Minute Entry - Denial of Motion to Reconsider and Reasons

    MINUTE ENTRY 

March 7, 1933 
POLITZ. J. 
CASSIERY, J. 
COLLINS," J. 

BARBARA MAJOR, ET AL. CIVIL ACTION 

VERSUS NO. 82-1192 

DAVID C. TREEN, ET Al. SECTION ''C" 

The above entitled matter came before this Three-Judge 

Court on motion of defendants, David C. Treen, Governor of 

the State of Louisiana, and James H. Brown, Secretary of 

State of the State of Louisiana, to reconsider, recall and 

overrule the previous partial summary judgment rendered by 

the requesting judge, the Honorable Robert F. Collins. 

WHEREFORE, after careful consideration of the relevant 

facts, the applicable law, and all of the issues raised in 

the submitted memorandum, the Court does hereby DENY 

defendants' motion to reconsider, recall, and overrule. 

  

UNITED BEATES CIRCULD JUDGE 
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UNITED STATES DISTRICT JUDGE 

Eel a 
UNITED STATES DISTRICT JUDGE 

  

  

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MINUTE ENTRY 

March 7, 1933 
POLITZ, J. 
CASSIBRY, J. 
COLLINS, J. 

BARBARA MAJOR, ET AL. CIVIL ACTION 

VERSUS NO. 82-1192 

DAVID C. TREEN, ET AL. SECTION "C" 

The above entitled matter came before this Three-Judge 

Court on motion of defendants, David C. Treen, Governor of 

the State of Louisiana, and James H. Brown, Secretary of 

State of the State of Louisiana, to reconsider, recall and 

overrule the previous partial summary judgment rendered by 

the requesting judge, the Honorable Robert F. Collins. 

WHEREFORE, after careful consideration of the relevant 

facts, the applicable law, and all of the issues raised in 

the submitted memorandum, the Court does hereby DENY 

defendants' motion to reconsider, recall, and overrule. 

  

UNITED BIATES CIRCUI® JUDGE 
J 

NV de, 
UNITED STATES DISTRICT JUDGE 

RA ar AR 
UNITED STATES DISTRICT JUDGE 

  

  

MAR 9 1983 

rears i seni NIAAA  



REASONS 
  

This is an action brought by five black registered 

voters in the State of Louisiana challenging the constitu- 

tionality of state laws apportioning the districts for the 

Louisiana Representatives to the United States Congress. In 

their original complaint filed on March 26, 1982, plaintiffs 

noted that, pursuant to 28 U.S.C. §2284, at least some of 

their claims must be determined by a district court composed 

of three judges. The matter was allotted to district judge 

Robert F. Collins, who petitioned the Honorable Charles 

Clark, Chief Judge for the Fifth Circuit, to designate a 

three-judge court. On June 10, 1982, the Chief Judge 

appointed a three-judge court to hear and determine this 

action pursuant to 28 U.S.C. $2284, 

Prior to the Order designating a three-judge court, the 

plaintiffs filed a motion for summary judgment declaring Act 

No. 697 of the 1976 Louisiana Legislature (hereinafter Act 

No. 697) unconstitutional. Act No. 697 apportioned the 

congressional districts for the State of Louisiana, and at 

the time of its enactment, the congressional districts 

created by Act No. 697 had an overall population deviation 

of only .31 percent based on the then current 1970 census. 

Plaintiffs contend that Act No. 697, as applied to any 

future congressional election, violates the constitutional 

principles of one-person-one vote because changes in popu- 

lation, as reflected by the 1980 census, have dramatically  



‘altered the population distribution of the districts. 

According to plaintiffs' statement of uncontested facts, the 

overall population deviation of the congressional districts 

created by Act No. 697 is 21.97 percent based on the 1980 

census. Plaintiffs aver that Act No. 697 is patently 

unconstitutional in its prospective application in view of 

the disparity in the district population. White v. Weiser, 
  

412 U.S. 783, 93 8.Cr. 2348, 37 L.E2&.24 335 (1973); Wells v, 

Rockefeller, 394 U.S. 542, 890 8.Ct. 1234, 22 L.E4.24 535 
  

(1969); Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct, 
  

1225,..22 1.Ed.2d4 515-(1965). 

The defendants did not challenge plaintiffs’ statement 

of uncontested facts, and on various occasions, counsel for 

defendants orally represented to Judge Collins that he did 

not oppose the plaintiffs' motion insofar as the motion 

sought to prohibit the use of Act No. 697 in any future 

general election. The defendants were concerned, however, 

that the districting plan of Act. No. 697 would be valid in 

the event a special election was called to replace an incum- 

bent member of Congress who was unable to complete his or 

her term in office. The parties agreed to reserve this 

issue until such time, if ever, that a special election is 

called. Thereupon, the plaintiffs drafted the following 

language which was then approved by the defendants:  



WHEREFORE, IS ORDERED that the motion for partial 

summary judgment is GRANTED. 

