Correspondence from Blacksher to Judge Pittman

    BLACKSHER, MENEFEE & STEIN, P.A. 

ATTORNEYS AT LAw 

  

405 VAN ANTWERP BUILDING 

P.O. BOX 105) 

MOBILE, ALABAMA 36633 

JAMES LI. BLACKSHER 
TELEPHONE 

LARRY T. MENEFEE 
(205) 433-2000 

GREGORY B. STEIN 

October 24, 1980 

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

RE: Wiley L. Bolden, et. al. 
vs, 

City of Mobile, et. al., 
? 

Civil Action No. 75-297-P 

Plaintiffs 
b J 

Defendants 

  

Dear Judge Pittman: 

Please consider this letter a reply to the brief in 
support of the City's motion to enter judgment. 

Of course, we cannot disagree with the basic principle 
of law that this Court must comply with the mandates of 
the higher courts. But stating that axiom does not 
advance the inquiry the Court now must make, namely, 
what is the meaning of the Supreme Court's mandate? 
In this regard, we think that a telling and significant 
feature of the City's brief is that it makes no reference 
to fn. ‘21 of the plurality opinion until it reaches the 
very end, where it attempts to discount the footnote's 
importance. Specifically, the City contends that fn. 21 
means only that black citizens could file a new lawsuit 
tomorrow claiming racial intent based solely on facts 
that occur tomorrow. But it is impossible to restrict 
fn.21 to such a narrow meaning. Justice Stewart writes 
that "[w]hether it may be possible ultimately to prove 
that Mobile's present governmental and electoral system 
has been retained for a racially discriminatory purpose, 
we are in no position now to say." (Emphasis added). The 
evidence about which the plurality was in no position to 

 



  

Honorable Virgil Pittman 
October 24, 1980 
Page Two 

comment on is referred to in the preceding sentence of 
the footnote as the "several proposals that would have 
altered the form of Mobile's municipal govermnment'. The 
clear meaning of the footnote, therefore, is that this 
evidence is still subject to judicial review under the 
new legal standards of intent. Otherwise the plurality 
would have said that they had examined this evidence and 
had found it unconvincing. Certainly, that is the meaning 
Justices White and Marshall attached to fn. 21 in their 
separate opinions. Surely, if the plurality had disagreed 
with Justices Marshall and White in this respect, the 
plurality opinion would have noted and disavowed such 
crucial misunderstandings contained in the dissenting 
opinions. As Section IV.B. of the plurality opinion shows, 
Justice Stewart went out of his way to point out what 
he considered to be the errors in the dissenting opinions. 
Obviously Justice Stewart carefully scrutinized Justice 
Marshall's dissenting opinion. If he had disagreed with 
Justice uit Li fn. 39, which flatly states that the 
plurality intends that on remand the lower court should 
reexamine the evidence under the new intent standards, 
he would have said so. 

We take this opportunity to enclose for the Court's 
information the brief just filed by the United States 
in Lodge v, Buxton, No. 783-3241 (5th Cir.). This brief 
shows that the United States agrees with us that the 
Supreme Court in City of Mobile v. Bolden went no further 
than to rule that analysis of the evidence under the Zimmer 
standards can not sustain a judgment of unconstitutionality. 
In particular, we call to the Court's attention the 
government's very thorough and careful exposition of an 
additional legal theory not yet addressed by the Supreme 
Court which is equally applicable to the instant case. 
The United States points out that both the fifteenth amend- 
ment and §2 of the Voting Rights Act of 1965 prohibits the 
use of facially neutral election schemes that have the 
effect of perpetuating racially discriminatory and ex- 
clusionery conditions flowing directly from the state's 
past official actions designed to exclude blacks from 
political power. Basically, this was the theory of law 
ammounced in the Fifth Circuit's en banc decision, Kirkse 
v. Board of Supervisors of Hinds County, 554 F.2d nT 

  

  

  

 



  

Honorable Virgil Pittman 
October 24, 1980 
Page Three 

(5th Cir. 1977) (en banc), cert. denied, 434 U.S. 968 
(1978). The government's Lodge v. Buxton brief shows how 
the Kirksey theory is fully consistent with, and even 
reconciles, the Supreme Court's pronouncements in City of 
Mobile v. Bolden and White v. Regester. We stand by our 
prior arguments that this Court has already made findings 
of intent based on legally sufficient evidence already 
of record under the Arlington Heights guidelines. However, 
we believe this Court should consider the Kirksey theory 
as well. In an area of the law that is developing as 
quickly as this, judicial economy clearly requires that 
lower courts consider and apply to the evidence all legal 
and constitutional theories which ultimately must be con- 
sidered by the appellate courts. 

  

  

    

  

Best regards. 

Very respectfully, 

BLACKSHER, MENEFEE & STEIN, P.A. 

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J. U. Blacksher 

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cc (w/enc) C. B. Arendall, Jr., Esquire 

William C. Tidwell, III, Esquire 
(w/o enc) Fred G. Collins, Esquire 

Charles S. Rhyne, Esquire 
William S. Rhyne, Esquire 
Edward Still, Esquire 
Jack Greenberg, Esquire 
Eric Schnapper, Esquire