Bazemore v. Friday Brief for Petitioners

    HAND, ARENDALL, BEDSOLE, GREAVES & JOHNSTON 

LAWYERS 

  

3000 FIRST NATIONAL BANK BUILDING 

2 0. BOX 123 
C. B. ARENDALL, JR. EDWARD A. HYNDMAN, JR. 

T. MASSEY BEDSOLE MICHAEL D. KNIGHT MOBILE. ALABAMA 

THOMAS G. GREAVES, JR. G. HAMP UZZELLE, II : CHAS. C. HAND 
VIVIAN G. JOHNSTON, JR. G.L.LEATHERBURY, JR. 36601 (18920-1980) 
PAUL W. BROCK WILLIAM C.TIDWELL,II 

ALEX F. LANKFORD, II WILLIAM C. ROEDDER, JR. (2085) 432-5511 
EDMUND R. CANNON EDWARD S.SLEDGE,II TELEX: EEE430 

LYMAN F. HOLLAND, JR J. HODGE ALVES, II 

J. THOMAS HINES, JR CAINE O'REAR,II CABLE: HAB 
DONALD F. PIERCE RONALD L.DAVIS 

LOUIS E. BRASWELL VIVIAN G. JOHNSTON, October 14 ’ 1 9 80 
HAROLD D. PARKMAN W. ALEXANDER MOSELEY 
G. PORTER BROCK, JR. KATHY DUNSTON JONES 
STEPHEN G. CRAWFORD NEIL C.UOHNSTON 
JERRY A. MCDOWELL GEORGE M.WALKER 
W. RAMSEY MCKINNEY, JR. DAVIS CARR 

A.CLAY RANKIN, IIL 

Gilbert F. Ganacheau, Clerk 
United States Court of Appeals 

For The Fifth Circuit 
600 Camp Street, Room 102 
New Orleans, Louisiana 70130 

Re: Bolden v. City of Mobile, et al. 

Case No. 77-2693 
  

Dear Mr. Ganacheau: 

I enclose herewith the original and three copies of 
Supplemental Brief Of City of Mobile, et al. with the request 
that you file same. 

Very truly yours, 

William C. Tidwell, III 
For The Firm 

WCT .wh 

Enclosures 

cc: Armand Derfner, Esquire 
J. U. Blacksher, Esquire 
Edward Still, Esquire 
Jack Greenberg, Esquire 
Robert C. Campbell, III, Esquire 

 



IN THE 

  

UNITED STATES COURT OF APPEALS 

FOR THE PFPIPTH CIRCUIT 

  

No. 77-2693 

  

WILEY L. BOLDEN, ET AlL., 

Plaintiffs-Appellants, 

versus 

CITY OF MOBILE, ET AlL., 
Defendants-Appellees- 
Cross Appellants. 

  

Appeal from the United States District Court for the 
Southern District of Alabama, Southern Division 

  

SUPPLEMENTAL BRIEF OF CITY OF MOBILE, ET AL. 

  

BARRY HESS CHARLES B. ARENDALL, JR. 

City Attorney WILLIAM C. TIDWELL, III 

City Hall Hand, Arendall, Bedsole, 
Mobile, Alabama 36602 Greaves & Johnston 

3000 First National Bank 
Building 

Mobile, Alabama 36602 

Counsel for Counsel for 

City of Mobile, et al. City of Mobile, et al. 

 



  

I. INTRODUCTION 

This appeal and cross-appeal involves only the award of 

attorney's fees made by the district court to the Plaintiffs 

for their work in the district court on the case in chief. 

That portion of the case on the merits, which was separately 

appealed to this Court under Civil Action No. 76-4210, was 

reversed by the Supreme Court in the case of City of Mobile v.   

Bolden, 100 8S. Ct. 1490. 

Following that reversal, the Supreme Court remanded the 

case in chief (76-4210) to the panel of the Fifth Circuit 

which originally heard it, which panel in turn remanded it 

back to the district court in Mobile. Copies of those remand 

orders are enclosed. 

The district court now has under submission the question 

of what additional proceedings, if any, are appropriate in 

this case. Copies of the briefs filed by the parties to that 

issue are enclosed. 

Thus, at this point only two facts are clear: (1) Plaintiffs 

have not so far prevailed on any issues in this case (the pre- 

vious judgments in their favor having been reversed by the 

Supreme Court), and (2) whether there will be additional proceed- 

ings on the merits of this case is now unknown and awaiting 

initial decision by the district court. In these circumstances 

Defendants submit that the judgment involved in this appeal 

 



  

awarding attorney's fees to the Plaintiffs must be reversed 

as Plaintiffs are not a prevailing party within the meaning 

of 42 U.S.C. § 1988, and the cause should be remanded to the 

district court for appropriate disposition depending upon the 

district court's ruling in the case in chief. 

II. ARGUMENT 

Plaintiffs, who obtained a judgment on the merits in 

the district court, were awarded attorney's fees for their 

work in that court pursuant to 42 U.S.C. § 1988. That section 

authorizes a court in its discretion to award a reasonable 

attorney's fee to the "prevailing party." 

Here the judgment on the merits in favor of the Plaintiffs 

was reversed by the Supreme Court. Although the parties are 

in sharp disagreement whether the Supreme Court has authorized 

additional proceedings on the merits in the district court 

(see opposing briefs enclosed), it is clear at this point 

that Plaintiffs at least so far have not established their 

entitlement to any relief on the merits of any of their claims 

and thus cannot be awarded an attorney's fee as a prevailing 

party under § 1988. Hanrahan v. Hampton, U.S. ’ 
  

64 1... E4. 24 670, 674-75 (1980). 

 



  

Since Plaintiffs are not the prevailing party the judgment 

involved in this appeal awarding them attorney's fees must be 

reversed. Since the question whether there will be additional 

proceedings in the district court is now under submission to 

that court, this Court should, after reversing the judgment 

awarding attorney's fees to the Plaintiffs, remand the cause 

to the district court for further proceedings as appropriate. 

Respectfully submitted this 14th day of October, 1980. 

OF COUNSEL: 

Hand, Arendall, Bedsole, C. B. Arendall, Jr. 

Greaves & Johnston William C. Tidwell, III 

Post Office Box 123 

Mobile, Alabama 36601 : Post Office Box 123 

Mobile, Alabama 36601 

Legal Department of the Barry Hess 
City of Mobile City Attorney 

Mobile, Alabama 36602 City Hall 

Mobile, Alabama 36602 

By: LN) allan CA 
  

Attorney for Defendants, The 
City of Mobile, Alabama, 
Robert B. Doyle, Jr., Gary 
A. Greenough, and Lambert C. 

Mims 

 



  

CERTIFICATE OF SERVICE 
  

I do hereby certify that I have on this 14th day of 

October, 1980, served two copies of the foregoing supple- 

mental brief on counsel for all parties to this proceeding 

by United States mail, properly addressed, first class 

postage prepaid, to: 

Armand Derfner, Esquire 
" Messrs. Epstein, McClain & Derfner 

P. O. Box 608 

Charleston, South Carolina 29402 

J. U. Blacksher, Esquire 
Messrs. Blacksher, Menefee & Stein 
P?. OO. Box 1051 
Mobile, Alabama 36601 

Edward Still, Esquire 
Messrs. Reeves and Still 
Suite 400, Commerce Center 
2027 lst Avenue, North 

Birmingham, Albama 35203 

Jack Greenberg, Esquire 
10 Columbus Circle 

New York, New York 10019 

Robert C. Campbell, III, Esquire 
Messrs. Sintz, Pike, Campbell & Duke 
3763 Professional Parkway : 
Mobile, Alabama 36609 

  

WILLIAM C. TIDWELL, III 

 



  

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OI ALABAMA 

SOUTEERN DIVISION 

WILEY L.+<BOLDEN, ET. AL., 

Plaintiffs, 

V CIVIL ACTION NO. 

CITY OF MODILE, ALABAMA, ve 75-297-P 
ET. AL,, * 

Defendants. 

