Bates v. Batte Brief in Opposition to Petition for Writ of Certiorari

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IN THE UNITED STATES DISTRICT COURT ¥s 
FOR THE MIDDLE DISTRICT OF ALABAMA \ 

NORTHERN DIVISION 2 
  

JOHN DILLARD, ET AL., 

Plaintiffs, 

vi, CIVIL ACTION “NO. CV B5-T-1332-N 

CRENSHAW COUNTY, ALABAMA 
ET AL., 

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Defendants. 

PLAINTIFFS' OPPOSITION TO APPLICATION 
FOR STAY OF LAWRENCE COUNTY 
  

Plaintiffs, John Dillard, et al., through their 

undersigned attorneys urge the court to deny a motion for stay 

pending appeal filed by Lawrence County, Alabama. There are 

significant factual and practical problems posed by the Lawrence 

County application for stay. Controlling legal principals also 

strongly disfavor a stay as requested by Lawrence County. 

  

FACTUAL/PRACTICAL PROBLEMS 

The Lawrence County request for a stay poses some 

unique factual and practical problems which strongly countenance 

agajnst the court's granting of the stay application. First, it 

is important to note what Lawrence County has requested. They 

have requested that the incumbent, at-large elected, county 

chairman be retained in office pending this appeal. The 

incumbent commissioners have not asked that elections for new 

 



  

commissioners be stayed. New commissioners will take office 

January 1, 1987 and virtually all of the incumbent commissioners 

either did not seek office or were defeated in their efforts for 

reelection. It is not at all clear that the newly elected 

commissioners will desire to protect the incumbent county 

chairman. 

Most importantly, however, the defendents have 

suggested in their brief (page 5), but not in their motion, that 

the chairman would no longer vote and would not serve as chair of 

the meetings. Thus, the defendants have proposed a form of 

government that would neither exist in state law nor court 

order. As a result, if there were disputes about appropriate 

duties and powers of the chairman and the newly elected 

commissioners, this court would be the constant mediator of such 

questions potentially ensnarling the court in endless political 

disputes. 

The petitioners argue that it would be administratively 

more expedient to retain the current county chairman in office to 

handle the day-to-day affairs of Lawrence County. This matter has 

already been considered by the court and it was determined that 

the county commissioners, elected from single-member districts, 

would make such arrangements as were necessary to administer the 

day-to-day affairs of Lawrence County. The movants in effect ask 

this court to decide that Chairman Sonny Malcolm is the best 

qualified person to administer the affairs of Lawrence County. 

Assuming Mr. Malcolm is the best qualified, the newly elected 

 



  

Lawrence County commissioners could easily decide in January to 

hire Mr. Malcolm either because of his particular administrative 

skills, his availability, or his particular knowledge and ease of 

transition into this new arrangement of government. Allowing the 

county commissioners to make that decision removes the court from 

the potentially very bad position of having to resolve disputes 

between a court-retained administrator and the newly elected 

commissioners. The newly elected county commissioners will have 

every incentive for their government to run in an efficient and 

responsive manner. There will be every incentive to hire as the 

first county administrator the incumbent Chairman Malcolm if they 

determine he is qualified and can work with the commissioners in 

a cooperative manner. 

Every argument of convenience, economy and ease of 

administration advanced by the defendants thus fails. Indeed, 

those arguments favor not granting the stay. The only argument 

advanced by the defendants which has not been dealt with is the 

"personal stake" of the incumbent chairman (Defendant letter, p. 

5) which the defendants acknowledge to have "marginal legal 

significance”. This is to be contrasted to the constitutional 

and statutory rights of the plaintiff class ‘to have free, 

non-discriminatory and fair elections. The chairman, Mr. 

Malcolm, was not sued in either his individual or official 

capacity... He has no standing in this litigation. Bender. v,. 
  

Williamsport Area School District, U.S. S006 SL. Lt. 1326 
  

(1986). 

 



  

The irony of the defendant's request is that we don't 

know what the new commission will decide to do about running the 

day-to-day affairs of the commission. If, in fact, the new 

commissioners desire Mr. Malcolm as their administrator, the old 

commissioners need not petition the court for a stay pending 

appeal. On the other hand, if the newly elected commissioners 

have some reason not to want Mr. Malcolm as their commissioner, 

it would i11 behoove the court to impose that daily working 

relationship on the politics of Lawrence County. The latter 

scenario is far more potentially disruptive than merely changing 

from one personality to another as the defendants have 

portrayed. 

LEGAL STANDARDS 
  

Plaintiffs agree with the defendants reliance upon 

Garcia-Nir'v. Meese, 781 F.2d 1450 (11th Cir. 1986) as a correct 
  

statement of the controlling law. Garcia-Mir says that normally 
  

a movant must show a probable likelihood of success on the merits 

unless the balance of the equities heavily favors the movant. 

When the equities heavily favor the movant, the burden is a 

somewhat lighter showing of a "substantial case" on the merits. 

