting can 'mullify [minority voters']
ability to elect the candidate of their choice just as would
prohibiting some of them from voting." Allen v. State Board
Of Elections, 383 U.8.: 544, 569. (1969).
27) In several recent cases, the Supreme Court and
lower federal courts have held that a determination of dilution
of black voting strength requires the court to stay the
elections and not permit them to go forward under a dis-
criminatory scheme. In Holt v. City of Richmond, 406 U.S. 903
(1972), Richmond, Virginia, annexed a large white residential
area and prepared to hold municipal elections. Upon submission
of the annexation under Section 5 of the Voting Rights Act,
the Attorney General objected that the annexation would dilute
black woting strength in Richmond. The district court refused
to enjoin the elections, but on appeal the Supreme Court entered
the injunction only eight days before the elections were due
to be held.
28) Similarly, in City of Petersburg v. United States,
354 F.Supp. 1021, 1023-24 (D. D.C. 1972) (three-judge court).
aff'd, 410 U.S. 962 (1973), the district court enjoined the
Petersburg municipal elections after the Attorney General had
determined that the annexation diluted black voting strength.
23) In Beer v. United States, 374 F.Supp. 353,372
(D. D.C. 1974) (three-judge court), rev'd on other grounds,
425 8.8. 130:€1976), borh the District of Columbia district
court and a Louisiana district court enjoined the New
Orleans municipal elections after the Attorney General
determined that the redistricting plan for the City Council
minimized and canceled out black voter strength. Also, in
Perkins v. Matthews, 400 U.S. 410 (1971) ,black plaintiffs
challenged a change from ward to at-large aldermanic elections
for lack of Section 5 clearance. A single district judge
temporarily enjoined the 1969 municipal elections, but the
three-judge district court dissolved the temporary injunction.
400 U.S. at 383. The Supreme Court held that the single
district judge was right. 400 U.S. at 384-85.
30) Although these cases involved objections
under Section 5 of the Voting Rights Act, the black citizens
of Mobile are entitled to no less relief where the district
court has entered a judgment determining that the at-large
elections in Mobile minimize and cancel out their voting
strength in violation of the Fourteenth and Fifteenth
Amendments and the Voting Rights Act, 42 U.S.C. §1973. Indeed,
it can be argued that plaintiffs here are in an even stronger
position for urging stay of all elections when they have
obtained through exhaustive litigation a judicial determination
17
of unconstitutional deprivation, which the district court
iteself thinks is unlikely to be reversed.
31) Staying all further City elections pending
this appeal would serve the same beneficial purposes cited
by the district court in Paige v.Gray , 399 F.Supp. 439 (M.D.
Ga. 1975), vacated and remanded on other grounds, 538 F.2d
1108 (5th Cir. 1976), when it entered a preliminary injunction
postponing the eminent municipal primary election for five
Albany, Georgia,City Commissioners elected on an at-large
basis. The defendants there suggested that the incumbent
City Commissioners should be allowed to hold office pending
action by the State Legislature, but the district court
held that any action which perpetuated the existing at-large
system would be tantamount to sanctioning an unconstitutional
system and would cause plaintiffs irreparable injury. The
court held that it would not countenance
a new, regular election to be conducted
under a law that is now and since 1947
has been unconstitutional because it
violates one of the most precious
possessions that all citizens have --
the right to vote. To do so would be
to irreparably harm the right not of
just the plaintiffs but of every citizen
to vote for the elected officials of
their city government.
393 F.Supp. at 467.
32) To allow new City Commission elections to go
forward in Mobile under the present at-large system would
amount to judicial countenance of a violation of the rights
of all black Mobilians.
33) There is absolutely no evidence that the
appellant Commissioners or other interested persons would
be irreparably injured by a stay of all municipal elections
pending appeal. The incumbent Commissioners cannot be
injured by an order that entitles them to continue holding
office until their successors are sworn in. Since under
Alabama law the current terms of the incumbents do not
expire until the first Tuesday in October 1977, a stay of
all elections might even allow this Court time enough to
court
affirm the district/on the merits of this appeal and order
mayor-council,single-member district elections without having
to extend any of the Defendants in office.
WHEREFORE, Plaintiffs-Appellees pray that this Court
will grant their motion and enter an order restoring the
injunctions issued by the District Court on October 21, 1976,
and March 9, 1977, providing for change in form of municipal
government for Mobile from a City Commission form to a strong
Mayor-Council form, with the election of council members
from single-member districts in August 1977.
Alternatively, Plaintiffs-Appellees pray that the Court
will modify the stay entered by the District Court on April
7, 1977, by enjoining the holding of any elections for the
government of the City of Mobile for a specific period of
time or indefinitely pending this Court's decision on the
merits of this appeal.
/
TZ
Respectfully submitted this LL day of April, 1977.
NY 4 2 Ct bolond
U. SER
ga MENEFEE
EDWARD STILL, ESQUIRE
601 TITLE BUILDING
BIRMINGHAM, ALABAMA 35203
JACK GREENBERG, ESQUIRE
ERIC SCHNAPPER, ESQUIRE
SUITE 2030
10 COLUMBUS CIRCLE
NEW YORK, N. Y. 10019
Attorneys for Plaintiffs-Appellees
- CERTIFICATE OF SERVICE
1 do hereby cercify that on this the 18th day of April,
1977, I served a copy of the foregoing PLAINTIFFS-APPELLEES'®
MOTION FOR ORDER RESTORING INJUNCTION upon counsel of record,
C. A. Arendall, Esquire, Post Office Box 123, Mobile, AL
36601, Fred G. Collins, Esquire, Post Office Box 16629,
Mobile, Alabama 36616 and Charles Rhyne, Esquire, 400 Hill
Building, Washington, D. C. 20006, by depositing same in
United States Mail, postage prepaid.
RL ri
0
- Qc
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILEY L. 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,
Plaintiffs,
CIVIL ACTION
V.