  

PLAINTIFFS' BRIEF SUPPORTING 
MOTION FOR REMAND PROCEEDINGS 

  

EDWARD STILL J. Us BLACKSHER 

Suite 400, Commerce Center LARRY T. MENEFEE 
2027 First Avenue, North P20. Box 1051 

Birmingham, Alabama 35203 Mobile, Alabama 36633 

JACK GREENBERG 

ERIC SCHNAPPER 

Suite 2030 
10 Columbus {Circle 
New York, New York 10019 

Attorneys for Plaintiffs 

 



    

IN THE UNITED STATES DISTRICT COURT FOR THE 

~ SOUTHERN DISTRICT OF ALABAMA 

SOUTHERN DIVISION 

WILEY 1... BOLDEN, ET. AL. » 

Plaintiffs, i 
%* 

y. ® CIVIL ACTION NO. 

CITY OF MOBILE, ALABAMA, * 75-297-P 
ET. AL ., » 

Defendants. x 

PLAINTIFFS' BRIEF SUPPORTING 
MOTION FOR REMAND PROCEEDINGS 
  

Plaintiffs Wiley L. Bolden, et. al., through 

their undersigned counsel, submit this memorandum 

brief in support of their motion for further proceedings 

on remand. 

 



   
I. 

THE CASE 1S ROT OVER: ON REMAND 
THIS COURT MUST DECIDE THE ISSUE 
OF INTENT, ADDRESS THE VOTING 
RIGHTS ACT CLAIM, AND REEXAMINE 

THE REMEDY 
  

On remand to the Fifth Circuit, the Defendants 

vigorously contended that under the Supreme Court's man- 

date the case was over. ''Defendants argue that all 

issues in this case have been finally settled and that 

no further proceedings are appropriate." Y/ They urged 

the Court of Appeals to remand the case to this Court 

'with instructions to enter a judgment for the Defendants." 
2 

App. A, p. 21. Both Plainrifsis 2 and the United States 

3/ 
as Amicus Curiae,= on the other hand, took the position 

that the Supreme Court had left open the question of main- 

tenance intent and the claim under §2 of the Voting Rights 

Act. of 1965, 42 U.S.C. 381973.. They urged the Firth Circuit 

  

1/ Defendants' Brief In Opposition To Plaintiffs’ Motion 
For Further Proceedings On Remand, pp. 1-2. A copy of 

said brief is attached to this brief as Appendix A. 

2/ See Appendix B, Plaintiffs' Supplemental Brief Supporting 
Motion For Additional Proceedings On Remand. 

3/ See Appendix C, Memorandum For the United States As 
Amicus Curiae. 

 



    

to remand the case with instructions for this Court to 

conduct additional proceedings. App. B, p. 24; App. C, 

pp. 16-18. On September 15, 1980, the Fifrh Circull ruled 

as Plaintiffs and the United States had suggested; it 

vacated this Court's judgment and remanded "for further 

proceedings in light of the Supreme Court's opinion in 

City of Mobile v. Bolden, 64 L.Ed. 2d 47, 100 S.Ct. 1490 
  

(1980)." 

We understand that Defendants will persist in this 

Court with their contention that the case ought to be 

dismissed summarily. They probably will argue that the 

only "further proceedings" permitted by the mandates of 

the Fifth Circuit and the Supreme Court are dismissal 

and restoration of the status quo ante judgment. Plaintiffs 

contend that this argument was squarely rejected by the 

Court of Appeals; otherwise, its mandate would have 

reversed this Court's judgment and directed dismissal judg 
  

explicitly -- as Defendants had urged. E.g., see cases 

cited App. C, pp. . 7-8, 10-11. 

A. The Intent Issue 
  

We will not attempt to paraphrase the extensive 

arguments to the Fifth Circuit of Plaintiffs and the 

 



    

United States concerning the meaning of the Supreme 

Court's mandate. We urge this Court to review them in 

the appendices to this brief. App. B, pp. 9-14; App. C, 

PP. 7-11. Compare App. A, 2-20. In addition, we cite 

Justice Powell's recent opinion denying a stay of the 

Mobile School Board elections. Moore v. Brown, 49 U.S 
  

La 3162 (Sept. 5, 19830). That opinion leaves no 

doubt that Plaintiffs, the United States and the Fifth 

Circuit have correctly interpreted the Supreme Court's 

mandate in Bolden: Justice Powell, who was a member o 

the Bolden plurality, wrote: 

Last Term, in City of Mobile v.,. 
Bolden, No. 77-1844 (April 22, 1980) 
this Court considered a constitutional 
challenge to Mobile's system of at- 
large elections for City Commissioners. 
Mr. Justice Stewart wrote for a plu- 
rality of four justices and concluded 
that the plaintiffs were required to 
prove a racially discriminatory purpose 
to show that Mobile's at-large voting 
system violated the Fourteenth Amend- 
ment. The District Court, by contrast, 
had thought it sufficient to show that 
the existing election system had the 
effect of impeding the election of 
blacks. The Court of Appeals for 
the Fifth Circuit had affirmed. 
Because we disagreed with the analysis 
of the District Court and Court of 
Appeals, we reversed and remanded for 
further proceedings. 

  

  

49 U.S.L.W. at 3162 (emphasis added), (fn. omitted). 

£ 

Thus, 

 



  

Justice Powell himself understood the plurality 

opinion as being based solely on an effect-only reading 

of the lower court decisions. He clearly infers what 

fn. 21 makes explicit: that the plurality did not 

reach and decide the question of whether intent had been 

proved by standards other than those in Zimmer. He 

states explicitly that the intent question must be re- 

examined in Brown: 
  

Nor did the District Court 
explain how the plaintiffs 
would prove a purposeful 
violation of constitutional 
rights as required by the 
plurality’s decision in Bolden. 
  

  

49 U.S.L.W. at 3162 (emphasis added). The inescapable 

implication of this statement is that the intent issue 

has been left open for consideration in Bolden as well. 

Aside from the language of the Supreme Court's 

mandate, it would be fundamentally unfair to foreclose 

reconsideration of the evidence in this case under the 

new intent standard. The Supreme Court in Bolden held, 

8 to 1, that proof of a racial intent in the retention 

of at-large elections under the Arlington Heights - Feeney 
  

standards establishes a violation of the fourteenth amend- 

 



      

4/ 
ment. -— The Court concluded, 5 to 4 (i.e... a1] justices 

but the plurality), that such intent had been proved on 

this record.2/ The only reason this alignment did not result 

in affirmance of the liability issues (with reversal of 

the remedy pursuant to Justice Blackmun's opinion) is 

that Justice Stevens believed race had to be the sole 

motive -- an extreme position rejected by the other eight 

justices. 

  

4/ City of Mobile v. Bolden, 48 U.S.L.W. 4436, 4438-39 Er (Stewart, Burger, Powell and Rehnquist), 4443 (Blackmun), 4446 (Brennan), 4448 (White), 4458 (Marshall) (1980). 

  

3) 48 B.S.L.W. at 4446 (Stevens), 4443 (Blackmun) , 4446 (Brennan), 4449 (White), 4458 (Marshall). As stated in fn. 21. ‘the plurality did not reach this issue. 

 



  

Presumably, if another case identical to Bolden came 

before the Supreme Court now, Justice Stevens would agree 

that a constitutional violation existed, accepting on 

stare decisis grounds the 8 to 1 rejection of his all-or- 
  

nothing position. Therefore, if this Court accepted the 

Defendants' argument that the case must be dismissed 

without further consideration of the intent issue, facts 

which would establish an unconstitutional condition if 

presented anew to the Supreme Court would escape judicial 

review altogether because of a procedural quirk. For sure, 

the Supreme Court need not have a majority reason for its 

reversal and remand, but the lower courts must be governed 

on each issue by the justices' majority view on each 
  

issue. It is unthinkable that the mandate of a Supreme 

Court so deeply and disjointedly divided could be construed 

to preclude plenary consideration of at-large elections in 

Mobile under correct legal standards. 

Finally, common sense dictates the anwer to this 

threshhold question. If this Court should dismiss the 

case without further proceedings on the merits, an appeal 

would refer right back to the Fifth Circuit this very 

narrow procedural issue. If the Fifth Circuit had been 

 



  

inclined to read the Supreme Court's mandate as requiring 

such summary disposition it would not have left open this 

possibility; it would have accepted the Defendants’ 

argument and directed dismissal in the remand. 