IT IS FURTHER ORDERED that Act No. 697 of the 

1976 Louisiana Legislature, pertaining to the United 

States Congressional Districts is hereby declared 

unconstitutional, null and void in its prospective 

application only, and cannot be used for the regularly 

scheduled congressional elections in the Fall of 1982, 

and 

IT IS FURTHER ORDERED that the question of what 

plan will be used in the event of the death or 

resignation of an incumbent member of Congress, if 

any, is specifically reserved by the parties. 

On June 9, 1982, again prior to the order designating a 

three-judge court, a hearing was held before Judge Collins 

concerning plaintiffs' motion for partial summary judgment. 

Counsel for the defendants restated, in open court, that he 

did not oppose the motion. He also represented that the 

above quoted language had been read to defense counsel and 

he had no objection to granting plaintiffs' motion for 

partial summary judgment. Judge Collins reminded counsel 

that granting plaintiffs' motion for partial summary judgment 

would result in declaring a state law unconstitutional, a 

matter which should not be lightly treated. Nevertheless, 

defense counsel maintained that he did not object or oppose  



‘the motion. Whereupon, Judge Collins granted plaintiffs’ 

motion for partial summary judgment and adopted the above 

quoted language in its Minute Entry dated June 9, 1982. 

This matter is now before the three-judge court on 

motion of the defendants to reconsider, recall and overrule 

the previous partial summary judgment rendered by Judge 

Collins. In fact, the motion to reconsider is directed at 

that portion of the Court's Minute Entry, quoted above, 

which defense counsel had specifically approved at the 

hearing on June 9, 1982. The defendants, however, do not 

allege that their former consent to plaintiffs' motion for 

partial summary judgment was due to mistake, error, or some 

misunderstanding. Nor do they raise any issues regarding 

the merits of the said motion for partial summary judgment. 

Instead, the defendants simply contend that any claim 

challenging the constitutionality of the apportionment of 

congressional districts must be determined by a district 

court composed of three judges and, therefore, a single 

judge lacked jurisdiction to rule on the merits of Act No. 

697. See 28 U.S.C. §2284(b)(3); Simkins v. Gressette, 495 
  

F.Supp. 1075; 1084 (D. S.C.) aff'd, 631 7.24 287 (Leh Cir, 

1980). 

The Court would agree that, as a general proposition, a 

single judge may not rule on the merits of any claim which 

is required by federal law to be heard and determined by a  



three-judge court. "Fort v, Daley, 431 7.24 1128, 1131 (7th 
  

Cir. 1970); Pine Township Citizens' Assoc. v. Arnold, 453 
  

F.Supp. 394, 587 (W.D, Pa, 1978). There are, however, 

certain judicial exceptions to this rule. For example, 

there is a long line of authority allowing a single judge to 

dismiss the case, without calling for a three-judge court, 

if the action is wholly insubstantial or completely without 

merit. Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 
  

35 L.Ed.2d 36 (1973); Ex parte Bransford, 310 U.S. 354, 60 
  

S.Ct. 947, 84 L.Ed... 1249 (1940); Ex parte Poresky, 290 1.S. 
  

30. 54 8S.Cc. 3, 78 L.Ed. 152 (1933). Similarly, in Bailey 

v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed4.24 512 
  

(1962), the Supreme Court held that a three-judge court is 

not required where "prior decisions make frivolous any claim 

that a state statute is not unconstitutional." Id., 369 

U.S. at 33, 82 S.Ct. at 551. One corollary of the Bailey 

exception is that a single judge may rule on a case if the 

parties have conceded the unconstitutionality of the 

challenged statute, regulation, or practice. Gates Vv. 

Collier, 501 F.2d 1291, 1298 (1974), aff'd, 525 F.24 965 

(5¢h Cir. 1976); Gibson v. Board of Public Instruction, 170 
  

F.Supp. 454 (S.D. Fla. 1958), rev'd on other grounds, 272 
  

F.2d 763 (5th Cir. 1959). The policy behind these exceptions 

is to conserve judicial resources by avoiding the burden of  



‘extraordinary benches.’ "Congress could not have intended 

to require three judges to be assembled when the decision 

1 could not possibly go in any manner save one." Sands v. 