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,
N
e
No
SN
N
f
No
SN
N
S
N
S
N
N
N
A
N
o
N
N
N
F
N
N
N
N
N
S
Defendants.
ORDER
On the 21st day of October, 1976, this court entered
an order in this cause. The order decreed that a mayor-council
plan of government would be adopted by this court with nine
single-member council districts.
The court requested and received from the plaintiffs
and defendants, three names recommended by each from whom the
court selected a committee to formulate and recommend a mayor-
council plan. The court selected two names recommended by the
defendants, City of Mobile, et al.; Joseph N. Langan and Arthur
R. Outlaw, two former city commissioners of the City of Mobile,
one recommended by the plaintiffs,
and /James E. Buskey, a black State Legislator.
The court requested the plaintiffs and defendants to
submit proposed councilmen districts made up of nine single-
member districts. The plaintiffs complied. The defendants
declined to file a plan.
The committee appointed by the court to draft a mayor-
council plan submitted an initial plan. The court submitted
the plan to all of the parties for their recommendations and
invited all members of the Mobile County legislative delegation
to make recommendations. The attorneys for the plaintiffs,
and one member of the Mobile County delegation, accepted the
invitation and made recommendations, many of which have been
incorporated in the final plan. The defendants declined to
make any Bob mndart ons. or is members of the Mobile
legislative delegation expressed a general view that it created
a conflict between their legislative duties and the judicial
branch and did not desire to make recommendations .i/
It is hereby ORDERED, ADJUDGED, and DECREED that
the mayor-council plan attached to this order as Appendix A,
is hereby ADOPTED and made a part of this order the same as.
if set out at length herein.
It is further ORDERED, ADJUDGED, and DECREED that
the nine single-member council districts as submitted by the
plaintiffs' Plan "H", together with the map attached to the
plan as Exhibit "A", both of which are attached to this order
as Appendix B, is hereby ADOPTED and made a part of this order
the same as if set out at length herein.
Beginning at the regularly scheduled city elections
in August 1977, and each four years thereafter, the City of
Mobile shall elect nine members to a city council and a mayor.
The mayor and the city council shall have such powers, duties
and responsibilities as are established by the report of the
committee appointed by this court on October 6, 1976, attached
hereto as Appendix A, and as are established by the provisions
of Ala. Code, Tit. 37, dealing with cities generally or cities
having a mayor-alderman form of government. To the extent that
the report or this order conflicts with the Alabama Code, the
report or order shall prevail.
One member of the City Council shall be elected by
and from each district. A candidate for the council and each
1/ Some declined because the City of Mobile was not in their
district.
A 1A
member of the council shall reside in the district represented
or sought to be represented.
Nothing in this order 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 however that the court
retains jurisdiction for six years from the date of this order
to review such changes for conformity with the principles
enunciated in the order of this court entered in this case
on October 21, 1976.
The court is aware that numberous local acts having
application to the City of Mobile are in effect. Because
of the change from a commission form to a city council form,
there may be conflicts between the plan herein adopted and
those acts. The court specifically retains jurisdiction for
a period of two years from the date the first city council
members take office for all purposes for persons having standing.
The retained jurisdiction of this court under the
two preceding paragraphs shall be dissolved upon motion of
either party when and if the Legislature of Alabama adepts
(a) a comprehensive act establishing a constitutional form of
government for the City of Mobile, or (b) enables the City of
Mobile to act under "home rule" powers to adopt such a compre-
hensive act.
The defendants City of Mobile, Gary A. Greenough,
Lambert C. Mims, Robert B. Doyle, Jr., and their agents, ser-
vants, enploviss, and successors are hereby ENJOINED from failing
to make the following changes with respect to the election of
the elected officials of the City of Mobile:
ls
1. Ward 33-99-1 is hereby split into east and west
wards, divided by a line beginning at the south boundary of
the ward on Stanton, inning north to Costarides, west to
Summerville, north to Andrews, and east to theward boundary.
The voters in these two areas may be constituted as separate
wards or the eastern area may be reassigned as part of MW-33-
99-2,
2. Ward 35-103-1 is split into eastern and western
divisions by a dividing line beginning at the west boundary
of the ward, running east on Davis Avenue, south on Kennedy to
the ward line. The two divisions shall be constituted as separate
wards.
3. Ward 35-103-3 is split into northern and southern
divisions by a line beginning in the northward boundary on |
Broad Street, running south to Elmira, east to Dearborn Street,
south to New Jersey, hE: to Warren Street, north to Delaware,
east to Interstate 10, south to Virginia Street, and east to
Mobile Bay. These two divisions may be established as separate
wards or the northern division may be redesignated as part of
MW-35-103-2.
4. Ward 34-100-3 is split into southeastern and
northwestern divisions by a line beginning on the east at 01d
Shell Road, west to East Drive, south to North Shenandoah,
west to East Cumberland, south on East Cumberland and Ridgefield
Road to the ward line. The residents of the southeastern area
shall be reassigned to MW-34-100-2 or made a new ward.
5. Ward 35-104-2 is divided by a line beginning at
the north ward boundary on Eslava Creek, running south along
Eslava Creek and Dog River to old Military Road, eastwardly
to Dauphin Island Parkway, south to Rosedale Road, east to
Brookley Field boundary and following said boundary eastwardly
to Perimeter Road, thence east on Perimeter Road to Mobile Bay.
The eastern portion of this ward may be designated a new ward
or merged into MW-35-104-1. The western portion of this ward
may be designated a new ward or merged into MW-35-104-3.
villi
6. Nothing in this order shall prevent the defendants
from changing any other ward boundaries, so long as the
boundaries described in this order for the new council districts
are not disturbed.
7. The defendants shall undertake the merger or
redesignation of wards immediately and shall inform each voter
in an area designated or merged of the new ward designation
in which he or she lives. The defendant shall work with the
Board of Registrars to accomplish this task by May 1, 1977.