  

B. The Voting Rights Act Claim 

The Supreme Court did not decide (a) whether pri- 

vate litigants have a cause of action to challenge 

at-large election schemes under §2 of the Voting Rights 

Act. Of 19685, 42 "U.S.C. $1973, or (b) whether §2 demands 

proof of racial intent. Only the plurality opinion 

discussed the statutory issues. It did not reach the pri- 

vate cause of action question, 48 U.S.L.W. at 4437 and 

n. 8, but, assuming one was available, it concluded 

that §2 required the same proof as does the fifteenth 

amendment. 48 U.S.L.W. at 4437. Because the other five 

justices disagreed with the plurality's narrow construction 

of the fifteenth amendment and made no reference at all to 

"the Voting Rights Act, the lower courts must consider 

the statutory issues afresh and without specific guidance 

from the Supreme Court. The only thing that seems certain 

is the plurality's admonition that the statutory issues 

should be considered before reaching the constitutional 

iy 

 



claims. Id. 

Regarding the availability of a private cause 

of action, footnote 8 of the Bolden plurality opinion 

refers to Allen v. Board of Elections, 393 U.S. 544 (1969); 
  

TransAmerica Mortgage Advisors, Inc. v. Lewis, 51 L.Ed. 2d 
  

(1979); and Touche Ross & Co. v. Redington, 61 L.Ed 
  

24 82 (1979). Allen held that there is a private cause 

of action to enforce §5 of the Voting Rights Act. The 

latter two cases applied to non-civil rights statutes 

the standards of the two bellweather decisions on implied 

causes of action, Cannon v. University of Chicago, 60 
  

L.Ed. 24560 (1979), and Cort v. Ash, 422 U.8. 66 (1975). 
  

These standards leave little doubt that there is a private 

cause of action toenforce §2 as well as §5 of the Voting 

Rights Act. 

Cannon, which construed §901(a) of Title IX of the 

Education Amendments cf:1972. 20 V.5.C.. 81681. is indis~ 

tinguishable from the instant case. Section 2 of the 

Voting Rights Act, like Title IX of the Education Amend- 

ments of 1972, "presents the atypical situation in which 

all of the circumstances that the Court has previously 

identified as supportive of an implied [private] remedy are 

present." 60 1.24. 24 at 537. Both statutes were  



® ® 

  

enacted for the benefit of a special class, id. at 

571, and both employ ''the right- or duty- creating 

language [which] has generally been the most accurate 

indicator of the propriety of implication of a cause of 

action." 1d. at 571 n. 12. Indeed, Cannon refers directly 

to the special class of black citizens protected by §2 

and to Allen v. State Bd. of Elections, supra, which found 
  

a private right to relief under its sister provision, 

§5. 1d. at 571. Thus, §2 prohibits certain conduct and 

creates federal rights in favor of private parties in 

precisely the manner contemplated by Cannon and Cort v. Ash, 
  

supra. Cannon, 60 L.Ld. 24 at 572. nn. 13. 

The availability of private relief under §2 is 

supported by the legislative history of the Voting Rights 

Act. The House Report accompanying the 1965 bill described 

the purpose of §2 as 'grant[ing] to all citizens of the 

United States a right to be free from [racially discrimin- 

atory voting practices]. House Rep. No. 439, 89th Cong., 

June 1, 1965, reprinted in 2 U.S. Code, Congressional 
  

- and Administrative News 2437, 2454 (1965) (emphasis added). 
  

The Act expressly authorized the Attorney General to enforce 

§ 2. 42 U.S.C. 19733 (d). The Attorney General was "the 

only person expressly authorized to enforce §5 as well, 

but the Supreme Court nevertheless held that a private 

 



  

cause of action based on §5 was inferred in the statute. 

Allen v. State Bd. of Elections, supra. By direct 
  

analogy, Allen had to mean there was a private cause of 

action under $2 also. Nevett v, Sides, 571 F.24 201. 
  

  
237 5cly Cir. 1978) (J. Wisdom concurring), cert. denied, 

cmt eS, (1080), 

Congress removed all doubt in 1975. As originally 

enacted, the Act's scheme gave primary enforcement responsi- 

bility to the Attorney General. States covered by §4's 

automatic ''trigger' had to seek the Attorney General's 

approval before implementing new voting laws, or else 

seek preclearance in the District Court for the District 

of Columbia. 42 U.S.C. §1973c. Other states and sub- 

divisions could be subjected to similar preclearance 

requirements under §3 if the Attorney General obtained 

an injunction in the local federal district court against 

practices the Attorney General proved were violating fede- 

rally protected voting rights. Section 3 was called the 

"pocket trigger’, because it was aimed at "pockets of 

discrimination’ not already covered by §4. House Rep. 

No. 439, supra, 2 U.S. Code, Congressional and Admin. 
  

News at 2454. The 1975 amendments to the Act substituted 

"Attorney General or an aggrieved person' for "Attorney 

<10- 

 



  

General' everywhere it appeared in §3. The Senate 

Report explained that this change was intended to create 

a "dual enforcement mechanism,' that is, "to afford to 

private parties the same remedies which §3 now affords 

only to the Attorney General." Sen. Rep. No. 94-295, 94th 

Cong., July 22, 1975, reprinted in 2 4.8. Code, Congressional 
  

and Admin. News, 774, 806-07 (1975). The proponenets of 
  

this amendment made it clear that a private action was 

to be available under §2 for the purpose of providing 

the special §3 vemsiten. 

Finally, at least one district court has squarely 

held that §2 of the Voting Rights Act affords black 

voters the right to seek judicial relief. McMillan v. 
  

Escambia County, No. PCA 77-0432 (N.D.Fla. 1978) (J. Arnow) , .   

appeal pending, No. 78-3507 (5th Cir.). 
  

Whether §2 requires proof of racial intent need not 

be decided at this time. If this Court holds that the 

at-large City Commission election system has been retained, 

. at least in part, for racial reasons, a clear violation of 

§2 will have been established. United States v. Uvalde 
  

  

6/ Congressman Drinan, for example, noted that private 
~ actions could be "based ... upon statutes pursuant to 
[the fourteenth and fifteenth amendments], such as 42 U.S.C. 
§197., 1973, 1983. 121 Cong. Rec. H4734 (daily ed., June 
2.71975), 

ie 

 



  

Consolidated Indep. School Dist., 625 F.2d 547 (1980). 
  

If no such purpose is found, Plaintiffs will still con- 

tend that the at-large elections violate §2 based solely 

on their previously determined adverse racial effects. 

For the time being, we will limit our arguments on this 

point to the following brief statements. 

While the Voting Rights Act employs a variety of 

procedures and remedies, it has but a single substantive 

standard. It is most explicitly stated in §5, which 

prohibits states covered by §4's automatic trigger from 

enforcing a new law unless the state proves that it "does 

not have the purpose and will not have the effect of 

denying or abridging the right to vote on account of race 

or color." Section 2, which contains broader but similar’ 

language, should be read in pari materia with this part 
  

of §5. See Erlenbaugh v. United States, 409 U.S. 239 : 
  

243-44 (1973). The only difference between actions brought 

under §5 and those based on §§2 and 3 is that the (auto- 

matically covered) state has the burden of proof under 

the former section, while the Attorney General or private 

plaintiff has the burden of proof under §§2 and 3. As 

Senator Scott of Virginia stated: 

Substantially all the rights that 

“13. 

 



  

are in the temporary legislation 
are in the permanent legislation 
of the Voting Rights Act. The 
principal difference refers to the 
burden of proof. Under the perma- 
nent provision of law, the Govern- 
ment must prove its case. Under 
the temporary provision of the law 
there is a presumption of wrong- 
doing that has to be overcome by 
the state covered by the temporary 
provisons.L 

If §§2 and 5 contained different substantive 

standards, a number of clearly unintended anomalies 

would result. Practices forbidden in §5 jurisdictions 

would be permissable in other states, even if they had 

the same discriminatory purpose or effect. Even within 

a state covered by §4 the same election law with the 

same purpose or effect could be unlawful in one town 

but not in another based solely on when each put it 

in operation. See Perkins v. Matthews, 400 Vv.Ss. 379, 
  

394-95 (1971). Congressional moderates who supported 

the Voting Rights Act because the sponsors assured them 

  

7/:%21 . Cong. Rec. "S13549 (Daily ed. July 24,1975); see 

~ also id, S 13601 (remarks of Sen. Scott) (82 is the 

permanent provision referred to); S13376 (remarks of 

Sen. Brock) (§5 establishes a different 'procedure’ than 

exists in non-covered jurisdictions). 

