Escambia County, FL v. McMillan Brief in Opposition to Certiorari

    NO. 82-2155

IN TH E

Jlupmtte Court ©f ®{jr putted Jifutes
OCTOBER TERM , 1982

ESCAMBIA COUNTY, FLORIDA, E T  AL.,
Petitioners,

v.
HENRY T . MCMILLAN, ET  AL.,

Respondents.

ON PETITIO N  FOR W RIT OF CERTIO RARI TO 
TH E U N ITED  STA TES CO URT OF APPEALS 

FOR T H E ELEVENTH CIRCU IT

BRIEF IN OPPOSITION TO CERTIORARI

E d w a r d  S t i l l  
counsel of record 

Suite 400 Commerce Center 
2027 1st Ave. N. 
Birmingham, AL 35203-4168 
205/322-6631

J .  U. B l a c k s h e r  
L a r r y  T. M e n e f e e  

Mobile, Alabama
K e n t  S p r ig g s  
Tallahassee, Florida
J a c k  G r e e n b e r g  

N a p o l e o n  W il l i a m s  
E r ic  S c h n a p p e r  

New York, New York



1

QUESTION PRESENTED
Whether issues (concerning primarily Section S o£ the 

Voting Rights Act) , that have arisen in the District Court 
during proceedings to correct the population malapportion­
ment of court-ordered districts, are of such “imperative 
public importance” that they justify bypassing the Court of 
Appeals entirely for immediate review by this Court.



TA BLE OF CO NTENTS

Page

Question Presented______________________      i

Table of Contents________________________________ ii

Table of Authorities________________      ii

Statement of the C ase_____________ ______________  1

Argument_______________________________________  3

Conclusion ___________________________    6

TABLE OF AUTH O RITIES

Cases: Page

Barefoot v. Estelle, _____ US ____, 51 USLW 5189
(No. 82-6080, 6 July 1983) _____________________  4

Dames & Moore v. Regan, 453 US 654 (1981) _______ 4

McDaniel v. Sanchez, 452 US 130 (1981) _____________ 1-2

United States v. Nixon, 418 US 683 (1974) .................. 3

Wise v. Lipscomb, 437 US 535 (1978) _______________ 1-2

ii



1

STATEMENT OF THE CASE
The Court of Appeals affirmed in all respects the judg­

ment of the District Court holding that the at-large method 
for electing members of the Escambia County Commission 
violates Section 2 of the Voting Rights Act of 1965, 42 
USC §1973, and the Fourteenth and Fifteenth Amend­
ments because it effectively nullifies the voting strength of 
the black minority and because it has been maintained for 
a racially invidious purpose. The Court of Appeals also af­
firmed the adoption of a court-ordered remedial plan of 
five single-member districts and the conclusion of the Dis­
trict Court that a mixed plan of five single-member districts 
and two at-large seats urged by the County Commissioners 
was not entitled to legislative deference, because the voters 
had several times rejected charter government, and because 
without a charter the County Commission was prohibited 
by the Florida Constitution from changing its election 
structure.

On remand, the District Court conducted lengthy pro­
ceedings on scheduling the remedial elections and redraw­
ing the single-member districts in its 1979 order in light of 
1980 census data. Two new issues surfaced in these remand 
proceedings: (1) whether McDaniel v, Sanchez, 452 US 
130 (1981), had overruled Wise v. Lipscomb, 437 US 535 
(1978) , so that the County Commissioners should be al­
lowed to implement their own 5-2 mixed election plan re­
gardless of whether they had requisite state legislative au­
thority to do so, and (2) what constraints were placed on 
the County Commissioners’ redistricting discretion by the 
Section 3 preclearance requirements imposed by the Dis­
trict Court’s 1979 remedy order. In its March 11, 1983, 
order and opinion, the District Court rejected alternative 
5-2 plans offered anew by the County Commissioners and 
ordered implemented the same five single-member districts



2

previously adopted by the Escambia County School Board 
and precleared by the District Court under Section 3 of the 
Voting Rights Act, 42 USC § 1973a. In hopes of avoiding 
further remands in a case that “has been pending too long,” 
Cert. Pet. 33a, the District Court made specific findings on 
all the conceivable legal and constitutional issues. It held, 
first, that it was bound by the law of the case to adopt the 
five-district plan specified in the appellate mandate, even 
though in its opinion McDaniel v. Sanchez had effectively 
overruled the Wise v. Lipscomb rule that a local govern­
mental body must have state authority to change its elec­
tion system before its newly adopted election schemes will 
obviate the necessity of the District Court adopting its own 
remedial plan, Cert. Pet. 18a-19a.1 Alternatively, the Dis­
trict Court held:

(1) that, by constitutional standards, both of the County 
Commissioners’ 5-2 plans failed adequately to remedy the 
Fourteenth and Fifteenth Amendment violations, Cert. Pet. 
21a, 32a;

(2) that both 5-2 plans should be denied preclearance 
under Section 3 of the Voting Rights Act, Cert. Pet. 30a- 
32a;

(3) that both 5-2 plans violated Section 2 of the Voting 
Rights Act, Cert. Pet. 30a-32a; and

(4) that both 5-2 plans violated the Florida Constitu­
tion’s command that all noncharter county commissions 
have only five members, Cert. Pet. 21a-22a, 32a.

The incumbent Commissioners waited the full thirty 
days before they filed an appeal from the March 11, 1983, 
order. Instead of seeking to expedite the appeal in the 
Eleventh Circuit, they applied to this Court, unsuccessfully, 
for a stay of elections, then petitioned the Court of Appeals

1The petitioners had never argued McDaniel to the Court of Appeals, 
Cert. Pet. 16a.