If the defendants encounter problems with the Board of Regis-
trars, they shall forthwith petition this court for an appro-
priate order, including making the Board of Registrars a party
defendant.
8. The following districts for the election of
members of the City Council of Mobile are hereby created and
designated:
- District 1 shall consist of MW-33-98-1 and
the western portion of MW-33-99-1.
| - District 2 shall consist of the eastern part
of MW-33-99-1, all of MW-33-99-2, MW-33-99-3, and MW-34-102-2,
and the western part of MW-35-103-1.
- District 3 shall consist of MW-33-99-4, the
eastern part of MW-35-103-1, MW-35-103-2, and the northern
part of MW-35-103-3.
- District 4 shall consist of the southern part
of MW-35-103-3, MW-34-102-3, MW-34-102-6, and MW-34-102-7.
- District 5 shall consist of MW-35-103-4,
MW-35-104-1, and the eastern part of MW-35-104-2.
- District 6 shall consist of MW-35-104-3,
- MW-35-104-4, MW-35-104-5, and the western part of MW-35-104-2.
- District 7 shall consist of MW-34-100-1,
MW-34-100-2, MW-34-101-4, MW-34-101-5, MW-34-101-6, and the
southeastern part of MW-34-100-3.
5.
- District 8 shall consist of MW-34-102-5,
MW-34-102-1, MW-34-101-2, MW-34-101-3.
- District 9 shall consist of MW-34-101-1,
MW-34-101-1, MW-34-100-4,
MW-34-100-3.
9. The defendants shall forthwith take all steps
and the northwestern part of
necessary to prepare for the election of the city council
and mayor.
The court reserves a decision upon the plaintiffs’
claim for attorneys' fees and ye of -pocket expenses.
Done, this the i 329 of March, 1977.
U. S. DISTRICT COURT
SOU, DIST. ALA.
FILED AND ENTERED THIS THE
Gly > DAY OF MARCH
Zi
19.77, MINUTE ENTR
NO. L331
WILLIAM J. CONNOR, CLERK
DEPUTY CLERK
UNITED STATES DISTRICT JUDGE
I
ATTACHMENT B
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILEY L. BOLDEN, et al.,
Plaintiffs,
v. CIVIL ACTION
CITY OF MOBILE, ALABAMA, et al., No. . 75-297~P
Defendants.
APPLICATION FOR STAY PENDING APPEAL
Defendants City of Mobile, et al.., move this Court pursuant
to F.R.Civ.P, Rule 62{(c) for an order staying implementation of
this Court's Orders of October 21, 1976, and March 9 , 1977,
disestablishing the City's present form of government and in-
stituting a new mayor-council government, pending appeal to the
United States Court of Appeals for the Fifth Circuit and until
determination thereof, and shows to the Court as follows:
1. This Court's decision of October 21, 1976, was based
upon the legal premise that Plaintiffs were not required to prove
discriminatory intent or purpose to prevail under the Equal Pro-
tection Clause. Although the Supreme Court had recently held in
Washington v. Davis, 426 U.S. 229 (1976), that such intent was
essential to proof that a facially neutral official action is
violative of the Fourteenth Amendment, this Court concluded that
"Davis was inapplicable to the case ait bar.
Subsequent decisions of the Supieme Court demonstrate conclu-
sively that this Court was mistaken in limiting Davis to its facts.
Proof of invidious intent or purpose is a universal requirement for
success of any Equal Protection Challenge to facially neutal official
ment Corp., U.S. y> 97:8. Ct. 555, 563 (1977); United
States v. Board of School Commissioners of Indianapolis, U.S.
. 150.8,%.%. 3508 (U.S. Jan. 25, 19277), vacating 541. ¥ 2d
1211 (7th Cir. 1976) in light of Davis and Arlington Heights;
United Jewish Organization of Williamsburgh, Inc. v. Carey, U.s.
y 45: 0.8.L.W. 422), 423) (U.S. Mar. 1, 1977) (Stewart, J.,
concurring).
2. This Court's denial of access holding was based primarily
upon its finding of black discouragement over the chance for politi-
cal victory in the face of putative racial bloc voting in Mobile.
Yet the Supreme Court has recently reaffirmed the principle of
Nevett v. Sides, 533 F. 24 1361, 1365 {5th Cir. 1975) that even ..
where racially polarized voting precludes election of blacks; this
result does not offend the Constitution and require restructuring
of the electoral system to permit blacks to be elected. United
Jewish Organizations, supra., 45 U.S.L.W. at 4227.
3. On these and other points, the City is likely to prevail
on appeal.
4. This Court has recognized that its ordering of a change in
the City's form of government raised serious constitutional issues
as to which reasonable men might reasonably differ. 423 F. Supp. at
404. Unless the Orders of this Court are stayed pending resolution
of these issues by the Court of Appeals, Defendant City and its
citizens will suffer grave and irreparable harm. Mobile's present
Commission Government will have been scrapped, its Charter completely
revamped under Order of this Court, and a newly enlarged body of
City officials elected--all before the lawful basis for such a
changeover has been scrutinized by the Court of Appeals.
ME a BE AND 0 HEIN FN 03 WE Salis Dwi a A eno BT 2, ne SIGE TNR 20
>. The change of government ordered by this Court will clearly
occasion considerable confusion and disruption to the City's normal
functions. But if the Court of Appeals reverses, as Defendants
submit it must, these disruptive effects will pale in comparison with
those caused by reinstituting Mobile's Commission Form of Government.
The Court-ordered August 1977 councilmanic and mayoral election will
be rendered nugatory, and the nine newly elected Councilmen and the
Mayor would be reduced, once again, to three Commissioners. Candidates,
black and white alike, who have campaigned at considerable expense,
both personal and financial, will find themselves vying once again
for City office. The interests of all parties to this action, and
the interest of the public at large, will be gravely disserved if
this Court of equity counkenances these results by failure to stay
its hand pending appeal.