«13+ 

 



  

. » 

that the Southern states were being singled out only 

in the sense of requiring close procedural scrutiny 

of them, and that the Act provided the same underlying 

voting rights to all U. S. citizens, would be appalled 

if the coutits were to conclude that 45 states had to 

meet a tougher substantive standard then did other 
  

states. 

That the use of at-large elections may have the 

effect of denying or abridging the right to vote under 

the substantive standard of §5 has been repeatedly 

recognized by the Supreme Court. City of Rome v. United 
  

States, 100 S.Ct. 1548, 1559 (1980); City of Richmond 
  

v. United Scates, 422 U.S. 358, 371 (1975); Georgia v.     

United States, 411 U.S, 526, 532-353 (1973); Perkins v.   
  

Matthews, 400 U.S. 379, 388-91 (1971). Thus, the bur-   

den on §2 plaintiffs as well is to prove that an at-large 

system ''create[s] or enhances] the power of the white 

majority to exclude Negroes totally from participation 

in the governing of the city through membership on the 

city council." The legislative history of the Voting 

Rights Act reveals that early versions of some sections 

referred solely to discriminatory "effect" or only to 

“14> 

 



  

’Y # 

discriminatory ''purpose'’, 8/ but that in every case 

Congress redrafted the section to cover both purpose 

and effect. Whenever Congress spelled out the relevant 

evidentiary standard under the Voting Rights Act, it re- 

fused to exclude either discriminatory purpose or discrimin- 

atory effect. Since each of these subsequent sections 

is intended to enforce the broadly worded, basic guarantees 

of §2, their purpose or effect standards clearly express 

  

8/ As originally drafted §5 applied to practices with 
a discriminatory effect, but not a discriminatory 

purpose.” S. ‘1564, § 8, 111 Cong. Rec. 28358. It was 
broadened to include both by the Senate Judiciary Committee. 
111 Cong. Rec. 28360. 

Section 4, which describes when a jurisdiction 
can remove itself from coverage of §5, initially referred 
to denials of the right to vote 'by reason of race'. S. 1564, 
111 Cong. Rec. 28358. It was changed by the Senate Committee 
to refer to tests or devices used "for the purpose' of denying 
the right to vote "on account of race”, 8. 1564, §4(a), 
111 Cong. Rec. 28360, but was modified on the floor to 
include discriminatory effect. 111 Cong. Rec. 28365, 

The pocket trigger in §3(b) referred to discriminatory 
purpose in the Senate version, lll Cong. Rec. 28360, but 
the House bill included discriminatory effect as well 
and that version was adopted by the Conference Committee. 
111 Cong. Rec. 28370; H. Rep. No. 711, 89th Cong., lst Sess., 
Pp... 

Challenges by the Attorney General to the use of 
tests or devices by jurisdictions which had bailed out 
under §4 at first were required to show discriminatory 
purpose, 111 Cong. Rec. 28360, but this too was amended 
to cover discriminatory effect. Id. at 28365, 28370, 

 



  

Congress' understanding of the §2's evidentiary require- 

ments as well. 

11, 

ADDITIONAL EVIDENTIARY HEARINGS 
SHOULD BE CONDUCTED ON THE ISSUE 

oot DF VINTENT 
  

This Court should reopen the record and receive 

such additional evidence as the parties may wish to pre- 

sent on the issue left open by the Supreme Court: whether 

Mobile's at-large election system has been retained, at 

least in part, for racially discriminatory reasons. 

As previously discussed, the Supreme Court plurality 

declined to consider what Plaintiffs had argued were 

findings of racial intent by this Court over and beyond 

its Zimmer analysis. To avoid redundancy, we attach 

to this brief as Appendix [B] Plaintiffs' remand brief 

to the Fifth Circuit, which summarizes at pages 14-22 

the evidence we thought this Court had relied on to con- 

clude that the legislature had refused to change from 

at-large voting for racial reasons. The City, on the 

other hand, told the Supreme Court that this Court's 

intent findings were based entirely on its Zimmer analysis 

=16~ 

 



  

and on an erroneous legal theory that foreseeability 

2/ 
alone proves motive. 

The evidence of racial intent 
upon which the District Court below 
ordered a new City administrative 

~ structure and on which the Court of 
Appeals affirmed the disestablishment 
of Mobile's Commission form of govern- 
ment, was that the Alabama Legislature 
had on two occasions rejected authori- 
zation of a mayor-council, part single- 
member district system for Mobile, 
and had been conscious of the likeli- 
hood that such a measure would have 
enhanced black candidates' chances of 
election. 

  

App. B, p. 11 (emphasis added). Moreover, the City 

argued, only the motives of city commissioners are rele- 

vant in this case, not those of the legislators-2/ App. B, 

p. 13. In the remand proceedings, this Court should 

clarify its earlier findings on intent and consider all 

the evidence anew under the Arlington Heights - Feeney 
  

  

9/ Attached to this brief as Appendix D is a copy of 
the City's reply brief in the Supreme Court. 

In this respect, the City's position is directly 
gt the opposite that of the School Board, who contends 
that only the legislators' motives are relevant, not 
those of the school commissioners. Plaintiffs contend 
that the proper inquiry addresses the intent of all 
state officials who substantially influenced the legis- 
lative decision to block change to district elections. 

«37 = 

 



  

standards developed subsequent to this Court's ruling. 

We will not now elaborate on our prior discussion of the 

existing evidence. But there is one point that should 

be reemphasized: the Arlington Heights - Feeney analysis 
  

does not require or even encourage the trial court to 

focus on any single legislative event; rather, invidious 

intent should be found or not found only after careful 

consideration of the whole series of events, historical 

and contemporary, that underlie the present electoral 

scheme. 

III. 

THE REMEDY SHOULD BE RECONSIDERED 
  

If on reconsideration this court determines that 

the City's at-large election scheme is unlawful or unconsti- 

tutional, it should also reconsider the relief ordered 

in light of the intervening Supreme Court decision, 

Wise v, Lipscomb, 4370.8. 335 (1978). Briefly put, 
  

the legislature should be given a reasonable opportunity 

to devise its own timely remedy. If no legislative plan 

is forthcoming, the Court must order its own single-member 

district plan into effect. In the latter event, this Court 

“18+ 

 



  

should notice Justice Blackmun's criticisms (with which 

none of the other justices disagreed) of a judicially 

ordered change in the form of government. If district 

elections can be imposed on the commission form, the 

Court should defer to Mobile's preference for commission 

form of government. Such relief is made more plausible 

in view of Justice Blackmun's opinion and because the 

Supreme Court and Fifth Circuit made it clear that Mobile 

can no longer conduct elections for predesignated executive 

functions under the 1965 law, which the Justice Department 

refused to preclear. 43 U.S.L.W. at 4437 n.6; 571 F. 24 

at 241, n.2. 

CONCLUSION 
  

The Fifth Circuit's mandate does not permit this 

Court to dismiss the case without first reconsidering 

the issues left undecided by the Supreme Court: 

(1) Has the at-large election plan been 

‘retained for invidious racial reasons? 

(2) Does the at-large election plan violate 

the Voting Rights Act of 1965, as amended? 

(3) What remedy is appropriate in light of 

Wise v. Lipscomb? 
  

-10. 

 



  

The Court should receive such additional evidence 

on these issues as the parties may offer. 

Respectfully submitted this / 3 day of October, 

1980. 

BLACKSHER, MENEFEE & STEIN, P.A. 
405 Van Antwerp Building 
F. O: Box: 1051 
Mobile, Alabama 36633 

    

Bi KSAER 
RRY T. MENEFEE 

EDWARD STILL, ESQUIRE 
Reeves and Still 
Suite 400, Commerce Center 
2027 First AVenue, North 
Birmingham, Alabama 35203 

JACK GREENBERG 

ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Attorneys for Plaintiffs 

-20- 

 



CERTIFICATE OF SERVICE 
  

I do hereby certify that on this /.3 day of 

October, 1980, a copy of the foregoing PLAINTIFF'S 

BRIEF SUPPORTING MOTION FOR REMAND PROCEEDINGS was 

served upon counsel of record: Charles B. Arendall, 

Jr., Esquire, William C. Tidwell, 11], Esquire, Hand, 

Arendall, Bedsole, Greaves & Johnson, Post Office Box 

123, Mobile, Alabama 36601; Fred G. Collins, Esquire, 

City Attorney, City Hall, Mobile, Alabama 36602; Charles 

S. Rhyne, Esquire, William S. Rhyne, Esquire, 1000 

Connecticut Avenue, N. W., Suite 800, Washington, D. C. 

