Hardback 7 Inventory Jul 1983 - Dec 1983

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REC'D MAR 0 P998 

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No. 98-30004 

IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

CLEMENT F. PERSCHALL, JR., 

Plaintiff-Appellant, 

V. 

STATE OF LOUISIANA, 

Defendant-Appellee 

and 

RONALD CHISOM, ET AL. 

Proposed Appellee-Intervenors 

On Appeal from the 
United States District Court 

for the Eastern District of Louisiana 

MOTION TO INTERVENE AS APPELLEES 

Ronald Chisom, Marie Bookman, Walter Willard, Henry Dillon, III, and the Louisiana 

Voter Registration/Education Crusade, move this Court to intervene in the present action as 

appellees. In support of this motion, proposed appellee-intervenors would show the following: 

1. The proposed appellee-intervenors are named plaintiffs in Chisom v. Edwards, 

E.D.La. Civil Action No. 86-4075(A). As such, they are signatories to the consent decree that 

settled that case, and have an interest in the continued enforcement of that decree. The 



consent decree requires that all parties take all steps necessary to effectuate the decree. 

2. The present action was filed with the purpose of obtaining a declaratory 

judgment that Louisiana Act No. 512 (1992)("Act 512"), the legislation enacted by the State of 

Louisiana to facilitate resolution of the dispute underlying the Chisom consent decree, was 

unconstitutional. 

3. This matter, originally filed in Louisiana state court, was removed to federal 

court by defendant-appellee, the State of Louisiana. Ultimately, the action was transferred to 

the Eastern District of Louisiana and the Hon. Charles Schwartz, Jr., who had presided over 

the original Chisom litigation and entered the Chisom consent decree. Judge Schwartz 

remanded the issue of whether Act 512 violated the Louisiana Constitution to the Louisiana 

state courts, reserving ruling on whether further action by the United States District Court 

would be necessary. 

4. The Louisiana Supreme Court held Act 512 violative of the Louisiana 

Constitution, but also held that its ruling did not and could not have any effect on the Chisom 

consent decree. Subsequently, the Perschall matter was returned to the Eastern District of 

Louisiana. 

5. Based upon the Louisiana Supreme Court's ruling, defendant-appellee State of 

Louisiana moved to dismiss the action, as moot, because plaintiff-appellant Perschall had 

obtained all the relief that was possible. The District Court granted this motion to dismiss. 

6. Plaintiff-appellant Perschall has filed this appeal from the district court's ruling. 

While the basis for this appeal is not yet clear, to the extent that plaintiff-appellant Perschall 

contends that he is now entitled to some additional relief above and beyond his pleadings, the 

disposition of this action may impair or impede the rights obtained and enjoyed by the 

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proposed appellee- intervenors under the Chisom consent decree. 

7. Intervention at this stage of the case is appropriate and necessary to ensure that 

the rights of the proposed intervenors are adequately protected, because plaintiff-appellant 

Perschall may present arguments to this Court which relate to the Chisom consent decree. The 

applicants' interest is not adequately represented by the existing parties. Although the State 

of Louisiana, the only named defendant herein, is also a party to the consent decree in Chisom, 

it was also the defendant in Chisom.' The State of Louisiana defended against the Chisom 

action vigorously. It was not until six years after the case was filed, and after two appeals to 

the Fifth Circuit and an appeal to the United States Supreme Court, that the State was finally 

willing to settle the Chisom litigation and enter into the consent decree which may now be 

affected by plaintiff-appellant's appeal. 

8. The present motion to intervene has been filed in a timely fashion. Moreover, 

applicants clearly meet all the requirements of intervention under Rule 24 of the Federal Rules 

of Civil Procedure. 

WHEREFORE, for the foregoing reasons, the applicants pray that they be permitted 

to intervene as appellees in the above entitled action. 

Respectfully submitte 

P. Quigley 
niversity 

t. Charles Avenue 
New Orleans, LA 70118 
(504) 861-5590 

Elaine R. Jones 
Director-Counsel 

Chisom, the nominal defendant was the Governor of the State of Louisiana, sued in his 

official capacity. 



Norman J. Chachkin 
Charles Stephen Ralston 
Victor A. Bolden 
Jacqueline A. Berrien 
NAACP Legal Defense & Educational Fund, 
Inc. 
99 Hudson Street 
Suite 1600 
New York, New York 10013 
(212) 219-1900 

Ronald L. Wilson 
837 Gravier Street 
New Orleans, LA 70113 
(504) 586-1241 

Counsel for Defendant-Appellee Intervenors 



No. 98-30004 

IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

CLEMENT F. PERSCHALL, JR., 

Plaintiff-Appellant, 

V. 

STATE OF LOUISIANA, 

Defendant-Appellee 

and 

RONALD CHISOM, ET AL. 

Proposed Appellee-Intervenors. 

On Appeal from the 
United States District Court 

for the Eastern District of Louisiana 

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO INTERVENE 

Introduction  

Applicants, Ronald Chisom, et aL, are signatories to a consent decree entered into in 

the Chisom v. Edwards case (Civil Action No. 86-4075(A)). See 970 F.2d 1408 (5th Cir. 1992). 

This decree, entered into by applicants and the State of Louisiana, addressed allegations that 

the State of Louisiana's method for electing its Supreme Court Justices violated the Voting 

Rights Act of 1965, 42 U.S.C. §1973, and included, inter alia, the terms of Louisiana Acts, No. 

512 ("Act 512"), the subject of this present action. 



• 

The applicants sought to intervene in this action while it was pending before the Hon. 

Charles Schwartz, Jr. of the Eastern District of Louisiana. Judge Schwartz ruled that there 

were state law issues which should be resolved first, and he stayed consideration of any federal 

issues until those state law matters were resolved. The district court therefore remanded to the 

Louisiana state court system the issue of intervention as well as the underlying substantive 

issues. 

While this case was in the Louisiana state court system, the present applicants moved 

for intervention there. No formal order regarding intervention was granted because the case 

was taken directly up to the Louisiana Supreme Court. Nevertheless, the Louisiana Supreme 

Court accorded the Chisom applicants intervenor status, permitting not only the filing of briefs 

as parties to the case, but granting oral argument time as well. 

When this matter returned to federal court for further disposition of the Perschall action, 

the issue before the federal court presented by the State's motion to dismiss the suit as now 

moot. Applicants did not press for an immediate ruling on their dormant motion for 

intervention in federal court: If the State's motion seeking to have plaintiffs' action deemed 

moot was granted, there would be no need to re-file or seek a definitive ruling on intervention. 

Had the motion seeking to have plaintiffs' action deemed moot been denied, the applicants 

would have renewed their motion to intervene. The district court deemed the action moot, thus 

making unnecessary anything more with regard to intervention. 

Plaintiff-Appellant Perschall has appealed that order to this Court. Since the issues 

under consideration by this Court may affect the rights of the applicants under the Chisom 

consent decree, intervention by the Chisom plaintiffs is both appropriate and necessary for the 

interests of these parties to be adequately protected. Thus, at this time and in this place, 

intervention by the Chisom plaintiffs is necessary. 

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Factual Background and Procedural History 

In 1986, African-American voters of the State of Louisiana did not have an equal 

opportunity to elect a candidate of their choice to the Louisiana Supreme Court, although 

African-Americans constituted nearly one-third of Louisiana's population and a majority in 

Louisiana's largest parish, Orleans Parish. See Chisom v. Edwards, 839 F.2d 1056, 1058 (5th 

Cir. 1988). The seven Justices of the • Supreme Court of Louisiana were elected from six 

geographically defined judicial districts. Id. at 1056. With the exception of the First District 

of the State Supreme Court, each of the judicial districts elected one Supreme Court Justice. 

Id. The First District of the State Supreme Court ("First Supreme Court District"), consisting 

of four parishes (Orleans, St. Bernard, Plaquemines, and Jefferson Parishes), elected two 

Justices at-large. Id. In the late 1980's, African-Americans represented approximately 32 

percent of the registered voters in the First Supreme Court District and whites represented 

approximately 68 percent of the District's population. Id. Over half of the First Supreme 

Court District's registered voters lived in Orleans Parish, where African-Americans comprised 

52 percent of the registered voters. Id. 

Ronald Chisom and several other African-American voters, as well as the Louisiana 

Voter Registration Education Crusade (hereinafter "Chisom plaintiffs"), filed a class action 

lawsuit in the United States District Court for the Eastern District of Louisiana("United States 

District Court") on behalf of all African-Americans registered to vote in Orleans Parish. 

Chisom v. Edwards, 659 F. Supp. 183 (E.D. La. 1987). The Chisom plaintiffs alleged that the 

system of electing Justices to the Louisiana Supreme Court violated Section 2 of the Voting 

Rights Act of 1965, 42 U.S.C. § 1973, as well as the Fourteenth and Fifteenth Amendments to 

the United States Constitution. 

The United States District Court held that Section 2 of the Voting Rights Act did not 

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apply to state judicial elections because judges are not "representatives" under the Act, thereby 

dismissing the Chisom plaintiffs' complaint for failure to state a claim upon which relief could 

be granted pursuant to Fed. R. Civ. P. 12(b)(6). See id. at 183-187. The Chisom plaintiffs 

appealed that ruling to the United States Court of Appeals for the Fifth Circuit. 

A panel of this Court disagreed with the District Court and held: 

After consideration of the language of the Act itself; the policies behind the 
enactment of Section 2; pertinent legislative history; previous judicial 
interpretations of Section 5, a companion section to Section 2 in the Act; and 
the position of the United States Attorney General on this issue; we conclude 
that Section 2 does apply to the election of state court judges. We therefore 
reverse the judgment of the district court. 

Chisom v. Edwards, 839 F.2d at 1058. The panel originally remanded the case back to the 

United States District Court. Id. at 1065. However, based on the intervening decision from 

the Fifth Circuit in League of United Latin Amer. Citizens Council No. 4434 v. Clements, 914 

F.2d 620 (5th Cir. 1990) (en banc) ("LULAC I") the Court of Appeals subsequently remanded 

the Chisom case to the District Court with instructions to dismiss the complaint.' In LULAC 

I, the Fifth Circuit held that Section 2 did not apply to judicial elections. Id. at 390. The 

Chisom and LULAC plaintiffs appealed to the United States Supreme Court, which granted 

certiorari in both cases. Id. at 390. 

On June 20, 1991, the United States Supreme Court held that Section 2 of the Voting 

Rights Act applies to state judicial elections in general, and to the election of Supreme Court 

Justices in Louisiana in particular. Chisom v. Roemer, 501 V.S. 380, 401-02 (1991). The Court 

held that when states, like Louisiana, decide to choose judges by election, rather than by 

appointment, then these judges are appropriately "representatives" under the Voting Rights Act. 

The Court stated in particular about Louisiana: 

'Like Chisom, LULAC involved the election of state court judges, but in Texas. 

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When each of several members of a court must be a resident of a separate district, and 
must be elected by the voters of that district, it seems both reasonable and realistic to 
characterize the winners as representatives of that district. Indeed, at one time the 
Louisiana Bar Association characterized the members of the Louisiana Supreme Courts 
representatives for that reason: 'Each justice and judge now in office shall be 
considered as a representative of the judicial district within which is situated the parish 
of his residence at the time of his election.' 

Id. at 401 (quoting Louisiana State Law Institute, Project of a Constitution for the State of 

Louisiana with Notes and Studies 10309 (1954)(1921 Report of the Louisiana Bar Association 

submitted to the Louisiana Constitutional Convention)). The Supreme Court's decision 

reversed this Court's ruling and remanded Chisom "for further proceedings consistent with th[e 

Court's] opinion." Id. at 404. 

Following the Supreme Court's remand, the parties to the Chisom litigation reached a 

settlement. The Louisiana Legislature agreed to use its power under the Louisiana 

Constitution to assign- to the Louisiana Supreme Court until the year 2000, a judge to be 

elected from the Fourth Circuit Court of Appeals, in order not to provide an opportunity for 

minority voters to select a candidate of their choice for a position on the Supreme Court 

without disrupting the terms of any incumbent. The temporary assignment process had been 

used by the Court on many occasions before and there was precedent from the Louisiana 

Supreme Court that such an assignment was wholly consistent with Louisiana constitutional and 

statutory law. See State v. Bell, 392 So.2d 442, 442-443 (La. 1981)(permitting Louisiana 

Supreme Court to assign a judge to any court under Louisiana Constitution); see also State v. 

Petterway, 403 So.2d 1157 (La. 1981).2 

The resulting legislation, Acts 1992, No. 512 ("Act 512"), eliminated the four-Parish, 

multi-member election district which included Orleans Parish, effective in the year 2000, and 

2In exchange, the Chisom plaintiffs agreed to dismiss their claims under Section 2 of 
the Voting Rights Act and the Fourteenth and Fifteenth Amendments of the United States 
Constitution. 

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created a Supreme Court District consisting solely of Orleans Parish. La. R.S. 13:101.1. Act 

512 provided that, during the 1998 Regular Session, the Louisiana Legislature was to 

reapportion the districts of the Louisiana Supreme Court into seven districts, rather than six 

districts, for elections beginning in the year 2000. Id. Each of the newly created Supreme 

Court districts would elect a single Justice to the Supreme Court. The Act also provided for 

the creation of a temporary additional judgeship for the Court of Appeals for the Fourth 

Circuit, to be elected by voters from Orleans Parish exclusively, and assigned to the Louisiana 

Supreme Court until the year 2000, when elections would be held under the newly drawn 

election districts. La. R.S. 13:312.4. Act 512 thus avoided shortening the term of any Louisiana 

Supreme Court Justice holding office on June 22, 1992, the time of its enactment. Id. 

Act 512 was entirely contingent on the entry of a federal court order: 

This legislation shall be null, void, and of no force and effect whatsoever if a 
consent decree approving this legislation to be entered into between all parties 
in federal litigation involving the at-large election of two justices from the 
presently existing first supreme court district, which is pending on the docket of 
the United States Court of Appeals for the Fifth Circuit, and which is styled 
Chisom v. Edwards, is not entered into by the appropriate federal court. 

Acts 1992, No. 512, §2. After Act 512 was signed into law, all parties to the Chisom litigation 

filed a Joint Motion to Remand to Effectuate Settlement. Chisom v. Edwards, 970 F.2d 1408, 1409 

(5th Cir. 1992)(remanding the case "to the United Stated District Court for the Eastern District 

of Louisiana for the limited purpose of effectuating a settlement" . . . "[u]pon notification that 

a consent judgment has been entered by the district court. . . ."). On August 21, 1992, the 

United States District Court entered a consent decree which incorporated Act 512 into its final 

order and judgment. Consent Judgment, August 21, 1992 (E.D. La.) (Exhibit "A"). On October 

6, 1992, this Court dismissed the appeals pending in the case. Chisom v. Edwards, 975 F.2d 

1092 (5th Cir. 1992). 

6 



In 1995, nearly three years after the entry of the consent judgment in the Chisom case, 

Plaintiff Clement F. Perschall, Jr. ("Perschall"), an attorney proceeding pro se, filed a "Petition 

for Declaratory Judgment on the Constitutionality of Acts 1992, No. 512" against the State of 

Louisiana in the 19th Judicial District Court for the Parish of East Baton Rouge, State of 

Louisiana, Division A. Perschall alleged that Act 512 violates both the Louisiana and United 

States Constitutions. The State removed the action to the United States District Court for the 

Middle District of Louisiana, which subsequently transferred the action to the United States 

District Court for the Eastern District of Louisiana, where ultimately the case was assigned to 

Judge Schwartz, who was the presiding judge in the Chisom case. The Chisom plaintiffs moved 

to intervene in the Perschall action now before the Eastern District of Louisiana, believing their 

interests to be affected by this new action. See Motion To Intervene As Defendants (Exhibit "B"). 

This motion was never ruled on because the district court remanded back to Louisiana state 

court the issue of the constitutionality of Act 512 under state law to the state court as well as 

the issue of whether the Chisom applicants should be permitted to intervene. See Order And 

Reasons at 7, dated July 5, 1995. (Exhibit "C"). 

