Docket Sheet; Order; Order Amending Opinion
Public Court Documents
September 19, 1986 - July 10, 1987

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Case Files, Chisom Hardbacks. Docket Sheet; Order; Order Amending Opinion, 1986. 5918bc4e-f211-ef11-9f89-0022482f7547. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0956c29a-37f1-4f42-a848-bb18daead355/docket-sheet-order-order-amending-opinion. Accessed June 13, 2025.
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• •• t ...L. .•• eV • 1' ‘'j:1 09-19-86 SUBJECT ..... CROSS APPEAL NO. CASE NUMBER 2 E 0 0 c-E..ii ..i.,..1 6S 225 5 I oil 225 5 w/o ut , 03 > 6 ,.. cc IBK C Y - I 0 t h A g c y R e v i e w P -ix_ ..) 0 VPRC . — Y —S S P E A L ' x Eastern ciFiCuiT 5 APPEAL---FROM 0.6-22-87 vvv Charles Schwartz, Jr. DATE DOCKETED 16rJ-FE-E PAI 10 • 4/d/e7 JUDGE Louisiana New Orleans __ISTRICT OF AT 06-17-87 DATE NOTICE OF APPEAL FILED CA-86-4075-"A" (6) • D.C. DOCKET NUMBER REPORTER -.44••••"--..••••••-• , .444. .444.4444.-- No. 87-3463 !'• :3 .4 • !„1 c„ • t„. .3 • •.$ `4 4 g et 4 Short Title RONALD CHISOM, MARIE BOOKMAN, WALTER WILLARD, MARC MORIAL I LOUISIANA VOTER REGISTRATION/ EDUCATION CRUSADE, and HENRY A. DILLON, III, versus lilaintiffs-Appellants, EDWIN EDWARDS, in his capacity as Governor of the State of Louisiana, ET AL., , v:73 r r", . 4 , • et !"•474 tvi•: i!si Defendants-Appellees. U. S. COURT OF APPEALS FRED juiA3 192i GILBERT, F. GANUCHEAU CLERK FEDERAL PRISON INDUSTRIES - USP LEAVENWORTH KANSAS • COURT RECORD. LOAN. FORM CHISOM, ET AL, -vs- EDWA, ET.AL. Mr-. William P. Quigley A. To: Name: Address: ew •r eans, City, State: B. To: Clerk, Fifth Circuit Records above listed received. 600 Camp Street Name:' New Orleans, LA 70130 • • Die; Note: if these papers are released to anothei person, complete and return Copy C. . Records above listed in A above forwarded to: Name: C. To: Clerk, Fifth Circuit 600 Camp Street New Orleans, LA 70130 D. To: Clerk, Fifth Circuit 600 Camp Street New Orleans, LA 70130 Address: • .City, State:. Signed Fifth Circuit • 13, 1.987 Date 0 Record Vols. . Documents '0 Exhibits 0 Env. 0 Box. 0 'Enclosed: •gl ..Supp. Record Vols. • 0 Second Supp. Record Vols. •• • • . Records above listed returnedherewith. • • •-Name: Date: • • .15ate E. To: Person Returning Record Listed in Records above listed received. Name: lInto • OFF. DOCKET * VW NUMBER MO 4075 PLAINTIFFS I RONALD CHISOM MARIE BOOKMAN WALTER WILLARD MARC MORIAL 1.• DEMAND Warest S1,000 441 86-4075 A 6 LOUISIANA VOTER REGISTRATION/ EDUCATION CRUSADE „It I 0 ON )",d •__ CLASS ACTION CAUSE 1:0UNTY JU occKETg 0. OEM YR. 'UMBER J: —3L16_ 3LBG 1, 1 22071 86 I 4075 DEFENDANTS EDWIN EDWARDS, in his capacity as Governor of the State of Louisiana JAMES H. capacity State of BROWN, in his as Secretary of the Louisiana JERRY M. FOWLER, in his capacity as Commissioner of Elections of the State of Louisiana AMENDED,COMPLT 9-30-86 No New Parties Added (CITE THE U.S. CIVIL STATUTE UNDER WHICH THE CASE FILED AND WRITE A BRIEF STATEMENT OF CAUSE) SC 1973, 1983; 28 USC 1331, 1343: VOTING RIGHTS VIOLATIONS • William 13.10uigley, 46q. 631 St. Charles Avenue ' New Orleans, LA 70130 (504) 524-0016 For: Plaintiffs ATTORNEYS Ron Wilson, Esq. Richards Building Suite 310 837 Gravier Street New Orleans, LA 70112 (504) 525-4361 For: Plaintiffs Roy Rodney, Esq. 643 Magazine St. New Orleans, LA 70130 (504) 586-1200 For: Plaintiffs C. Lani Guinier, Esq./ Pamela S. Karlan, Esq. 99 Hudson Street, 16th Fl. New York, New York • 10013 For: Plaintiffs • CHECK HERE IF CASE WAS FILED IN FORMA, PAUPER IS FILING FEES PAID Eavelyn T. Brooks Asst. Atty. General La. Dept. of Justice 214 Loyola Ave., Suite 700 New Orleans, LA 70112-2096 (504) 568-5575 For: Secretary of State SPECIAL ASSISTANT ATTORNEY GENERALS M. Truman Woodward, Jr. 1100 Whitney Bldg. New Orleans, LA 70130 *Black G. •Arata 210 st. Charles Avenue Suite 4000 New Orleans, LA 70170 A. R. Christovich 1900 American Bank Bldg. New Orleans, LA 70130 • Noise W. Dennery 21st Floor Pan American Life Center 601 Poydras St. New Orleans- LA 70130 STATISTICAL CARDS DATE RECEIPT NUMBER C.D. NUMBER UNITED STATES DISTRICT COURT DOCKET /*/".c.. CARD DATE MAILED JS-5 JS.6 DC-111 ((Rev. 9/81 ) DATE NR. 86-1 9/19/86 9-23-86 2 Comp1t., 3 summs lssd. Pltfs' req for convening a 3 judge court declines to enter an ex parte order & will hold a hrg on 10-15-86 at 2:30 p.m. & parties are directed to file memo by 10-10-86 (CSJO dktd 9-24-86. • 9-24-86 3 Ret on S & C to James H. Brown, Jerry M. Fowler & Edwin Edwards svd 9-24-86. 9-30-86 4 Pltf's amended complt. 9-30-86 5 Pltf's ntc of amended complt. 10-7-86 6 Mtn of Sect. of State & ORDER that hrg be CONT to 11-12-86 at 10:00 a.m. w/memos due by 11-5-86 at 2:30 p.m. (CSJO 10-9-86 dktd 10-14-86. 10-24-86 7 Mtn of defts & ORDER that ext of time to 11/13/86 to answer is GRANTED. (CSJO, 10-27-86 dktd 10-29-86.. ' • 11-4-86 8 Pltfs' memo in re need for 3-judge court. 11/5/86 9 Memo of Sect. of State in opp to pltfs' req for district dourt of 3 judges. 