Letter from Kellogg to Halpin and Williams RE Major v Treen Filed Motion to Recuse (Redacted)

    Napoleon B. Williams 

Stanley A. Halpin 

March 29, 1982 

Page Two 

Sincerely, 

ALN 

R. James Kellogg 

cc Bill Quiecley 

RJK/jag 

 



  

    

  

  

  

  

    

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJORS, ET AL ; CIVIL ACTION 

Plaintiffs A NO. 82-1192 

VERSUS J SECTION H (D) (C) 

DAVID C. TREEN, ET AL THREE-JUDGE COURT CASE   

  

Defendants * CLASS ACTION 

PLAINTIFF'S MOTION TO RECUSE 
  

NOW INTO COURT come plaintiffs in this matter who move for recusal of 

United States District Judge Adrian Duplantier from hearing any part of this 

{laction. Plaintiffs make this motion under 28 U.S.C. 8144 and 28 U.S.C. §455(a) 

land 455(b)(1) 

gE Submitted: 

Hr 
    

R.] JAMES KXELLOG,| Trial Attogfne 
WILLIAM biE 
STEVEN SCHECKMAN 

STANLEY HALPIN 

631 St. Charles Avenue 

New Orleans, Louisiana 70130 

(504) 524-0016 

JACK GREENBERG 

JAMES M. NABRIT, III 

NAPOLEON B. WILLIAMS, JR. 

LANI GUINIER 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

Attorneys for Plaintiff 

CERTIF1CATE 

I hereby certify that copy of the foregoing has been served on 

opposing counsel by mailing same postage prepaid via U.S. Postal Service this 

    
  
  
 



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA   
! BARBARA MAJORS, ET AL " CIVIL ACTION 

Plaintiffs NO. 82-1192 

VERSUS x SECTION H (D)(C) 

DAVID C. TREEN, ET AL THREE-JUDGE COURT CASE   

  

Defendants ¢ CLASS ACTION 
  

AFFIDAVIT IN SUPPORT OF MOTION 
  

BEFORE ME, the undersigned Notary, personally came and appeared: 

WILLIAM P. QUIGLEY 

who after being duly sworn, deposed and said:       
IL. 

That he makes this affidavit in support of the Motion to Recuse Judge 
(| 
{| Adrian Duplantier, under 28 U.S.C. 8144 and 8455(a), and (bY{l). 

11. 

In preparing this case the following facts have come to light:       A. Adrian Duplantier was involved in the previous Louisiana Reappor- 
| 
( 

| tionment court battles as an attorney. The record reflects that Adrian   |Duplantier was a special co-counsel for the Attorney General for the State of 

{| Louisiana in the case entitled: Taylor v. McKeithen, 499 F. 2nd 893 (5th Cir. 
  

1974). 

B. Adrian Duplantier was a State Senator at the time the last re- 

apportionment plans were formulated and passed in the 1971 session of the   {{ Louisiana Legislature. He took part in all of these actions. 
Hl   C. Adrian Duplantier, as a State Senator, along with three other 

{State Senators (Michael H. O'Keefe, Ignatz G. Kiefer, and Theodore Hickey) were, 

in addition to being attorneys representing the State, apparently real parties 

n 
{tdenators as   the real adversaries here" to the interest of the black class actiof 

’ 

plaintiffs in the reapportionment suit brought by Dorothy Taylor. (See page 895] 

| 

lat interest in the previous litigation. The Fifth Circuit described these fout 
; 

| 

{ 
1 

of Taylor v. McEeithen, 499 PF. 2nd 893 (5th Cir. 1974)). 
  

TIT,   In litigating a case involving proving the existence of racial purpose 

jlor intent, the U.S. Supreme Court and the Courts of Appeals have indicated that        



they are looking for evidence regarding the following elements: 

A. Discriminatory impact; 

B. [Foreseeability of the discriminatory impact;     The legislative or administrative history; 

Historical background; 

The sequence of events; 

Knowledge of those who make the decision; 

Disregard for established standards; 

Absence of any valid interest being served; 

Availability of less discriminatory alternatives; and 

J. Other circumstantial evidence. 

In developing this factual evidence, the plaintiffs intend to put on significant 

testimony and offer documentary evidence showing discrimination in Louisiana 

history. This proof will involve analysis of prior reapportionment activities 

by the Louisiana Legislature, as well as other activities by the Louisiana 

Legislature which adversely impacted black people in the State of Louisiana. As 

an attorney in the prior case, a legislator involved in making decisions on     prior reapportionment cases, and as a party at interest in a prior suit, Adrian 

{| Duplantier will have personal knowledge of disputed evidentiary facts in this | | 

| | 

H 
|| proceeding. 