The Chisom plaintiffs again moved to intervene once the matter came before the 

Louisiana state court system. See Motion to Intervene, (Exhibit "D"). This motion was never 

ruled on because the State of Louisiana filed briefs which requested that the Louisiana 

Supreme Court grant certiorari and review the entire case and the Louisiana Supreme Court 

agreed to do so. The Louisiana Supreme Court expressly referred to the Chisom plaintiffs as 

intervenors, for instance, it provided the Chisom plaintiffs with the opportunity to participate 

in oral argument on February 24, 1997. See e.g. Orders (Exhibit "E")(various orders from the 

Louisiana Supreme Court). 

On July 1, 1997, the Louisiana Supreme Court held that, despite the supremacy of 

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federal law and the existence of the Chisom consent judgment, there was a justiciable 

controversy. Upon reaching the merits of this case, the Louisiana Supreme Court found Act 

512 to be unconstitutional. Perschall v. State of Louisiana, 697 So. 2d 240 (La. 1997).3 Despite 

holding Act 512 unconstitutional, the Court did not recommend a change in the status quo: 

We realize that Act 512 does not exist in a vacuum. The State argues, and we 
agree, the Act and the Chisom Consent Judgment are separate and independent 
methods by which the negotiated remedy was implemented. Although the Act 
falls by this judgment, we recognize the status quo remains intact under the 
Chisom Consent Judgment. Consequently, this court as it is currently composed 
shall continue to function as a de jure court with its actions valid and effectual. 
We emphasize that the court-approved settlement in Chisom, which is under the 
jurisdiction of the United States District Court for the Eastern District of 
Louisiana, is not affected by this judgment. 

Id. at 260. The Court also dismissed Perschall's argument that, if Act 512 is unconstitutional, 

then all decisions rendered by the Court since the creation of Act 512 are now void. Id. at 260-

61. Both the appellee and the Chisom plaintiffs filed petitions for rehearing with the 

Louisiana Supreme Court, with the Chisom applicants raising conflicting arguments about the 

terms of the Chisom decree. Exhibit "F" (State of Louisiana's Petition for Rehearing); Exhibit 

3Two different provisions under the Louisiana Constitution were considered 
probative of this issue: Article V, § 3 and Article V, § 5(A). The former provision placed a 
limit on the number of justices who can serve on the Louisiana Supreme Court. La. Const. art. 
V, § 3 ("The supreme court shall be composed of a chief justice and six associate justices, four 
of whom must concur to render judgment"). The latter provision vested the Court with the 
authority to "assign a sitting or retired judge to any court. . ." LA. Const. art. V, § 5(A). To 
the Court, Article V, §3 and Article V, § 5(A) constitute "conflicting constitutional provisions 
regarding supreme court composition." Perschall, 697 So.2d at 255. The Court gave more 
weight to the specific provision (Art. V, § 3) than the general one (Art. V, § 5(A)). Id. at 256. 
Under the Court's analysis, harmonizing these "conflicting" constitutional provisions meant that: 

We must hold the Act unconstitutional under article V, section 3, insofar as it 
effectively imposes an eighth justice on the supreme court by the provisions of 
La. R.S. 13:312.4. 

Id. at 259. The Court also found that the unconstitutional 
portions of Act 512 could not be severed from those provisions which are constitutional. Id. 
at 259-260. Thus, the Louisiana Supreme Court struck down Act 512 in its entirety. 

8 



"G" (Chisom plaintiffs' Brief in Support of Application For Rehearing). These petitions for 

rehearing were denied. See Exhibit "E". 

Upon return of the Perschall action to federal court, the State of Louisiana moved to 

have the action declared moot. The Chisom plaintiffs filed a supplemental memorandum of 

law in support of this position. Exhibit "H." On December 11, 1997, the District Court ruled 

that the Perschall action was now moot and dismissed the remainder of the action. Plaintiff-

appellant Perschall has now appealed this action. The Chisom plaintiffs, who have sought to 

intervene in this action, now move at the appellate stage to protect their interest in preserving 

the terms of the Chisom consent decree. 

Summary of Argument  

Similar to the standard at the district court level -- although not commonly sought nor 

routinely granted -- the standard for seeking intervention at the appellate level depends on the 

factual circumstances of the case and the factors of timeliness, the interest of the applicant, the 

potential impairment of that interest, and the ability of the parties in the litigation to represent 

that interest. The facts of this case suggest that intervention is appropriate. 

This motion presents the uncommon instance where intervention should be permitted 

on appeal. There is no prejudice to Plaintiff-Appellant Perschall as a result of permitting 

intervention on this appeal; applicants participated below and the issues they will address have 

been timely raised. The Chisom intervenors have demonstrated vigilance in seeking to protect 

their rights since the inception of the Perschall action. Intervention was requested below and 

Plaintiff-Appellant Perschall has been aware of the presence of the proposed intervenors and 

is not jeopardized by the addition of the applicants as parties. On the other hand, the issues 

raised by this appeal clearly implicate the interests of the applicants, and movants for 

intervention, plaintiffs and parties to the Chisom v. Edwards consent decree, have a direct 

9 



interest in the outcome of this litigation. The outcome of this case threatens the benefits now 

conferred upon the Chisom intervenors by virtue of the Chisom decree and the interest that the 

applicants have in this decree cannot be adequately represented by appellee, the State of 

Louisiana. Under these exceptional circumstances, the Chisom intervenors should be granted 

leave to intervene as appellee-intervenors. 

ARGUMENT 

THE CHISOM PLAINTIFFS, WHO ARE PARTIES TO A CONSENT DECREE 
AFFECTED BY THIS APPEAL, SHOULD BE GRANTED LEAVE TO 
INTERVENE AS APPELLEE-INTERVENORS 

This Court has adopted a four-part test for intervention in district court proceedings: 

(1) the application must be timely, (2) the applicant must have a direct and protectable interest 

in the subject matter, (3)this interest must be impaired by the ongoing litigation, and (4) the 

interest of the applicant cannot be adequately represented by any of the current parties to the 

litigation. Sierra Club v. City of San Antonio, 115 F.3d 311 (5th Cir. 1997); Sierra Club v. 

Glickman, 82 F.3d 106, 108 (5th Cir. 1996); Edwards v. City of Houston, 78 F.3d 984, 999 (5th 

Cir. 1996); Sierra Club v. Espy, 18 F.3d 1202, 1204-05 (5th Cir. 1994); Ceres Gulf v. Cooper, 957 

F.2d 1199, 1202-03 (5th Cir. 1992). This Court has also recognized that there are circumstances 

when intervention on appeal is appropriate and, on these occasions, have applied a standard 

analogous to the test under Rule 24. See Baker v. Wade, 769 F.2d 289, 291-92 (5th Cir. 

1985)(intervention permitted on appeal when applicant satisfied the standards of timeliness, 

significant interest, impairment of that interest and inadequate representation by the State due 

to failure to pursue appeal); United States v. Bursey, 515 F.2d 1228, 1238, n.24 (5th Cir. 

1975)(finding that exceptional circumstances existed for intervention on appeal where there was 

"a significant stake in the matter on appeal, where it is evident that [movant's] interest cannot 

adequately be represented by [another party]," and where there is no issue of timeliness 

10 



precluding intervention); United States v. Texas Educ. Agency, 467 F.2d 848, 853 n.5 (5th Cir. 

1972) (describing how Court had earlier allowed black parents and children, who alleged that 

government no longer represented their interests, to intervene in school desegregation case on 

appeal); United States v. 22,680 Acres Of Land In Kleberg Co., Tex., 438 F.2d 75, 76-77 (5th Cir. 

1971)(holding that timeliness was an important consideration when determining appropriateness 

of intervention on appeal); McKenna v. Pan American Petroleum Corp., 303 F.2d 778, 779 (5th 

Cir. 1962)(where lack of timeliness of motion for intervention on appeal was outcome-

determinative); see also Automobile Workers, Local 283 v. Scofield, 382 U.S. 205, 217 n.10 

(1965)(recognizing that "the policies underlying intervention [in the district courts] may be 

applicable in appellate courts"). Applying this standard, applicants' motion for intervention at 

the appellate stage should be granted. 

Applicants' motion is timely. At the district court level, the issue of "timeliness is to be 

determined from all the circumstances." Corley v. Jackson Police Dep't., 755 F.2d 1207, 1209 (5th 

Cir. 1985) (quoting NAACP v New York, 413 U.S. 345 (1973)); Ozee v. American Council on Gift 

Annuities, 110 F.3d 1082, 1095(5th Cir. 1997); Edwards v. City of Houston, 78 F.3d 984, 1000 

(5th Cir. 1996); see also Sierra Club v. Espy, 18 F.3d 1202, 1205 (511 Cir. 1994)("The analysis 

is contextual; absolute measures of timeliness should be ignored"). At the appellate level, this 

Court recognizes that the same basis principle applies, requiring that an applicant for 

intervention at this point must demonstrate that an effort was made to intervene in the action 

prior to the issue reaching appeal, e.g. McKenna, 303 F.2d at 779 (where applicant "was not a 

party to the action in the district court and, although he was fully aware that the cause was 

pending and of his interest, he made no effort to intervene"); see 22680 Acres Of Land In 

Iaeberg, Tex, 438 F.2d at 77 ("Even the United States does not have the right to participate in 

a case after 'standing by' and doing nothing until the litigation is concluded"), or proof that 

11 



there is a good reason for not having done so. United States v. Bursey, 515 F.2d at 1238 n. 24 

("lack of timely intervention below may be justified by the district court's action without 

notice"). The proposed intervention motion here satisfies this standard for timeliness. 

Here, the Chisom plaintiffs-applicants did not "stand by" and "do nothing" while this case 

was litigated both in the United District Court for the Eastern District of Louisiana and the 

Louisiana state court system. Applicants filed motions for intervention at both the Eastern 

District of Louisiana, Exhibit "B", and the 19th Judicial District of East Baton Rouge, 

Louisiana, Exhibit "D". Because of the unusual procedural history of this case, where this case 

was removed from state court to federal court, then remanded from federal court back to state 

court and finally, sent back to federal court for final disposition, the issue of intervention was 

never expressly resolved. Thus, the applicants have diligently made efforts to participate in 

this case at every significant stage. Moreover, while no formal order was issued in either court, 

the Louisiana Supreme Court made applicants de facto intervenors by virtue of its actions. See 

Exhibit "E" (orders from the Louisiana Supreme Court listing the Chisom applicants as 

intervenors). Indeed, the federal district court permitted the Chisom applicants to make filings. 

See Exhibit "H" (filing by proposed intervenors in support of the State's motion to dismiss this 

act ion).4 

The Chisom applicants have a clear and direct interest in the subject matter of this 

litigation. This Court has described the "interest" test as "primarily a practical guide to 

4Intervention by the Chisom plaintiffs would not prejudice Plaintiff-Appellant Perschall in 
any way. He has been aware of the Chisom plaintiffs and their interest in this litigation. While 
he apparently does not agree that this interest is affected by his lawsuit, he is not unaware of 
the presence of the Chisom intervenors or the arguments that they will present. Even if any 
additional arguments are raised by the Chisom intervenors, there will be no prejudice to the 
Plaintiff-Appellant. Plaintiff-Appellant Perschall will have an opportunity to file a reply brief 
to the submissions of both the appellees and the intervenors, if intervention is permitted. 

12 



disposing of lawsuits by involving as many apparently concerned persons as is compatible with 

efficiency and due process." Espy, 18 F.3d at 1207. Under this standard, any interest which is 

direct, substantial and legally protectable is sufficient. See id.; Valley Ranch Development Co., 

LTD. V FDIC, 960 F.2d 550, 556 (citing New Orleans Pub. Serv., Inc. V United Gas Pipe Line, 

732 F.2d 452, 463 (5th Cir.)(en banc),cert. denied, 469 U.S. 1019 (1984); see also Sierra Club v. 

Glickman, 82 F.3d at 109-110 ("adverse judgment constitutes a sufficient impairment to compel 

intervention"); Banco De Credit° Indus. v. Tesoreria General, 990 F.2d 827, 832 (5th Cir. 

1993)(applicants denied intervention where any claim to be made had been "usurped" by a prior 

agreement). The same standard applies when intervention is sought on appeal. See Baker v. 

Wade, 789 F.2d at 292 (the granting of intervention on appeal turned on, in part, the fact that 

applicants' issues were to be affected by a judgment in the case); Bursey, 515 F.2d at 1238 n.24 

(applicant had "a significant stake in the matter on appeal"). Under this standard, the interest 

of the movants in this case are substantial and are directly affected by this appeal. 

The subject matter of this present appeal is a ruling dismissing Plaintiff-Appellant's 

action challenging the constitutionality of Act 512. The District Court held that Plaintiff-

Appellant Perschall's action was no longer viable and should be dismissed. This ruling was 

based on the fact that this action sought nothing more than a declaratory judgment on the 

constitutionality of Louisiana Acts, No. 512 ("Act 512"). Such an action need not affect the 

Chisom consent judgment, although Act 512 is a part of the settlement. See Perschall v. 

Louisiana, 697 So. 2d 240, 260 (La. 1997). Now, however, Plaintiff-Appellant Perschall 

contends that this action should not be dismissed and that he is entitled to some relief beyond 

what was pled and interpreted as the basis for the relief granted to Plaintiff-Appellant by both 

the Louisiana Supreme Court and the Eastern District of Louisiana. It is the decision by 

Plaintiff-Appellant to seek additional relief -- relief not previously requested -- which provides 

13 



the Chisom applicants with a direct, identifiable and legally protectable interest in the Perschall 

action. 

The Chisom applicants not only have an interest in this matter, but this interest may be 

impaired by this action. To demonstrate impairment, applicants for intervention may -- but 

need not -- prove that they will be bound by any disposition in the action. Edwards, 78 F.3d 

at 1004 (noting that impairment is not contingent on being bound by a judgment). Impairment 

can be shown by demonstrating that the interest will be affected in some meaningful practical 

way. See Ozee v. American Council On Gift Annuities, Inc, 110 F.3d at 1096 (impairment found 

where action "would impair the ability of Texas charities to operate"). The Perschall action 

clearly impairs the interest of the Chisom applicants. While it is not clear what relief Plaintiff-

Appellant Perschall now seeks, any relief now sought may affect the relief afforded the Chisom 

plaintiffs under their lawsuit, as provided in the Chisom consent decree, thus demonstrating 

impairment of an interest. 

Finally, the Chisom movants also satisfy the final prong of the intervention test: that 

their interest cannot be adequately represented by any of the parties presently in this action, 

even the State of Louisiana. When a governmental entity is a party in an action, this Court 

"has created two presumptions of adequate representation." Edwards, 78 F.3d at 1005. First, 

there is "a presumption of adequate representation arises whether the would-be intervenor is 

a citizen or subdivision of the governmental entity." Id. "To overcome this presumption, the 

applicant must show 'that its interest is in fact different from that of the [governmental entity] 

and that the interest will not be represented by [it]." Edwards, 78 F.3d at 1005 (quoting 

Environmental Defense Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C.Cir. 1979)); Hopwood 

v. State of Tex., 21 F.3d 603, 605 (5th Cir. 1994). Second, a "presumption of adequate 

representation arises when the would-be intervenor has the same ultimate objective as a party 

14 



• 

to the lawsuit." Hopwood, 21 F.3d at 605. When this occurs, the applicant "must show 

adversity of interest, collusion, or nonfeasance on the part of the existing party to overcome the 

presumption." Id.; United States v. Franklin Parish Sch. Bd., 47 F.3d 755, 757 (5th Cir. 1995). 

Both of these presumptions can be met by proving that, in a particular case, the government's 

public interest is broader than the specific interest presented by a movant for intervention. See 

Espy, 18 F.3d at 1208 ("The government must represent the broad public interest, not just the 

economic concerns of the timber industry"); see also Glickman, 82 F.3d at 110 (intervenor had 

"more flexibility . . . in advocating its position" than the government). 

