Defendants-Appellees' Motion for Time to Respond

    UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 

RONALD CHISOM, et al., 

Plaintiffs, 

V. 

EDWIN EDWARDS, et al., 

Defendants. 

Civ. Act. No. 86-4075 
Section: "A" 

PLAINTIFFS' MEMORANDUM CONCERNING THE 
NEED FOR A THREE-JUDGE COURT 

Pursuant to this court's order of September 23, 1986, 

plaintiffs submit the following memorandum addressing a question 

of first impression: whether 28 U.S.C. § 2284 requires that a 

three-judge district court hear plaintiffs' challenge to 

Louisiana's system of electing its Supreme Court, La. Rev. Stat. 

13-101. 1 

Section 2284(a) provides that: 

A district court of three judges shall be convened when 
otherwise required by Act of Congress, or when an 
action is filed challenging the constitutionality of 
the apportionment of congressional districts or the 
apportionment of any statewide legislative body. 

The current version of section 2284 was enacted as part of a 

1 Plaintiffs have amended their complaint pursuant to Fed. R. 
Civ. P. 15(a) to delete their claim under section 5 of the Voting 
Rights Act, 42 U.S.C. § 1973c. Since plaintiffs' Voting Rights 
Act claim is based solely on section 2 of the Act, 42 U.S.C. S 
1973, the Act does not itself require that a three-judge court be 
convened. 

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sweeping revision of the use of three-judge courts. See Pub. L. 

No. 94-381, S 3, 90 Stat. 1119 (1976). Prior to the passage of 

that Act, three-judge courts were required in every case where 

the plaintiff sought an injunction on federal constitutional 

grounds against the enforcement or operation of a state statute. 

See 28 U.S.C. S 2281 (repealed 1976). Thus, a three-judge court 

normally was convened in cases involving challenges to the 

schemes used to elect State Supreme Courts. See, e.g., Gray v. 

Sanders, 372 U.S. 368 (1963) (invalidating county unit system 

used to elect, inter alia, justices of the Georgia Supreme 

Court); Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972) 

(three-judge court) (upholding system used to elect Louisiana 

Supreme Court against one-person, one-vote challenge), summarily  

aff'd, 409 U.S. 1095 (1973). 

Pub. L. No. 94-381 was intended to eliminate the requirement 

of the three-judge court in all but a narrow class of cases. See 

S. Rep. No. 94-204, p. 1 (1976). Although the language of 

section 2284 may seem straightforward, the contours of that class 

are not entirely clear. The Senate Report noted that three-

judge courts were expressly authorized in a variety of voting 

rights cases, and stated that: 

"[t]tle bill preserves three-judge courts for cases 
involving congressional reapportionment or the 
reapportionment of a statewide legislative body because 
it is the judgment of the committee that these issues 
are of such importance that they ought to be heard by a 
three-judge court and, in any event, they have never 
constituted a large number of cases." 

S. Rep. No. 94-204, ,supra, at 9. The section-by-section analysis 

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of the bill explained that: 

Subsection (a) [of amended section 22841 would also 
continue the requirement for a three-judge court in 
cases challenging the constitutionality of any statute 
. . . apportioning any statewide legislative body. The 
use of the term "any statewide legislative body" is 
intended merely to reflect the application of the 
constitutional principles of representation announced 
in Reynolds v. Sims, 377 U.S. 533 (1964), to elected 
bodies which exercise "general governmental powers over 
the entire area served by the body." Avery v. Midland  
County, 390 U.S. 474, 485 (1968) (county 
commissioners); Hadley v. Junior Colge District, 397 
U.S. 50 (1970) (board of trustees of school district). 
Where such a body exercises its powers over the entire 
State, this section requires that three judges hear 
cases challenging apportionment of its membership. 
Apportionment of a body which deals only with matters 
of local concern and representative of a county, 
district, or city, would not require three judges, even 
though the body derives its power from a State statute. 
Thus, under this section, three judges would not be 
required in a Hadley type case. 