Wainwright, 491 F.2d 417, 423 (5th Cir. 1973), cert. denied,   
  

416 U.S. 992, 94 8.Cr. 2403, 40 L.E4.248 771 (1974), (quoting 

Judge Friendly in Utica Mutual Ins. Co. v. Vincent, 375 F.2d 
  

129. 131 n.1 (24 Cir.) cert. denied, "389 U.S..:839, 88 85.Ct. 

63, 19 L Ea.24 102 (1967);) 

  

Since the defendants at one point conceded the uncon- 

stitutionality of Act No. 697 or at least have not contested 

this issue, Bailey and Gates would normally foreclose any 

further discussion of defendants' motion to reconsider. 

Bailey and its progeny were based upon the old three-judge 

statute, 28 U.S.C. §2281 (repealed). The new statute 

substantially reduces the number of cases requiring a three- 

judge court, City of Philadelphia v. Klutzuick, 503 F.Supp. 
  

657, 658 (E.D. Pa. 1980), and it is not clear whether the 

Bailey device for avoiding a three-judge court is still 

applicable under the new statute. The Court has been unable 

to locate any decision where this question has been 

  

This policy is particularly evident in Fifth Circuit 
jurisprudence, which encountered vast numbers of 
desegregation lawsuits presenting the same, well 
litigated issues. Gates v. Collier, 501 F.2d at 
1297-98; Dameron v. Tangipahoa Parish Police Jury, 
315 P.Supp. 137 (E.D. La. 1970); see generally: 
Currie, The Three Judge District Court in Constitutional 
Licigarion, 32 Chi. L.. Rev. I, 64-65 (1964), 
  

   



resolved. 2’ One set of commentators has suggested that if 

the Bailey exception has survived at all, its vitality has 

been decidedly restricted under the new statute. See 

Wright, Miller & Cooper, Federal Practice and Procedure: 
  

Jurisdiction §4235, at 400-01. They contend that since 
  

Congress specifically singled out reapportionment litigation 

for determination by a three-judge panel, a single judge 

should not tamper with the merits of these cases. "Even if 

the apportionment were patently unconstitutional, there are 

still delicate problems of remedy, for which Congress 

presumably wanted three judges." Id. at 401 (footnotes 

omitted). 

While the Court will not speculate on the general 

applicability of Bailey under the new act, we believe that 

the district judge acted properly in granting plaintiffs’ 

motion for summary judgment. Here, the critical factor is 

that the defendants consented to the motion. Judge Collins 

merely sought to ensure that the parties understood the 

terms and consequences of their agreement. The ruling 

issued was simply a ministerial act in approving a consent 

  

The jurisprudence allowing a single judge to dismiss 
an action which is insubstantial or frivolous has 
apparently carried over to the new statute. United 
States v. Saint Landry Parish ‘School Board, 601 F.2d 
£50. "863 n.6 (5th Cir. 1979); Broussard v, Perez, 
572 7.241113, 1118 (5th Cir.) cert. denied, 439 U.S. 
1002, 99-8.Cr., 610 (1973).  



decree and did not constitute a ruling on the merits within 

the meaning of the act. A single judge has broad authority 

to conduct pretrial proceedings. 28 U.S.C. §2284(b) (3). 

One objective of the pretrial process is to narrow the 

issues in dispute through stipulations and consent decrees. 

We do not think that Congress intended to mandate empaneling 

a three-judge court for accepting every stipulation or 

consent decree. Therefore, the Court holds that Judge 

Collins had authority to grant plaintiffs' motion for partial 

summary judgment based on the consent of all parties. 

Even assuming that a single judge did not have juris- 

diction to grant plaintiffs' motion for summary judgment, 

the matter is now moot. Act No. 697 was superseded by Act 

No. 20 of the First Extraordinary Session of 1981 (herein- 

after Act No. 20), which reapportioned the congressional 

districts based on the 1980 census. By its terms, Act No. 

20 became effective on January 3, 1982 for all subsequent 

congressional elections and thereby repealing Act No. 697. 

The effect of Act No. 20 is that no regularly scheduled 

congressional election may take place under Act No. 697, and 

this is the same effect as the ruling by Judge Collins on 

plaintiffs' motion for partial summary judgment. At the 

time Judge Collins granted said motion, Act No. 20 was 

subject to the preclearance requirements of the Voting 

Rishon Act. Act No. 20 has now been precleared and has 

become effective for all subsequent congressional elections.  



Therefore, even if the Order granting plaintiffs’ 

motion for summary judgment was vacated, no regularly 

scheduled election could be held under Act No. 697. 

Accordingly, defendants' motion to reconsider the ruling by 

the judge, declaring Act No. 697 unconstitutional in its 

prospective application only, is DENIED.