The interest of the Chisom intervenors is not adequately represented by the appellee, 

the State of Louisiana. The existence of a consent decree to which the Chisom applicants and 

the State of Louisiana are adversary parties indicates that the two parties have different 

interests to be protected by this decree. In the Chisom case, this settlement came about after 

extensive litigation with this case, appearing before this Court alone on three occasions, Chisom 

v. Edwards, 975 F.2d 1092 (5th Cir. 1992)(dismissing pending appeals); Chisom v. Roemer, 970 

F.2d 1408, 1409 (5th Cir. 1992)(providing for remand to Eastern District of Louisiana to 

effectuate settlement); Chisom v. Edwards, 839 F.2d 1056, 1058 (5th Cir. 1988)(concluding that 

§ 2 of the Voting Rights Act does not apply to judicial elections), and before the United States 

Supreme Court, Chisom v. Roemer, 501 U.S. 380, 401-02 (1991). Simply because both parties 

have a common interest in defending against a collateral attack on the Chisom consent decree 

does not mean that both parties will agree on how the decree should be defended. Even if the 

State of Louisiana shared the same objective as the Chisom intervenors, the proceedings below 

amply demonstrate that there is an "adversity of interests." 

In the proceedings below, the two parties differed on the bases for which a petition for 

rehearing should be granted, which resulted in the Chisom applicants and the State of 

15 



Louisiana having different interpretations of the obligations mandated by the Chisom consent 

judgment. Compare Exhibit "F" (State of Louisiana's Petition for Rehearing) at 2 n.1 (arguing 

that the fact that the Louisiana Legislature reapportioned the Supreme Court Districts 

according to a timetable different from the Chisom consent judgment is not inconsistent with 

the State's obligations under the decree) with Exhibit "G" at 9-11 (arguing that the failure of 

the Legislature to adhere to the timetable set forth in the Chisom consent decree warranted 

rehearing the case). This difference of interpretation prompted the Chisom applicants to file 

an objection with the United States Department of Justice to new legislation submitted by the 

State of Louisiana with the intent of replacing Act 512, the subject matter of this litigation. See 

Exhibit "I" (letter of Victor A. Bolden, attorney for Chisom plaintiffs, to the Hon. Isabelle Katz 

Pinzler, Acting Assistant Attorney General for Civil Rights, dated October 15, 1997). Given 

this set• of facts, the State of Louisiana cannot fairly be said to represent the interests of the 

Chisom applicants adequately. 

Conclusion  

For the foregoing reasons, the proposed Chisom intervenors urge this Court to permit 

them to intervene in this matters as appellees. 

Respectfully submitted, 

P. Quigley 
niversity S 

t. Charles Av 
New Orleans, LA 70118 
(504) 861-5590 

Elaine R. Jones 
Director-Counsel 

16 



Norman J. Chachkin 
Charles Stephen Ralston 
Victor A. Bolden 
Jacqueline A. Berrien 
NAACP Legal Defense & Educational 
Fund, Inc. 
99 Hudson Street 
Suite 1600 
New York, New York 10013 
(212) 219-1900 

Ronald L. Wilson 
837 Gravier Street 
New Orleans, LA 70113 
(504) 586-1241 

Counsel for Proposed Appellee-
Intervenors 



CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing MOTION TO INTERVENE AS 

APPELLEES AND MEMORANDUM OF LAW IN SUPPORT OF MOTION TO 

INTERVENE, have been served by depositing same in the United States mail, first class 

postage prepaid, on this March\ 1998, addressed to the following: 

2\ Clement F. Perschall, Jr., Esq. 
One Galleria Boulevard 
Galleria One, Suite 1107 
Metarie, Louisiana 70001 
Telephone: (504) 836-5975 

Richard P. Ieyoub 
Attorney General, State of Louisiana 
State Capitol 
P.O. Box 94005 
Baton Rouge, Louisiana 70804-9005 

Robert McDuff, Esq. 
767 N. Congress Street 
Jackson, Mississippi 39202 
Telephone: (601) 969-0802 

Peter Butler (Bar# 3731)-T.A. 
Peter J. Butler, Jr. (Bar# 18522) 
Richard G. Passler (Bar# 21006) 
LL&E Tower, Suite 2400 
909 Poydras Street 
New Orleans, Louisiana 70112 
Telephone: (504) 584-5454 

Tyron D. Picard (Bar# 20473) 
Mark Stipe (Bar# 19803) 
Petroleum Tower, Suite 330 
3639 Ambassador Caffrey Parkway 
Lafayette, Louisiana 70503 
Telephone: (318) 983-0090 



Exhibit List  

Exhibit A 

Exhibit B 

Exhibit C 

Exhibit D 

Exhibit E 

Exhibit F 

Exhibit G 

Exhibit H 

Exhibit I 

Chisom v. Roemer Consent Judgment, dated August 21, 
1992 

Motion To Intervene As Defendants, filed in the 
Eastern District of Louisiana - 

Order and Reasons, dated July 5, 1995 (E.D.La.) 

Motion To Intervene As Defendants, filed in the 
19th Judicial District, East Baton Rouge Parish 

Various orders from the Supreme Court of Louisiana, 
listing the Chisom plaintiffs as intervenors 

State of Louisiana's Petition of Rehearing, filed 
in the Supreme Court of Louisiana 

Chisom Intervenors' Brief In Support of Application 
for Rehearing 

Chisom Plaintiffs' Supplemental Memorandum of Law 
In Support Motion To Dismiss 

Letter of Victor A. Bolden, Esq. to Hon. Isabelle 
Katz Pinzler, Acting Assistant Attorney General For 
Civil Rights, United States Department of Justice, 
dated October 15, 1997 



FILEC 

;., 

Auc Zi 1 28 hi 1S1 
[A . 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION 

RONALD CHISOM, et al., ) 
) 

Plaintiffs, ) 
) 

UNITED STATES OF AMERICA, ) 

) 
Plaintiff-intervenor, ) 

) 
V. ) 

) 
EDWIN W. EDWARDS, et al., ) 

) 
Defendants, ) 

) 
PASCAL F. CALOGERO, JR., et al. ) 

) 
Intervenors. ) 

 ) 

CONSENT JUDGMENT 

Civil Action No. 
86-4075 

Section A 

The current apportionment of the Louisiana Supreme Court is 

governed by La. Const. Art. V, Section 4 and La. Rev. Stat. 

Section 13:101. Under Section 13:101, Orleans Parish is 

contained within the multimember First Supreme Court district 

along with Jefferson, Plaquemines, and St. Bernard Parishes. 

The Chisom plaintiffs and the United States claim that the 

multimember district system for electing justices of the 

Louisiana Supreme Court in the First Supreme Court District 

(first district) dilutes black voting strength in violation of 

Section 2 of the Voting Rights Act of 1965 as amended, 42 U.S.C. 

1973 (Section 2], because black citizens have -less opportunity 

than other members of the eleotorate to participate in the 

political process and elect justices of their choice. - In June 

AUG 21 1992 
DATE OF ENTRY  () 



• 
1992, the Louisiana Legislature passed and the Governor signed 

Act No. 512 (S.B. 1255) (1992), which provides, inter alia, for a 

change in the method of electing the Louisiana Supreme Court; for 

the assignment of the judge elected to the newly-cre&ted position 

from the first district (Orleans Parish) of the Fourth Circuit 

Court of Appeal to the Louisiana Supreme Court; and for the 

assigned judge to participate and share equally in the cases and 

duties of the justices of the Supreme Court during this period of 

assignment. The Chisom plaintiffs and the United States contend 

that the provisions contained in Act No. 512 (1992) and in this 

Consent Judgment are necessary to bring the system for electing 

the Louisiana Supreme Court into compliance with Section 2. 

While the defendants do not agree with this contention and only 

enter into this compromise agreement to resolve extensive and 

costly litigation, they believe that the relief contained in this 

consent judgment will ensure that the system for electing the 

Louisiana Supreme Court is in compliance with Section 2 of the 

Voting Rights Act. 

Accordingly, the parties to this litigation desire to effect 

a settlement of the issues raised by the complaint and subsequent 

proceedings without the necessity of further litigation, and 

therefore consent to entry of the following final and binding 

judgment as dispositive of all issues raised in this case: 



S 

It is hereby ORDERED, ADJUDGED, & DECREED: 

A. The Court has jurisdiction over the parties and claims 

in the complaint, under 28 U.S.C. 1331, 1343(3), and 1343(4). 

B. The relief contained in this consent judgment will 

ensure that the system for electing the Louisiana Supreme Court 

is in compliance with Section 2 of the Voting Rights Act. 

C. Consistent with Louisiana Act No. 512 (1992) and the 

remedial objectives of the Voting Rights Act, the defendants 

shall take the following actions: 

1. There shall be a Supreme Court district comprised 

solely of Orleans Parish, for the purpose of electing a 

Supreme Court justice from that district when and if a 

vacancy occurs in the present First Supreme Court District 

prior to January 1, 2000. 

2. There shall be one new Fourth Circuit Court of 

Appeal judicial position. This additional judge shall be 

elected from the first district of the Fourth Circuit, which 

is comprised of Orleans Parish. The initial election t 

fill this position will be held on the congressional .primary 

election date of October 3, 1992, and, if necessary, a 

runoff election shall be held on November 3, 1992. The 

candidate filing period for this election shall be set by 

the Governor of Louisiana. The term of office shall 

commence on January 1, 1993. The Louisiana Supreme Court 

shall assign the judge elected to fill this new position 

3 



I. 

immediately. to the Louisiana Supreme Court pursuant to its 

authority under La. Const. Art. V, Section 5(A). 

3. The Fourth Circuit Court of Appeal judge assigned 

to serve on the Supreme Court shall receive the same 

compensation, benefits, expenses, and emoluments of offices 

as now or hereafter are provided by law for a justice of the 

Louisiana Supreme Court. 

4. The Fourth Circuit Court of Appeal judge assigned 

to serve on the Supreme Court shall participate and share 

equally in the cases, duties, and powers of the Louisiana 

Supreme Court. Specifically, the assigned judge and the 

seven Supreme Court justices shall be assigned on a rotating 

basis to panels of seven judges, and the Court's cases shall 

be assigned randomly to the seven-judge panels for decision. 

The assigned judge and the seven Supreme Court justices 

shall participate fully and share equally in all other 

duties and powers of the Supreme Court, including, but not 

limited to, those powers set forth by the Louisiana 

Constitution, the laws of Louisiana, and the Louisiana Rules 

of Court. 

5. The additional judicial position for the Fourth 

Circuit Court of Appeal described in paragraphs C.2.-C.4. of 

this Consent Judgment shall expire automatically on the date 

that a justice takes office subsequent to being elected in 

any election called from a Supreme Court district composed 



of Orleans Parish in accordance with paragraphs C.1. and 

C.7. of this Consent Judgment. 

6. If the additional judicial position for the Fourth 

Circuit Court of Appeal described in paragraphs C.2.-C.4. of 

this Consent Judgment becomes vacant for any reasons prior 

to the expiration of that seat in accordance with paragraph 

C.5. of this judgment, the Governor shall call a special 

election to fill that position so that the special election 

coincides with the next regularly scheduled presidential, 

gubernatorial, congressional, New Orleans mayoral, state 

legislative, New Orleans city council, or Orleans Parish 

school board election that occurs within 12 months following 

the date on which the vacancy occurs, provided that there 

shall be a minimum of 60 days between the call of the 

election and the election date. The Louisiana Supreme Court 

shall assign the judge elected to fill a vacancy in this 

judicial position immediately to the Louisiana Supreme Court 

pursuant to its authority under La. Conste Art. V, Section 

5(A), and the provisions of paragraphs C.3.-C.5. of this 

Consent Judgment shall govern the judge's tenure on the 

Louisiana Supreme Court. 

7. If a vacancy occurs in the presently existing 

First Supreme Court District for any reason prior to January 

1, 2000, the vacant first district Supreme Court position 

shall be assigned immediately to the Supreme Court district 

described in paragraph C.1. of this Consent Judgment that is 



composed solely of Orleans Parish. The Governor shall call 

a special election to fill the vacant position to coincide 

with the next regularly scheduled presidential, 

gubernatorial, congressional, New Orleans mayoral, state 

legislative, New Orleans city council, or Orleans Parish 

school board election that occurs within 12 months following 

the date on which the vacancy occurs, provided that there 

shall be a minimum of 60 days between the call of the 

election and the election date. 

8. Legislation will be enacted in the 1998 regular 

session of the Louisiana Legislature which provides for the 

reapportionment of the seven districts of the Louisiana 

Supreme Court in a manner that complies with the applicable 

federal voting law, taking into account the most recent 

census data available. The reapportionment will provide for 

a single-member district that is majority black in voting 

age population that includes Orleans Parish in its entirety. 

The reapportionment shall be effective on January 1, 2000, 

and future Supreme Court elections after the effective date 

shall take place in the newly reapportioned districts. 

D. The State of Louisiana agrees to seek preclearance from 

the Attorney General, pursuant to Section 5 of the Voting Rights 

Act of 1965, 42 U.S.C. 1973c, in a timely manner for all changes 

affecting voting covered by Section 5 that are necessary to 

effectuate a full remedy and comply with this consent judgment. 



• 
E. Defendants agree that, in order to comply with the 

Voting Rights Act, and in order to ensure black voters in the 

Parish of Orleans have an equal opportunity to participate in the 

political process and to elect candidates of their choice, the 

Chisom plaintiffs and the United States are to be considered the 

prevailing parties in this litigation. However, attorneys fees 

and costs of litigation shall not be awarded in this matter 

against parties who have intervened at any point in the 

litigation. 

F. This judgment is a restructuring of the Supreme Court 

of Louisiana by federal court order within the meaning of Act No. 

1063 of 1991 (R.S. 11:558(A)(5)), and the benefits of R.S. 

11:558(A)(5)(a)(ii) shall be available to the current members of 

the Court. 

G. The Chisom plaintiffs' constitutional claims under the 

Fourteenth and Fifteenth Amendments, as well as their statutory 

claim alleging that the present electoral system violates Section 

2 because it was intentionally, enacted or maintained for 

discriminatory reasons, are hereby dismissed with prejudice. 

H. This consent judgment constitutes a final judgment of 

all claims raised in this action by the Chisom plaintiffs and the 

United States, and is binding on all parties and their successors 

in office. 

I. This consent judgment shall not take effect unless and 

until all changes affecting voting contained in Act No. 512 



S 
(1992) receive the requisite preclearance, pursuant to Section 5 

of the Voting Rights Act. 

•J. The parties agree to take all steps necessary to 

effectuate this decree. 

K. The Court shall retain jurisdiction over this case until 

the complete implementation of the final remedy has been 

accomplished. 

1/ 4 
This Consent Judgment is approved and entered this:744-11' 

day of  1414-, 1992. 

UNITED STATES DISTRI 4  "11A-j1 



L7/611 
John R. Dunne 
Assistant Attorney General 
Steven H. Rosenbaum 
Donna M. Murphy 
Attorneys, Voting Section 
Civil Rights Division 

United States Department Of Justice 
P. 0. Box 66128 
Washington, D.C. 20035-6128 
(202) 514-6513 

Counsel for Plaintiff—Intervenor—Appellant 
United States of America 

Albert 15ovan,Jr. 
La. Bar Roll No. 17559 
Executive Counsel 
Honorable Edwin W. Edwards 
Governor of Louisiana 
Office of the Governor 
Post Office Box 94004 
Baton Rouge, Louisiana 70804-9004 
(504) 342-0955 

Edwin W. Edw 
Governor of Lou 
Post Office Box 94004 

Baton Rouge, Louisiana 70804-9004 
(504) 342-0955 

Richard P. Ieyoub 
Attorney General of Louisiana 
State Capitol, 22nd Floor 
Post Office Box 94005 

Baton Rouge, Louisiana 70804-9005 
(504) 342-7013 

By: 

Christina B. Peck 
Assistant Attorney General 



George M. Strickler, Jr. 
639 Loyola Avenue, Suite 1075 
New Orleans, Louisiana 70113 
(504) 581-4346 

M. Allen Stroud 
Mitchell J. Landrieu 
400 Poythas Street, Suite 2500 
New Orleans, Louisiana 70130 
(504) 566-0600 

By:/41 

Counsel for Intervenor 
Honorable Pascal F. Calogero, Jr. 
Chief Justice, Supreme Court of Louisiana 

Peter J. Bu , S 
601 Poydras Street, Suite 2440 
New Orleans, Louisiana 70130-6036 
(504) 523-2800 

Counsel for Intervenor 
Honorable Walter F. Marcus 
Associate Justice, Supreme Court of Louisiana 

W. Fox McKeithen 

c t4ry of tat 
in/I Minis rial Capacity as 
Se  

Je Fowle 
in his Ministerial Capacity as 
Cornrnissioei of Elections 

By: 



The parties agree to entry of this Consent Judgment by the 

Court. 