) 

| 

{ 
| I IV. 

The undersigned certifies that he is making this affidavit in good 
4 

faith. 

  

  

| DATE: oi 74 ‘ IQ 2. 
{ 

Sworn to and Subscribed Before Me 

  

NOTARY PUBLIC 

    
  
  

 



    

    

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJORS, ET AL CIVIL ACTION 

Plaintiffs g NO. 82-1192 

VERSUS SECTION H (D) (©) 

DAVID C. TREEN, ET AL THREE-JUDGE COURT CASE 
  

  

Defendants J CLASS ACTION 
  

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION TO RECUSE 
  

Statement of Proceedings 
  

This action was brought by the plaintiffs on behalf of black citizens 

registered to vote in the State of Louisiana. This action seeks declaratory 

and injunctive relief prohibiting the defendants from proceeding to conduct any 

elections under the Louisiana House Reapportionment Plan passed in 1981 as well 

as the Reapportionment Plan for the Louisiana Congressional Districts, passed 

by the Legislature in 1981. 

This suit was originally allotted to Section H of this Court, Section 

of Judge Adrian Duplantier. Because a prior law suit had been involved which     | involved similar questions of law and fact regarding congressional reapportion- | 

|} ment, the plaintiffs sought to have this law suit consolidated with the case 

entitled Couhig v. Brown, Civil Action 82-1126. Because Couhig v. Brown was in 
  

  

anather section of this Court, the Judge of that section was called upon to 

decide whether or not to consolidate this matter. At the same time, Couhig v. 

Brown was set for a decision on the defendants' motion to dismiss on the grounds 

that that law suit failed to state a claim upon which relief could be granted. 

Judge Robert Collins, to whom the lowered numbered Couhig suit was 

allotted, decided that the Couhig law suit failed to state a claim upon which 

relief could be granted, and dismissed the law suit. At the same time he denied, 

as moot, plaintiff's motion to consolidate this case. 

At that time, this case was sent back to Section H of this Court, 

Section of Judge Adrian Duplantigr. 

The plaintiffs bring chs motion to recuse Judge Adrian Duplantier 

because of his orior involvement as an attorney, as co-counsel for the State of 

Louisiana in the last major reapportionment case, as a party at interest in the      



last major Louisiana reapportionment case, and because as a legislator involved 

|| in the legislative activities he has knowledge of evidentiary facts which will * 

tbe in dispute in the resolution of this law suit. 

11. Statement of Facts 
  

As the affidavit in support of the motion to recuse shows, Judge 

Il Adrian Duplantier took a very active role in the last Louisiana reapportionment 

{litigation. 

As a State Senator, Adrian Duplantier was a sitting legislator who 

participated in formulating the reapportionment plan for the Louisiana Senate   
and House. 

As co-counsel for the Louisiana Attorney General's Office, he parti- 

  federal judicial system. 

Along with other State Senators, Michael H. O'Keefe, Ignatz G. 

| 

| cipated in the defense of the State of Louisiana on several levels of the 

| | 

||Kiefer, and Theodore Hickey, Senator Duplantier was an actual party at interest 
1 

{{in the prior litigation. He and the other Senators were described as "the real 
| 

||adversaries here," to the interest of the black plaintiffs in the reapportion- 

| 

ment brought by Dorothy Taylor. (See Taylor v. McKeithen, 499 F. 2nd 893, 895, 
  

Cir. 1974.) 

As a legislator, attorney for the State, and party at interest in the 

||the other three Senators in the last reapportionment battle. 

Blaintiffs submit that this extreme involvement in prior legislative 

lactivity, and subsequent litigation provides grounds for the disqualification 

of Adrian Duplantier as Judge in this reapportionment litigation. 