11-12-86 10 Hrg to determine if case will be 3 judge court - case will be tried as one court case. (CSJO dktd 11-14-86. 12-2-86 11 Ntc of call dkt set for 12-10-86 at 9:45 a.m. bfr Judge. (CLERK) dktd 12-3-86. 12-9-86 12 Letter from Eavelyn T. Brooks to Judge dated 12-5-86 in re call dkt. 12-18-86 13 Pltf's mtn & ORDER that Roy Rodney & C. Lani Guinier be entered as additional counsel. (CSJO 12-20-86 dktd 12-22-86. 1-20-87 14 Ntc of call dkt eet for 2-11-87 @ 9:45 a.m. before Judge. (Clerk) dktd 1-20-87. 1-28-87 15 Ntc of call dkt set for 2-11-87 is RESET to 2-25-87 at 9:45 a.m. before Judge. (CLERK) dktd 1-29-87. 2/4/87 16 M.E.(2/4/87) ORDERED that. status conf be held 2/18/87 at 5:15 pm. (CSjr) dktd 2/4/87 17 Letter from William Quigley to Ms Nelson in re: conversation on 1/23/87. 3/18/87 18 Mtn of defts to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6); hrg set 4/15/87 at 10:00 a.m. bfr Judge. 4/6/87 4/13/87 4/10/87 5/1/87 5/7/87 5/8/87 19 20 Pltfs' memo in oppos to defts'. mtn to dismiss. Repy Memo by defts to pltfs' opp. 21 Pltf's mtn & ORDERED that Pamela S. Karlan be entered as counsel of record for pltf (CSJO 4/13/87 dktd 4/15/87. 22 OPINION that clefts' mtn to dismiss for failure to state a claim upon which relief can be granted is GRANTED;unless pltfs' complt is amended w/in 10 days of entry of this opinion clerk of Court is directed to enter judg dismissing pltfs' claim at their costs (CSjr) 5/1/87 dktd 5/1/87. 23 Pltf's NOTICE OF APPEAL to 5th Circuit from judg of 5/1/87 granting deft's mtn to dismiss. • xx Notice of Appeal forwarded to all parties. (dim) eolu X ,.le • DC 111A (Rev. 1/751 CIVIL DOCKET CONTINUATION SHEET PLAINTIFF RONALD CHISSOM, ET AL DEFENDANT EDWIN EDWARDS, ET AL DOCKET N 86-4075 A i D, _ PAGE OF PA'7.,L5 DATE NR. PROCEEDINGS 5/26/87 6-8-87 6-17-87 6-19-87 6/24/87 7-10-87 24 27 7-10-87 28 25 Entry of dismissal of appeal on 5/22/87 from the 5th Circuit (GANUCHEAU). JUDGMENT is ORDERED in favor of defts & agst pltfs, dismissing pltfs' complt w/prej, pltfs to bear all costs. (CLERK - approved CSJO 6-8-87 dktd 6-8-87. CLOSED CA741- Pltfs' ,ntc 2L.Augal.from judg of 6-8-87. Ntc of Appeal forwarded to all parties. (JMD) Record forwarded to Court of Appeals (pal) ORDER from 5th Circuit - At req of U.S.D.C., case is REMANDED to court for ltd purpose of allowing U.S.D.C. to amend opinion of 5-1-87. (Thomas M. Reavley) Order amending opinion of May 7, 1987. Ill JNITED STATES COURT OF AM .iLS •S FILED JUL IOW LORETTA G. WHYTL: CLERK __. A true copy FOR THE FIFTH CIRCUIT No. 7-3463 RONALD CHISOM, MARIE BOOKMAN, WALTER WILLARD, MARC MORIAL, LOUISIANA VOTER REGISTRATION/ EDUCATION CRUSADE, and HENRY A. DILLON, III, • versus EDWIN EDWARDS, in his capacity - as Governor of the State of Louisiana, ET AL., couRr Apitous RILE D JUL 1 0 I967 QUEErt aliA4,440 Plaintiffs-Appellants, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of Louisiana OR DE At the request of the District Court, the above cause is remanded to that court for the limited purpose of allowing the District Court to amend its written opinion of May 1, 1987 • Test tliBERT,F,GANUCHEAU Clerk,ILS:Coulti4APpeaLs,Fif umgr:. • By ' Is) 1. Deputy 7-/o-sl, New .(5rioans). slana /s/ THOMAS M. REAVLEY UNITED STATES CIRCUIT JUDGE lois. .7n -carglidt,..maj ...Ili 1L—C:f.:7=f;Z• DCCUnft; (D.C. No: CA 86-4075 "A"(6)) MED C001.? s t. UNIIED STATES DISTRIC& . EASTERN DISTRICT OF LWOW, 2 91 11 (,; • *or: E cLLRK RONALD CHISOM, ET AL CIVIL ACTION VERSUS NO. 86-4075 EDWIN EDWARDS, ET AL SECTION "A" S§§§§M§§S§ ORDER AMENDING OPINION By Order dated July 10, 1987, this matter was remanded to this Court for the limited purpose of allowing this Court to amend its written opinion of May 1, 1987. Accordingly, under rule 60 (a) of the Federal Rules of Civil Procedure this Court hereby amends its opinion sua sponte to correct error resulting from oversight and omission, specifically at page 4, lines 29-30, page 5, lines 21 -22 and page 8, lines 15-17, to read as set forth in the corrected pages attached hereto. The pertinent changes are indicated by asterisks. The complete text of the corrected opinion, entitled "Amended Opinion", is simultaneously being filed in the record. The previously entered judgment is unaffected by these changes and shall remain in full force and effect, consistent with the limited remand. Morevoer, this Court was not given jurisdiction to reissue judgment under the limited remand. Accordingly, the Clerk of Court is hereby directed to return this matter to the Fifth Circuit forthwith for disposition of the pending appeal as soon as the Amended Opinion is entered. New Orleans, Louisiana, this 10th day of July, 1987. --FEg —PROCESS - . ISHARGE UNITU) STA1S DISTRICT CCU EX ARING DOCUMENT No. DATE OF ENTRY JUL 1 0 1987 S.Ct. 375, 83 L.Ed.2d 311. (1984) 2/ Section 2, as amended, 96 Stat. 134, now reads: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the rights of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2), as provided in subsection (b) of this section. •(b) A violation of subsection .