William P. Quigley 
901 Convention Center Blvd. 
Fulton Place, Suite 119 
New Orleans, Louisiana 70130 
(504) 524-0016 

Julius L. Chambers 
Charles Stephen Ralston 
Dayna L. Cunningham 
Sherrilyn F. Ifill 
99 Hudson Street 
16th Floor 
New York, New York 10013 
(212) 219-1900 

Pamela S. Karlan 
University of'Virginia School of Law 
Charlottesville, Virginia 22901 
(804) 924-7810 

Roy J. Rodney, Jr. 
643 Magazine Street 
New Orleans, LA 70130-3477 
(504) 586-1200 

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

„ i9.4e 

Quj. ley / 

Counsel or Plainti s-Appellants, 
Ronald Chisom, Marie Bookman, Walter 
Willard, Marc Morial, Louisiana Voter 
Registration/Education Crusade, and 
Henry A. Dillon, III 



UNIYED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

4'3 

CLEMENT F. PERSHCHALL, JR., 

Plaintiff, 

vs. 

THE STATE OF LOUISIANA, 

Defendant, 

and 

RONALD CHISOM, et al., 

Defendant-Intervenors. 

CIVIL ACTION NO.: 95-1265 

SECTION "A" 

MAGISTRATE: 2 

MOTION TO INTERVENE AS DEFENDANTS 

Ronald Chisom, Marie Bookman, Walter Willard, Henry Dillon, DI, and the Louisiana Voter 

Registration/Education Crusade, move the Court to intervene in the present action as a matter of 

right pursuant to Rule 24(a), and for permissive inervention pursuant to rule 24(b), Fed. Rules Civ. 

Proc., as defendants in this action. In support of this motion they would show the following: 

1. The proposed defendant-intervenors are named plaintiffs in Chisom v. Edwards, E.D. La. 

Civil Action No. 86-4075(A). As such, they were signatories to the Consent Decree that settled that 

case, and are entitled to the benefits of that decree. The consent decree requires that all parties take 

all steps necessary to effectuate the decree. 

2. The present action was filed originally in Louisiana state court for the specific purpose 

of undoing the consent decree entered in Chisom through a collateral attack on Louisiana Act No. 

512 (1992), the legislation enacted by the State of Louisiana that was the basis for the consent 



decree. As recited in the consent decree, a copy of which is filed herewith as Exhibit A to the 

proposed answer of the defendant-intervenors, Act No. 512 was enacted for the specific purpose of 

settling the Chisom case. 

3. If the relief plead for by plaintiff herein is granted, that is, if Act No. 512 is declared to 

be unconstitutional and void, then the consent decree in Chisom will also fall, thereby destroying the 

rights that plaintiff enjoys under that decree. Therefore, the applicants here, as the nained plaintiffs 

in Chisom, have an interest relating to the transaction which is the subject of this action, and the 

disposition of the action may impair or impede their ability , to protect their interest. 

4. The applicants' interest is not adequately represented by the existing parties. Although 

the State of Louisiana, the only named defendant herein, is also a party to the consent decree in 

Chisom, it also represented the defendant in Chisom in that the nominal defendant therein was the 

Governor of the State of Louisiana sued in his official capacity. Thus, the State of Louisiana 

defended against the Chisom action vigorously. It was not until six years after the case was filed and 

after two appeals to the Fifth Circuit and an appeal to the United States Supreme Court that the State 

was finally willing to enter into the Consent Decree that would be destroyed by a verdict by the 

plaintiff in the present case. 

5. Alternatively, intervention should be permitted under Rule 24(b), since the defense of the 

applicants herein and the defense of the defendant have a common question of law and fact, i.e., the 

validity of the Consent-Decree in Chisom. 

6. The present motion to intervene has been filed in a timely fashion, since this action was 

removed to the Middle District of Louisiana on February 27, 1995, and transferred to this Court on 

March 28, 1995. 

WHEREFORE, for the foregoing reasons, the applicants pray that they be permitted to 

2 



intervene as defendants in the above entitled action. Their proposed answer is attached hereto as 

required by Rule 24(c), F. Rules Civ. Proc. 

Respectfully submitted, 

William P. Quigley 
Loyola Law School 
7214 St. Charles 
New Orleans, LA 70118 
(504) 861-5590 

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Charles Stephen Ralston 
NAACP Legal Defense and Educational Fund, 
Inc. 
99 Hudson Street 
Suite 1600 
New York, New York 10013 
(212) 219-1900 

Defendant-Intervenors 



UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

CLEMENT F. PERSHCHALL, JR., 

Plaintiff, 

vs. 

THE STATE OF LOUISIANA, 

Defendant, 

and 

RONALD CHISOM, et at., 

Defendant-Intervenors. 

CIVIL ACTION NO.: 95-1265' 

SECTION "A" 

MAGISTRATE: 2 

4. 

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 2.08 E 

Counsel for the State of Louisiana has no opposition to this intervention. Clement 

Pershchall's consent was requested and he opposes this intervention, therefore this matter is set for 

hearing. 

• 

Respectfully submitted, 

William P. Quigley 
Loyola Law School 
7214 St. Charles 
New Orleans, LA 70118 
(504) 861-5590 

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Charles Stephen Ralston 
NAACP Legal Defense and Educational 



S • 
Fund, Inc. 
99 Hudson Street 
Suite 1600 
New York, New York 10013 
(212) 219-1900 

. 

el for Defendan rvenors 



UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

'CLEMENT F. PERSHCHALL, JR., 

Plaintiff, 

vs. 

THE STATE OF LOUISIANA, 

Defendant, 

CIVIL ACTION NO.: 95-1265 

SECTION "A" 

MAGISTRATE: 2 

and 

RONALD CHISOM, et al., 

Defendant-Intervenors. 

ORDER 

WHEREAS, Ronald Chisom, et al., the plaintiffs in Chisom v. Edwards, Civil Action 

No. 86-4075(A) have moved to intervene as defendants in this action; and 

WHEREAS, the gravaman of the present action is the validity of 1992 Louisiana Act 

512, which formed the basis of the Consent Decree in Chisom v. Edwards; and 

WHEREAS, the resolution of the present case will directly affect the rights of the 

applicants for intdriGition in this case; and 

WHEREAS, the proposed defendant-intervenors have moved for intervention in a timely 

fashion and their intervention would not unduly delay these proceedings. 

IT IS ORDERED that the motion to intervene as defendant-intervenors is granted and that 

the proposed answer of the defendant-intervenors filed with their motion to intervene is deemed 

1 



New Orleans, Louisiana, , 1995. 

CHARLES SCHWARTZ, JR. 
UNITED STATES DISTRICT JUDGE 



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

CLEMENT F. PERSCHALL, JR. 

VERSUS 

THE STATE OF LOUISIANA 

ORDER AND REASONS 

.1 12 19 Fli '95 
• i'ceri: 

CIVIL ACTION 

NO. 95-1265 

SECTION "A" 

Before the Court are the following motions filed in the 

captioned matter which have been submitted on the filings of 

record: 

1. Plaintiff Clement F. Perschall, Jr.'s ("Perschall's") 

Motion to Dismiss for Lack of Jurisdiction; 

2. Defendant the state of Louisiana's ("the State's") 

Motion to Dismiss; 

3. Motions to Intervene filed on behalf of the United 

States, Jacqueline Carr, Ronald Chisom, Marie Bookman, Walter 

Willard, Henry Dillon, III, and the Louisiana Voter 

Registration/Education Crusade. 

I. PROCEDURAL BACKGROUND: 

On January 2, 1995, plaintiff Clement Perschall, Jr., filed a 

"Petition for Declaratory Judgment on the Constitutionality of 

" do. ••••••• pr. ow • .no 

a/ ;••• • mi. • 

• 

- 

TEE 
PROCE 

x cRCE 

iNDEx 

N•_et,P:.:-7.:". Kr. 
117Z7.+IrnS 

an. 



Louisiana Acts 1992, No. 512" 1 in the Nineteenth Judicial District 

for the Parish of East Baton Rouge. Distilled to its essence, 

plaintiff's petition seeks a ruling declaring the aforesaid 

Louisiana Act unconstitutional both as a violation of the Louisiana 

Constitution and the Constitution of the United States. 

Plaintiff's allegations are more particularly that: (1) 

La.Rev.Stat. 13: 312.4 as amended by Louisiana Acts 1992, No. 512 

which in effect creates an eighth seat on the Louisiana Supreme 

Court violates Article 5 Section 3 of the Louisiana Constitution of 

1974 which provides that the Louisiana Supreme Court shall be 

composed of a chief judge and six associated justices; (2) 

La.Rev.Stat. 13:312.4 as amended constitutes a violation of Article 

3 Section 12 of the Louisiana Constitution of 1974 insofar as it 

constitutes an attempt to legalize an unauthorized and invalid act 

by the State and to temporarily suspend the provisions of law; (3) 

Acts 1992, No. 512 amending La.Rev.Stat. 13:312.4 constitutes a 

violation of Section 13, Article 3 of the 1974 Louisiana 

Constitution in that its notice requirements were never met prior 

to the passage of Senate Bill 1255; and (4) Acts 1992, No. 512 

amending La.Rev.Stat. 13:312.4 violates the Fourteenth Amendment of 

the United States Constitution and Section 2, Article 1 of the 

'Louisiana Act 512 of 1992 provides at 5312.4 for the 
establishment of a temporary additional judgeship for the Louisiana 
Fourth Circuit Court of Appeal to be elected from the first 
district of the Fourth Circuit which is comprised of Orleans Parish 
and pursuant to its authority under Article V, Section 5(A) of the 
of the Louisiana Constitution the Louisiana Supreme Court assigned 
such official elected to fill the newly created position on the 
Fourth rArr.11 41. to the T^" 4 ": Czurt. Azt :12 4-,Z 12 
Louisiana Legislature was signed into law on June 22, 1992. 

2 



Louisiana Constitution in that the enactment constitutes a denial 

of petitioner's right to vote, petitioner's ability to practice 

law, etc., all of which are guaranteed by the United States 

Constitution and the Constitution of the State of Louisiana and 

thus, should be declared, unconstitutional on all counts and void ab 

initio. See Plaintiff's Petition (Rec.Doc.No. 1, Exhibit "2"]. 

On February 27, 1995, defendant the State of Louisiana 

pursuant to 28 U.S.C. S 1441 filed a Notice of Removal stating that 

the United States District Court for the Middle District of 

Louisiana has original jurisdiction under 28 U.S.C. 51331 in that 

plaintiff's claim arises under the Fourteenth Amendment of the 

United States Constitution. Plaintiff's motion to dismiss/remand 

is premised on his contentions that: (1) the Court lacks subject 

matter jurisdiction over the entire •case because as original 

defendant, the State of Louisiana has not waived sovereign immunity 

under the Eleventh Amendment; (2) abstention is required under the 

pleadings as this case is basically a state matter; and (3) venue 

is improper in the Eastern District of Louisiana. See Plaintiff's 

Motion to Dismiss for Lack of Jurisdiction and Memorandum in 

Support; and Memorandum in Opposition to Jacqueline Carr's Motion 

to Intervene. 

II. ANALYSIS: 

The Pullman doctrine of abstention authorizes a federal court 

to abstain when adjudication of a federal constitutional issue can 

be avoidd by a deteiluinaliou oi state law whie;1 

3 



addressed by a state court. Railroad Comm'n of Texas v. Pullman 

Co., 312 U.S. 496, 498-500 (1941). Pullman abstention is addressed 

to the inappropriateness of federal court resolution of difficult 

or unsettled questions of state law and the undesirability of 

reaching federal constitutional questions that might be mooted by 

application of state law. Word of Faith World Outreach Center v.  

Morales, 986 F.2d 962, 967 (5th Cir. 1993). It involves a 

discretionary exercise of a Court's equity powers. Baggett V.  

Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377 

(1964). 

As the state's supreme court is the ultimate authority and is 

not bound by the federal court's ruling on the state law issues, a 

ruling by the federal court in a case such as the present one would 

be nothing but a forecast. pullman, 312 U.S. at 499-500. 2 

• . 
Moreover, a contrary decIslon by the state court may obviate the 

need for a federal constitutional ruling. In such circumstances an 

initial review by a federal court would create delay and waste 

judicial resources. 

As previously detailed at length, this removed/transferred 

declaratory judgment action presents this Court with claims that 

'Underlying the Supreme Court's order of abstention in Pullman 
is an emphasis on comity. Respect for the expertise of a state's 
judicial system in construing state statutes pervades the majority 
opinion. It is the combination of unresolved state law issues with 
the presence of a federal constitutional claim which makes the 
present case analogous to ?unman. Justice Frankfurter, writing 
for the Pullman Court, described the driving force behind the 
abstention doctrine as follows: "[Fiederal courts, 'exercising a 
wise discretion', restrain their authority because of a 'scrupulous 
regard fer the rightful independence of the state twrant.N1 4,1A 
tor the smooth working of the federal judiciary." 312 U.S. at 501. 

4 



• 

Louisiana Act 1992, No. 512 offends the Louisiana Constitution of 

1974 as well as other Louisiana statutory provisions. But for one 

count in the plaintiff's petition referencing the Fourteenth 

Amendment to the Constitution of the United States, state law 

issues dominate this matter. A state court's determination that 

Act 512 violates Louisiana law would in all likelihood moot or 

substantially alter the plaintiff's single federal constitutional 

claim. Moreover, in light of the state courts' final authority to 

interpret doubtful state laws, a ruling by this Court as to the 

state law issues would constitute merely a tentative decision 

subject to prompt displacement by a state adjudication. On the 

other hand, submitting the plaintiff's novel state law claims to 

the expertise of a Louisiana court would respect the values of 

federalism highlighted in Pullman' by avoiding premature 
y 

constitutional adjudication, needless friction with state policies, 

and decision on unsettled questions of state law better resolved by 

state courts. 

By abstaining from deciding the state constitutional issues, 

the Court does not undermine the substantial federal interest in 

determining the constitutionality of Act 512. Such an interest 

clearly exists since the validity of the Consent Judgment entered 

by this Court in the Chisom case rests on a determination of the 

viability of the aforesaid act under the Louisiana Constitution. 

However, since any judgment of this Court in that respect would 

constitute merely a prediction, the net result would be to delay 

final rennlntinn of the. state law ,monstitutional icsues. 

5 



Amendment claim which this Court retains and stays pending 

resolution of the state law issues by the Louisiana courts. 

Finally, this Court will abstain from ruling on the state's Motion 

to Dismiss and the Motions to Intervene insofar as they relate to 

the state law issues, as such motion should be addressed by the 

Nineteenth Judicial District for the Parish of East Baton Rouge, 

Louisiana. Accordingly, 

IT IS ORDERED that the state law issues set forth in the 

plaintiff's Petition for Declaratory Judgment be and hereby are 

REMANDED to the Nineteenth Judicial District for the Parish of East 

Baton Rouge, Louisiana. 

IT IS FURTHER ORDERED that as to the single federal 

constitutional claim this Court shall retain jurisdiction over 

same, however, the Court STAYS further proceedings in this Court 

pending resolution of the state law issues by the Louisiana courts. 

IT IS FURTHER ORDERED that counsel for the parties shall 

promptly advise this Court of any resolution of the state law 

claims by the Louisiana courts and if and when appropriate, move to 

lift the stay of these proceedings and return this case to the 

Court's active docket. 

IT IS FURTHER ORDERED that the case, now consisting of only 

the solo federal constitutional claim is administratively closed. 