111. The Statutes Involved 
  

28 U.S.C. 8144 sets out the following: 

"Whenever a party to any proceeding in a District 

Court makes and files a timely and sufficient 

affidavit that the judge before whom the matter 

is pending has a personal bias or prejudice either 

against him or in favor of any adverse party, such 
judge shall proceed no further therein, but another 

judge shall be assigned to hear such proceeding." 

  

The affidavit shall state the facts and the reasons 

for the belief that bias or prejudice exists, and 

shall be filed not less than ten (10) days before 

the beginning of the term at which the proceeding 

is heard, or good cause shall be shown for failure   

  

 



to file it within such time. A party may file only 
one such affidavit in any case. It shall be accom- 
panied by a certificate of counsel of record stating 
that it is made in good faith.® 

28 U.S.C. 8455(a) and 455(bX1l) sets out the following: 

8(a) "Any justice, judge, or magistrate of the United 
States shall disqualify himself in any proceeding 
in which his impartiality might reasonably be ques- 
tioned." 

8(b) "He shall also disqualify himself in the follow- 
ing circumstances: (1) Where he has a personal bias 

or prejudice concerning a party, or personal know- 

ledge of disputed evidentiary facts concerning the 

proceeding; ..." 

IV. Summary of Argument 
  

The plaintiff's arguments for recusal or disqualification in this case 

rest on three grounds:   l. In order to put on a prima facie case of racial purpose for intent   | 

plaintiffs will provide factual evidence showing adverse racial impact of pre- 

vious reapportionment decisions by the Louisiana Legislature. Additionally, the 

laintiffs will provide factual evidence showing a pattern and practice of racial]   
legislative history. There will be considerable evidence regarding the adverse 

itimpact of the reapportionment of the State House and State Senate in the 1971 

|} 

session of the Louisiana Legislature. Because of Judge Duplantier's prior 

| 
[H] 

i: . : ; id 
{involvement both as a legislator and as an attorney in these matters, he will haye 

{ 
|] 

personal knowledge of disputed evidentiary facts concerning this proceeding. This 
| 

provides grounds for disqualification under 28 U.S.C. 8455 (b)l). 

{l   2. Because of his extensive involvement as a legislator, a party at 

linterest to the prior law suit, and as a co-counsel for the Attorney General's 

office for the State of Louisiana, a reasonable man would be convinced that 

trian Duplantier has personal bias or prejudice in this reapportionment liti- 

gation such as would provide grounds for recusal or disqualification under 

23 U.S.C. 8144. 

3. Although Judge Duplgntier may be certain in his heart that he would 
! 

ibe impartial in this proceeding, he must be disqualified because his extensive 

lorior involvement in reapportionment matters in Louisiana may reasonably give 

the appearance that his impartiality is questionable. Therefore, Judge 

Duplantier should be recused in accordance with 28 U.S.C. 8455(a). 

       



  

Disqualification Under 28 U.S.C. 455(bX1): Personal Knowledge of 
Disputed Facts 
  

Plaintiffs have brought this action to contest the validity of the 

Louisiana Reapportionment Plan for the State House of Representatives as well as 

{ftor the U.S. Congressional seats in Louisiana. 

Paragraph 26 of plaintiff's compaint states as follows: 

"Act 1 and Act 20 of the first extraordinary session 
of 1981 violate the provisions of the Voting Rights 
Act, as amended, as well as 42 U.S.C. 81981 and 1983 
and the Fourteenth and Fifteenth Amendments to the 
U.S. Constitution in that the purpose and effect of 
the Acts is to dilute the voting strength of black 

citizens." Emphasis supplied. 

      

{ 

| 

In proving the allegations of plaintiff's complaint, plaintiffs need 

not prove that a racial purpose was the sole, dominant, or even the primary pe 

l|pose for challenge action, but only that it "has been a motivating factor in the]   
    

i 

| 
i! { 
i 
il 
bi 

|! 

il 

I 

    

{official actions taken for invidious purposes, Arlington Heights, supra 429 U. 

lat 267; the specific sequence of events leading up to the decision, Arlington 

Heights. supra at 429 U.S. 267; the knowledge of the impact of the decision, 

|| ments, the plaintiffs will provide substantial factual evidence regarding racial 

[lature in the 1960's and 1970's, ,including the Louisiana reapportionment plans 

  

decision" Village of Arlington Heights v. Metropolitan Housing Development 

(Corporation, 429 U.S. 252, 265-66 (1977). Discriminatory intent is proved, 

Supreme Court and Court of Appeal decisions, by showing all or a number of the 

following elements: discriminatory impact, Washington v. Davis, 426 U.S. at 242,   

(1976); proof that the discriminatory impact is reasonably foreseeable conse- 

quence of the challenged action, Columbus Board of Education v. Penick, 443 U. 
  