20036, by depositing same in the United States mail, 

postage prepaid. 

 



  

'@ ‘@® 

Supreme Cmurt of the Enited States 

No. 77-1844 

City of Mobile, Alabama, et al., 

Appellants, 

Wiley L. Bolden, et al. 

APPEAL, from the United States Court of Appeals for the Fifth 

Circuit. 

THIS CAUSE came on to be heard on the transcript of the 

record from the United States Court of Appeals for the Fifth Circuit, 

and was argued by counsel. 

ON CONSIDERATION WHEREOF, it is ordered and adjudged by this’ 

Court that the judgment of the United States Cont of Appeals in this 

Se is reversed with two-thirds costs; and that this cause is remanded 

to the United States Court of Appeals for the Fifth Civouit for further 

proceedings in conformity with the opinion of this Court. 

IT IS FURTHER ORDERED that the appellant, City of Mobile, 

Alabama, et al., recover fram Wiley L. Bolden, et al. Two Thousand 

Forty-one Dollars and Eighty Cents ($2,041.80) for their costs herein 

expended. 

April 22, 1980 

Clerid's costs: S$ 150.00 
Printing of record: 2,912.70 

TOTAL: $3,062.70 

 



  

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., 

Defendants. 

BRIEF IN SUPPORT OF DEFENDANTS' MOTION 

TO ENTER JUDGMENT 
  

I. INTRODUCTION 

This brief is filed by the Defendant City of Mobile, 

et al., in support of its Motion to Enter Judcment. Defendants 

maintain that all issues in this case have been finally settled 

and that no further proceedings other than the entry of a 

judgment of dismissal are appropriate. 

II. ARGUMENT 

  

A. Duty of Court on Remand 

The duty of a lower court upon remand of a decision from 

a higher court is clear. As stated by Professor Moore: 

The Supreme Court stated the general 
rule at an early date in this .manner: 
"Whatever was before the court, and is 
disposed of, is considered as finally 
settled. The inferior court is bound 
by the decree as the law of the case; 
and must carry it into execution, 
according to the mandate. They cannot 
vary it, or examine it for any other 

purpose than execution; or give any 
other or further relief; or review it 
upon any matter decided on appeal for 
error apparent; nor intermeddle with 
it, further than to settle so much as 
has been remanded." 

1B Moore's Federal Practice, § 0.404(10) p.573 n.l5 (citation 
  

omitted). 

 



  

This rule has been recognized many times by all of the 

circuits. For example, a good discussion of the execution 

of mandates appears in the case of Paull v. Archer-Daniels- 
  

  

Midland Co., 313 F.28 612 (8th Cir. 1983). 

When a case has been decided by 
this court on appeal and remanded 
to the District Court, every question 
which was before this court and dis- 
posed of by its decree is finally 
settled and determined. The District 
Court is bound by the decree and must 
carry it into execution according to 
the mandate. It cannot alter it, 
examine it except for purposes of 
execution, or give any further or 

other relief or review it for apparent 
error with respect to any question 
decided on appeal, and can only enter 
a judgment or decree in strict compli- 
ance with the opinion and mandate. 

A mandate is completely controlling 
as to all matters within its compass 
but on remand the trial court is free 
to pass upon any issue which was not 
expressly or impliedly disposed of on 
appeal. Since, however, a final judg- 
ment upon the merits concludes the 

parties as to all issues which were 
or could have been decided, it is 

obvious that such a judgment of this 
court on appeal puts all such issues 
out of reach of the trial court on the 
remand of the case. That court is 
without power to do anything which is 
contrary to either the letter or spirit 
of the mandate construed in the light 
of the opinion of this court deciding 
the case. If a judgment or decree of 
this court which disposes of a case 
upon the merits has become final, no 
purpose can be served by considering 
whether it is right or wrong. A judg- 
ment which is wrong, but unreversed, 
is as effective as a judgment which 
is right. 

  

  

  

  

  

  

  

  

  

Id. at 617-18 (emphasis added). Accord, In Re Sanford Ford & 
  

Tool Co., 160 U.S, 247, 255 (18958); FPirth v. United States,   
  

554 F.2@ 990 (5th Cir. 1977). 

B. Argument of Plaintiffs 
  

Contrary to these accepted principles, Plaintiffs solicit 

this court to ignore both the letter and spirit of the Surpreme 

Court's mandate; their argument is accurately categorized as 

 



  

an extraordinary effort to circumvent the Supreme Court's 

decision in the case. They argue that this court is allowed 

to -- is required to -- re-review the identical evidence in 

this case which was before the Supreme Court and reaffirm the 

same judgment that a majority of the Supreme Court reversed, 

or, alternatively, grant a new trial to Plaintiffs to attempt 

again to prove what they failed to prove the first time. 

Defendants firmly disagree. As noted in Paull and the 

other authorities referred to above, "a final judgment upon 

the merits concludes the parties as to all issues which were 
  

or could have been decided." 313 F.2d at 617 (emphasis added). 
  

Therefore, to determine what issues, if any, were left open 

by the Supreme Court it is necessary to review the issues 

before the Supreme Court, the arguments made to it, and the 

holdings it made. 

C. Issues Before Supreme Court 
  

As stated in Defendants' Jurisdictional Statement to 

the Supreme Court at page 4, one of the issues was: 

~ Whether the holdings of the Courts 
below conflict with the constitutional 
principles established by this Court 
in vhitcomb v. Chavis, 403 U.S. 124, 
White v. Regester, 412 U.S. 755, Wash- 
ington v. Davis, 426 U.S. 229, and 
Village of Arlington Heights v. Metro- 
politan Housing Development Corp., 
428 U.8..2527 

  

    

  

  

  

Similarly on page 3 in Defendants' brief, one of the issues 

was stated as: 

Whether the holdings of the Courts 
below conflict with the constitutional 
principles set forth by this Court in 
Whitcomb v. Chavis, 403 U.S. 124, White 

v. ‘Regester, 412 U.S. 755 (no constitu- 
tional right to proportional representa- 
tion by race), Washington v. Davis, 426 
U.S. 229, and Village of Arlington Eeights 
v. Metropolitan Housing Development Corp., 
429 U.S. 252 (mere passive knowledge of 
discriminatory effect of status guo 
insufficient proof of discriminatory 

intent). 

  

  

  

  

  

  

Plaintiffs' brief at pages 1 and 2, stated the issues as 

follows: 

 



  

1. Should this Court overturn the 
concurrent findings of fact of the two 
courts below that Mobils's at-large 
election system is maintained and operated 
for the purpose of discriminating against 
black voters? 

2. Did the district court clearly 
err in finding that Mobile's at-large, 
elections "operate to minimize or cancel 
out the voting strength" of blacks in 
violation of White v. Regester, 412 U.S. 
755 (1973), and Whitcomb v. Chavis, 403 
U.S.%124 (1971)? 

  

  

3. Does Mobile's at-large election 
system violate the Fifteenth Amendment 
or section 2 of the 1965 Voting Rights 
Act? 

Similarly, on page of 1 their Motion to Affirm, Plaintiffs 

identified the following as issues for resolution: 

l. Were the concurrent factual findings 
of the courts below, that Mobile's at-large 
election plan is maintained for the purpose 
of discriminating against black voters, 
clearly erroneous? 

2. Should the decision of the Court 
of Appeals be affirmed on the alternative 
ground -- considered but not relied on by 
a majority of the Fifth Circuit panel -- 
that Mobile's at-large election plan had 
the effect of disenfranchising black voters 
in violation of White v. Regester, 412 U.S. 
755 (1973)? 
  

Finally, the Supreme Court itself, in the plurality opinion, 

stated that the "question in this case is whether this at- 

large system of municipal elections violates the rights of 

Mobile's Negro voters in contravention of federal statutory 
  

or constitutional law." 48 U.S.L.W. at 4437 (emphasis added). 
  

D. Holding of Supreme Court 
  

The holdings of the Supreme Court can be succintly 

summarized as follows. The four justice plurality first 

held: (1) section 2 of the Voting Rights Act has the same 

effect as the fifteenth amendment; 1/ (2) "racially discrimina- 

tory motivation is a necessary ingredient of a Fifteenth Amend- 

  

i/ 48 U.S.L.W. at 4437. 

