Appellants’ Reply in Opposition to Motion to Dismiss or Affirm

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SEP 2 1 1998 

  | No. 93.85 
ET — —— 

‘ny 

  

In the 

Supreme Court of the United States 
October Term, 1997 

  

JAMES B. HUNT, JR., in his official capacity as 

Governor of the State of North Carolina, ef al., 

otis 

V. 

MARTIN CROMARTIE. et al. 

Appellees. 
  

On Appeal from the United States District Court 

Eastern District of North Carolina 
  

APPELLANTS’ REPLY IN OPPOSITION TO 

MOTION TO DISMISS OR AFFIRM 
  

MICHAEL F. EASLEY 
North Carolina Attorney General 

Edwin M. Speas, Jr.*, Chief Deputy Attorney General 

Tiare B. Smiley, Special Deputy Attorney General 

Melissa L. Saunders, Special Counsel to Attorney General 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

Tetephons; (919) 716-6900 
*Counsel of Record 

   



  

APPELLANTS’ REPLY IN OPPOSITION TO 

MOTION TO DISMISS OR AFFIRM 

  

In their motion to dismiss or affirm, appellees make two 

jurisdictional arguments. First, they contend that this appeal 

should be dismissed because the parties’ dispute over the 

constitutionality of the 1997 plan has been mooted by events. 

Second, they contend that appellants are not entitled to seek 

this Court’s review of the district court’s ruling against them on 

the issue of claim preclusion, because they did not raise that 

defense specially in their answer. These arguments are patently 

without merit and deserve only brief response. 

THIS APPEAL IS NOT MOOT. 

The North Carolina legislature’s passage of the 1998 

interim plan did not moot this appeal. This Court has 

consistently held that a state legislature’s enactment of a 

temporary, contingent measure to replace a statute that a lower 

court has invalidated and enjoined it from enforcing, pending 

its appeal from the lower court’s ruling, does not render that 

appeal moot. See Zablocki v. Redhail, 434 U.S. 374, 382 n.9 

(1978); Bullock v. Carter, 405 U.S. 134, 141-42 n.17 (1972); 

see also City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 

283, 288-89 & n.11 (1982) (city’s repeal of challenged 

ordinance, after it was held invalid by district court, did not 

moot its appeal from the district court’s ruling, where the city  



  

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had expressed its intent to re-enact the same provision if the 
district court’s judgment were vacated on appeal).' 

These principles are fully applicable in this case. The 
North Carolina legislature did not pass the 1998 plan 
voluntarily; it did so only in response to the district court’s 
injunction forbidding it to conduct elections under the 1997 
lan, the very injunction which is the subject of this appeal. It 

did so only after both the court below and this Court had denied 
its request for a stay of that injunction pending the outcome of 
this appeal. It specifically provided that the 1998 plan would 
expire of its own force if this appeal should result in the 
reversal of the district court’s decision holding the 1997 plan 
unconstitutional, and the 1997 plan automatically would 
resume its effectiveness should that occur. Under these 
circumstances, the controversy between the parties over the 
constitutionality of the 1997 plan cannot fairly be said to be 
moot. To hold otherwise would be to leave a state that has its 
congressional redistricting plan wrongly invalidated by a trial 

@ in an untenable position: if it wants to contest that ruling 
on appeal, it must decline the opportunity to enact an interim 
plan and allow the trial court to design one for it, thereby 

  

Accord Hope Medical Group for Women v. Edwards, 63 F.3d 418, 
422-23 (5th Cir. 1995), cert. denied, 517 U.S. 1104 (1996); Beare v. 
Briscoe, 498 F.2d 244, 245-46 n.5 (5th Cir. 1974). See generally 13A 
CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: 

JURISDICTION 2D § 3533.6, at 346-47 (3d ed. 1984) (statutory “changes 
~ adopted in response to a lower court ruling” will not moot an appeal from 

that ruling, if those changes “are made contingent on the outcome of [the 
appeal]”). 

