Plaintiffs' Memorandum Brief Opposing Application for Stay Pending Appeal with Cover Letter
Public Court Documents
April 1, 1977

10 pages
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Case Files, Bolden v. Mobile Hardbacks and Appendices. Plaintiffs' Memorandum Brief Opposing Application for Stay Pending Appeal with Cover Letter, 1977. 3cf5fba1-cdcd-ef11-8ee9-6045bddb7cb0. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e829f2da-dc49-43cc-bd75-9bf578d29404/plaintiffs-memorandum-brief-opposing-application-for-stay-pending-appeal-with-cover-letter. Accessed April 19, 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. 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