 



  

ment violation;" 2/ (3) and the Plaintiffs failed to prove 

3/ 
such discriminatory motivation. — 

Turning to the fourteenth amendment claim the plurality 

held that proof of all fourteenth amendment equal protection 

claims, including vote dilution claims based on at-large 

4/ 
elections, require proof of "purposeful discrimination," —= 

proof of "disproportionate effects alone” 5/ not being enough. 

48 U.S.L.W. at 4439. Specifically, at-large elections violate 

the fourteenth amendment only if "their purpose [is] invidiously 

to minimize or cancel out the voting potential of racial or 

6/ 
ethnic minorities.” — 

To prove such a purpose it is not enough 

to show that the group allegedly discrimi- 

nated against has not elected representa- 
tives in proportion to its numbers. A 
plaintiff must prove that the disputed 

plan was "conceived or operated as [a] 
purposeful device[] to further racial 

discrimination. 

48 U.S.L.W. at 4439 (citations omitted). 

The last quoted sentence shows that an electoral plan 

can be challenged either because it was originally intended 

("conceived") to discriminate or because, even though originally 

a) 

created without discriminatory purpose, it has come to be main- 
\ 

tained ("operated") for a discriminatory purpose. In either 

case, the plurality made perfectly clear that proof of dis- 

criminatory motivation was essential and could not be established 
  

by proof of discriminatory effect alone. 

Next, and most significantly, the plurality opinion 

after announcing the correct legal principles, held that 

  

2/ 48 U.S.L.W. at 4438. 

3/ "iTlhe District Court and Court of Appeals were in error 

in believing that [Plaintiffs proved] the appellants invaded 

the protection of that Amendment in the present case." 48 

U.8.L.W. at 4438-239. 

4/ 48 U.S.L.W. at 4439. 

5/ 48 U.S.L.W. at 4439. 

6/ 48 U.S.L.W. at 4439. 

 



® ® 

  

it is clear that the evidence in the 

present case fell far short of showing 
that the appellants 'conceived or 
operated [a] purposeful device[] to 

further racial discrimination.’ 

  

  

48 U.S.L.W. at 4440 (emphasis added). In other words, having 

set forth the Plaintiffs' burden of proof on the immediately 

preceding page of the opinion (48 U.S.L.W. at 4439), the 

plurality then proceeded to record the failure of the Plaintiffs 

to meet that burden. 

Finally, the plurality held that the missing proof of 

purposeful discrimination could not be supplied by the so-called 

Zimmer standard or the foreseeability test. 48 U.S.L.W. at 

4440-41 and 4440 n.l17, respectively. Rather, a plaintiff must 

show that the challenged action was "at least in part 'because 

of' not merely 'in spite of,' its adverse effects . . . . 

48 U.S8.L.W. at 4440 n.l1l7. 

Each of these legal principles and fact findings was 

supported by at least a majority of the justices. Justice 

Marshall agreed with the plurality that the standards under 

§ 2 of the Voting Rights Act and under the fifteenth amendment 

were the same (48 U.S.L.W. at 4449 n.2), although he disagreed 

with what that standard was. Justice Stevens, although on 
\ ~ - 

somewhat different legal reasoning, 1/ agreed that Plaintiffs 

had failed to prove any violations of their "constitutional 

rights.” 48 U.S.L.W. at 4443. 

  

7/ Defendants suggest that there is not as much distinction 

in the views of the plurality and Justice Stevens as might at 

first appear. Justice Stevens states "that a proper test 

should focus on the objective effects of the political deci- 

sion rather than the subjective motivation of the decision 

maker," (48 U.S.L.W. at 4445) and argues as an example that 

a system of government having an "adverse impact on black 

voters plus the absence of any legitimate justification for 

the system" would be found invalid while one "supported by 

valid and articulable justifications cannot be invalid simply 

because some participants in the decisionmaking process were 

motivated by a purpose to disadvantage a minority group." 

48 U.S.L.W. at 4445-46. 

Defendants suggest that the plurality would likely reach 

the same conclusion in similar circumstances applying the 

"subjective intent" test. In the face of proved knowledge 

of significant adverse impact, the failure of a defendant 

to articulate a legitimate, nondiscriminatory justification 

for continued adherence to the practice would likely lead 

the searcher for subjective intent to conclude that the 

defendant acted "because of" and not just "in spite of" the 

discriminatory consequences of the practice. Cf. 48 U.S.L.W. 

[Continued on page 7] 

 



  

Even one of the dissenters, Justice White, appeared 

to agree that proof of discriminatory intent was required 

although he believed Plaintiffs had met that batdeh. Justice 

Blackmon, concurring, pretermitting the question of the 

correct legal standard, also found the proof of purposeful 

discrimination sufficient. Justices Marshall and Brennan, 

dissenting, also believed that discriminatory purpose had 

been shown although they argued that it was not required 

under their view of the correct legal standard. 

Finally, despite Plaintiffs' ungrounded assertion to 

the contrary, a majority of the justices (the four man plurality 8/ 

and Justice Stevens 3/7 clearly rejected Zimmer, and of the 

other four justices only Justice White and Justice Brennan 

concurring with him even arguably supported its approach. 

Neither Justice Blackmon's concurrence nor Justice Marshall's 

lengthy dissent even cited Zimmer. 

  

[Footnote 7 continued from page 6] 

at 4440. Likewise, the plurality would probably agree with 
Justice Stevens that even proof of some involvement of illicit 
motive in a decisionmaking process would not invalidate that 
decision unless the illicit consideration rose to the level 
of a "substantial" or "motivating" factor within the meaning 
of Mt. Healthy County Board of Education v. Dovle, 429 U.S. 
274, 287 (1977), thus shifting to the defendant the burden of 
demonstrating that the same decision would have been made even 
absent consideration of the illicit consideration. This con- 
clusion would certainly be consistent with the holding in 
Village of Arlington Heights v. Metropolitan Housing Develop- 
ment Corp., 429 U.S. 252 (1977), where the Supreme Court in 
view of the presence of legitimate, nondiscriminatory reasons 
for a refusal to change zoning policies found insufficient 
proof of racial motivation despite clear adverse impact and 
evidence of some racial motivation by some participants in the 
process. 

  

  

  

In any event it is clear, and Plaintiffs concede, that 
to the extent there is a difference, the Stevens standard of 

proof is more stringent for the Plaintiffs than is the standard 
Of the plurality. Plaintiffs' Brief to the Fifth Circuit on 
Remand at 4. 

8/ 48 U.S.L.W. at 4441. 

9/ 48 U.S.L.W. at 4445. 

 



  

Therefore, based on these holdings by the Supreme Court, 

there is no legitimate basis for further proceedings in this 

case. The four man plurality, concluding that the correct 

legal standard included the requirement of a showing of pur- 

poseful discrimination, viewed Plaintiffs' evidence, and opined 

that it fell "far short" of proving the requisite purposeful 

discrimination. And, Justice Stevens, in a separate opinion, 

announced a standard that would require a stricter standard 

of proof than the plurality imposed. Having had the opportunity 

to present any evidence in an unrestricted manner and having 

failed to meet the plurality standard, Plaintiffs fell even 

further short of meeting Justice Stevens' requirements. 

Similarly, the dissenting justices offer no help to 

Plaintiffs in this regard since Justices Brennan, Marshall, 

and White concluded that, notwithstanding their views concern- 

ing what constituted the appropriate standard, the plurality's 

requisite intent had been proved; Justice Blackmon reached a 

similar conclusion. In this conclusion, however, they were 

simply out-voted. It is therefore clear that the United States 

Supreme Court thoughtfully considered Plaintiffs' evidence, 

applied the correct legal standard to such evidence, and con- 

cluded that such evidence was insufficient to carry the gay. 

for Plaintiffs. In other words, Plaintiffs lost. They are 

not entitled to another opportunity at this juncture. 

E. The Supreme Court's Evidentiary Findings 
  

Plaintiffs argue, based primarily on the dissenting 

opinion of Justices Marshall and White, 10/ that the Supreme 

  

Court intended that the lower courts be free on remand to hold 

that Plaintiffs won after all, or should at least have a 

second bite at the apple in a new trial. Either option is 

manifestly inconsistent with established legal principles as 

  

10/ Defendants find no indication in the concurrence of Justice 
Blackmon that he contemplated further proceedings on remand. 