6. The status quo to be preserved pendente lite is the main-
tenance of Mobile's City Commission form of government, effective
for 66 years.
WHEREFORE, Defendants City of Mobile, et al., respectfully
urge this Court to order that all elections and electoral changes
in Mobile's present scheme of government be stayed pendente lite
and that Its Orders of October 21, 1976 and March 9, 1977 be
vacated pendente lite.
Respectfully submitted,
OF COUNSEL:
Hand, Arendall, Bedsole, C. B. " Arendall, Jr.
Greaves & Johnston William C. Tidwell III
Post Office Box 123 Travis M. Bedsole, Jr.
Mobile, Alabama 36601 Post OFfFfice Box 123
Mobile, Alabama 36601
Legal Department of the
City of Mobile Pred G,., Collins, City Attorney
Mobile, Alabama 36602 S. R. Sheppard, Assistant City
: Attorney
Rhvne & Rhyne City Hall
400 Hill Building Mobile, Alabama 36602
Washington, D.C. 20005
: Charles S. Rhyne
William S. Rhyne
Donald A. Carr
Martin Vi. Matzen
400 Hill Building
Washington, D.C. 20006
’ ’ ; i ; :
By > ASE 1t- ! Arya
: 7
Attorneys for Defendants
CERTIFICATE OF SERVICE
I do hereby certify that I have on this (pA day of
March, 1977, served a copy of the foregoing Application for Stay
Pending Appeal on counsel for all parties to this proceeding, by
mailing the same by United States mail, properly addressed, and
first class postage prepaid.
2x »
Ls ( 2 oni Ig
Attorney A
- ATTACHMENT C -
IN THE UNITED STATES DISTRICT COURT FOR TIE
SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILEY L. BOLDEN, et al., )
Plaintiffs, )
: CIVIL ACTION
VS. )
NO. 75-297-P
CITY OF MOBILE, ef al., )
Defendants. )
PLAINTIFFS' OPPOSITION TO DEFENDANTS’
APPLICATION FOR STAY PENDING APPEAL
Plaintiffs Wiley L. Bolden, et al., through thet
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 Vv. 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
ruling on Washington Vv. Davis follows the existing law established
in the Fifth Circuit. Never: Vv. Sides, 533 F.2d 1361 (5th Cir.
1976); McGill v.Gadsden County Commission, 535 F.2d 277 (5th
Cir. 1976); and Paige v. Cray, 538 F.24 11038 (5th Cir. 1976),
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 1207 {5th Cir. 1973)(en banc), aff'd, East Carroll
Parish School Board v. Marshall, 96 8.Ct. 1083 (1976). 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 Circult, which
should be handled by the multifactor test enunciated in
Zimmer. 538 7.24 at 1110. As this Court noted, 423 F.Supp. at
395 n.10, Paige Vv. Gray, states in no uncertain terms that
"tlhe Zimmer standards ... are still controlling in this
circuit. 538 F.24 at 1110 n.4.
3. In light of the clearly established law in this
circuit rejecting defendants' argument that Washington v. 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 Vv. 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, 415 F.24 743, 744 (5th Cir.
1969), and Belcher v. Birmingham Trust National Bank, 395 F.2d
635, 686 (5th Cir. 1968). Defendants have failed to carry
this burden.
-
I 8. There is no likelihood that the defendants-appellants
will prevail on the merits of this appeal. As stated above,
Paige v. Gray, Nevett v. Sides, and McGill v. Gasdsen County
Commission. reject the defendants' constitutional theory.
J
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
111}.
9. By denying the suggestions of defendants herein
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
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.8. 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
"n
reversal with respect to this Court's finding of "a 'current’
condition of dilution of the black vote resulting from
1
intentional state legislative inaction," by which this Court
reconciled its decision with the principles enunciated in
Washington v. Davis. 423 F.Supp. at 398.
11. Further, defendants’ application does nor 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.5.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 Vv. 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
7
presents ''movel questions.' Certainly the issues on appeal
in the instant case do not approach the degree of novelty
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.
Supreme Court affirmed for the first time a finding of voter
dilution, yet had denied a petition for stay pending appeal,
405 U.S. 1201; or City of Richmond v. United Stares, 95 S.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
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 rial of his 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
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. Qolillion V. Lishifool, 364 U.S. 339 (1960). Indeed,
defendants do not suggest in their applicationfor 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
0.8. "at 562, quoting Yick Wo v. Hopkins, 118 U.S. 355, 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
-
-—
2 A a AO ae y By: WJ i Qash ite 4d 3/0. 'BLACKSHER
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, faguive; 400 Hill Building, Washington, D. C. 20005,
by depositing same in United States Mail, postage prepaid
or by HAND DELIVERY.
ATTACHMENT D
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN LISTRICT OF ALABAMA
SOUTHERN DIVISION
WILEY L. BOLDEN, et al., 0
Plaintiffs, x
CIVIL ACTION
VS. is
NO. 75-297-P
CITY OF MOBILE, et al., x
Defendants. *
TEMPORARY STAY OF INJUNCTION
This cause is before the Court on the application filed
March 18, 1977, by Defendants for an Order staying imple-
mentation of this Court's Orders of October 21, 1976, and
March 9, 1976, pending determination of an appeal to the
United States Court of Appeals for the Fifth Circuit. Defen-
dants' motion urges this Court to stay, pending outcome of
the appeal, not only the changes in form of City government
and method of election prescribed by the aforesaid orders,
but all elections under the present scheme of government
as well.