(a) is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination for election in the State or political subdivision are not equally open to par- ticipation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to partici- pate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protective class elected in numbers equal to their proportion in the population. 42 U.S.C. § 1973 (emphasis added). Prior to the 1982 amendments to section 2, a three-judge court composed of .* Judges Ainsworth, West and Gordon, headed by Judge West, addressed a voting rights claim arising out of the same claims of discrimination as in this case, albeit not in a section 2 context. Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff'd, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973). In Wells, a registered black voter residing in Jefferson Parish, brought suit seeking a reapportionment of the judicial districts from which the seven judges of the Supreme Court of Louisiana are elected. Ms. Wells sought an injunction enjoining the state from holding the scheduled Supreme Court Justice elections and an order compelling the Louisiana Legislature to enact an apportionment plan in accordance with the "one man, one 2/ See S.Rep..97-417, 97 Cong.2d Sess (1982) pp. 15-43 for a complete discus- sion of Congress' intent to overturn the section 2."purposeful discrimination" requirement imposed by Mobile v. Bolden. -4- vote" principle and to reschedule the pending election. Cn cross motions for summary judgment, the three-judge court stated, "We hold that the concept of one-man, one vote apportionment does not apply to the judicial branch of govern- ment." 342 F. Supp. at 454. The Wells court took notice of'Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), in which the Supreme Court held, "Whenever a state or local government decides to select persons by popular election to' perform governmental functions, the equal protec- tion clause of the fourteenth amendment requires that each qualified voter must be given an equal opportunity to participate in that election....", 90 S.Ct. 791, 795 (emphasis added), but distinguished its holding by outlining the special functions of judges. The Wells court noted many courts' past delineations between elected officials who performed legislative or executive functions and judges who apply, but not create, law 3/ and concluded: !Judges do not represent peoPle, they serve people.' Thus, the rationale behind the one-man, one-vote principle, which evolved out of efforts to preserve a truly representative form of government, is simply not relevant to the makeup of the judiciary. 347 F. Supp. at 455. The Wells opinion interpreted the "one man one vote" principle prior to the 1982 amendments to section 2, which added the phrase "Milo elect representatives 3/ See, e.g., Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964) ("Manifestly, judges and prosecutors are not representative in the same sense as they are legislators or the executive. , Their function is to administer the law, not to espouse a cause of a particular constituency"); Holshouser V. Scott, 335 F. Supp. 928 (D.D.C. 1971) ("'We hold that the one man, one vote rule does not apply to state judiciary...."); Buchanan v. Rhodes, 294 F. Supp. 860 (N.D. Ohio 1966) ("Judges do not represent people, they serve people"); New York State Assn. of Trial Lawyers v. Rockefeller, 267 F. Supp. 148, 153 (S.D. N.Y. 1967) ("The state judiciary, unlike the legislature, is not the the organ responsible for achieving representative government.") Plaintiffs rely principally on Haith v. Martin, 618 F. Supp. 410 (D.N.C. 1985) (three-judge court), aff'd, without opinion, 106 S.Ct. 3268, 93 L.Bd.2d 559 (1986) for the proposition that this Court should ignore Wells v: Edwards, supra, and apply section 2 to the allegations contained in their complaint. 7/ in Haith, the district court held that judicial election systems are covered by section 5 of the Voting Rights Act, which requires preclearance by the U.S. Justice Department of any voting procedures changes in areas with a history of voting discrimination. Plaintiffs, in essence, argue that because the Supreme Court, without opinion, affirmed the Haith district court in its application of section 5 to judicial elections, this Court should expand the holding of Haith to include section 2 of the Voting Rights Act. Plaintiffs' argument fails because section 5 does not specifically restrict its application to election systems pertaining to • representatives, a restriction included in the 1982 amendments to section 2. Although a potential conflict may develop between the holdings in Wells and Haith, Wells clearly states the "one man one vote" principle is not applicable to judicial elections. This Court recognizes the long standing principle that the judiciary, on all levels, exists to interpret and apply the laws, that is, judge the applicability of laws in specific