 



* ¢ 

  

well as with the majority view of the Supreme Court. 

When errors of law have been made in the lower court 

a two step corrective process must occur. First, the correct 

legal standards must be articulated by the appellate court. 

Second, the evidence in the record must be reassessed in 

light of the correct legal standards and new fact findings 

made. In some cases only the first step is taken by the 

appellate court and the cause is remanded to a lower court 

to perform the second. See Malat v. Riddell, 383 U.S. 569, 
  

572 (1966). 

Such a course, however, was not followed by a majority 

of the Supreme Court in this case. To the contrary, the 

majority (the four justice plurality and Justice Stevens), 

after identifying the controlling legal principles, went 

further, reviewed the evidence in the case, and held that 

it did not prove the requisite intent. Justice Stewart for 

the plurality stated unequivocally: 

[I]t is clear that the evidence in the 
present case fell far short of showing 
that the appellants "conceived or 
operated [a] purposeful device[] to 
further racial discrimination." 

  

    

48 U.S.L.W. at 4440 (emphasis added). Similarly, Justice, 

Stevens said, "I agree with Mr. Justice Stewart that no 

violation of [Plaintiffs'] constitutional rights has been 

demonstrated .. 4 +2." 48 U.B.1L..W. at 4443. 

Contrary to the assertion of Plaintiffs, the finding 

by the plurality was not just a holding that the lower court's 

Zimmer analysis was insufficient to supply the requisite proof 

of intent, although the plurality most assuredly did also 

hold that. Rather, Justice Stewart's evidentiary finding for 

the plurality is made before any consideration had been given 

to the Zimmer analysis and unequivocally refers to "the evidence 

in the present case" in its entirety. The plurality's subse- 

 



  

- 10 - 

quent review of the Zimmer analysis and the foreseeability 

test, as well as the evidence of adverse impact and official 

unresponsiveness, is not a limitation on this earlier finding, 

but rather a holding that such analyses and evidence could not 

supply or substitute for that missing proof of discriminatory 

motive. 

Thus, after declaring the correct controlling legal 

principles, the majority itself took the second corrective 

step by reviewing the evidence in the case, applying the 

correct legal principles, and holding as a fact that purpose- 

ful discrimination had not been proved. 

It is this later holding of the Supreme Court that 

Plaintiffs ask this court to ignore -- not only to ignore 

but to, in effect, reverse. 

F. Errors in Plaintiffs! Fifth Circuit Brief on Remand 
  

To support this remarkable effort, Plaintiffs asserted 

several arguments in their Fifth Circuit brief on remand. 

They argue that the Supreme Court "insisted on" misreading 

the prior panel opinion (Brief at 1, 10) and was stricken ', 

by an "inability to see itis] . . . conclusion. « «. ." Brice | 

at 12. They argue that the Supreme Court misunderstood the 

District Court's opinion and was "unable" to understand its 

reasoning. Brief at 13. They argue that the Supreme Court 

misinterpreted some evidence (Brief at 12) and "ignore[d]" 

other evidence (Brief at 2, 12). Obviously, these arguments 

simply represent Plaintiffs' belief that the Supreme Court 

erred in its decision. 

These arguments are addressed to the wrong court and 

come too late. They are, in fact, irrelevant. This court does 

not have the power to hear such arguments or decide such 

issues. This court cannot review the evidence in the record 

 



  

® LJ 
- ily 

and say that it proves the requisite intent when a majority 

of the Supreme Court reviewed the same evidence and held that 

it did not. 

As stated by the Ninth Circuit in Atlas Scrapper & 
  

Engineering Co. v. Pursch, 357 P.24 296 (9th Cir. 1966), 
  

cert. denied, 385 U.S. 846: 
  

The [lower] court is bound by the decree 
of the law of the case; and must carry 

it into execution, according to the mandate. 
That court cannot vary it, or examine it 
for any other purpose than execution; or 
give any other or further relief; or review 
it, even for apparent error, upon any matter 
decided on appeal; or intermeddled with it . . . 

  

  

Id. at 298 (emphasis added). 

Or, as the court in Paull noted: 

That [lower] court is without power to 
do anything which is contrary to either 
the letter or spirit of the mandate 
construed in the light of the opinion 
Of this court deciding the case. If a 
judgment or decree of this court which 

disposes of a case upon the merits has 
become final, no purpose can be served 
by considering whether it is right or 
wrong. A judgment which is wrong, but 
unreversed, is as effective as a judg- 
ment which is right. 

  

  

  

  

  

  

313 F.2d at 617 (emphasis added). 

Plaintiffs' additional argument that the Supreme Court. 

went astray by failing to consider or properly interpret 

evidence outlined on pages 15-22 of their Brief, which they 

say proved discriminatory intent, fares no better. All of 

that evidence was in the record reviewed by the Court, a 

record which was held to fall "far short" of making the neces- 

sary showing. 48 U.S.L.W. at 4440. In addition, most of their 

present argument was advanced by Plaintiffs in their brief to 

the Supreme Court, or at oral argument, or both. Compare 

Plaintiffs' Supreme Court brief pages 18-36 with pages 14-22 

of their Fifth Circuit brief, both of which, for example, contain 

a quotation of the testimony of Senator Robert Eddington so 

heavily relied upon by Plaintiffs. Much of this evidence was 

 



  

® » 
i 

expressly discussed by the plurality opinion, and implicitly 

1L/ In considered by Justice Stevens, and found wanting. 

light of the Supreme Court holding, this court is not free 

to disagree. 

- The Supreme Court, considering the evidence in support 

of the maintenance of the Commission form of government in 

Mobile (which requires the retention of at-large elections), 

also said: "[W]lhere the character of a law is readily explain- 

able on grounds apart from race, as would nearly always be true 

where, as here, an entire system of local governance is brought 

into question, disproportionate impact alone cannot be decisive, 

and courts must look to other evidence to support a finding 

of discriminatory purpose." 48 U.S.L.W. at 4440. This state- 

ment is then followed in the very next paragraph by the finding 

that "the evidence in the present case fell far short of [making 

the necessary}] showing ... . ." 48 U.S.L.W. at 4440. 

It is our submission, then, that the Supreme Court 

considered all of the Plaintiffs' evidence and found it 

wanting absolutely. Moreover, a Plaintiff would have to 

produce substantially more evidence of discriminatory intent 

than was produced in this case to undo an entire form of °° 

government, and overcome what the Supreme Court concluded 

was the facial neutrality and apparent legitimacy of the 

Mobile system. 

G. There Is No Basis For Further Proceedings 
  

To summarize, a majority of the Supreme Court held both 

(1) that invidious intent must be shown to prove violation 

of the fourteenth amendment, fifteenth amendment, and § 2 of 

  

ll/ The fact that some of the evidence argued in Plaintiffs’ 

brief was not expressly discussed in the majority opinion is 

irrelevant. Obviously, there is no requirement that the Supreme 

Court or any other court discuss in its opinion every single 

item of evidence in the record. When a court holds that the 

evidence in the case fails to prove an essential requirement, 

that holding covers every item in the record whether or not 

expressly discussed. And if the evidence was not in the record 

it is’obvicusly improper for the Plaintiffs to argue it here. 

 



* » 
- 13 - 

  

the Voting Rights Act and (2) that the evidence in this case 

fails to prove such intent. Given those holdings, the only 

remaining question is what issues, if any, are left open to 

this court on remand. 

Where a plaintiff has put on his case, and where an 

appellate court subsequently holds that the evidence pre- 

sented fails to prove that case, the obvious next step is to 

enter judgment in Defendants' favor. Plaintiffs here have 

had their chance to prove their allegations, and they failed. 

Defendants know of no principle of law that entitles Plaintiffs 

who have failed to present sufficient evidence to support the 

allegations of their complaint to thereafter be given a second 

chance to prove what they failed to prove the first time. 

Plaintiffs do not get new trials when the evidence they present 

is held to be insufficient. 

For example, the Fifth Circuit in the companion case 

of Nevett v. Sides, 571 P.24 209 (5th Cir. 1978), cert.   

denied, 48 U.S.L.W. 3750 (May 20, 1980), affirmed a holding 

that plaintiffs had failed to prove the required discrimina- 

tory motivation. Neither the Fifth Circuit in affirming the 

district court nor the Supreme Court in denying certiorari 

allowed plaintiffs in Nevett a new trial to attempt again to 

prove what they failed to prove at the first trial. 