New Orleans, Louisiana, thist.:5 day of July, 1995. 

4,4t, 
'UNITED STATES DfS ICT CO 

7 



-1 

NUMBER: 413-714 

- Cr) 
- --FI 

DEPUTY CLERK 
***ep***************************************************************************** 

19TH JUDICIAL DISTRICT COURT 

• FOR THE PARISH OF EAST BATON ROUGE 

STATE OF LOUISIANA 

DIVISION A DOCKET NUMBER 

CLEMENT F. PERSCHALL, JR. 

VERSUS 

STATE OF LOUISIANA 

MOTION TO INTERVENE AS DEFENDANTS 

Rqoald Chisom, Marie Bookman, Walter Willard, Henry Dillon, III, and the Louisiana Voter 
CD t•-• 

Registration/Education Crusade, through undersigned counsel, move the Court to intervene in the •-

▪ present action pursuant to the Louisiana Code of Civil Procedure, Articles 1031 et seq., particularly 

•••••••••• 

Article 1.091(2) as defendants in this action. In support of this motion they would show the 
t.: 

< e-, 
6t-91 figtOWthg: 

119 

r. The proposed defendant-intervenors are named plaintiffs in Chisom v. Edwards, E.D. La. 

U.S.D.C. Civil Action No. 86-4075(A). As such, they were signatories to the Consent Decree that 

settled that case, and are entitled to the benefits of that decree. The consent decree requires that all 

parties take all steps necessary to effectuate the decree. 

2. The present action was filed originally in Louisiana state court for the specific purpose 

of undoing the consent decree entered in Chisom through a collateral attack on Louisiana Act No. 

512 (1992), the legislation enacted by the State of Louisiana that was the basis for the consent 

decree. As recited in the consent decree, a copy of which is filed herewith as Exhibit A to the 

proposed answer of the defendant-intervenors, Act No. 512 was enacted for the specific purpose of 

settling the Chisom case. 

3. If the relief plead for by plaintiff herein is granted, that is, if Act No. 512 is declared to 

be unconstitutional and void, then the consent decree in Chisom will also fall, thereby destroying the 

rights that plaintiff enjoys under that decree. Therefore, the applicants here, as the named plaintiffs 

in Chisom, have an interest relating to the transaction which is the subject of this action, and the 

disposition of the action may impair or impede their ability to protect their interest. 

4. The applicants' interest is not adequately represented by the existing parties. Although 

1 



the State of Louisiana, the only named defendant herein, is also a party to the consent decree in 

Chisom, it also represented the defendant in Chisom in that the nominal defendant therein was the 

Governor of the State of Louisiana sued in his official capacity. Thus, the State of Louisiana 

defended against the Chisom action vigorously. It was not until six years after the case was filed and 

after two appeals to the Fifth Circuit and an appeal to the United States Supreme Court that the State 

was finally willing to enter into the Consent Decree that would be destroyed by a verdict by the 

plaintiff in the present case. 

5. Alternatively, intervention should be permitted since the defense of the applicants herein 

and the defense of the defendant have a common question of law and fact, i.e., the validity of the 

Consent Decree in Chisom. 

6. The present motion to intervene has been filed in a timely fashion and will not retard the 

progress of the principal action. Intervenors have tried to intervene in this matter already in federal 

court but their intervention was delayed while the federal court decided whether to retain jurisdiction. 

WHEREFORE, for the foregoing reasons, the applicants pray that they be permitted to 

intervene as defendants in the above entitled action. 

Respectfully submitted, 

William P. Quigley #7769 
Loyola University New Orleans 
School of Law 
7214 St. Charles 
New Orleans, LA 70118 
(504) 861-5590 

Ronald L. Wilson 
18th Floor, • 210 Baronne 
New Orleans, LA 70112 
(504) 525-4361 

Walter Willard 
1100 Poydras, Suite 2150 
New Orleans, LA 70163-2150 
(504) 568-0541 

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Charles Stephen Ralston 
Jacqueline Berrien 
NAACP Legal Defense and Educational Fund, 
Inc. 
99 Hudson Street 
Suite 1600 
New York, New York 10013 
(212) 219-1900 

illiam P. Quigley 

Counsel for Defendant-Intervenors 



CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing pleadings have been served by depositing 

same in the United States mail, first class postage prepaid, on this  I '2_ of 

19, addressed to the following: 

Richard P. Ieyoub 
Attorney General of Louisiana 
State Capitol, 22nd Floor 
Post Office Box 94005 
Baton Rouge, LA 70804-9005 

Peter J. Butler 
Peter J. Butler, Jr. 
Special Counsel for the State of Louisiana 
755 Magazine Street 
New Orleans, LA 70130-3672 

Robert McDuff 
771 N. Congress St. 
Jackson, MS 39202 

Tyron D. Picard & Mark Stipe 
Petroleum Tower, Suite 330 
3639 Ambassador Caffrey Parkway 
Lafayette, LA 70503 

Clement F. Perschall, Jr. 
One Galleria Boulevard 
Galleria One, Suite 1107 
Metairie, LA 70001 

WILLIAM P. QUIGL 



PASCAL F. CALOGERO, JR. 

CHIEF JUSTICE 

JOHN TARLTON OLIVIER 

CLERK. OF COURT 

uprznir anurt 
STATE OF LOUISIANA 

Priv( (Orleans 

Newember 8, 1996 

96-CC-0322 CLEMENT F. PERSCHALL, JR. v. THE STATE OF 
LOUISIANA 

On Supervisory Writs to thee Court of Appeal, 

Finst Circnit No. 96 CW 0301; Parish of 
East Baton Ronge Nn. 41.1 :714 W.,r. P. 7^.sta.r 
Sanders Judge presiding. 

DOMENGEAUX & WRIGHT 
Tyron David Picard; 

PICARD & STIPE 

Mark Edward Stipit; 

DEUTSCH, KERRIGAN & STLLES 

Peter J. Butler, Peter J. Butler, Jr. 
Richard Gary Passler; 
Robert McDuff; 
Counsel for Applicaat. 

Clement F. Perschall, Jr.; 

LEMLE & KELLEHER 
Walter Ignatius Willard; 
Ronald Earle Wilson; 
LOYOLA LAW SCHOOL 

William Patrick Quigley; 
Jacqueline Carr; 

NAACP LEGAL DEFENSE ED. FUND 
Charles Stephen Ralston, 
Theodore M. Shaw, 
Eiaine k. doaes; 

Counsel for Respondent. 

NOTE: FOR BRIEFING PURPOSES WRIT GRANTED November 8, 1996  

MEMORANDUM TO COUNSEL IN CAPTIONED CASE: 

i0v 1.2 1996 

301 LOYOLA AVE., 70112 

TELEPHOME 504-568-5707 

Please note Section 8 of Rule VII of the Rules of thi3 Court (as revised 

November 19, 1991) provides that the amlicant(s) or relator (s), as the 
case may be, must file brief(s) within L5 dais_ and the respondent(s) 
within 45 days, respectively, from the date of the granting of this 
writ. Briefs should be timely filed if oral argument is desired.  

Briefs submitted on legal sized paper should be fastened at the top.  

All briefs should be backed with the customary "Blueback" or other 
flexible material. In criminal proceedings, the Court directs that 

counsel must file a brief. Failure to do so may subject counsel to a 

penalty of contempt of Court. 

It is further provided in Rule VII, Section 9 that briefs sent through 

the mail shall be deemed timely filed if mailed on or before the due 
date. If the brief iz eciv h7 mail on f4irst lupl 8,%y 
the expiration of the delay, there shall be a rebuttable presumption 

that it was timely filed. In all cases where the presumption does not 

apply, the timeliness of the mailing shall ba shown only by an official 
United States postmark or by official receipt or certificate from the 
United States Postal Service made at the time of mailing which indicates 

the date thereof. Therefore, if your brief is sent by certified mail, 

you may want to send us a copy of your official receipt showing date of 
mailing. 

rlton Olivier 

Court 

JTO:rd 



• 
SUPREME COURT OF LOUISIANA 

No. 96-CC-0322 

CLEMENT F. PERSCHALL, JR. 

Versus 

THE STATE OF LOUISIANA 

ORDER* 

This i an action for declaratory judgment which was filed in the 19th 

Judicial District Court for East Baton Rouge Parish. Plaintiff seeks to have La. 

Acts 1992, No. 512, declared unconstitutional as violative of the federal and state 

constitutions. 

Act 512 established a temporary additional judgeship for the Court of 

Appeal, Fourth Circuit, to be elected from Orleans Parish, and further provided for 

the Supreme Court of Louisia.:a assign iliat judge to the Supreme Court under 

the assignment authority in La. Const. art. V, §22. Act 512, in effect, reconstituted 

the Supreme Court in accordance with the consent decree, dated August 21, 1992, 

in Chisom v. Edwards, No. 86-4075 on the docket of the United States District 

Court for the Eastern District of Louisiana. . 

The State removed the action to the United States District Court for the 

Middle District of Louisiana, who transferred the action to the court that had issued 

the consent decree. 

*Calogero, C.J., and Marsus and Johnson, recused. 



On plaintiff's motion to remand the action to the state court, the federal court 

remanded "the state law issues" to the state court. Applying the doctrine of 

Railroad Comm'n of Tx. v.  Pullman Co., 312 U.S. 496 (1941), the federal court 

noted the inappropriateness of its resolving unsettled questions of state law and the 

undesirability of reaching federal constitutional questions that might be mooted by 

application of state law. 

On plaintiffs motion for reconsideration, the federal court amended its order, 

retaining jurisdiction over the entirety of the action and remanding to the state court 

solely to decide the issue of the constitutionality of Act 512 under state law. 

After several applications for supervisory writs to this court,' we issued an 

order instructing the parties to file briefs on the issues of (1) whether this court 

should bypass the lower courts in this matter affected with a public interest and (2) 

whether Louisiana courts should respond to the federal court's partial invocation 

of the abstention doctrine. 

Upon revwing the brif:.r-, hv1,-,..;(lerito bynass the lower courts and 

bring up all aspects of the case. This court's supervisory authority under La. 

Const. art. V, §5(A) is plenary, unfettered by jurisdictional requirements, and 

exercisable at this court's discretion. Hainkel v. Henry, 312 So. 2d 867 (La. 1975); 

State Bond Comm'n v. All Taxpayers. Property Owners and Citizens of the State  

of La., 510 So. 2d 662 (La. 1987). Because of the importance of this case to the 

public and to the orderly processes of government, we exercise our supervisory 

jurisdiction and grant certiorari, bringing the entire case up to this court for 

argtiment and decision. 

The case will be set for oral argument on Monday, February 24, 1997 at 2:00 

'The two justices elected in the First Supreme Court District 
and the justice assigned to this court under Act 512 voluntarily 
recused themselves from the case. 



p.m. The clerk will notify the parties of the briefing schedule. 

The court instructs the parties to include the following issues in their briefs: 

1. Should the Louisiana court respond to the federal court's 
remand order if to do so would require rendition of an advisory 
opinion or of a declaratory judgment that will not terminate the 
uncertainty or controversy that gave rise to the proceeding --
that is, a judgment declaring that Act 512 violates the Louisiana 
Constitution unless saved by the federal consent decree?2 

2. Does the federal court's remand order constitute certification of 
a question of Louisiana law to the Supreme Court of Louisiana 
which has discretion to refuse such certified questions from the 
Supreme Court, of the United States and the federal courts of 
appeals? 

3. Does Act 512 violate the Louisiana Constitution? 

November 0, 1996. 

2P, judgment declaring that Act 512 does not violate the 
Louisiana Constitution would leave plaintiff's due process claims 
to be decided by the federal court. 

3 



e*titte (gaud of tilt etat e 01 Ermb34ga 

CLEMENT F. PERSCHALL. JR. 

VS 

THE STATE OF LOUISIANA ' 

In re: State of Louisiana 

applying for Writ of Certiorari 

No. 413,7.14 

No. 96-CC-0322 

on the docket of the 19th Judicial 

District Court for the Parish of East Bai..on Rouge , and 

NO. 96 CW 301 on the docket of the Court of Appeal, First 

Circuit, State of Louisiana. 

And, whereas, the Court has this date, pursuant to Article 5, Section 5, 

of the Constitution of Louisiana, made and issued the following order, to-wit ---

"It is ordered that the writ of review issue; that the District Court and the 

Court of Appeal send up the record in Duplicate of the case; and that counsel for 

all parties be notified." 

Now, therefore, the said District Court and the Court of Appeal is hereby 

commanded, in the name of the State of Louisiana and of this Honorable Court, to 

send up forthwith to this Court, at the City of New Orleans, the record in 

duplicate of the above entitled case. 

Witness the Honorable Justices of the 

Supreme Court of the State of Louisiana, on 

this 8th day of November , in the 

year of Our Lord, One Thousand, Nine 

Hundred and Ninety Six. 

John Tarlton Olivier 
Clerk of Court 



PASCAL F. C.ALOGERO, JR. 

CHIEF JUSTICE 

JOHN TARLTON OLIVIER 

CLERK OF COURT 

cSuprzutz arturt 
STATE OF LOUISIANA 

Mrieztits 

September 5, 1997 

Hon. Richard P.Ieyoub 
Attorney General 
State Capitol 
P.O. Box 94005 
Baton Rouge, La. 70804-9005 

Tyron D. Picard, Esq. 
Mark Stipe, Esq. 
3639 Ambassador Caffrey Pkwy. 
Suite 330 
Lafayette, La. 70503 

301 LOY° Uk AVE., 70112 

TELEPHONE 504-568-5707 

Peter J. Butler, Esq. 
Peter J. Butler, Jr. Esq. 
Richard G. Passler, Esq. 
909 Poydras St., Ste. 2400 
New Orleans, La. 70112 

Robert McDuff, Esq. 
767 N. Congress St. 
Jackson, Ms. 39202 

In Re: Clement Perschall vs. State of Louisiana 
No. 96-CC-0322 

Dear Counsel: 

Enclosed please find a News Release documenting this court's denial 
of the applications for rehearing, in the above entitled referenced 
case. 

This judgment is now final. By copy of this letter we are advising 
both the trial court and appellate court of the finality of this 
case and instructing them to do whatever is necessary to implement • 
the judgment. 

With kindest regards, I remain, 

Very truly yours, 

John Tarlton Olivier 
Clerk of Court 

TAD/rd 
ccs: Hon. Robert D. Dwoning 

Hon. Stanley Lemoine 
Hon. Douglas Welborn 
All Counsel 

BY: Theophile A. -Duroncelet 
Deputy Clerk of Court 



S 
Empretne (gaud of Eoutotana 

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 075 

FROM: CLERK OF SUPREME COURT OF LOUISIANA 

On the 5th day of September. 1997, the following action was taken by 
the Supreme Court of Louisiana in the case(s) listed below: 

REHEARING DENIED:  

96-CC- 0322 CLEMENT F. PERSCHALL, JR. v. THE STATE OF LOUISIANA 
(Parish of East Baton Rouge) 
Three Applications 
CALOGERO, MARCUS & JOHNSON recused. 
PITCHER, J. - would grant the application of the State 
of Louisiana and the Intervenors, Ronald Chisom, et al. 

p. 1 of 1 page) 



• 
!,(1$ 

htt, r E13 1 0 1997 

PASCAL F. CALOGERO, JR. 

CHIEF JUSTICE 

JOHN TARLTON OLIVIER. 