The sole contention advanced by the City Commissioners
in their motion as grounds for contending this Court's orders
are likely to be reversed on appeal is that recent Supreme
Court decisions demonstrate conclusively that this Court was
mistaken in its interpretation of Washington v. Davis, 426
U.5. 229 (1976), as it applies to this case. Buc this Court
is of the opinion that Fifth Circuit voter dilution cases
533. F.2d 13561 (5th Cir. 1976); McGill Vv, Gadsden County
Commission, 535 F.24 277 (5th Cir. 1978); and particularly
Paige v. Gray, 538 F.2d 1108 (5th Cir. 1976), have considered
and rejected the suggestion that Washington v. Davis has
undermined the continued viability of Zimmer Vv. McKeithen,
485: F.2d 1297 (5th Cixr. 1973) (en banc), aff'd, Fast Carroll
Parish School Board v. Marshall, 96.8.Ct. 1083 (1978), which
this Court so assiduously followed in reaching its conclusion
that the at-large election of the Mobile City Commission is
unconstitutional. "The Zimmer standards ... are still
controlling in this circuit.” Paige v. Gray, supra, 338 7.
2d at 1110 n.4.
Thus this Court is of the opinion that it would be
inappropriate for it to grant Defendants' application for a
stay pendente lite in the face of such clear directions from
the Court of Appeals. Furthermore, the Court is not impressed
with the City Commissioners' argument that "the majority"
of the citizens of Mobile will suffer irreparable injury
absent issuance of the requested stay. The Legislature of
Alabama has been in session three times since this action
began, and the Court has throughout its course taken pains
to urge the Commissioners and the Mobile County Legislative
Delegation to enact suitable changes in the election system
to remedy its present racially discriminatory features.
Yet the Defendants have refused to act. Even as the City
Commissioners approach this Court with their petition to
preserve the status quo, they have taken no initiative
toward proposing to the Legislature now in session some
alternative to the Court's plan that would still protect
black citizens' rights to equal representation in city
government.
However, this Court has Since the trial of this case
indicated its strong desire that the Court of Appeals be
given the opportunity to review the ''serious constitutional
issues" and any remedial plan imposed by this Court prior to
the 1977 City elections. Bolden v. City of Mobile, 423
F.Supp. 384, 404 (S.D. Ala. 1976). In addition, it has
been called to the Court's attention that election officials
may have difficulty meeting the May 1, 1977, deadline in the
March 9, 1977, order for redesignating certain new wards and
informing affected voters of the changes.
ACCORDINGLY, it is ORDERED, ADJUDGED and DECREED as
follows:
1. The time for accomplishing the tasks set out
in paragraph 7 of this Court's March 9, 1977, Order is
hereby extended from May 1, 1977, to June 1, 1977.
2. Defendants' application for a stay of the
October 21, 1976, and March 9, 1977, Orders pending final
determination of the appeal pending in the Court of Appeals
is HEREBY DENIED.
3. This Court's Orders of Geioher 21, 1976. and
March 9, 1977, are HEREBY TEMPORARILY STAYED until April
15, 1977, in order to enable Defendants, or any one or more
of them, to apply for and obtain a stay of said Orders of
October 21, 1976, and March ©, 1977, From the Court of
Appeals for the Fifth Circuit. See Bush v. Martin, 224
F.Supp. 488, 5172 (5.0. Tex. 1953),
UNITED STATES DISTRICT JUDGE
9... E
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILEY IL. BOLDEN, et al.,
Plaintiffs,
VS. CIVIL ACTION NO. 75-297-P
CITY OF MOBILE, et al.,
O
N
ON
NH
OH
O
N
¥
Defendants.
SUPPLEMENTAL MEMORANDUM IN SUPPORT
OF DEFENDANTS' MOTION FOR STAY
XI. INTRODUCTION
Defendants have moved the Court to stay its Order of March
9, 1977, pending resolution of Defendants' appeal. The Court
heard oral argument on this motion on Wednesday, March 23, 1977,
and requested the parties to submit supplemental briefs by Friday,
April 1,:1977.
II. ARGUMENT
Whether injunctive relief granted by a district court should
be stayed pending disposition of the appeal of that order is a
decision entrusted to the sound discretion of the district court.
Wright & Miller, Federal Practice and Procedure: Civil §2904, at
316; see Beverly v. United States, 468 F.2d 732, 740 n.13
(5th Cir. 1972). The traditional considerations guiding the court
in the exercise of its discretion are (1) the likelihood of suc-
cess on the merits on appeal, (2) irreparable injury to the appli-
cant, (3) lack of substantial harm to other parties, and (4) the
public interest. E.g., Pitcher v. Laird, 415 F.24 743 (5th Cir.
1969); Belcher v. Birmingham Trust National Bank, 395 F.2d 685
{5th Cir. 1968); Wright & Miller, supra $2904, at 316. "If the
court is satisfied that these considerations or other relevant con-
siderations indicate that an injunction should be stayed pending
appeal, a stay will be granted."Wright & Miller, supra §2904, at
317 (emphasis added).
The Court is familiar with the last three considerations,
and is cognizant of the enormous confusion and disruption that
would occur if the form of the government of the City of Mobile
were changed only to have to be changed back should the appeal
be successful. Accordingly, and as Your Honor suggested, De-
fendants will direct this memorandum to the first of the four
considerations set out above.
As pointed out in Defendants' first memorandum, the first
consideration is subject to an aration or significant relaxa-
tion in cases of first impression or where novel remedies have
been ordered. This exception or relaxation is a practical neces-
sity since no district judge is likely to rule one way while ack-
nowledging that the losing side will likely prevail on the merits
on appeal. 7 Moore's Federal Practice para. 62.05 n.i5c.,
Moore cites as examples of stays granted in novel cases
Bradley v. School Board of the City of Richmond, 456 F.2d 6 (4th
Cir. 1972) (school district merging case) and Rodriguez v. San
Antonio Independent School District, 337 F. Supp. 280 (W.D. Tex.