The Nevett case is indistinguishable from this one, the 

fact that it was the Supreme Court rather than the Fifth 

Circuit which held that Plaintiffs' proof was insufficient 

being legally irrelevant. 12/ If Plaintiffs are entitled to 

a new trial in this case, why didn't the Supreme Court grant 

a new trial to the plaintiffs in Nevett by vacating that 

judgment and remanding for further proceedings in light of 

Bolden v. City of Mobile? The clear message of the Supreme   

  

12/ 1f anything, a district court-is more constricted in 
granting a new trial in a case reversed by the Supreme Court 
than in one reversed by itself. 

 



  

® » 
- 14 - 

Court is that -- at least on the two records before it -- 

at-large elections were validly adopted and validly main- 

tained. The Supreme Court did not intend that the district 

court in this case be affirmed (or the district court in 

Nevett be reversed) on some post-hoc alternate ground. 

Contrary to Plaintiffs' assertion, there was no inter- 

vening change in the law involved in this case. Washington   

v. Davis was decided before this case was tried. The district   

court and the prior panel opinion may have misinterpreted the 

law, but the majority Supreme Court opinion makes clear that 

their decision is merely an application of the principles of 

Washington v. Davis and Arlington Heights. 
    

The "intervening change of law" cases relied on by 

Plaintiffs in their Fifth Circuit brief are inappropriate. 

For example, Williams involved a district court opinion that   

addressed an alleged violation of the Equal Protection Clause. 

In between the decision of the trial court and appellate 

review, Washington v. Davis was decided. Accordingly, the 
  

Fifth Circuit properly remanded the case to the trial court 

for reconsideration in light of Washington v. Davis. In the 
  

Myers case, a new Supreme Court opinion was issued subsequent. 

to the district court's judgment, but before appellate review. 

As in Williams, the Myers court remanded the case for reconsidera-   

tion in light of the new Supreme Court decision. 

Nor is this a case where the district court improperly 

or unfairly limited the proof which Plaintiffs were allowed 

to put on. Plaintiffs were not restricted from putting such 

evidence in at trial, and Plaintiffs have argued at every 

stage of this litigation that the evidence they presented 

in fact proved discriminatory intent. Plaintiffs can hardly 

now claim that the district court denied them an opportunity 

to prove the intent which they have previously consistently 

argued they did prove. 

 



  

- 15 - 

On page 22 of its Fifth Circuit brief Plaintiffs argued 

that the district court "should be instructed on remand not 

to ignore the plurality's admonition to rule on the § 2 claim.” 

This is a mystifying contention since the plurality held that 

§ 2 was identical to Plaintiffs' fifteenth amendment claim 

which failed from a lack of proof. 

That the remand was "for further proceedings" is certainly 

not an instruction that a new trial or equivalent proceedings 

be undertaken. Entry of a judgment for the Defendants, in 

conformity with the Supreme Court's decision, is a further 

proceeding. See Coleman v. United States, 405 F.2d 72 (9th 
  

Cir. 1968), cert. denied, 394 U.S. 907 (1969). The Supreme 
  

Court knows how to leave questions open for determination on 

remand if it chooses to do so. See United States v. United 
  

Continental Tuna, 425 U.S5..164, 182 (1976).   

A recent opinion rendered by the Fifth Circuit Court of 

Appeals offers additional support for Defendants' position 

regarding further proceedings. United States v. Uvalde 
  

Consolidated Independent School District, F.24 

  

  

(Slip Opinion September 2, 1980). Although Defendants do not 

agree with all said in that opinion, it contains a detailed 

consideration of the Supreme Counts Bolden decision, and 

strongly supports the City of Mobile's position concerning 

its meaning and effect with regard to what further proceedings 

are appropriate in this case. 

In an opinion ‘authored by Judge Rubin, the majority of 

the Uvalde panel (the third member, Judge Hill, concurred in 

the result) clearly reads the Bolden Supreme Court majority 

as holding not only that incorrect legal principles had been 

applied by the lower courts, but also that under the correct 

legal principles the evidence presented by the Plaintiffs 

 



- 16 - 

  

failed as a matter of proof to make the necessary factual 

showing. For example, Judge Rubin said: 

Thus, the [Bolden] plurality's 
rejection of the fifteenth amendment 
and § 2 claims in Bolden may rest 
entirely upon the conclusion that 
no discriminatory motivation was 
shown. 

  

  

Slip Opinion at page 9084 (emphasis added). 

In fact, the Uvalde opinion goes even further, suggesting 

that the Supreme Court's ruling in Bolden is more properly 

viewed as an evidentiary decision rather than as a legal one. 

The Uvalde panel concluded that the Supreme Court majority 

essentially agreed with the legal principles enunciated by 

the Fifth Circuit in Bolden, but disagreed that plaintiffs 

presented sufficient evidence to satisfy those legal standards. 

Judge Rubin said: 

Although only Justice White appears 

to have wholly adopted this court's 
reasoning in Bolden, a majority appears 
to agree with the legal principles set 
forth in our Bolden opinion but not 
with their application to the evidence 
presented. 
  

  

Slip Opinion at 9085 n.8 (emphasis added). The Uvalde opinion 

thereby illustrates that the Bolden majority found as a factual 
BY 

matter that the evidence presented in this case did not prove 

a violation of the constitutional or statutory rights (ties) 

the fourteenth Smendment. fifteenth amendment, or § 2 of the 

Voting Rights Act) of the Plaintiffs. Plaintiffs having had 

their day in court and having failed to carry their burden of 

proving the essential factual elements of their claim, this 

action is due to be dismissed. 

Finally, contrary to Plaintiffs' assertion, footnote 21 

in Justice Stewart's opinion (at 4441) is not an instruction 

by the plurality to grant Plaintiffs a new trial. Rather, 

it is simply an observation that although Plaintiffs in this 

case failed to prove the requisite intent, some other plaintiffs 

in a future case would not be precluded from making such an 

 



- 17 - 

  

effort. Obviously, when dealing with the issue whether a 

particular election system is being maintained for a dis- 

criminatory purpose, a finding of no such intent in the 

past does not preclude the possibility of proving that such 

an illicit intent has interceded into future legislative 

actions. 

Certainly, this cryptic dictum embedded in a footnote 

cannot be considered the creation of a heretofore unknown 

principle of law that a plaintiff failing to prove essential 

elements of his claim gets a new trial when the evidence 

presented is held on appeal to be insufficient. 

III. CONCLUSION 

Reduced to its essence, Plaintiffs' argument is that 

"we did prove intent -- the Supreme Court could not or would 

not see it -- but we proved it." But that argument has been 

made to and rejected by the Supreme Court. Plaintiffs have 

had a full, fair chance to prove their case but according to 

the Supreme Courts they have failed to do so. Therefore, 

.this case is over; and the only further appropriate proceeding 

is to enter judgment in favor of the Defendants. \ 

Zs ery 
. B. ARENDALL, JR. of 
  

en C. TIDWELL 111 

P..O. Box 123 

Mobile, Alabama 36601 

  

OF COUNSEL: 

HAND, ARENDALL, BEDSOLE, 
GREAVES & JOHNSTON 

BARRY HESS 

City Attorney, City Hall 
Mobile, Alabama 36602 

LEGAL DEPARTMENT OF THE 

CITY OF MOBILE 

 



® ® 
- 18 - 

  

CERTIFICATE OF SERVICE 
  

I certify that I have on this 10th day of October, 1980, 

served a copy of the foregoing brief on counsel for all parties 

to this proceeding by United States mail, properly addressed, 

first class postage prepaid, to: 

J. U. Blacksher, Esquire 
Messrs. Blacksher, Menefee & Stein 

P.O. Box 1051 

Mobile, Alabama 36601 

Edward Still, Esquire 
Messrs. Reeves and Still 

Suite 400, Commerce Center 
2027 lst Avenue, North 
Birmingham, Alabama 35203 

Jack Greenberg, Esquire 
Eric Schnapper, Esquire 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Honorable Wade H. McCree, Jr. 

Solicitor General of the 

United States 
Department of Justice 
Washington, D. C. 20530 

Drews S. Days, III, Esquire 
Assistant Attorney General 
Department of Justice 
Washington, D. C. 20530 

  

B. ARENDALL, JR. 
CAD Ad 

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