3

to certify this case to this Court immediately under 28 USC 
§1254 (3), then filed the instant petition for a writ of cer­
tiorari before judgment.

ARGUMENT
The Issues in the Petition are not of 

Such Imperative Public Importance as to 
Warrant a Writ of Certiorari Before Review 

by the Court of Appeals
The procedure of certiorari before judgment is reserved 

for genuinely extraordinary matters of national importance 
and should not be employed merely to expedite appeals or 
to serve real or imagined objectives of convenience and 
economy. 1 he Rules of this Court require “a showing that 
the case is of such imperative public importance as to . . . 
require immediate settlement in this Court.” Supreme 
Court Rule 18 (1980) ; see also Supreme Court Rule 20 
(1970) . Since that provision was adopted in 1970,2 this 
Court has granted certiorari before judgment only three 
times. As shown below, the standards explicit and implicit 
in those three cases are not present in this case.

In United States v. Nixon, 418 US 683, 686 (1974), cer­
tiorari was granted “because of the public importance of 
the issues presented and the need for their prompt resolu­
tion.” The principal issue in Nixon was the President’s 
claim in a criminal trial of executive privilege against dis­
closure of communications with his aides. This Court held, 

the allowance of the privilege to withhold evidence that is 
demonstrably relevant in a criminal trial would cut deeply

2The Rule of this Court allowing prejudgment certiorari was substan­
tially amended in 1970 to change the standard for reviewing such cases. 
In the 1939 Rules, Rule 39 read, in part, as follows: “That the public in­
terest will be promoted by prompt settlement in this court of the questions 
involved may constitute a sufficient reason.”



4

into the guarantee of due process of law and gravely impair 
the basic function of the courts,” 418 US at 712.

The Court heard Dames & Moore v. Regan, 453 US 654 
(1981), under Rule 18 because of the “ imperative public 
importance” of the Executive Orders suspending claims 
against the Iranian government. The expeditious resolu­
tion of the claims was necessary because the United States 
was obligated by an executive agreement with Iran to “ ‘act 
to bring about the transfer’ by July 19, 1981, of all Iranian 
assets held in this country by American banks,” 453 US at 
665. On June 11, 1981, this Court granted certiorari before 
judgment, 452 US 932, heard argument on June 24, and 
decided the case on July 2. Certiorari before judgment was 
justified by the deadline contained in the agreement with 
Iran.

Finally, Barefoot v. Estelle,__ U S ___ , 51 USLW 5189
(No. 82-6080, 6 July 1983), treated the application for stay 
of judgment as a petition for writ of certiorari before judg­
ment and instructed the parties to brief and argue “ the ap­
propriate standard for granting or denying a stay of execu­
tion pending disposition of an appeal by a federal court of 
appeals by a death-sentenced federal habeas corpus peti­
tioner,” 51 USLW at 5191. However, because this Court 
held that the proceedings in the Court of Appeals had 
de facto affirmed the District Court denial of habeas, Bare­
foot may not be a proper example of the operation of the 
certiorari-before-j udgment rule.

The County Commissioners contend that the requisite 
public importance for prejudgment review by this Court 
lies in the nature of the rights asserted, namely, the right 
to vote and the right of local governments to conduct elec­
tions free of unnecessary federal court interference. But 
every case that challenges state or local election practices 
can claim the same importance. To grant certiorari on



5

these grounds would establish a new option for every voting 
rights litigant to present his/her claims immediately to this 
Court without going through the Court of Appeals. If the 
Court adopts the rationale of the petitioners, it would be 
flooded by petitions for certiorari before judgment in nu­
merous voting and election cases.

Neither do the issues under Section 3 of the Voting 
Rights Act provide public importance of the magnitude 
to warrant prejudgment review by the Supreme Court. 
Only two counties in the nation have been subjected to 
preclearance restrictions pursuant to Section 3’s “pocket 
trigger,” Cert. Pet. 27a n.4. Beyond the instant case, there 
are no decisions, to our knowledge, construing Section 3. 
The Court of Appeals, rather than this Court, should break 
the ground of the provision’s legislative history. Moreover, 
because Section 3 issues, more so than Section 5 issues, 
ordinarily will be handled by single-judge rather than three- 
judge District Courts, the Courts of Appeals, not this Court 
will bear the chief responsibility for developing Section 3 
case law, and this Court ought not prematurely preempt 
appellate consideration of these issues at the proper level.

Petitioners’ real contentions are that a prejudgment writ 
would allegedly prevent resolution of the entire case in 
“piecemeal fashion,” Cert. Pet. 13, and will promote “ the 
interests of judicial economy,” id. at 14. The “piecemeal” 
presentation of this case is entirely the result of the peti­
tioners’ strategy. Rather than waiting until after the pro­
ceedings on remand (on the reapportionment remedy) and 
seeking review in this Court of the entire case, the County 
Commissioners chose to proceed with the case in two courts 
— the District Court on the remanded remedy issue and this 
Court on the remainder of the case.



6

CONCLUSION

For the reasons set forth in this brief, the Court should 
deny the petition and allow this case to proceed in the nor­
mal appellate course.

Submitted by,

Edward Still
(admitted as Wilson Edward 
Still Jr.)
Suite 400 Commerce Center 
2027 1st Ave. N.
Birmingham, AL 35203-4168 
205/322-6631

J. U. Blacksher
Larry T . Menefee
Blacksher, Menefee & Stein, P. A.
P. O. Box 1051 
Mobile, Alabama 36633

Kent Spriggs
117 S. Martin Luther King Blvd.
Tallahassee, Florida 32301

Jack Greenberg
Napoleon Williams
Eric Schnapper
NAACP Legal Defense Fund
Suite 2030
10 Columbus Circle
New York, New York 10019