1972) (school property tax equalization case). Cases specifical-
ly recognizing the existence of an exception or significant relaxa-
tion of the first consideration where novel issues are involved
include Marr v. Lyon, 377 F. Supp. 1146 (W.D. Okla. 1974) and
Stop H-3 Association v. Volpe, 353 F. Supp. 14 (D. Hawaii 1972).
In Marr v. Lyon the court said:
The Court recognizes that the issues in this
case are novel and thus Defendants should be
given the benefit of the doubt as to whether
they are likely to succeed on appeal. . . .
377 F. Supp.at 1148.
Several factors bring this case within the novel case rule.
First, this case, along with the Shreveport case, is the first to
AE ts LW rere BR TR NI RA Tp Tn
apply voter dilution principles to at-large elections that are
an integral part of a commission form of government. Second,
this case is the first to consider in detail the applicability
of Washington v. Davis, 426 U.S. 229 (1976), to voter dilution
cases and the changes in the law, if any, resulting from that
Supreme Court decision.
Third, and most significant, this Court has ordered a
unique remedy; it is the first court, as far as Defendants are
aware, to order a city to change its form of government to remedy
the existence of (alleged) unconstitutional dilution resulting
from at-large election of city commissioners. This Court has
itself recognized the uniqueness of this remedy and the existence
of substantial ground for difference of opinion as to its validity
by certifying its October 21, 1976, Order for interlocutory
appeal pursuant to 28 U.S.C. §1292(b). C.f. Brown v. Texas and
1975
Pacific R.R. Co., 392 F. Supp. 1120, 1126 (W.D. La./) (court certi-
fied interlocutory appeal and stayed further proceedings pending
resolution of appeal); Fawvor v. Texaco, inc., 387 FP. Supp. 626,
629 (E.D. Tex. 1975) (court certified interlocutory appeal and
stayed further proceedings pending resolution of appeal).
A review of the case law indicates that this Court has ample
discretion in the circumstances of this case to grant the stay
requested. In Corpus Christi School District v. Cisneros, 404
U.S. 1211 (1971), the district court ordered extensive desegrega-
tion of a school district bak stayed its order pending appeal to
the Fifth Circuit. The court of AoneaY Shin vacated the stav even
though the appeal had not yet been heard. On petition by the
school district, Justice Black of the Supreme Court reversed the
Fifth Circuit and reinstated the district court's stay, sayng:
It is apparent that this case is in an
undesirable state of confusion and presents
a i Ch rp ee fe Te a 3 FE BIER SE A PI nce fe a me 5 4 SPI 0 037 ASI = Tho So
questions not heretofore Passed upon
by the full Court, but which should be.
Under these circumstances, which pre-
sent a very anomalous, new, and confus-
ing situation, I decline as a single
Justice to upset the District Court's
stay and, therefore, I reinstate it . . . .
The stay will be reinstated pending action
on the merits in the Fifth Circuit or
action by the full Court.
404 U.S. at 1212.
In Bradley v. School Board of the City of Richmond, supra,
the district court ordered extensive merger of school districts
to eliminate segregation. The Fourth Circuit granted a stay of
the district court's order pending resolution of the appeal on the
merits. whe cours of appeals ordered the defendants to continue
planning and preparation for a merger of the school districts
"to the end that there will no unnecessary delay in the implemen ~
tation of the ultimate step . . . in the event that the order is
affirmed on appeal," but stayed actual implementation of the
merger. 456 F.2d at 7. The course of action tentatively indicated
by Your Honor in this case is quite similar to that adopted in
Bradley. Defendants would be ordered to make all preparation and
plans for holding of mayor-council elections so that all unneces-
sary delay is avoided if Your Honor's decision is affirmed on
appeal, but actual implementation of that order would be stayed
until the appeal is resolved.
In Medley v. School Board of the City of Danville, Virginia,
350 F. Supp. 34 (W.D. Va. 1972), remanded on other grounds, 482
F.2d 1061 (4th Cir. 1973), the district court ordered steps to
eliminate segregation in public schools, but recognized the costs
and extensive disruption that would be caused by its order, stayed
the order pending resolution of the appeal. The district court
granted the stay even though it had ruled against defendants on
the substantive issues and had not made a finding that defendants
were likely to prevail on papeal.
It should be noted that Defendants here are not seeking an
injunction pending appeal even though the court has denied in-
junctive relief on the merits, but rather are, in order to pre-
serve the status quo, seeking a stay of the affirmative injunc-
tive relief ordered by the Court. Compare Pitcher v. Laird,
supra, with Stop H-3 Association v. Volpe, supra at 16 (stay
appropriate to preserve status quo). It is appropriate for the
district court to give more or less weight to each of the four
considerations for the exercise of its discretion depending on
the circumstances existing in the case and the court's knowledge
of the particular problems and cirsumstances existing. There is
no requirement that before the district court can grant a stay it
must in every case find the 100% existence of each of the four
considerations. See Belcher v. Birmingham Trust National Bank,
supra; Marr v. Lyon, supra (recognizing relaxation of first consi-
deration in novel cases); Stop H-3 Association v. Volpe, supra
(recognizing relaxation of first consideration in cases charting
new ground).
In Belcher, the Fifth Circuit found that the fourth element,
the public interest, had "little bearing” in a case between private
parties, distinguishing situations where "the public interest fac-
tor is 'crucial' in [for example] litigation over regulatory
statutes « . « "395 F.2d at 685. Clearly, the FPifth Circuit is
recognizing that the weight to be given to each of the four con-
siderations depends upon the circumstances of the particular case.
It would have been pointless for the Fifth Circuit in Belcher, and
in courts in many other cases, to continue to examine the other
three considerations if the rule were that a failure to establish
the probability of success on appeal precluded issuance of a stay.
IIT. CONCLUSION
In light of the circumstances of this dase, particularly
the confusion and dislocation unavoidably resulting from a
change in city government and the admitted novely of the remedy
ordered, this Court should exercise its discretion to stay its
Order of March 9, 1977, pending resolution of Defendants' appeal.
