Memorandum from Lani Guinier to Peter Judd Re Federal Express Forms and Time Slips

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IN THE UNITED STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

  

WILEY L. BOLDEN, et al., 

Plaintiffs, 

VS. CIVIL. ACTION NO. 75-297-P 

CITY OF MOBILE, et al., 

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Defendants. 

SUPPLEMENTAL MEMORANDUM IN SUPPORT 
OF DEFENDANTS' MOTION FOR STAY 
  

1. 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. 

ITI. 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 
  

(3th 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 exception 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.l1l5c.   

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 spécifical- 

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. . i. 

377 F, Supp. at 1148. 

Several factors bring this case within the novel case rule. 

Pirst, this case, along with the Shreveport case, is the first to 

  

 



    

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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 FP, Supp. 1120, 1126 (W.D. La./) (court certi-   

fied interlocutory appeal and stayed further proceedings pending 

resolution of appeal); Fawvor v. Texaco, Inc., 387 7. 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 but stayed its order pending appeal to 

the Fifth Circuit. = The court of Apel than vacated the stay 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 A ta het ee   

   



  

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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. The court 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 686. Clearly, the Fifth 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 case, 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, 
Greaves & Johnston 

Post Office Box 123 
Mobile, Alabama 36601 

Legal Department of the 
City of Mobile 

Mobile, Alabama 36602 

Rhyne & Rhyne 
400 Hill Building 
Washington, D. C. 20006 

C. B. Arendall, Jr. 
William C. Tidwell, III 
Travis M. Bedsole, Jr. 
Post Office Box 123 
Mobile, Alabama 36601 

Fred G. Collins, City Attorney 
City Hall 
Mobile, Alabama 36602 

Charles S. Rhyne 
William S. Rhyne 
Donald A. Carr 
Martin W. Matzen 
400 Hill Building 
Washington, D.C. 20006 

By: oC], Re mane A 
  

Attorneys for Detenianis 

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have on this Vial 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 /