CLERK OF COURT 

$uprentr enurt 
STATE OF LOUISIANA 

!Girl Mritanz 

February 5, -1997 
301 LOYOLA AVE.. 70112 

TELEPHONE 504-568-5707 

96-CC-0322 CLEMENT F. PERSCHALL, JR. VS. THE STATE 0 OUISIANA 

On Supervisory Writs to the Court of Appeal, First 
Circuit Number CW96 0301; Parish of East Baton Rouge 
19th Judicial District Court Number 413,714 Division 
"A", Hon. Foster Sanders, Judge presiding 

COUNSEL FOR APPLICANTS 
Richard Ieyoub, Attorney General 
PICARD & STRIPE 
Mark E. Stripe, Tyron D. Pichard; 
BREAZEALE, SACHSE & WILSON 
Peter J. Butler, Peter J. Butler, Jr., 
Richard G. Passler; 
Robert McDuff; 

FOR RESPONDENT 
Clement F. Perschall, Jr; 

FOR INTERVENORS 
LEMLE & KELLEHER 
Walter I. Willard; 
Ronald E. Wilson; 
Loyola Law School, 
William P. Quigley; 
NAACP LEGAL DEFENSE EDUCATIONAL FUND, 
Charles S. Ralston, Theodore M. Shaw, 
Elaine R. Jones, Norman J. Chachkin, 
Victory A. Bolden, Jacqueline A. Berrier; 
Jacqueline Carr; 

MEMORANDUM TO COUNSEL IN CAPTIONED CASE: RECORD LODGED 02/05/97  

Very truly yours 

John Tarlton Olivie 
Clerk of Co rt jl 

By: Theophile A. Duroncelet 
Deputy Clerk of Court 

TAD/m1m 



PASCAL F. CALOGERO, JR. 
CHIEF JUSTICE 

JOHN TARLTON OLIVIER 
CLERK OF COURT 

Suprrnte Court 
STATE OF LOUISIANA 

ki Mrteztits 

July 18, 1997 

William Patrick Quigley Esq. 
LOYOLA LAW SCHOOL 
7214 St. Charles Ave. 
New Orleans LA 70118 

In Re: Perschall, Clement F., Jr. 
vs. State of Louisiana 

No: 96-CC- 0322 

Dear Counsel: 

RECO JUL 2 4 1997 

301 LOYOLA AVE., 70112 

TELEPHONE 504-568-5707 

This is to advise that the Court took the following action on your 
Motion for Time to Supplement Brief, filed in the above entitled 
matter: 

"Defendant - Intervenors motion for an additional 15 
days to supplement their brief is granted." 

With kindest regards, I remain, 

JTO:mlb 
ccs: Clement F. Perschall, Jr. 

Mark Edward Stipe Esq. 
Peter J. Butler Jr., Esq. 
Robert McDuff, Esq. 
Jacqueline Carr, Pro Se 
Walter Ignatius Willard Esq. 
Theodore M. Shaw, Esq. 
Norman J. Chachkin, Esq. 
Victor A. Bolden, Esq. 
Jacqueline A. Berrien, Esq. 

Very truly yours, 

• 

lton Olivier 
Court 

Tyron David Picard Esq. 
Peter J. Butler Esq. 
Richard Gary Passler Esq. 
Hon. Richard P. Ieyoub 
Ronald Earle Wilson Esq. 
Elaine R. Jones, Esq. 
Charles Stephen Ralston, Esq. 
Jacqueline A. Berrier, Esq. 
Charles S. Ralston, Esq. 
Jacqueline Berrien, Esq. 

Court of Appeal, First Circuit, Number CW96 0182 
19th Judicial District Court Div."A" Number 413,714 



S. • 
tupreme Tout of Eoutstana 

MONDAY, FEBRUARY 24, 1997  

2:00 P.M. SESSION 

(CHIEF JUSTICE CALOGERO AND JUSTICES MARCUS AND JOHNSON RECUSED) 

96-CC-0322 Clement F. Perschall, Jr. v. The State of Louisiana 

ON SUPERVISORY WRITS 

Richard P. Ieyoub, Attorney General, 
Picard & Stipe, 
Mark Edward Stipe, Tyron David Picard; 
Breazeale, Sachse & Wilson, 
Peter J. Butler, Peter J. Butler, Jr., 
Richard Gary Passler; 
Robert McDuff; 
For Applicant. 

Clement F. Perschall, Jr.; 
For Respondent. 

Lemle & Kelleher, 
Walter Ignatius Willard; 
Ronald Earl Wilson; 
Loyola Law School, 
William Patrick Quigley; 
NAACP Legal Defense Educational Fund, 
Charles Stephen Ralston, Theodore M. Shaw, 
Elaine R. Jones, Norman J. Chachkin, 
Victory A. Bolden, Jacqueline A. Berrier; 
Jacqueline Carr; 
For Intervenors. 

3 



• 
BREAZEALE , SACHSE 8 W ILSON, L.L.R 

GORDON A. PuGH 

JAMES E. TOUPS, JR 

PAUL N. HEBERT, JR.* 

VAN R. MAYHAU... JR.•t 

LEONARD R. NACHMAN. IIP MICHAEL M. WIRPEL 

CLAUDE F. REWAu0. JR. 

muRPHY J. CR111 

'my* R. CASSIDY•t 

ROBERT T. BOWSHER't 

CHRISTINE UPSEY 

DAVID R. KELLY 

CECIL J. BLACHE 

ROBERT L ATKINSON 

DAVID M. CHARLTONt 

DOUGLAS K. WILLIAMS 

STEPHEN F. CHICCARELU 

EMILE C. ROLFS, III 

JOHN E. HEINRICH 

RICHARD D. LEIBOWITZ 

MICHAEL R. HUBBELL 

JOHN W. BARTON, JR. 

JUDE C. BURSAVICH 

JOSEPH E. FRIEND 

PETER J. BUTLER, JR. 

FRANK S. CRAIG. Ills 

JON C. ADCOCK 

LEO C. HAMILTON 

GAYLA M. MONCLA 

STEVEN B. LOEB 

JAMES R. CHASTAIN. JR 

J. MARK ROBINSON 

UNDA P CLARK 

TRENTON J. OUBRE 

JERRY L STOVALL. JR.t 

LUIS A LEITZELAR 

JEANNE C. COMEAUX 

MICHAEL A. CRAwFORD 

ELIZABETH SHERMAN COX 

ANDREW J. HARRISON, JR.. 

MATTHEW M. COURTmAN 

RICHARD 0, PASSLF.11 

W. CHRISTOPHER BEARY 

STEPHEN R. WHALEN 

ANDREW TYRONE McMAINS 

WENDY E. WISEMAN 

CULLEN J. DyPUY 

AVERY LEA GRIFFIN 

JOSEPH P. :T1TONE 

JUUET T. RIZZO 

MICHAEL C. LUOUET 

DAVID S. VOSS 

SEWARD curronco FAMILY LAW SPECIAUST 

*MASTER OF LAWS IN TAXATION 
?BOARD CERTIFIED TAX ATTORNEY 

&ALSO ADMITTED IN TEXAS 
AmASTER OF LAWS IN ENVIRONMENTAL 

ATTORNEYS AT LAW 

LL8E TOWER. SUITE 2400 

909 POYDRAS STREET 

NEW ORLEANS. LOUISIANA 70112 
(504) 584-5454 

FAX (504) 584-5452 

BATON ROUGE OFFICE 

TWENTY-THIRD FLOOR. ONE AMERICAN PLACE 

POST OFFICE BOX 3197 

BATON ROUGE. LOUISIANA 70821-3197 
(504) 387-4000 

FAX (504) 387-5397 

Via By-Hand Delivery  
, Honorable John Tarlton Olivier 

Clerk of Louisiana Supreme Court 
301 Loyola Avenue 
New Orleans, Louisiana 

July 15, 1997 

Re: Clement F. Perschall, Jr. v. The State of Louisiana 
No. 96-CC-0322 

Dear Mr. Olivier: 

H. PAYNE BREAZEALE (ieleem990) 

VICTOR A SACNSE. JR. (I003-1979) 

MAURICE .1. WILSON (19,94990) 

HOPKINS P BREAZEALE. JR. (9 204979) 

SPECIAL COUNSEL 

PETER BUTLER 

OF COUNSEL 

VICTOR A SACNSE. III 

GARY L LABORDE 

Please find enclosed for filing in the above referenced matter an original and nine copies of 
the Application for Rehearing on behalf of the State of Louisiana. 

Pursuant to La. R.S. 13:4521 the State of Louisiana is exempt from the paying of costs and, 
thus, none are enclosed. 

If you have any questions concerning this letter or the enclosed pleading, please do not 
hesitate to contact our office. 

With kindest personal regards, I remain 

Yours very truly, 

PETER. BUTLER 
PJB/lfrn 
Enclosure 



SUPREME COURT FOR THE STATE OF LOUISIANA 

NO. 96-CC:0322 

CLEMENT F. PERSCHALL, JR. 

VERSUS 

THE STATE OF LOUISIANA 

On Grant of Certiorari 

APPLICATION FOR REHEARING 
ON BEHALF OF THE STATE OF LOUISIANA 

Richard P. Ieyoub, 
Attorney General, State of Louisiana 
State Capitol 
P.O. Box 94005 
Baton Rouge, Louisiana 70804-9005 

Peter J. Butler (Bar # 3731) - T.A. 
Peter J. Butler, Jr. (Bar #18522) 
Richard G. Passler (Bar # 21006) 
LL& E Tower, Suite 2400 
909 Poydras Street 
New Orleans, Louisiana 70112 
Telephone: (504) 584-5454 

Tyron D. Picard (Bar #20473) 
Mark Stipe (Bar # 19803) 
Petroleum Tower, Suite 330 
3639 Ambassador Caffrey Parkway 
Lafayette, Louisiana 70503 
Telephone: (318) 983-0090 

Robert McDuff, Esq. 
767 N. Congress St. 
Jackson, Mississippi 39202 
Telephone: (601) 969-0802 

Special Counsel for the State of Louisiana 



NOW INTO COURT, through undersigned counsel, comes the State of Louisiana (the 

"State"), who, pursuant to Rule IX of the Louisiana Supreme Court, moves this Court to grant the 

State a rehearing in this case, and pursuant to Rule a Section 3 of the Louisiana Supreme Court, 

for further time for the filing of a brief in support of this application, all for the reasons set forth 

below: 

1. 

In this case, the Court has declared La. Acts 1992, No. 512 ("Act 512") to be unconstitutional 

in its entirety. 

2. 

Act 512 impacts upon the present composition of the Louisiana Supreme Court and its own 

power of assignment and, thus, upon the entire Louisiana judicial system. 

3. 

In the opinion issued by this Court, it has effectively rewritten Louisiana law and, for the first 

time, authorized the issuance of advisory opinions by the Louisiana judicial system; the effect of 

which may open the proverbial "litigation floodgates" in Louisiana courts. 

4. 

In the opinion issued by this Court, it has also overruled its own precedent that the right and 

power to assign judges to assist courts is "explicit and unfettered." State v. Bell, 392 So.2d 442 (La. 

1981) (citing La. Const. Art. V § 5(A) providing without qualification that this Court "may assign 

a sitting or retired judge to any court"). As stated in Bell by this Court: "all efforts to limit the 

plenary power during the 1973 Constitutional Convention were decisively rejected." 392 So.2d at 

443. 

5. 

In the opinion issued by this Court, it has also overruled its own precedent that the state 

constitution permits a temp-orary addition of several Court of Appeal judges to the Louisiana 

Supreme Court, State v. Petterway, 403 So.2d 1157 (La. 1981). While the dissent in Petterway 

complained that the addition of the Court of Appeal judges had not been authorized by the 

legislature in accordance with the language of Article V, Section 4 -- "by law enacted by two-

thirds of the elected members of each house of the legislature" -- 403 So.2d at 1164 (Redmann J., 

dissenting), the temporary addition of one Court of Appeal judge in the present situation was so 



authorized through Act 512 by over two-thirds of the members of each house of the legislature. See 

State's Original Brief at p. 13. n.9. 

6. 

In accordance with Rule IX Section 3 of the Louisiana Supreme Court, the State requests 

additional time, specifically sixty (60) days, in which to file a brief in support of this application. 

WHEREFORE, the State of Louisiana respectfully requests that this Court grant this 

Application for Rehearing and provide the State of Louisiana sixty (60) days within which to file 

a brief in support hereof. 

Respectfully submitted, 

Richard P. Ieyoub, 
Attorney General, State of Louisiana 
State Capitol 
P.O. Box 94005 
Baton Rouge, Louisiana 70804-9005 

Peter J. Butler (Bar # 3731) - T.A. 
Peter J. Butler, Jr. (Bar #18522) 
Richard G. Passler (Bar # 21006) 
LL&E Tower, Suite 2400 
909 Poydras Street 
New Orleans, Louisiana 70112 
Telephone: (504) 584-5454 

Tyron D. Picard (Bar #20473) 
Mark Stipe (Bar # 19803) 
Petroleum Tower, Suite 330 
3639 Ambassador Caffrey Parkway 
Lafayette, Louisiana 70503 
Telephone: (318) 983-0090 

Robert McDuff, Esq. 
767 N. Congress St. 
Jackson, Mississippi 39202 
Telephone: (601) 969-0802 

BY: 
PETER J. 'BUTLER 

Special Counsel for the State of Louisiana 

2 



CERTIFICATE 

I HEREBY CERTIFY that a copy of the above and foregoing pleading has been forwarded 

to: 

Clement F. Perschall, Jr., Esq. 
One Galleria Boulevard 
Galleria One, Suite 1107 
Metairie, LA 70001 
Telephone: (504) 836-5975 
Counsel for plaintiff, Clement F. Perschall, Jr., pro se 

Jacqueline Can, Esq. 
L.C.I.W. - Post Office Box 26 
St. Gabriel, Louisiana 70776 
Counsel for intervenor, Jacqueline Can, pro se 

William P. Quigley, Esq. 
Loyola University of New Orleans 
School of Law 
7214 St. Charles Avenue 
New Orleans, Louisiana 70118 
Telephone: (504) 861-5590 
Counsel for intervenors, Ronald Chisom, Marie 
Bookman, Walter Willard, Henry Dillon, III, Marc Morial 
and the Louisiana Voter Registration / Education Crusade 

by depositing a copy thereof, postage prepaid, in the United States mail, addressed to them on this 

ISItiti day of July, 1997. 

PETER J. BUTLER 

3 



SUPREME COURT FOR THE STATE OF LOUISIANA 

NO. 96-CC-0322 

CLEMENT F. PERSCHALL, JR. 

VERSUS 

THE STATE OF LOUISIANA 

ORDER 

CONSIDERING the Application for Rehearing on behalf of the State of Louisiana: 

IT IS ORDERED that the Application for Rehearing on behalf of the State of Louisiana be 

and is hereby GRANTED; 

IT IS FURTHER ORDERED that the State of Louisiana be and is hereby GRANTED sixty 

(60) days within which to file a brief in support of its Application for Rehearing. 

New Orleans, Louisiana, this day of , 1997. 

JUSTICE, LOUISIANA SUPREME COURT 

No. 12187 

4 



• 

July 15, 1997 
Page 2 

cc w/encl.: Clement F. Perschall, Jr. (Via Hand Delivery) 
William P. Quigley (Via U. S. Mail) 
Jacqueline Carr (Via U. S. Mail) 
Richard Ieyoub (Via U. S. Mail) 
Tyron Picard/Mark Stipe (Via U. S. Mail) 
Robert McDuff (Via U. S. Mail) 



SUPREME COURT FOR THE STATE OF LOUISIANA 

CLEMENT F. PERSCHALL, 

Plaintiff, 

vs. 

THE STATE OF LOUISIANA, 

Defendant, 

and 

RONALD CHISOM, et al., 

Defendant-Intervenors. 

No. 96-CC-0322 

DEFENDANT-INTERVENORS' BRIEF IN SUPPORT OF APPLICATION FOR 
REHEARING 

Introduction  

The challenge for every Court in issuing every decision is to ensure fairness to the 

litigants and the public. This is done by having the rules (the law) be clear and universally 

applicable and the rulemakers (the Court) being impartial and unbiased on any matter before 

it. When either the rules are unclear or the rulemakers not impartial, then fairness is not 

ensured and any decision rendered is easily questioned. For these reasons, this case must be 

reheard. This decision leaves the long-held doctrine of justiciability in a state of confusion. 

This decision raises serious questions about the degree of partiality of the elected members of 

the Louisiana Supreme Court. To remove these doubts and to ensure unquestionable fairness, 

defendant-intervenors respectfully request that their application for rehearing be granted. 