instances. Representatives of the people, on the other hand, write laws to encompass a wide range of situations. Therefore, decisions by representatives must occur in an environment which takes into account public opinion so that laws pramulgated reflect the values of the represented society, as a whole. Judicial decisions which involve the individual or individuals must occur in an environment of impartiality so that courts render 7/ Plaintiffs also rely on Kirksey v. Allian, Civ. Act. No. J85-0960(B), slip op. (S.D. Ms. April 1, 1987), in which a district court dismissed the reasoning in Wells, and held section 2 does apply to the elected judiciary. Wells, supra, has precedential authority and clearly conflicts with Kirksey, an untested lower court opinion. ' -8- UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA RONALD CHISOM, ET AL CIVIL ACTION VERSUS NO. 86-4075 EDWIN EDWARDS, ET AL SECTION: " A " §§§§§§§§§§§§ AMENDED OPINION This matter is before the Court on defendants' motion to dismiss for failure to state a claim upon which relief can be granted pursuant to F.R.Civ.P. 12(b)(6). For the foregoing reasons, defendants' motion is GRANTED. FACTS AND ALLEGATIONS Ronald Chisom, four other black plaintiffs and the Louisiana Voter Regis- tration Education Crusade filed this class action suit on behalf of all blacks registered to yote,in'Orleans Parish. Plaintiffs' complaint challenges the process of electing Louisiana Supreme Court Justices from the First District of the State Supreme Court. The complaint alleges that the system of electing two at-large Supreme Court Justices from the Parishes of Orleans, St. Bernard, Plaque- mines and Jefferson violates the 1965 Voting Rights Act, as amegded, 42 U.S.C. § 1973, the fourteenth and fifteenth amendments to the United States Federal Con- stitution and, finally, 42 U.S.C. § 1983. Plaintiffs argue that the election system impermissibly dilutes! minimizes and cancels the voting strength of . blacks who are registered to vote in Orleans Parish. More specifically, plaintiffs' original and amended complaint avers that the First Supreme Court District of Louisiana contains approximately 1,102,253 resi- dents of which 63.36%, or 698,418 are white and 379,101, or 34.4% are black. The First Supreme Court District has 515,103 registered voters, of which 68% are white, and 31.61W are black. :Plaintiffs contend that the First Supreme Court District of Louisiana should be divided into two single districts. Plain- tiffs suggest that because Orleans Parish's present population is 555,515 persons, roughly half the present First Supreme Court District, the most logical division is to have Orleans Parish elect one Supreme Court Justice and the Parishes of Jefferson, St. Bernard and Plaquemine together elect the other Supreme Court Justice. If plan, were to be carried out, plaintiffs contend the present First Supreme Court District encompassing only Orleans Parish would then have a black population and voter registration comprising a majority of the district's population. More specifically, plaintiffs assert presently 124,881 of the registered voters in Orleans are white, comprising 47.9% of the plaintiffs' proposed district's voters; while 134,492 of the registered voters in Orleans are now black, comprising 51.6% of the envisioned district's voters. The other district comprised of Jefferson, Plaquemines and St. Bernard Parishes and would have a substantially greater white population than black, according to plaintiffs' .plan. Plaintiffs seek class certification of approximately 135,000 black residents of Orleans Parish, whom plaintiffs allege suffer from diluted voting strength as a result of the present at-large election system. Additionally, plaintiffs seek a preliminary and permanent injunction against the defendants restraining the further. election of Justices for the First Supreme Court District until this Court makes a determination on the merits of plaintiffs' challenge. Further, plaintiffs seek an order requiring defendants to reapportion the First Louisiana Supreme Court in a manner which "fairly recognizes the voting strengths of minor- ities in the New Orleans area and completely remedies the present dilution of minority voting strength." (Plaintiffs'. Complaint, p. 7). Plaintiffs also seek an order requiring compliance with the Voting Rights Act and, finally, a declara- tion from this Court that the Supreme Court election system violates the voting Rights Act and the fourteenth and fifteenth amendments to the Federal Constitu- tion. 1/ Defendants do not dispute the figures presented by plaintiffs in their amended complaint. Instead, they contend that section 2 of the Voting Rights Act of 1965, as amended, the fourteenth and fifteenth amendments to the United States Federal Constitution and 42 U.S.C. § 1983 fail to provide plaintiffs grounds upon which relief can be granted for plaintiffs' allegation of diluted black voting strength. SECTION 2 OF THE VOTING RIGHTS ACT OF 1965 DOES NOT