449, 464 and 465 (1979); the legislative or administrative history, Arlington 

Heights, supra, at 429 U.S. 268, the historical background, including prior 

  

Ftualmtubutat = Seftudbuie 

NAACP v. Lansing Board of Education, 559 F., §1042, (6th Cir. 1977); and other 
  

factors such as the disregard for developing the required proof for these ele- 

discrimination in Louisiana. Involved in this presentation will be analysis of 

prior legislative activities which had discriminatory impact on blacks. A key 

part of this analysis will be a review of the activities in the Louisiana Leg¥s- 

4 

of the 1970's, 

Adrian Duplantier, as a State Senator, as a party at interest to the 

prior reapportionment law suit, and as co-counsel for the State of Louisiana 

   



  

    

in that law suit, was probably more involved in reapportionment in Louisiana 

than anyone in the State, with the exception of the other three Senators who 

also participated in a like manner with Judge Duplantier. 

Judge Duplantier does in fact have "personal knowledge of disputed 

|evidentiary facts concerning the proceeding' which is at issue here. 

Disqualification of Judge Adrian Duplantier is appropriate under 28 

U.5.C. 8455(bY1). 

VI. Disqualification Under 28 U.S.C. 8144: Personal Bias or Prejudice 
  

In Davis v. Board of Commissioners of Mobile County, 517 F. 2nd 1044 
  

(5th Cir. 1975), the Fifth Circuit Court of Appeals analyzed 8144 and 8455 of 

Title 28 of the United States Code. They said: 

"Construing 8144 and 8455 in pari materia we believe 
that the test is the same under both. We thus hold 

that an Appellate Court, in passing on question of 

disqualification of the type here presented, should 

determine the disqualification on the basis of conduct 

which shows bias or prejudice or lack of impartiality 

by focusing on a party rather than counsel. The 

determination should also be made on the basis of 

conduct extra judicial in nature as distinguished 

from conduct within a judicial context. This means 

that we give 8144 and §455 the same meaning legally 
for these purposes, whether for purposes of bias and 

prejudice or when the impartiality of the judge might 

reasonably be questioned." Page 1052. 

  

In Parrish v. Board of Commissioners of Alabama State Bar, 525 F. 2nd   

98 (5th Cir. 1970) enbanc, cert. denied, 425 U.S. 944, the Court of Appeals 

looked at what facts need to be alleged in order to show the need for a 8144 

disqualification. In that case, a judge who had served as the president of a 

local bar association which excluded blacks was asked to be recused from a Civil 

lights law suit involving the state bar association. A five to three decision 

| by the Court of Appeals formulated the following standard for a 8144 disqualifi- 

cation: 

"The legal question presented is determined by 
applying the reasonable man standard to the facts 

and reasons stated in the affidavit." Page 100. 

This court found that applying the reasonable man standard that there 

were not grounds for recusal in this matter. However, Judges Tuttle, Goldberg, 

f 

and Wisdom dissented and found that an affidavit which set out the above facts 

sufficient for a 8144 disqualification. 

Finally, in U.S, v. Serrano. 607 F. 2nd, 11453 (5th Cir. 1979), the   

Fifth Circuit again acknowledged the three-part test for determining whether    



disqualification was appropriate under 8l44: 

"l. The facts or material are stated with particu- 
larity; 2. The facts are such that, if true, they 

would convince a reasonable person that a bias exists; 

3. The facts show the bias is personal, as opposed 

to judicial, in nature." At Page 1150. 

Plaintiffs submit that under these formulations of the law, disquali- 

fication under 8144 is appropriate. The allegations of the affidavit in this 

matter are material to the decision of a reapportionment case, they are stated 

with particularity, and they are matters of public record; Plaintiffs submit 

that a reasonable man or woman would be convinced that a judge who had been an 

active State Senator in the prior Louisiana Reapportionment Plan, and a party to| 

the prior reapportionment litigation, and a co-counsel for the State of Louisian 

in the prior litigation, would have a bias or a prejudice in a matter that is so 

similar to the one in which the judge took such an active part. Finally, the 

facts show that the bias or prejudice of Adrian Duplantier is personal, and not 

related to prior judicial activities on this matter. 