   



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ceding to the unelected federal judiciary -- for one or more 
election cycles -- its constitutional prerogative to design its own 
congressional districts. This Court should not require a state to 
pay such a price in order to obtain appellate review of a lower 

court decision invalidating its duly-enacted redistricting plan. 

IL. THE VALIDITY OF THE DISTRICT COURT’S 
RULING ON CLAIM PRECLUSION IS 
PROPERLY BEFORE THIS COURT. 

This Court’s jurisdiction to review the district court’s 
ruling on the preclusion issue does not depend on whether 
appellants waived the preclusion defense by failing to raise it 
in a timely fashion.? Even when the parties have waived a 
preclusion defense, the trial court remains free to raise the 
defense sua sponte. See Plaut v. Spendthrift Farms, Inc., 514 
U.S. 211, 231 (1995) (“trial courts may in appropriate cases 
raise the res judicata bar on their own motion,” even if the 
parties have waived it).> That is precisely what the trial court 

  

2 Appellants did not waive the preclusion defense. While they did 
not specifically mention the term “preclusion” in their answer, the 
preclusion defense was fairly subsumed within their third affirmative 
defense: failure to state a claim upon which relief can be granted. In 
addition, the defense was specifically raised -- and vigorously pressed -- by 
a group of would-be defendant-intervenors. 

3 Accord Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir.), cert. 
denied, 510 U.S. 902 (1993); Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir. 
1993); McClain v. Apodaca, 793 F.2d 1031, 1032-33 (9th Cir. 1986) 
(same). See generally 18 JAMES WM. MOORE ET AL., MOORE'S FEDERAL 
PRACTICE § 131.51 (3d. ed. 1998).  



  

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did here: it raised the issue of claim preclusion sua sponte in 

the March 31, 1998 hearing on the cross-motions for summary 

judgment. After affording the parties a full and fair opportunity 

to be heard on the issue, the court then ruled specifically -- and 

wrongly -- that the claims asserted here were not barred by the 

final judgment entered by the three-judge panel on remand in 

&- Shaw case.* Because the court below actually considered 

and resolved the preclusion issue, the validity of that ruling is 

properly before this Court on appeal, even if appellants failed 

to raise the preclusion defense in a timely manner below. Cf. 

Orr v. Orr, 440 U.S. 268, 274-75 (1979) (When a state court 

assumes that a federal question is properly before it and 

proceeds to consider and resolve that question, this Court’s 

jurisdiction to review the resulting ruling does not depend on 

whether the parties themselves properly raised the question in 

the state court proceedings.); Payton v. New York, 445 U.S. 

573,582 n.19 (1980) (same); Raley v. Ohio, 360 U.S. 423, 436 

(1959) (same).’ 

: See App. 3a-4a (Memorandum Opinion of April 14, 1998) 

(“Although it was a final order, the September 12, 1997 decision of the 

Shaw three-judge panel was not preclusive of the instant cause of action, as 

the panel was not presented with a continuing challenge to the redistricting 

plan.”). The court went on to explain the reason it had reached this 

conclusion in a lengthy footnote. See App. 4an.1. 

  

5 That the court below went on to address the merits of the precluded 

claims is no reason for this Court to condone its blatant disregard of settled 

rules of preclusion law. To the contrary, if this Court does not reverse the 

district court’s ruling on the preclusion issue, it will encourage courts in 

future cases not to take the preclusion doctrines seriously, which will lead 

‘to a much greater waste of judicial resources than would be occasioned by 

~ reversal here. 

   



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CONCLUSION 

This appeal is not moot, and the preclusion issue is 

properly before this Court. For the reasons given in the 

jurisdictional statement appellants filed on July 6, 1998, this 

Court should either summarily reverse the April 6, 1998 

judgment of the district court or note probable jurisdiction of 

this appeal. 

Respectfully submitted, 

MICHAEL F. EASLEY 

North Carolina Attorney General 

Edwin M. Speas, Jr.* 

Chief Deputy Attorney General 

Tiare B. Smiley 

Special Deputy Attorney General 

Melissa Saunders 

Special Counsel to Attorney General 

September 1998 *Counsel of Record