APPLY TO THE INSTANT ACTION Prior to 1982, section 2 of the Voting Rights Act (42 U.S.C. §.1973), "Denial or Abridgement of Rights to Vote on Account of Race or Color Through Voting Qualifications or Prerequisites," read as follows: No voting qualification or prerequisite to voting, or standard, practice, or procedure, shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color,' or in contravention of the guarantees set forth in section 1973b(f)(2) of this title. Section 2 of the voting Rights Act was amended as a response to City of Mbbile, Alabama v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed. 47 (1980), in which the Supreme Court in a plurality opinion held to establish a violation of section 2 of the Voting Rights Act, minority voters must prove the contested electoral mechanism was intentionally adopted or maintained by state officials for a discriminatory purpose. -After Bolden, Congress in 1982 revised section 2 to make clear that a violation of the Voting Rights Act could be proven by showing a discriminatory effect or result alone. United States v. Marengo County Commis- sion, 731 F.2d 1546 n.1 (11th Cir. 1984), appeal dismissed, cert. denied, 105 1/ Plaintiffs, earlier, sought a three judge court to hear this' complaint which was denied by this Court as the terms of 28 U.S.C. § 2284 provide for a three judge court when the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body is challenged. Nowhere does § 2284 provide for convening a three judge court when a judicial apportionment is challenged. S.Ct. 375, 83 L.Ed.2d 311. (1984) 2/ Section 2, as amended, 96 Stat. 134, now reads: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the rights of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2), as provided in subsection (b) of this section. ,(b) .A violation of subsection (a) is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination for election in the State or political subdivision are not equally open to par- ticipation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to partici- pate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protective class elected in numbers equal to their proportion in the population. 42 U.S.C. S 1973 (emphasis added). Prior to the 1982 amendments to section 2,, a three-judge court composed of „ Judges Ainsworth, West and Gordon, headed by Judge Wrest, addressed a voting rights claim arsing out of the same claims of discrimination as in this case, albeit not in a section 2 context. Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), aff'd, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973). In Wells, a registered black voter residing in Jefferson Parish, brought suit seeking a reapportionment of the judicial districts from which the seven judges of the Supreme Court of Louisiana are elected. Ms. Wells sought an injunction enjoining the state from holding the scheduled Supreme Court Justice elections and an order compelling the Louisiana Legislature to enact an apportionment plan in accordance with the "one man, one 2/ See S.Rep. 97-417, 97 Cong.2d Sess (1982) pp. 15-43 for a complete discus- sion of Congress' intent to overturn the section 2 "purposeful discrimination" requirement imposed by Mobile v. Bolden. -4- • vote" principle and to reschedule the pending election. On cross motions for summary judgment, the three-judge court stated, "We hold that the concept of one-man, one vote apportionment does not apply to the judicial branch of govern- ment." 342 F. Supp. at 454. The Wells court took notice of Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970), in which the Supreme Court held, "Whenever a state or local government decides to select persons by popular election to perform governmental functions, the equal protec- tion clause of the fourteenth amendment requires that each qualified voter must be given an equal opportunity to participate in that election....", 90 S.Ct. 791, 795 (emphasis added), but distinguished its holding by outlining the special functions of judges. The Wells court noted many courts' past delineations between elected officials who performed legislative or executive functions and judges who apply, but not ., create, law 3i'. and concluded: 'Judges do not represent people, they serve people.' Thus, the rationale behind the one-man, one-vote principle, which evolved out of efforts to preserve a truly representative form of government, is simply not relevant to the makeup of the judiciary. 347 F. Supp. at 455. The Wells opinion interpreted the "one man one vote" principle prior to the 1982 amendments to section 2, which added the phrase, "[V° elect representatives 3/ See, e.g., Stokes v. Fortson, 234 F. Supp. 575 (N.D. Ga. 1964) ("Manifestly, judges and prosecutors are not representative in the same sense as they are legislators or the executive. Their function is to administer the law, not to espouse a cause of a particular constituency"); •EOlshouser v. Scott, 335 F. Supp. 928 (D.D.C. 1971) ("We hold that the one man, one vote rule does not apply to state judiciary...."); Buchanan v. Rhodes, 294 F. Supp. 860 (N.D. Ohio 1966) ("Judges do not represent people, they serve people"); New York State Assn. of Trial Lawyers v. Rockefeller, 267 F. Supp. 148, 153 (S.D. N.Y. 1967) ("The state judiciary, unlike the legislature, is not the the organ responsible for achieving representative government.") of their choice." 