VII. Disqualification Under 28 U.S.C. 8455(a): The Perception of 

Impartiality 
  

"To perform its high function in the best way, 
justice must satisfy the appearance of justice." 
Offutt vv. United States, 348 0.8, 11, :14 (1954), 
Emphasis supplied by 5th Circuit Court of Appeals 

in U.S. v. Brown, 339 ¥. 2nd 467, 469 (5th Cir. 
1976). 

  

  

  

The test of whether disqualification is appropriate under 28 U.S.C. 

8455 is not whether the judge in question is impartial or not, but whether he is 
4 

perceived as impartial. See Hampton v. Hanrahan, 499 F. sup. 640 (N.D. Illinois 
  

1980), at page 645. 

There is no Federal District Court judge in Louisiana who has had as 

much involvement in reapportionment of the political subdivisions of the State 

of Louisiana as Judge Duplantier has. As a State Senator who participated in 

formulating the reapportionment plans, as an attorney who participated in defend 

ing those plans, and as a party at interest who was personally involved in the 

litigation involving the Louisiana Reapportionment, Judge Duplantier's impartial 

f 

ity certainly would be questioned if he decided to go ahead and be the judge in 

this Louisiana Reapportionment action. 

Unlike the situation in Duplantier v. United States, 606 F. 2nd 654 
  

(5th Cir. 1979), there are other judges available who can hear this action. 

~6~         
 



Disqualification of ‘the assigned judge would send this to another District Court     judge who was not so involved. 
il 

| 

I 
| This case reminds counsel for the plaintiffs of a situation involving 

School District of Kansas City v. State of Missouri, 438 F. sup. 830 (W.D.Mo.   

1977, where a judge who had represented a school board over fifteen years 
| 
voluntarily recused himself for policy reasons not unlike those pre 

ago 

sented in thig 

His reasons included the fact that there were other judges available, and 

the need to resolve any doubt in favor of recusal because of the extraordinary 

| 

| 
[ | 

which he   nature of that case. His case involved a school desegregation issue, 

| | characterized as a very important far-reaching case that needed the confidence of 

|the community in order to proceed to resolve the issues involved. 

As in the above case, there are other judges available; and this is an| 

Xtraordinary legal and political case. The confidence of the plaintiffs and the 

\defendants in the system of justice, especially the impartiality of the judge | 

(involved, is important. 

For these reasons, plaintiffs submit that the judge's impartiality is 

open to question under the reasonable person standard, Therefore, disqualifica-   8455(a) is appropriate, and therefore necessary. 

Respectfully Submitted: 

  

STANLEY HALPIN 
—" 631 St. Charles Avenue 

New Orleans, Louisiana 70130 

JACK GREENBERG 

JAMES M. NABRIT, III 
NAPOLEON B. WILLIAMS, JR. 
LANI GUINIER 

10 Columbas Circle 

Suite 2030 

New York City, New York 10019 

Attorneys for Plaintiffs    



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

|| BARBARA MAJORS, ET AL : CIVIL ACTION 

Plaintiffs * NO. 82-1192 

VERSUS * SECTION H (D) (C) 

| DAVID C. TREEN, ET AL ’ THREE-JUDGE COURT CASE   

  

Defendants CLASS ACTION 

NOTICE OF FILING MOTION TO RECUSE 
  

Please take notice that the attached Motion to Recuse, Affidavit in 

| Support, and Memorandum of Law are filed this day in the Eastern District of 

| Louisiana. This matter will be heard as it is set by the Court.   
Respectfully Submitted: 

Zz T 

1% / on nnd ~N 
R. JAMES KELLOAG, Trial Attorney \ 
WIILIAM P. QUIGLEY ) 
SPEVEN SCHECKMAN SNe 
STANLEY HALPIN 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 
(504) 524-0016 

  

JACK GREENBERG 

JAMES M. NABRIT, III 

NAPOLEON B. WILLIAMS,- JR. 
LANI GUINIER : 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

Attorneys for Plaintiff 

|| DATE: May 24, 1982