Correspondence from Blacksher to Clerk

    BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT Law 

  

405 VAN ANTWERP BUILDING 

P. 0. BOX 1051 

MOBILE, ALABAMA 36601 

JAMES Ul. BLACKSHER - TELEPHONE 

LARRY T. MENEFEE September 15, 1980 (205) 433-2000 
GREGORY B. STEIN 

Mr. Gilbert F. Ganucheau, Clerk 
U.S. Court of Appeals 
Fifth Circuit 
Room 102, 600 Camp Street 
U.S. Court of Appeals Courthouse 
New Orleans, Louisiana 70130 

Re: Bolden v, City of Mobile, CA No. 76-4210 
  

Dear Mr. Ganucheau: 

The subject appeal has been remanded to this Court by the 
Supreme Court for further proceedings, the parties have 
already filed briefs on remand, and the panel still has the 
case under submission. 1 am writing to call to the panel's 
attention a recent opinion written by Justice Powell which 
as a direct bearing on the issues before this Court on 
remand. I am enclosing three (3) copies of this letter, 
and I request that you distribute them immediately to the 
members of the panel. 

Attached to this letter is a copy of the opinion of Justice 
Powell, dated September 5, 1980, supporting his denial of 
a petition for stay of elections in the related Mobile County 
School Board case, Brown v. Moore. In it, Justice Powell 
interprets the plurality opinion in City of Mobile v. Bolden, 
written by Justice Stewart and joined by Justices Powell, 
Burger and Rehnquist. Justice Powell's interpretation of 

  

  

  

In their supplemental brief on remand, Plaintiffs-Appellees 
argued that the Supreme Court's plurality read the opinion 
of the district court and this Court as having applied an 

 



» ® 

  

Mr. Gilbert F. Ganucheau 
September 15, 1980 
Page Two 

erroneous effect-only legal standard, namely, the analysis 
of Zimmer v. McKeithen, and did not reach the issue of whether 
the evidence would support the judgment by the correct legal 
standard of purpose or intent. Justice Powell's recent opinion 
in the School Board case supports this interpretation of Bolden: 

  

MR. JUSTICE STEWART wrote for a 
plurality 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 vio- 
lated the Fourteenth Amendment. 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. 1/ 
Because we disagreed with the analysis 
of the District Court and Court of 
Appeals, we reversed and remanded for 
further proceedings. 

  

1/ Although recognizing that a dis- 
criminatory purpose had to be proved, 
the Court of Appeals had thought that 
the "aggregate" of discriminatory effects 
was sufficient to establish a discrimina- 
tory purpose. 

Moore v. Brown, No. A-193, oS... (Sept. 5, 19380), 
51ip op. at 1 (emphasis supplied by J. Powell). This passage, 

 



Mr. Gilbert F. Ganucheau 
September 15, 1980 
Page Three 

we submit, shows that Justice Powell agrees with us that 
Bolden v. City of Mobile was remanded for reexamination of 
the evidence (and for additional evidence, if necessary) in 
light of the correct legal standard. 

  

Best regards. 

Sincerely, 

BLACKSHER, MENEFEE & STEIN, P. A. 

\ ! / 

\ LL SUL Lt alae 
! 

James U. Blacksher 

JUB:pfm 

Encls. 

¥¢: Edward Still, Esq. 
Jack Greenberg, Esq. 
Eric Schnapper, Esq. 
Charles B. Arendall, Jr., 
William C. Tidwell, Esq. 
Fred G. Collins, Esq. 
Charles S. Rhyne, Esq. 
William S. Rhyne, Esq.