Dillard v. City of Greensboro

870 F. Supp. 1031, 1994 U.S. Dist. LEXIS 18441, 1994 WL 711780
District Court, M.D. Alabama·Decided November 14, 1994·No. Civ. A. No. 87-T-1223-N·Published·Cited by 3 cases

Opinion

ORDER

MYRON H. THOMPSON, Chief Judge.

On October 11, 1994, the court issued an opinion and injunction in this voting rights lawsuit. Dillard v. City of Greensboro, 865 F.Supp. 773 (M.D.Ala.1994).1 In brief, the court ordered that a districting plan proposed by the plaintiffs in this case be used to remedy an admitted violation of § 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973. On October 28, 1994, the court entered an order and injunction setting a schedule for a special election to implement the October 11 judgment. This cause is now before the court on defendant City of Greensboro’s motion for a stay pending appeal. For the reasons that follow, the motion is denied.

I. BACKGROUND2

At one time, the City of Greensboro elected its councilmembers by at-large elections. In 1987, in response to this lawsuit, the city conceded that its at-large system violated § 2 of the Voting Rights Act.3 To remedy this violation, the court adopted a single-member districting plan proposed by the city.4 Because the city’s plan was legislative and thus had to be “precleared” pursuant to § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. § 1973c,5 McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981), the court allowed the city to use the plan on an “interim” basis only.6 See Upham v. Seamon, 456 U.S. 37, 43-44, 102 S.Ct. 1518, 1522, 71 L.Ed.2d 725 (1982) (per cu-riam); Burton v. Hobbie, 561 F.Supp. 1029, 1036 (M.D.Ma.1983) (three-judge court).

At the time that Greensboro was arguing that the court should adopt its plan, the city knew that it could agree to the plaintiffs’ plan submitted on December 11, 1991. The plaintiffs’ plan would have been court-ordered rather than governmentally enacted and, therefore, not subject to preclearance. See McDaniel, 452 U.S. at 138, 101 S.Ct. at 2230; Connor v. Johnson, 402 U.S. 690, 691, 91 S.Ct. 1760, 1762, 29 L.Ed.2d 268 (1971) (per curiam). The city therefore had a choice between an interim plan that could be used only so long as the Attorney General had not interposed an objection, Clark v. Roemer, 500 U.S. 646, 652-55, 111 S.Ct. 2096, 2101-02, 114 L.Ed.2d 691 (1991), and a permanent plan that was not subject to § 5 preclearance. Greensboro chose to pursue an interim plan and thereby risk non-pre-clearance by the Attorney General. The court deferred to the city’s choice, White v. Weiser, 412 U.S. 783, 795-96, 93 S.Ct. 2348, 2355, 37 L.Ed.2d 335 (1973), and the 1992 municipal elections were conducted under the interim plan proposed by the city.

Subsequently, pursuant to § 5, the United States Attorney General refused to preclear, and interposed an objection to, the 1992 plan. The city adopted a new plan in August 1993. Once again, the Attorney General interposed an objection under § 5. In her objections, the Attorney General suggested that, in drawing district lines, the city may have deliberately sought to limit black voting strength.

In response, in January 1994, the plaintiffs filed a renewed motion for further relief, asking the magistrate judge to recommend [1033]*1033adopting their 1991 plan.7 The city continued to oppose the plaintiffs’ plan, suggesting instead that the magistrate judge draw a new plan. In May 1994, the magistrate judge issued a recommendation that the court adopt the plaintiffs’ plan and order immediate elections.8 The city objected to the magistrate judge’s recommendation and requested that the court-itself draft a plan. In June 1994, the city attorney submitted to the court a plan that slightly modified the city’s 1993 plan as an example of how the court could design its own plan.9 The court, in its October 11 opinion, adopted the plaintiffs’ plan.

II. DISCUSSION

Greensboro seeks a stay of the court’s October 11, 1994 judgment pending appeal. A stay is considered “extraordinary relief’ for which the moving party bears a “heavy burden.” Winston-Salem/Forsyth County Bd. of Educ. v. Scott, 404 U.S. 1221, 1231, 92 S.Ct. 1236, 1241, 31 L.Ed.2d 441 (1971) (Burger, C.J., in chambers). The United States Supreme Court has held that in determining whether to grant a stay pending resolution of an appeal, courts must examine the following factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987); see also United States v. Bogle, 855 F.2d 707, 708 (11th Cir.1988). Each of these factors points toward denying the motion for a stay.

A.

It appears from its motion for a stay that Greensboro’s argument on appeal will be that the court should have rejected the plaintiffs’ plan and instead itself fashioned a plan for the city. The city does not fault the court for rejecting the 1994 plan the city’s attorney drew up and submitted. The court does not believe that, under these facts, the city will be able to argue successfully on appeal that the court should, or could, have found a better alternative to the plaintiffs’ plan when the city itself did not come up with one in a timely manner. For this reason and other reasons given in the court’s October 11 opinion, there is not a reasonable likelihood that Greensboro will prevail on appeal.

But more importantly, it should be emphasized that, in its motion for a stay, the city seeks to maintain the status quo pending appeal. It seeks not only to continue to use its current plan up through the next scheduled election in August 1996 but also to conduct the 1996 election under that plan if there has been no disposition on appeal by then. Even were the city to prevail on appeal, the status quo could not be maintained after August 1996. The Attorney General has objected to the current election plan, . and, therefore, the city must replace that plan. In Clark v. Roemer, 500 U.S. 646, 654, 111 S.Ct. 2096, 2102, 114 L.Ed.2d 691 (1991), the Supreme Court stated that § 5 required that implementation of unpreeleared changes be enjoined “where the Attorney General interposed objections before the election.” The city therefore cannot conduct the 1996 election under the current election plan.

Moreover, the city cannot continue to use its current plan up through the 1996 election.

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Dillard v. City of Greensboro, 870 F. Supp. 1031, 1994 U.S. Dist. LEXIS 18441, 1994 WL 711780 (M.D. Ala. 1994).

870 F. Supp. 1031 (Dillard v. City of Greensboro) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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