Factual and Procedural History 

The road to this point in the case is long and winding. Plaintiff Clement Perschall 

[hereinafter "Plaintiff] filed a "Petition for Declaratory Judgment on the Constitutionality of 

Acts 1992, No. 512" against the State of Louisiana in the 19th Judicial District Court for the 

Parish of East Baton Rouge, State of Louisiana, Division A, challenging the validity of La. Acts 

1992, No. 512 [hereinafter "Act 5121 under both the Louisiana Constitution and the United 

States Constitution.. The lawsuit specifically challenges the assignment of a Judge of the Fourth 

Circuit Court of Appeal (the "Fourth Circuit") to this Court for a temporary and determinable 

period of time. The assignment of this judgeship was a basis for the settlement of the federal 

voting rights case known as Chisom v. Edwards, No. 86-4075 (E.D. La.). 



Before the enactment of Act 512, no black had ever served on the Louisiana Supreme 

Court, although blacks constitute nearly one-third of Louisiana's population and comprise a 

majority in Louisiana's largest parish, Orleans Parish. See Chisom v. Edwards, 839 F.2d 1056, 

1058 (5th Cir. 1988). The seven justices on the Supreme Court of Louisiana were elected from 

six geographical judicial districts. Id. at 1056. With the exception of the First District *of the 

State Supreme Court, each of the judicial districts elected one Supreme Court justice. Id. 

The First District of the State Supreme Court ("First Supreme Court District"), 

comprised of four parishes (Orleans, St. Bernard, Plaquemines, and Jefferson Parishes), elected 

two Justices at-large. Id. In the late 1980's, blacks represented approximately thirty-two 

percent of the registered voter population in the First Supreme Court District and whites 

represented approximately sixty-eight percent of the District's population. Id. Over half of the 

First Supreme Court District's registered voter population lived in Orleans Parish, where blacks 

• comprised fifty-two percent of the registered voter population. Id. 

• In 1986, Ronald Chisom and a group of other blacks, as well as the Louisiana Voter 

Registration Education Crusade (hereinafter "Chisom plaintiffs"), filed a class action lawsuit in 

the United States District Court for the Eastern District of Louisiana("United States District 

Court") on behalf of all blacks registered to vote in Orleans Parish. Chisom v. Edwards, 659 

F.Supp. 183 (E.D. La. 1987). The Chisom plaintiffs alleged that the system of electing Justices 

to the Louisiana Supreme Court.violated, inter alia, Section 2 of the Voting Rights Act of 1965, 

42 U.S.C. §1973. 

As a result of the Chisom litigation, the State of Louisiana enacted Act 512 in order to 

settle the Chisom litigation. It was enacted by a two-thirds vote in both houses. League of 

United Latin Amer. Citizens Council No. 4434 v. Clements, 999 F.2d 831, 848 (5th Cir. 1993), 

cert. denied, 510 U.S. 1071 (1994)(citing Official Journal of the Proceedings of the Senate of the 

State of Louisiana, 18th Reg. Sess. at 24 (June 18, 1992); Official Journal of the Proceedings 

of the House of the State of Louisiana, 18th Reg. Sess. at 31 (June 16, 1992)). The legislation 

created a Supreme Court District comprised of Orleans Parish, removing Orleans Parish from 
• 

inclusion in a districrt with St. Bernard, Plaquemines and Jefferson Parishes. La. R.S. 13:101.1. 

It further provided that, during the 1998 Regular Session, the Louisiana Legislature was to 

reapportion the districts of the Louisiana Supreme Court into seven districts, rather than six 

districts, for elections beginning in the year 2000. Id. In the event of a vacancy from the First 

Supreme Court District prior to the year 2000, the Act provides that there will be an election 

2 



for a Supreme Court Justice from the newly created Orleans Parish district. Id. The Act also 

provided for the creation of a temporary additional judgeship for the Court of Appeal for the 

Fourth Circuit to be elected by voters from Orleans Parish and assigned to the Louisiana 

Supreme Court until the year 2000, when elections would be held under the newly drawn 

election districts. La. R.S. 13:312.4. The Act thus avoids shortening the term of office of any 

Louisiana Supreme Court Justice holding office on June 22, 1992, the time of its enactment. 

Id. 

Not only was the Chisom litigation wholly responsible for Act 512, without the entry of 

a federal court order codifying the language of Act 512 into federal law, this legislation would 

have been short-lived. 

This legislation shall be null, void, and of no force and effect whatsoever if a 
consent decree approving this legislation to be entered into between all parties 
in federal litigation involving the at-large election of two justices from the 
presently existing first supreme court district, which is pending on the docket of 
the United States Court of Appeals for the Fifth Circuit, and which • is styled 
Chisom v. Edwards, is not entered into by the appropriate federal court. 

Acts 1992, No. 512, §2. Thus, Act 512 was entirely contingent on the entry of a federal court 

order. On August 21, 1992, the United States District Court entered such a consent decree 

which incorporated Act 512 into its final order and judgment. Consent Judgment, August 21, 

1992 (E.D. La.). 

In 1995, plaintiff filed the instant action, alleging violations of both the Louisiana and 

the United States Constitution. 'Plaintiff alleges that Act 512 violates both the Louisiana and 

United States Constitutions. The State removed the action to the United States District Court 

for the Middle District of Louisiana, which subsequently transferred the action to the United 

States District Court for the Eastern District for Louisiana, which had issued the consent 

judgment in the Chisom case. The Chisom plaintiffs, not named in the Perschall action, moved 

to intervene and are now a part of this new litigation. 

The United States District Court for the Eastern District of Louisiana "remanded" the 

issue of the constitutionality of Act 512 under state law to the state court. On July 12, 1996, 

this Court requested that all parties to this litigation file briefs on "whether to allow the case 

to proceed in norvial fashion or to bypass the lower courts on the threshold issue." Order, 

dated July 12, 1996. The State of Louisiana filed briefs which requested that this Court grant 

certiorari and review the entire case. As this Court stated in doing so: 

Because of the importance of this case to the public and to the orderly processes 
of government, we exercise our supervisory jurisdiction and grant certiorari, 

3 



bringing the entire case up to this court for argument and decision. 

Order, dated November 8, 1996 at 2. The Court asked to the parties to address, at least, three 

issues: 

1. Should the Louisiana court respond to the federal court's remand order if to do 
so would require rendition of an advisory opinion or of a declaratory judgment 
that will not terminate the uncertainty or controversy that gave rise to the 
proceeding -- that is, a judgment declaring that Act 512 violates the Louisiana 
Constitution unless saved by the federal consent decree? 

2. Does the federal court's remand order constitute certification of a question of 
Louisiana law to the Supreme Court of Louisiana which has discretion to refuse 
such certified questions from the Supreme Court of the United States and the 
federal courts of appeals? 

3. Does Act 512 violate the Louisiana Constitution? 

Id. at 3 (footnotes omitted). The Court also noted that, if the appropriateness of Act 512 

under Louisiana law is not an issue, then plaintiffs due process claims should be decided by 

the federal court. See id. at n.2. ("A judgment declaring that Act 512 does not violate the 

Louisiana Constitution would leave plaintiffs due process claims to be decided by the federal 

court.") 

The State of Louisiana, the Applicant, filed a brief, addressing the three questions posed 

by this Court. The State made four arguments regarding the Perschall litigation. First, it is 

nothing more than a collateral attack on the consent judgment entered into in the Chisom case 

and therefore, should be dismissed insofar as state court proceedings are concerned. Second, 

any ruling by this Court on thee constitutionality of Act 512 would be advisory, because the 

consent judgment in Chisom remains in place regardless of any action by this Court. Third, the 

United States Court of Appeals for the Fifth Circuit has already held, and an analysis of 

Louisiana law makes clear, that the Chisom consent judgment, Act 512 and the present 

composition of the Louisiana Supreme Court are proper both under federal law and the 

Louisiana Constitution. Fourth and finally, respondent-plaintiff Perschall lacks standing to 

bring this action. 

. Defendant-intervenors filed a brief arguing that there were no substantive Louisiana law 

issues for the Court to resolve, the only substantive issues were federal law issues. The 

constitutionality opAct 512 was immaterial because of the existence of the Chisom consent 

judgment. 

The substantive issue in this case, quite simply, involve federal law, not state law. 
In this case, the application of federal law, as required by the Supremacy Clause 
of the United States Constitution, means that a subsequent state law or court 
order cannot invalidate a federal court order. If Act 512 were sought to be 

4 



• 
invalidated' by a ruling under Louisiana law, even under the Louisiana 
Constitution, effectuation of such a judgment would require invalidation of a 
federal court order, and there is no basis under the law for such a result. 

Brief of Defendant-Intervenors at 6-7. Thus, no ruling under Louisiana law could terminate the 

controversy at issue in the Perschall case: the appropriateness of having a Fourth Circuit Court 

of Appeals judge temporarily assigned to the Louisiana Supreme Court. 

Oral argument was heard before the Court on February 24th. The seven member Court 

was different in composition than normal. Chief Justice Calogero and Justices Marcus and 

Johnson recused themselves from any consideration of the matter. Chief Justice Charles 

Marvin of the Second Circuit Court of Appeals and Judge Freddie Pitcher of the First Circuit 

Court of Appeals were appointed as associate justices ad hoc to ensure that a seven member 

Court would hear this case. 

The issue of recusal had been an issue throughout the proceedings. Initially, plaintiff 

had sought the recusal of every Louisiana Supreme Court Justice, except Justice Victory, on 

the grounds that the Justices were around at the time of the enactment of Act 512 and 

therefore, could not be imPartial. At the time, defendant-intervenors found this motion to be 

unsupported by evidence and too general in scope to be given any credence. See generally 

Opposition of Intervenors Ron Chisom, et al., To Motion To Recuse Supreme Court Justices. Prior 

to oral argument, plaintiff filed another motion for recusal. The issue was the appropriateness 

of Judge Pitcher to hear the case. Plaintiffs alleged that Judge Pitcher came from a district • 

much like the one at issue and would be biased. Once again, plaintiffs' bald assertions had no 

empirical support or could not even draw a plausible connection between Judge Pitcher and 

this case. See generally Opposition of Intervenors Ron Chisom, et aL, To Motion To Recuse Judge 

Freddie Pitcher, Jr. 

Over a month after oral argument, on March 31, 1997, the Louisiana Legislature began 

its 1997 legislative session. Later in that legislative session, the Legislature began consideration 

of a bill to reapportion Louisiana's Supreme Court Districts. The language contained in Act 

512 and the Chisom consent judgment states the following with respect to the redistricting 

timetable for the Supreme Court Districts: 

During the 1998 Regular Session, the legislature shall reapportion the districts of the 
Louisiana Supreme Court into seven districts in accordance with applicable state 
and federal law at the time of the reapportionment based upon the most current 
census data. Except as provided in Subsection C, the districts created by the 
reapportionment shall become effective on January 1, 2000, and supreme court 
districts occurring on and after January 1, 2000 shall be based on such districts. 

5 



La. R.S. § 101.1(B). (emphasis added). Elected members of the Louisiana Supreme Court, who 

were considering this matter, participated in the redistricting process in various ways, including 

but not limited to testifying before the Legislature and lobbying for various positions on the 

proposed legislation. On June 19th, the Legislature passed a new Louisiana Supreme Court 

redistricting bill. 

The bill, House Bill No. 581, is intended to replace Act 512. See House Bill No. 581, 

Regular Session, 1997, re-engrossed, at 1 (intended to "amend and reenact R.S. 13.101 and 

312.4(D) and to repeal R.S. 13:101.1, relative to the supreme court"). The bill calls for the 

seven Supreme Court Districts to be drawn in the same manner as Louisiana's , seven 

congressional districts. See id. at 3("The state shall be divided into seven supreme court 

districts which shall be the congressional districts"). Under Act 512 and the Chisom consent 

judgment, while the redistricting of the six other Supreme Court Districts were left to the 

discretion of the Legislature, one of the districts was to be "comprised of Orleans Parish." La. 

R.S. § 101.1A. In order to facilitate this new plan of congressional districts and deal with the 

currently elected Supreme Court Justices, the bill includes language which gives the Supreme 

Court the power to assign which districts incumbent Supreme Court Justices will run from: 

The supreme court, by rule, shall assign each justice in office at the time the 
supreme court districts are changed to the district which is most similar in 
geographical composition to the district from which the justice was elected. The 
supreme court shall assign only one justice to each district. Each such district 
shall complete the term of office to which he was elected. • 

H.B. No 581 at 3, § C. 

The bill also calls for the elimination of the temporary assignment of a judge from the 

Fourth Circuit Court of Appeals at a time not wholly consistent with Act 512. Compare House 

Bill No. 581 (The Fourth Circuit judgeship assigned to the Louisiana Supreme Court "shall 

expire automatically on the date that a justice of the supreme court takes office elected in the 

regular supreme court election held in the year 1998 . . . or on December 31, 2000, whichever 

comes first") with Act 512 ("The [Fourth Circuit] judgeship . . . shall expire automatically on 

the date that a justice of the supreme court takes office after being elected in a special election 

called for Orleans .r.Parish supreme court district as provided in R.S. 13:101.1(A) or R.S. 

13:101.1(C). . . or from the date that the justice takes office after"). Finally, the bill calls for 

the legislation to take effect in 1999 or, in the event that the temporary judgeship from the 

Fourth Circuit Court of Appeals is found inappropriate, in 1998. H.B. No. 581 at 4("This Act 

shall become effective on January 1, 1999, and shall not affect any election held prior to that 

6 



date, except that if said temporary additional judgeship is hold [sic] invalid, this Act shall 

become effective on July 1, 1998"). There is no reference whatsoever in House Bill No. 581 

about the impact of the Chisom consent judgment on its legality. This bill was signed into law 

• by the Governor on July 14th. 

On July 1st, the Court issued its opinion in this case. The Court's opinion, written by 

Justice Kimball and joined by Justices Knoll, Lemmon, Traylor and Victory as well as associate 

justice ad hoc Chief Judge Marvin, held that, despite the supremacy of federal law and the 

existence of the Chisom consent judgment, that there was a justiciable controversy and that, 

upon reaching the merits of this case, found Act 512 to be unconstitutional. Perscha// V. State 

of Louisiana, No. 96-CC-0322, dated July 1, 1997 at 2. 

The Court resolved the justiciability issue in the following manner. Since neither the 

defendants nor the defendant-intervenors appealed the federal district court's remand order, 

the issue, the constitutionality of Act 512, was properly before them. Id. at 12. Once the issue 

was properly before the Court, the Court turned to whether or not this was an advisory opinion. 

See id. at 14-19. According to the Court, although this issue is not and cannot be properly 

certified to.us by a federal district court, the reasoning of the federal district court, regarding 

Pullman abstention, should be adopted and followed in reaching this Court's ruling. Thus, an 

opinion under Louisiana law cannot be advisory, when a federal district court in the remand 

order states that: 

A state court's determination that Act 512 violates Louisiana law would in all 
likelihood moot or substantially alter the plaintiff's single federal constitutional 
claim . . . By abstaining from deciding the state constitutional issues, the Court 
does not undermine the substantial federal interest in determining the 
constitutionality of Act 512. Such an interest clearly exists since the validity of 
the Consent Judgment entered by this Court in the Chisom case rests on a 
determination of the viability of the aforesaid act under the Louisiana 
Constitution. 

Id. at 19, n.20(quoting Perschall v. Louisiana, No. 95-1265, 1995 WL 396311, *2 (E.D. La. July 

5, 1995). After deciding that the opinion was not advisory, the Court then addressed the merits 

of the case, without any notable discussion of standing. 

When the Court reached the merits, the Court decided that Act 512 could not be 

constitutional. Twci different provisions under the Louisiana Constitution were considered 

probative cif this issue: Article V, § 3 and Article V, § 5(A). The former provision placed a 

limit on the number of justices who can serve on the Louisiana Supreme Court. LA. Const. 

art. V, § 3 ("The supreme court shall be composed of a chief justice and six associate justices, 

7 



four of whom must concur to render judgment").. The latter provision vested the Court with 

the authority to "assign a sitting or retired judge to any court. .." LA. Const. art. V, § 5(A). 