4/ (See emphasis in quotation 42 U.S.C. 1973, supra.) The legislative history of the 1982 Voting Rights Act amendments does not yield a definitive statement noting why the word "representative" was added to section 2. However, in this case, no such statement is necessary, as "to elect represen- tatives of their choice" is clear and unambigous. Judges, by their very definition, do not represent voters but are "appointed [or elected] to preside and to administer the law." Black's Law Dictionary, 1968. As statements by Hamilton in the Federalist, No. 78 reflect, the distinction be- tween Judge and representative has long been established in American legal his- tory: If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. It is not otherWise ,to,be supposed that the constitution could , • intend to enable the representatives of the people to substi- tute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legisla- ture, in order, among other things, to keep the latter within the limits assigned to their authority. The inter- pretation of the laws is the proper and peculiar province of the courts.... Indeed, our Federal Constitution recognizes the inherent difference between representatives and judges by placing the federal judiciary in an entirely different category from that of other federal elective offices. It is noteworthy that articles 1 and 2, which establish Congress and the Presidency, are lengthy and detailed, while Article 3, which establishes the judiciary, is brief and free of direction, indicating the judiciary is to be free of any instructions. Today, Fifth Circuit jurisprudence continues to recognize the long established dis- tinction between judges and other officials. See, e.g., Morial v. Judiciary 4/, This language did nOt appear in section 2 at the time of the Wells opinion. Committee of State of Louisiana, 565 F.2d 295 (5th Cir. 1977) en banc, cert. denied, 435 U.S. 1013, 98 S.Ct. 1887 (1978). (See also Footnote 1/, supra.) The legislative history of the Voting Rights Act Amendments does not address the issue of section 2 applying to the judiciary, 5/ indeed, most of the discus- sion concerning the application of the Voting Rights Act refers to legislative offices. Nevertheless plaintiffs ignore the historical distinction between representative and judge and the lack of any discernible legislative history in their favor and argue that the Voting Rights Act is a broad and remedial measure which must be extended to cover judicial election systems. 6/ 5/ The Chairman of the Senate Judiciary Committee's Subcommittee on the Consti- tution, Senator Orrin Hatch, in voicing his strong opposition of the Legislative reversal of Bolden through the section 2 revisions, made a brief reference to section 2 aPi5r7ErTg to judicial elections: Every political subdivision in the United States would be liable to have its electoral practices and procedures evaluated by the proposed results test of section 2. It is important to emphasize at the onset that for the purposes of Section 2, the term "political subdivision" encompasses all governmental units, including city and county councils, school boards, judicial districts, utility districts, as well as state legislatures. S. Rep. 97-417, 97 Cong. 2d Sess. 127, 151, reprinted in 1982 U.S. Code COng. & Admin. News 298, 323. . Although Senator Hatch's comment indicates coverage of judicial districts by the Voting Rights Act, the purpose of the above passage was to illustrate Senator Hatch's belief that the impact of the section 2 Amendments' "results test" would be far ranging and in his opinion, detrimental. Senator Hatch's comments were included at the end of the Senate report usually reserved for dissenting Senators. The above passage did not portend to be a definative or even a moderately detailed description of the coverage of the Voting Rights Act, nor does Senator Hatch provide any authority for his suggestion of the potential scope of section 2. Rather, this Court finds that the passage was meant to be argumentative and persuasive, and not as a means to define actual scope of the Act. 6/ See e.g., United Jewish Organization of Williamsburg, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) ("It is apparent from the face of the Act, from its legislative history, and from our cases of the Act itself was broadly remedial in the sense that it 'was designed by Congress to banish the blight of racial discrimination in voting...'"), 130 U.S. at 156; South Carolina V. Katzenback, 383 U.S. 301, 86 S.Ct. 803 (1966) (The Voting Rights Act "reflects .Congress' firm intention to rid the country of racial discrimination in voting"), 383 U.S. at 315. -7- Plaintiffs rely principally on Haith V. Martin, 618 F. Supp. 410 (D.N.C. 1985) (three-judge court), aff'd, without opinion, 106 S.Ct. 3268, 93 L.Ed.2d 559 (1986) for the proposition that this Court should ignore Wells v. Edwards, supra, and apply section 2 to the allegations contained in their complaint. 