Respectfully submited on this lst day of April, 1977.
OF COUNSEL:
Hand, Arendall, Bedsole, C. B. Arendall, Jr.
Greaves & Johnston William C. Tidwell, IIT
Post Office Box 123 Travis M. Bedsole, Jr.
Mobile, Alabama 36601 Post Office Box 123
=, Mobile, Alabama 36601
Legal Department of the
City of Mobile Fred G. Collins, City Attorney
Mobile, Alabama 36602 City Hall
: Mobile, Alabama 36602
Rhyne & Rhyne
400 Hill Building Charles S. Rhyne
Washington, D. C. 20006 William S. Rhyne
Donald A. Carr
Martin W. Matzen
400 Hill Building
Washington, D.C. 20006
By: (ono) Sra
Attorneys for Defendants
CERTIFICATE OF SERVICE
I do hereby certify that I have on this /27 day of april,
1977, served a copy of the foregoing Supplemental Memorandum in
Support of Defendants' Motion for Stay on counsel for all parties
to this proceeding, by mailing the same by United States mail,
properly addressed, and first class postage prepaid.
Attorney /
ATTACHMENT F
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' MEMORANDUM BRIEF OPPOSING
APPLICATION FOR STAY PENDING APPEAL
Plaintiffs Wiley L. Bolden, et al., pursuant to the Court's
instructions from the bench on March 23, 1977, herein submit
authorities and suggestions supplementing those in their
opposition to Defendants' Application For Stay, filed March
23,:1977.
The parties agree that the principles of Pitcher v. Laird,
413 P.24 743 (5th Cir. 1969) and Belcher v. B.T.N.B.. 395 7.24
685 (5th Cir. 1968), control the determination of whether this
Court's Orders of October 21, 1976,and March 9, 1977,should
be stayed. The defendants' burden is to show that all four
factors have been met for this Court to grant this "extraordi-
nary remedy,' Belcher, supra, 395 F.2d at 686, and "(intrude)
into the ordinary processes of administration and judicial
review,” Virginia Petroleum Job Ass'n v. F.P.C., 259 F.24 921,
925 {Cir. D.C. 1958), quoted with approval in Belcher, swra,
395 F.2d at 685-86.
During oral argument on March 23, 1977, the Court expressed
greatest concern for the public interest among the factors
that must be considered. It is the plaintiffs' position that
allowing further elections under the present form of
commission government is the least desirable of the choices
facing this Court. Those choices include the three suggested
by the Commissioners at oral argument:
(1) unlimited stay of elections,
(2) commission elections in August 1977,
(3) mayor/council elections in August 1977, and
two other alternatives Plaintiffs suggest:
(4) limited stay to allow application to the
court of appeals, and
(5) delay of elections for a specified period
of time.
The Court of Appeals has indicated that this case will
be argued during the month of June and that deliberation
on 1
toward reaching a decisior/the merits will also be expedited.
Title 37, §34(78), Code of Alabama (1958), provides for
qualification of candidates in commission elections by the
third Tuesday in June with elections held the third Tuesday
in August and any necessary run-off the first Tuesday in
September, Title 37, §34(74). Under the mayor-council form
of municipal government, candidates must qualify by the first
Tuesday in July, Title 37, §34(25) (Supp.l1975), and the
election is to be held on the second Tuesday in August, Title
37, §34(21). Thus the campaign and election will be held
after argument to the Court of Appeals, and there is a
substantial chance of an opinion being rendered during the
campaign or shortly after the elections.
A city commission campaign and election conducted under
such uncertainty would greatly distort the normal political
processes. No serious challengers will enter the contest
against the incumbent Commissioners; the cost of a serious
campaign, (between $30,000 and $100,000) and the probability
that the commission form is unconstitutional mean the victors
1
In a phone call with undersigned counsel on March 31, 1977, the
Deputy Clerk said the Fifth Circuit has rendered expedited decisions
as soon as one day after argument and as late as several months
thereafter.
will enjoy a very short term in office.
The Probate Court estimates the cost of a county-wide
election at $250,000. It is reasonable to assume that a
city-wide election wuld cost only slightly less. Of course,
the campaign costs for candidates could easily approach
hundreds of thousands of dollars. All citizens will be
greatly injured if such a costly process is declared a nullity
shortly after or, possibly at the same time, it is held. Yet
this is the most likely prospect if commission elections are
held as regularly scheduled.
In-all candor, plaintiffs’ attorneys felt that defendants’
prayer for relief in the Application for Stay was an admission
that holding commission elections as scheduled was the option
least desirable and most injurious to the public interest.
Defendants, in their prayer for relief, asked that all elections
be stayed pendente lite.
However, for this Court to stay all elections presents
the question of how long the stay should be effective. The
answer so inherently depends on the docket of the Court of
Appeals and when it will render an opinion that plaintiffs
alternatively asked the Court to grant only a temporary stay
so the defendants could ask the Court of Appeals for a stay
pendente lite. Only the Fifth Circuit has an idea of what
time is involved in a stay pendente lite. Furthermore, it
would serve to impress upon the Fifth Circuit the urgency
of the appeal.
Plaintiffs' primary position is that mayor-council
elections should be held this August. Though arguably this
Court's judgment could be overturned by the Court of Appeals
there is a lesser likelihood of reversal than of affirmance.
The election cost would be approximately the same as for a
commission election, and campaign COREE would likely be less
than under the commission form because of the single-member
districrs.
Most importantly for the public, the election would be
less "politically distorted" by the pendency of the appeal
than would a commission election. Since the mayor-council
form is constitutional, even if the Fifth Circuit reverses
there would not be the ccmpelling need for an immediate special
election. The mayor-council election itself would likely
attract many candidates conducting vigorous campaigns. By
contrast, a commission election during the pendency of this
appeal would be more than ever weighted in favor of the
incumbents.
