Plaintiffs' Memorandum Brief Opposing Application for Stay Pending Appeal with Cover Letter

    CRAWFORD, BLACKSHER, FIGURES & BROWN 

ATTORNEYS AT LAW 

1407 DAVIS AVENUE 

MOBILE, ALABAMA 36603 

VERNON Z. CRAWFORD TELEPHONE 432-1691 

JAMES U. SLACKSHER AREA CODE (205) 

MICHAEL A. FIGURES 

W. CLINTON BROWN, JR. 

GREGORY B.STEIN 

LARRY T. MENEFEE 

April 1, 1977 

Honorable Virgil Pittman 
United States District Judge 
United States District Court 
Post Office Box 465 
Mobile, Alabama 36601 

Re: Bolden, et al. v. City of Mobile, et al. 
Civil Action No. 75-297-P BEN dein 
  

Dear Judge Pittman: 

Enclosed is plaintiffs’ memorandum brief concerning the 
application for stay, which Your Honor requested be filed 
by this date. 

I wish to call Your Honor's particular attention to the 
alternative we suggest in the brief. In the event Your Honor 
remains unhappy with our primary position, I believe this new 
alternative presents important considerations that were not 
originally brought out at oral argument on the 23rd. 

Best regards. 

Very respectfully, 

CRAWFORD, BLACKSHER, FIGURES & BROWN 

Original signed by J.U. Blackshet 

J. U.:Blacksher 

JUB:bsm 

cc: W.J. O'Connor, Clerk 
Edward Still, Esquire 
Eric Schnapper, Esquire 
Charles Arendall, Esquire 
Fred G. Collins, Esquire  



  

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY 1. 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 F.28 743 {5th Cir. 1969) and Belcher v. B.T.N.B,. 395 7.24 
  

635 (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.2d 921, 
  

925 (Cir. D.C. 1958), quoted with approval in Belcher, supra, 
  

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) 
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 
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.1975), 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 dogts would likely be less 

than under the commission form because of the single-member 

districts. 

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 compelling need for an immediate special 

election. The mayor-council election itself would likely 

attract many catididaten 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 

  

2 

: 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 

desire 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 

I  



  

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). Even 

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 b J 

they will not oppose .dissolution of the stay on such grounds. Y I g 

 



Respectfully submitted this lst day of April, 1977. 

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

Lo os Ld tol te 
Sra 

TARRY 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. V,. 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. 

Y 

[OL 2 f2 adi 
Rear for Plaintiffs