7/ In Haith, the district court held that judicial election systems are covered by section 5 of the Voting Rights Act, which requires preclearance by the U.S. Justice Department of any voting procedures changes in areas with a history of voting discrimination. Plaintiffs, in essence, argue that because the Supreme Court, without opinion, affirmed the Haith district court in its application of section 5 to judicial elections, this Court should expand the holding of Haith to include section 2 of the Voting Rights Act. Plaintiffs' argument fails because section 5 does not specifically restrict its application to election systems pertaining to representatives, a restriction included in the 1982 amendments to section 2. Although.a Potential-conflict May 'develop between the holdings in Wells and Haith, Wells clearly states the "one man one vote" principle is not applicable to judicial elections. This Court recognizes the long standing principle that the judiciary, on all levels, exists to interpret and apply the laws, that is, judge the applicability of laws in specific instances. Representatives of the people, on the other hand, write laws to encompass a wide range of situations. Therefore, decisions by representatives must occur in an environment which takes into account public opinion so that laws promulgated reflect the values of the represented society, as a whole. Judicial decisions which involve the individual or individuals must occur in an environment of impartiality so that courts render • 7/ Plaintiffs also rely on Kirksey v. Allian, Civ. Act. No. J85-0960(B), slip op. (S.D. Ms. April 1, 1987), in which a district court dismissed the reasoning in - Wells, and held section 2 does apply to the elected judiciary. Wells, supra, has precedential authority and clearly conflicts with Kirksey, an untested lower court opinion. • judgments which reflect the particular facts and circumstances of distinct cases, and not the sweeping and sometimes undisciplined winds of public opinion. PLAINTIFFS' FOURTEENTH AND FIFTEENTH AMENDMENT CLAIMS FAIL TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED AS PLAINTIFFS DO NOT PLEAD DISCRIMINATORY INTENT The appropriate constitutional standard for establishing a violation of the fourteenth amendment in the context of voting rights is "purposeful discrimination." Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); 8/ McMillian v. Escambia City, Fla, 688 F.2d 960 (5th Cir. 1982). 9/ Similarly, City of Mobile, Alabama v. Bolden, supra, requires a court to establish a finding of discriminatory purpose before declaring a fifteenth amendment violation of voting rights. 10/ In Voter Information Project, 612 F.2d 208 (5th Cir. 1980), a panel composed of Judges Jones, Brown and Rubin (opinion by Judge Brown) held a suit that alleged 8/ In Village of Arlington Heights v. Metropolitan Housing Corp., purposeful discrimination was held the standard necessary to establish a violation of the fourteenth amendment where plaintiff claimed a village rezoning decision was racially discriminatory. 9/ In McMillian v. Escambia City, Fla., the Fifth Circuit held the Arlington Heights' "purposeful discrimination" standard is appropriate in fourteenth amendment voter discrimination claims. 10/ Although there is a conflict between the requirement of "discriminatory effect" in Section 2, which is intended to enforce the fifteenth amendment, and the requirement of "purposeful discrimination" for a fifteenth amendment violation standing alone, the Senate Judiciary Committee addressed this point and recognized Congress' limited ability to adjust the burden of proving Voting Rights Violations in its "Voting Rights Act Extension" Committee Report. Certainly, Congress cannot overturn a substantive inter- pretation of the Constitution by the Supreme Court. Such rulings can only be altered under our form of government by constitutional amendment or by a subsequent decision by the Supreme Court. Thus Congress cannot alter the judicial interpretations in Bolden of the fourteenth and fifteenth amendments by simple statute. But the proposed amendment to Section 2 does not seek to reverse the court's constitional inter- pretation. (Continued on p. 10) -9- the at-large scheme for electing city judges in Baton Rouge invidiously diluted the voting strength of black persons in violation of the fourteenth and fifteenth amendments to the United States Federal Constitution, and 42 U.S.C. S 1983, could not be dismissed when the: complaint alleges purposeful discrimination. At the trial level, Judge West relied on his reasoning in lls, supra, that the one man, one vote principle did