Plaintiffs are mindful that the court seemed persuaded
that the administrative changes involved in establishing a
mayor-council government would be substantial. We respectfully
disagree. But in the event the Court is inclined toward
neither ordering mayor-council elections pending appeal nor
the alternative temporary stay suggested in our original
opposition (long enough for Defendants to petition the Fifth
Circuit for a stay), Plaintiffs advance yet another alternative:
staying all city elections for a specified term, possibly
three months. This would avoid altogether the undesirable
contingency of an immediate ruling by the Fifth Circuit coming
during the middle of an election campaign or shortly after
new commissioners had been elected. Because under Title 37,
§34(74) the present Commissioners' terms do not expire until
the first Monday in October, such a stay might not ultimately
require extension of the incumbents' terms of office.
By setting a date certain for the postponed mayor-council
elections (and for the postponed antecedent candidate qualification
dates), the Court of Appeals would be duly informed that it had
Plaintiffs contend that, except for the actual operation of a council
meeting, much of the change would involve directing the various department
heads to report to the mayor rather than to the particular commissioners.
Without belaboring this point, Plaintiffs suggest that the Court might
cesire to take evidence on this issue.
a specific period of time in which to act -- preferably by
a ruling on the merits or, if that were not possible, by
entering its own order continuing the stay. If this Court
wished to retain control of the stay situation itself, rather
than referring Defendants to the Fifth Circuit for its
continuation as the postponed qualification date approached,
the order granting a stay could direct Defendants to reapply
to this Court for further consideration if by then the Court
of Appeals had not ruled on the merits.
It should be kept in mind, however, that the important
feature of such a stay would be the dates certain for candidate
qualification and election. This would serve the important
public interest of avoiding confusion and unnecessary expense
by letting the electorate and aspiring candidates know what to
expect and when. Further, it would keep the burden of
expediting the appeal on the Commissioners-appellees, where it
properly belongs. After all, had the Commissioners filed their
appeal as soon as this Court invited them to, it would have
been likely that oral argument now would be scheduled for the
Fifth Circuit's May docket, in which event their decision
could be rendered before the June qualification dates.
In conclusion, we wish again to underscore how a stay
authorizing new city commission elections in August 1977 is
perhaps the least equitable of the several options. Pending this
i A
appeal, no serious candidates are likely to challenge the
incumbents in a city-wide race, and the voters will be given
little choice. It is highly likely that. the City would have
to pay for a second election no later than August 1978. And
even in the unlikely event this Court's judgment is reversed
on its merits, the citizens will be saddled for four full
years with commissioners who gained office through an election
that was abnormally weighted in favor of incumbents and the
wealthy.
If, however, this Court permits new commission elections
to take place pending appeal, there is an additional cautionary
point to be made. Once this Court was affirmed, the new
- commissioners could still complain that dissolving the stay
before the end of their four-year term would be inequitable because
of the financial losses it would cause both them (campaign
monies spent) and the City (the cost of new elections). FEven
if this Court rejected these or similar arguments, the
Commissioners might still keep themselves in office longer by
successfully appealing dissolution of the stay. Accordingly,
if the Court grants such a stay, it should first obtain
Defendants' agreement on the record that, following affirmance,
they will not oppose dissolution of the stay on such grounds.
Respectfully submitted this lst day of April, 1977.
CRAWFORD, BLACKSHER, FIGURES & BROWN
1407 DAVIS AVENUE
MOBILE, ALABAMA 36603
i) os 3 7 sv: Af Al radius J/ U. BLACKSHER
LARRY T. MENEFEE
EDWARD STILL, ESQUIRE
601 TITLE BUILDING
BIRMINGHAM, ALABAMA 35203
JACK CREENBERG, ESQUIRE
ERIC SCHNAPPER, ESQUIRE
SUITE 2030
10 COLUMBUS CIRCLE
NEW YORK, N. VY. 10019
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I do hereby certify that on this the lst day of April, 1977,
I served a copy of the foregoing PLAINTIFFS' MEMORANDUM BRIEF
OPPOSING APPLICATION FOR STAY PENDING APPEAL upon counsel of
record, Charles Arendall, Esquire, Post Office Box 123, Mobile,
Alabama 36601 and Fred Collins, Esquire, Post Office Box 16626,
Mobile, Alabama 36616, by depositing same in United States Mail,
postage prepaid.
7 pe
Nd A I AA dtl Erle —
Xeétorney for Plaintiffs
* @ “CENT G
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WILEY L. 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,
Plaintiffs,
CIVIL ACTION
Vv.
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,
N
o
No
N
o
SN
SN
N
S
N
S
N
N
N
N
N
N
N
N
N
N
N
N
N
N
Defendants.
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, 1977.
The court, by order and opinion dated October 21,
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 in iis March 9, 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,.3977, at 3).
The City of Mobile petitions this court to issue a
stay of its order 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
upon such terms . . . as it con~-
sidersiproper .. . .. .” 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. .7.28 921, 925 (19538), 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, 468 F.28 732, 741. n. 13 (5th Cix, 1972). Yor
the court to follow an iron-clad rule requiring a significant
showing by the movant of all four factors would be applying
form over subsiance,
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
crete 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 confusion 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 adoptitn 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 to 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 courts-iould 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
affect 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
pp
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 {anies” 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, tnelndite 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
ye
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
Tor 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
12 Wal i] 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.
[ om
.Done, this the 7 day of April, 1977.
i
FZ wl 7 i 0
UNTTED STATES DISTRICT JUDGE
U. S. DISTRICT COURT
SOU. DIST. ALA.
FILED AND ENTERED THIS THE
DAY OF APRIL, 1977
thie ENTRY NO. 4328
bagi SS O'CONNOR, CLERK
BY- Stra Ary
Deputy Clerk