Id. at 12 (footnotes omitted). 

Thus, Congress clearly intended that apportionment issues be 

treated differently based on the geographic scope of the 

governmental body involved. But the committee report's reliance 

on Hadley and Avery suggests that Congress did not intend that 

apportionment issues receive different treatment based on a 

formalistic description of the function of the governmental body. 

In Hadley, the Supreme Court refused to distinguish between 

"legislative" and "administrative" offices in applying the one-

person, one-vote standard of Reynolds v. Sims, 377 U.S. 533 

(1964). See 397 U.S. at 55-56. Instead, the Hadley Court held 

that a State's decision to "select persons by popular election to 

perform governmental functions" should presumptively trigger the 

one-person, one-vote requirement, which the Court applied to a 

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group of trustees who clearly exercised primarily executive 

power. Id. at 56. Similarly, in Avery, the Court applied the 

Equal Protection Clause and the principles enunciated in Reynolds  

v. Sims despite its finding that "[t]he Texas commissioners 

courts are assigned some tasks . . typically assigned to 

executive' or 'administrative' departments and still others 

which are 'judicial.'" Avery, 390 U.S. at 482. 

Although one commentator has interpreted the term "statewide 

legislative body" to exclude elected bodies that are "almost 

wholly judicial or wholly executive," 17 C. Wright, A. Miller & 

E. Cooper, Federal Practice and Procedure: Jurisdiction, S 4235, 

at 391 (1978), no court has yet construed the term. The Senate 

Report's reliance on Hadley and Avery leaves open the question 

whether cases challenging elections for the kind of non-

legislative offices at issue in those cases should still be heard 

by three-judge courts when statewide elections are involved. 

Nor does the holding in Wells v. Edwards, 347 F. Supp. 453 

(M.D. La. 1972) (three-judge court), summarily aff'd, 409 U.S. 

1095 (1973), foreclose convening a three-judge court. In Wells, 

the district court rejected a one-person, one-vote challenge to S 

13:101, relying on Hadley's statement that cases might exist in 

which "a State elects certain functionaries whose duties are so 

far removed from normal governmental activities . . that a 

popular election in compliance with Reynolds, supra, might not be 

required," 397 U.S. at 56. But Wells did not in any sense 

immunize S 13:101 from other constitutional and statutory 

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requirements regarding apportionment. Plaintiffs' Fourteenth 

Amendment claim stems, not from the Equal Protection Clause's 

prohibition of geographic vote dilution, but from the Equal 

Protection Clause's prohibition of purposeful racial vote 

dilution. Plaintiffs' Fifteenth Amendment and statutory claims 

are similarly independent of the applicability of the one-person, 

one-vote standard. Cf. Haith v. Martin, 618 F. Supp. 410, 412-13 

(E.D.N.C. 1986) (three-judge court) • (rejection of earlier one-

person, one-vote challenge to election of North Carolina superior 

court judges "in no way dealt with, or attempted to interpret, 

the Voting Rights Act"). 

Thus, although plaintiffs are not advancing an orthodox one-

person, one-vote challenge to § 13:101, this case may implicate 

the concerns identified in the Senate Report as the basis for 

convening a three-judge court. The apportionment of an elected 

State Supreme Court is potentially as important and unique an 

issue as the apportionment of any other elected body exercising 

statewide power. This court should therefore consider notifying 

the Chief Judge of the Court of Appeals for the Fifth Circuit, 

pursuant to 28 U.S.C. § 2284(b), that a three-judge court should 

be convened to hear this action. 

Respectfully submitted, 

William P. Quigley 
631 St. Charles Avenue 
New Orleans, LA 70130 
(504) 524-0016 

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Ron Wilson 
Richards Building 
Suite 310 
837 Gravier Street 
New Orleans, LA 70112 
(504) 525-4361 

Roy Rodney 
643 Camp Street 
New Orleans, LA 70130 
(504) 586-1200 

ATTORNEYS FOR PLAINTIFFS 

October , 1986 

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