not apply to the elections of judges, and dismissed plaintiffs' suit. Judge Brown reversed, holding that the "one man,. one vote" principle as espoused in Wells, supra, was not enough to dismiss plaintiff's complaint. The Voter Information Court found: The problem with the District Court's opinion, however, is that it assumes the "one man, one vote" principle was the exclusive theory of plaintiff's complaints. In addition to a rather vaguely formulated "one man, one vote" theory, plaintiffs contend that both in design and operation, the at-large schemes dilute the voting strength of black citizens and prevent blacks from being elected as judges. As the complaint attacking the city judge election system alleges: 25. The sole purpose of the present at-large system of election Of City Judge is to insure that the white majority will continue to elect all white persons for the offices of City Judge. 26. The present at-large system was insti- • tuted when "Division B" was created as a reaction to increasing black voter regis- • tration and for the express purpose of diluting and minimizing the effect of the increased black vote. 27. In Baton Rouge, there is a continuing history of "bloc voting" under which when a black candidate opposes a white candidate, the white majority consistently casts its votes for the white candidate, irrespective of the relative qualifications. Fn. 10 Continued: S.Rep. 97-417, 97 Cong. 2d Sess. (1982), p. 41. The Supreme Court, the only body empowered to interpret the Federal Constitution, has not seen fit to overrule its repeated determination that the fourteenth and fifteenth amendments claims require "purposeful discrimination." -10- Plaintiffs contend that since most of the black popula- tion of Baton Rouge and E. Baton Rouge Parish is concen- trated in a few geographic areas, black citizens could', under a single member district plan, elect at least some black judges. 612 F.2d at 211. , The Voter Information Project Court held the plaintiff's complaint contained sufficient allegations of intentional discrimination against black voters to survive a motion to dismiss: "If plaintiffs can prove that the purpose and opera- tive effect of such purpose of the at-large election schemes in Baton Rouge is to dilute the voting strength of black citizens, then they are entitled to some form of relief." 612 F.2d at 212. Thus, the Voter Information Project requires that "purpose and operative effect" be pled in a fourteenth and fifteenth amendment challenge to a judicial apportionment plan. The complaint in the instant case states, in pertinent part: Because of the offical history of racial discrimination in Louisiana's First Supreme Court District, the .,wide spread prevalence of racially polarized voting in the district, the continuing effects of past dis- crimination on the plaintiffs, the small percentage of minorities elected to public office in the area, the absence of any black elected to the Louisiana Supreme Court from the First District, and the lack of any justifiable reason to continue the practice of electing two Justices at-large from the New Orleans area only, plaintiffs contend that the current election. procedures for selecting Supreme Court justices from the New Orleans area dilutes minority voting strength and therefore violates the 1965 Voting Rights Act, as amended. (See Plaintiffs' Complaint p.5). Later on, the Complaint alleges: The defendants actions are in violation of the Fourteenth and Fifteenth Amendment to the United States Constitution and 42 U.S.C. § 1983 in that the purpose and effect of their actions is to dilute, minimize, and cancel the voting strength of the plaintiffs. (Id., p. 6.) Although "purpose and effect" language in the second quotation above broadly read may imply plaintiffs' intention to plead discriminatory intent, it is this Court's considered opinion, based on the complaint as a whole, that plaintiffs intend to prove this claim based on a theory of "discriminatory effect" and not on a theory of "discriminatory intent." City of Mobile Alabama v. Bolden, supra. For example, plaintiffs' complaint does not allege the system by which the Louisiana Supreme Court Justices are elected was instituted with specific intent to discriminate. This contrasts with the specific allegations in Voter Information Project, supra. Accordingly, plaintiffs lack the requisite allegations in order to prove a violation of the fourteenth or fifteenth amendment to the Federal Constitution. The Court reserves the right for plaintiffs to reurge its fourteenth and fifteenth amendment claims as they relate to the Court's ruling that plaintiffs' complaint only alleges "discriminatory effect." Accordingly, unless plaintiffs' complaint is amended within then (10) days of the.entry of this opinion, the Clerk of Court is directed to .enter juOgment judgment DISMISSING plaintiffs' claim at their cost. New Orleans, Louisiana, this 1st day of May , 1987. /s/ CHARLES SCHVARTZ, JR. UNITED STATES DISTRICT JUDGE