Plaintiffs would also point out that voting rights are entitled 

to special protection; they are fundamental and preservative of 

all other rights. Yick Wo v. Hopkins, 118.U.5. 356, 370, 6 
  

S.Ct. 1064, 307%, 30 L.Ed. 220. (1886); Reynolds v. Sims, 377 
  

U.S 533, 567-562,/84 S.Ct. 1362,1381, 12 L.Ed.20 506 (1964). 

 



  

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significantly different test than does Section 2 of the Voting 

Rights Act. The defendants have compared apples and oranges in 

advancing this arguent. 

The harm to the plaintiffs, the non-movants, is 

substantial and was sufficient to persuade this court to grant 

relief in its Order of October 2%, 1986. Besides all of the 

discriminatory and dilutive effects and historical intent, this 

court found that having a non-voting chair as Lawrence County 

proposes 

would also dilute black voting strength by 
depriving the other commissioners of the 
practical political powers that commissioners 
normally enjoy. Just at the time that the 
Voting Rights Act affords blacks an equal 
opportunity to elect candidates of their 
choice to the county commission, the persons 
they are able to elect would end up with less 
practical political influence than that of 
their previously at-large elected counterparts. 
Important day-to-day political power would be 
transferred to a single person, who would be 
elected by the very at-large majority vote system 
that this court has declared unlawful because it 
impermissibly dilutes black voting strength. 

Mem. Op., Oct. 2%, 1986, p. 13 

Even if the defendants' claims of significant 

administrative disruption were correct, they do not outweigh the 

constitutional and statutory rights advanced by the plaintiffs in 

this cause. Any change in administration will have some 

administrative inconvenience. The defendants make it sound as 

 



    

though there are no other full-time officials in county 

government. There is no reason that the change to the new 

administration need be any more disruptive than any other changes 

in administrations that have ever occurred in Lawrence County. 

Indeed, the incoming administration has the option of hiring the 

outgoing chairman, Mr. Malcolm, as the county administrator. The 

harm to the movants is therefore non-existent. 

The public interest is co-extentive with the 

considerations discussed above. The citizens of Lawrence County 

are entitled first to a constitutional and legal government and, 

to the greatest extent possible, a government that is 

administratively sound. 

CONCLUSION 
  

The law and equities strongly favor plaintiffs' claim. 

The harm alleged by the defendants in their brief from failure to 

grant a stay is illusory and, in fact, iT a stay was granted, the 

potential entanglement of the court in the day-to-day affairs of 

running Lawrence County could be considerable. The court should 

deny Lawrence County's stay application. Plaintiffs believe that 

the true motivation for the defendant's claim is to preserve the 

employment of Chairman Sonny Malcolm. He in fact has no standing 

in this litigation to raise such an issue. 1f no stay is 

granted, there may be an opening for county administrator for 

which Mr. Malcolm may be one of the better qualified applicants 

in Lawrence County. If he can demonstrate to the new 

 



    

commissioners his ability to work cooperatively with them, he 

would have to be considered a credible candidate for the 

position. If he cannot demonstrate his ability to work 

cooperatively with the new commissioners, then certainly this 

court should not impose such an administrator on the new 

commissioners. The motion for stay should be denied. 
th 

Respectfully submitted this 24 day of 

9 / / g 7 

BLACKSHER, MENEFEE & STEIN, P.A. 
Fifth Floor Title Building 
300 Twenty-First Street North 
Birmingham, Alabama 35203 
(205) 322-7300 

BY: 

~LARRY)- ar ok 
JAMES’ U. BLACKSHER 

  

TERRY GCG. DAVIS 
SEAY & DAVIS 
732 Carter Hill Road 
P.0. Box6125 
Montgomery, Alabama 36106 
(205) 834-2000 

DEBORAH FINS 
JULIUS L. CHAMBERS 
NAACP LEGAL DEFENSE FUND 
99 Hudson Street, 16th Floor 
New York, New York 10013 

(212) 219-1900 

EDWARD STILL 
REEVES & STILL 
714 South 29th Sirveet 
Birmingham, Alabama 35233-2810 
(205) 322-6631 

 



REO KIRKLAND, JR. 
307 Evergreen Avenue 
P.O. Box 646 
Brewton, Alabama 36427 
(205) 867-5711 

Attorneys for Plaintiffs 

CERTIFICATE OF SERVICE 
  

This is to certify that a copy of the foregoing has 

been served upon the following by depositing same in the United 

i : 7C 
States Mail, postage prepaid, on this the 24 day of 

Le toned 1985: 
  

H. R...Bornhawm, Esq. DP. lL oMartin, £84. 
Herbert «D. Jones, Jr., £3q. 215 South Main Street 
BURNHAM, KLINEFELTER, HALSEY, Moulton, AL 35650 

JONES & CARTER (LAWRENCE COUNTY, SMITH & LIGON) 

401 SouthTrust Bank Building 
P.O. Box 3618 
Anniston, Alabama 36202 

(CALHOUN COUNTY) 

David R. Boyd, Esq. 
BALCH & BINGHAM 
2 Dexter Avenue 
P.O. Box 78 
Montgomery, Alabama 36101 
(LAWRENCE COUNTY, SMITH & LIGON) 

BLACKSHER, MENEFEE & STEIN, P.A. 

BY: x 
0. 8YTY £ Menkfee /