To the Court, Article V, §3 and Article V, § 5(A) constitute "conflicting constitutional 

provisions regarding supreme court composition." Perschall at 21. Harmonizing the two 

provisions required the Court to give more weight to the specific provision than the general • 

one, Id. at 22; see id. at 27, and, therefore, not vitiate the meaning of the more specific Article 

V, § 3. Under the Court's analysis, harmonizing in this case meant that: 

We must hold the Act unconstitutional under article V, section 3, insofar as it 
effectively imposes an eighth justice on the supreme court by the provisions of 
La. R.S. 13:312.4. 

Id. at 28. The Court also found that the unconstitutional portions of Act 512 could not be 

severed from those provisions which are constitutional. Id. at 28-29. 

Despite holding Act 512 unconstitutional, the Court did not recommend a change in the 

status quo: 

We realize that Act 512 does not exist in a vacuum. The State argues, and we 
agree, the Act and the Chisom Consent Judgment are separate and independent 
methods by which the negotiated remedy was implemented. Although the Act 
falls by this judgment, we recognize the status quo remains intact under the 
Chisom Consent Judgment. Consequently, this court as it is currently composed 
shall continue to function as a de jure court with its actions valid and effectual. 
We emphasize that the court-approved settlement in Chisom, which is under the 
jurisdiction of the United States District Court for the Eastern District of 
Louisiana, is not affected by this judgment. 

Id. at 30. The Court also dismissed plaintiff's argument that rendering Act 512 unconstitutional 
• 

voids all decisions decided by the Court since the creation of Act 512. Id. at 30-32. 

Judge Pitcher, sitting as associate justice ad hoc, dissented from the Court's opinion, 

arguing that the Pullman abstention reasoning applied by the Court is not a basis for 

"overrid[ing] this court's long-standing policy of not giving advisory opinions." and that, upon 

reaching the merits, still found Act 512 constitutional, finding the legislation in accord with 

Article V, § 5(A) and not in conflict with Article V, § 3. Perschall at 1-2 (Pitcher, J. 

dissenting). 

SUMMARY OF ARGUMENT 

The decision rendered by this Court raises profound questions which can only properly 

be addressed through a rehearing of the matter. First, there is the issue of recusal. Given that 

the Louisiana Legislature's decision to take up the issue of reapportionment conflicted with the 

express language in both Act 512 and the Chisom consent judgment, the elected members of 

the Louisiana Supreme Court should recuse themselves from deciding the application for 

8 



S 
rehearing and should have recused themselves from rendering a decision in this case. For any 

member of the Louisiana Supreme Court who testified before the Legislature, discussed the 

pending legislation with a legislator or attempted to influence the legislation in any way, recusal 

is appropriate. Without recusal on the application of rehearing, there can be no assurance that 

the outcome in this case is impartial. With recusal by the elected members of the Louisiana 

Supreme Court, such an assurance can be given. 

Second, there is the issue of justiciability. Justiciability is a classic and important 

doctrine for judicial administration. The Court's ruling suggests a historic change from the 

fundamental principles behind justiciability and should be reheard to determine the scope of 

the Court's ruling and its impact on this critical doctrine. The issue of standing has to be 

addressed. Prior to this decision, Louisiana law did not provide standing for a plaintiff, like Mr. 

Perschall, and there is no reason from deviating from these well-established principles for 

purposes of this case. The advisory opinion issue should be re-heard. This decision, in effect, 

carves out an exception in the justiciability doctrine, nullifying the need for an opinion to have 

a conclusive effect. Neither Pullman abstention doctrine nor anything else under Louisiana law 

offers support for this exception. 

Ultimately, the moral and legal stakes in this case are too high for an application for 

rehearing not to be granted. As the opinion stands today, the public can reasonably question 

whether the Court's opinion was rendered by an impartial arbiter. As the opinion stands today, 
• 

there is no reason to believe that the legal principles articulated therein will be limited to just 

this case. If these principles could be so limited, this case leaves an unanswered:question: Why 

is this case different from all the others? 

ARGUMENT 

I. THE ELECTED MEMBERS OF THE LOUISIANA SUPREME COURT 
SHOULD RECUSE THEMSELVES FROM HEARING THIS APPLICATION 
FOR REHEARING AND SHOULD HAVE RECUSED THEMSELVES 
FROM RENDERING A DECISION IN THIS CASE 

No motion for recusal focused on matters directly related to the decision-making process 

in this case, until now. The passage of House Bill No. 581, now law, and the instant decision 

in this case necessitiktes recusal for the elected members of the Louisiana Supreme Court who 

rendered the decision in this case. Recusal is especially appropriate where, as is the case here, 

these members have a vested interest in the outcome of this litigation, no different from the 

kind of interest which prompted Chief Justice Calegero and Justices Johnson and Marcus to 

9 



S 
recuse themselves in this matter. 

A judge may be recused when he: 

Is biased, prejudiced, or interested in the cause or its outcome or biased or 
prejudiced toward or against the parties or the parties' attorneys to such an 
extent that he would be unable to conduct fair and impartial proceedings. 

La. C.C.P. Art. 151(B)(5) (West's La. Stat. Ann., C.C.P. Vol. 2, 1997 Cum. Ann. Pocket Part). 

Any allegation of "bias, prejudice or personal interest must be of a substantial nature and baked 

on more than conclusionary [sic] allegations." Pierce v. Charity Hosp. of Louisiana, 550 So.2d 

211, 213 (La.App. 4 Cir.), cert. denied, 551 So.2d 1341 (La. 1989); Tamporello v. State Farm Mut 

Auto Ins. Co., 665 So.2d 503, 506 (La.App. 5 Cir. 1995); Use v. Use, 654 So.2d 1355, 1361' 

(La.App. 1 Cir.), corrected on rehearing, 1995 La.App. Lexis 1715 (La.App. 1 Cir.), cert. denied, 

662 So.2d 468 (La. 1995); McCoy v. Calamia, 653 So.2d 763, 772 (La.App. 3 Cir.), cert. denied, 

655 So.2d 336 (La. 1995); Earles v. Ahlstedt, 591 So.2d 741, 746 (La.App. 1 Cir. 1991); State 

v. Edwards, 420 So.2d 663, 673 (La. 1982). The mere appearance of impropriety will not 

suffice. Pierce, 550 So.2d at 215; Christian v. Christian, 535 So.2d 842, 845 (La.App. 2 Cir. 

1988). Facts must be presented "from which an observer could reasonably perceive that [the 

judge] would not\could not handle this case impartially." Pierce, 550 So.2d at 214-215(emphasis 

supplied). No "reasonable" observer could suggest that the elected members of the Louisiana 

Supreme Court could handle this case impartially. 

The language of both Act 512 and the Chisom consent judgment could not be any 

clearer about when reapportionment of the Supreme Court Districts should take place: 

During the 1998 Regular Session, the legislature shall reapportion the districts 
of the Louisiana Supreme Court into seven districts . . . . 

La. R.S. §101.1(B). Nevertheless, the Louisiana Legislature considered the matter in the 1997 

session and elected members of the Louisiana Supreme Court, who were also considering the 

constitutionality of Act 512, engaged in activities designed to influence the scope of this new 

law. These actions demonstrate partiality, by endorsing an interpretation of the federal consent 

order and Act 512, prior to having reached a decision on the merits in this case, which was 

before it. 

Given the Ourt's opinion, there is no basis for arguing that any ruling by this Court was 

of no consequence and therefore, immaterial to House Bill No. 581. Under the Court's own 

reasoning, a decision on the constitutionality of Act 512 will affect the outcome of this entire 

case: 

10 



The present controversy placed before the state system questions ripe for 
decision, not premature or abstract. This judgment serves the useful purpose 
and gives the practical effect of terminating the uncertainty or controversy giving 
rise to the proceeding as far as the Louisiana state court system is able in this 
Pullman abstention context. In its abstention order, the federal district court 
recognized this effect, reasoning that submission of 'plaintiff's novel state law 
claims to the expertise of a Louisiana court would respect the values .of 
federalism highlighted in Pullman' and would 'in all likelihood moot or 
substantially alter the plaintiff's single federal constitutional claim.' 

Perschall at 18(quoting Perschall v. Louisiana, No. 95-1265, 1995 WL 396311, *2). If the Court 

did not have that understanding, their opinion would have been advisory, under their own 

reasoning. Thus, the elected members of the Court, who participated in the deliberations and 

decision in this case, not only tried and/or successfully influenced legislation potentially at odds 

with Act 512, but also concede that it is within the Court's power to have their "interest" take 

effect. Certainly, this situation required recusal before its decision and requires recusal now 

on the matter of rehearing. Under the current circumstances, no "reasonable" observer can 

conclude that this matter was handled impartially. 

THE ISSUE OF WHETHER THERE IS A JUSTICIABLE CONTROVERSY 
SHOULD BE RE-HEARD 

The critical legal issue in this case is whether there is a justiciable controversy. Without 

a justiciable controversy, the Court has no basis to reach the issue of the constitutionality of 

Act 512. In deciding that there is a justiciable controversy and, on that basis, reaching the 

merits, the Court issued an opinion which undermines established principles of law. As a 

result, this issue should be reheaerd and full attention given to justiciability, both on the matter 

of standing and the issue of whether any opinion in this case under the Louisiana Constitution 

is merely advisory. 

While the Court's opinion makes no mention of the standing issue, there can be no 

finding of justiciability without standing, even in a declaratory action. Under Louisiana law, 

a party must allege a specific interest in the case and, from that interest, identify a particular 

injury flowing from the action complained of. Mouton v. Dept. Of Wildlife & Fisheries, 657 

So.2d 622, 626 (La.App. 1 Cir.), cert. denied, 663 So.2d 710 (La. 1995)("Specifically, standing 

raises the issue of whether the plaintiff belongs to a particular class for which the law grants 

a remedy for a ga'rticular grievance or whether the plaintiff has an interest in judicially 

enforcing he right asserted"); Richardson v. Reeves, 600 So.2d 138, 140 (La.App. 2 Cir. 

1992)("Standing requires that the plaintiff have an adequate interest in himself, which the law 

recognizes, against a defendant having a substantial adverse interest"); Bruneau v. Edwards, 517 

11 



• 
So.2d 818, 822 (La. App. 1 Cir. 1987)("The jurisprudence, however, requires the plaintiff show 

something more than a mere interest as a member of the public at large to justify his standing 

to challenge the constitutionality of a statute") Guidry v. Roberts, 331 So.2d 44, 47 (La.App. 1st 

Cir.), affd in part & rev'd in part, 335 So.2d 438 (La. 1976)("The requirement of standing is 

satisfied if it can be said that the plaintiff has a legitimate protectible and tangible interest at 

stake in this litigation"); see Municipal Employees' Retirement System v. Rural Devel, 676 So.2d 

835, 837 (La.App. 1 Cir.), cert. denied,. 683 So.2d 269 (La. 1996)("A taxpayer may resort to 

judicial authority to restrain public servants from transcending their lawful powers, or violating 

their legal duties in any unauthorized mode which will increase the burden of taxation or 

otherwise unjustly affect the taxpayer or his property"). There is no evidence that the plaintiff 

in this case has standing. 

Plaintiff claims to have standing as a lawyer and as a voter. 

Petitioner, as a practicing attorney, is unable to provide predictable legal advice 
to his clientele because of the constitutional status of Acts 1992, No. 512 in that 
the Act's unconstitutionality renders void all decisions by the Louisiana Supreme 
Court decided during the time this Act was in effect. Further, petitioner's votes 
previously cast for justices to the Louisiana Supreme Court are negated. 

Petition, %XXX. The Court's ruling makes clear that, even if Act 512 is unconstitutional, 

plaintiff is not entitled to have decisions already rendered revisited on that basis. See Perschall 

at 30-32("Plaintiffs argues a declaration that Act 512 is unconstitutional renders void all 

decisions by this court decided during the time the Act was effective. By applying long-

established authority, we reject this contention"). Plaintiff cannot have standing for a claim 

which does not entitle him to the relief that he seeks. Similarly, plaintiff fails to articulate a 

claim for standing as a voter. As defendants stated succinctly in their brief on the merits: 

To the extent that he previously voted for Chief Justice Calogero and Justice 
Marcus, who are the justices elected from the plaintiff's district and who were 
sitting prior to Act 512, they remain on the Court even after the implementation 
of Act 512. Moreover, as indicated in the plaintiff's Petition, he is a resident of 
Orleans Parish. Therefore, he is allowed to vote for the Fourth Circuit seat 
created by Act 512 and assigned to the Louisiana Supreme Court. 

Brief On Behalf Of The State Of Louisiana at 11-12. Certainly, plaintiff cannot claim any special 

"interest" or "injury";on his part. See League of Women Voters of New Orleans v. City of New 

Orleans, 381 So.24 441, 447 (La. 1980)(requiring the need for a "personalized grievance or 

interest"); Pruneau, 517 So.2d at 822("It is the opinion of this court that the individual with the 

right to assert a challenge to acts that reduce the authority of the legislature is a legislator 

himself. Plaintiffs are members of the same body (the legislature) whose constitutional authority 

12 



and duty has been improperly delegated"); see also Mouton v. Dept. Of Wildlife & Fisheries, 657 

So.2d at 627("While each member of the general public has an interest, in equal measure with 

all other citizens of the state, in the public trusts of the state's various natural resources, 

including wildlife and fisheries, no one citizen or citizen group has a "special interest" beyond 

that enjoyed by the general public"). Like the fishermen in the Mouton case, plaintiff's interest 

"is, at best, remote and does not rise to the level necessary to constitute a real and actual 

interest." 657 So.2d at 628. 

This matter must be reheard and the matter of standing squarely addressed. If there 

is no standing, then there is no basis for reaching the merits in this action. For plaintiff to have 

standing to bring this action, either this Court has decided to recognize either lawyer or generic 

voter standing or the previous decisions regarding standing have been overturned and a new 

doctrine created. Either result opens the Louisiana courts to a host of lawsuits previously 

barred. Either results requires this matter to be reheard. 

The Court's reasoning on whether or not deciding the constitutionality of Act 512 would 

require issuing an advisory opinion is at odds with the result reached in the case. In its 

reasoning, the Court finds that resolving this issue is not advisory. In its result, the Court finds 

that, having resolved this issue, the Court's opinion cannot terminate the litigation or the 

controversy about the appropriateness of a temporary assignment to the Supreme Court from 

the Fourth Circuit Court of ApraIs. The end result is a new standard for justiciability, one 

where finality is not required. Given the impact of this result on Louisiana jurisprudence, a 

rehearing of this matter is necessary. 

Prior to this decision, under Louisiana law, the existence of a justiciable controversy 

meant the case or the claim could be resolved: 

A justiciable controversy is a real and substantial controversy admitting of 
specific relief through a decree of conclusive character, as distinguished from an 
opinion advising what the law would be upon a hypothetical state of facts. 

American Waste v. St. Martin Parish, 627 So.2d 158, 161 (La. 1993)(emphasis supplied); Church 

Point Wholesale Beverage Co., Inc v. Tarver, 614 So.2d 697 (La. 1993)("[T]he Louisiana 

Constitution prohibits courts from issuing merely advisory opinions which will have no effect on 

the rights of the parties")(emphasis supplied); see Peterson v. Louisiana Public Service Com'n, 671 

So.2d 460 (La.App. 1 Cir. 1995)(recognizing that although availability of declaratory relief is 

available, there must exist concrete, justiciable controversy framing facts to avoid rendering of 

advisory opinion). If the matter could not be resolved by the Louisiana courts, then the 

13 



opinion was deemed advisory. This opinion eliminates the justiciability requirement for finality 

by admitting that the "status quo remains intact" while reaching the merits in this case: 

We realize that Act 512 does not exist in a vacuum. The State argues, and we 
agree, the Act and the Chisom Consent Judgment are separate and independent 
methods by which the negotiated remedy was implemented. Although the Act 
falls by this judgment, we recognize the status quo remains intact under the 
Chisom Consent Judgment. Consequently, this court. as it is currently composed 
shall continue to function as a de jure court with its actions valid and effectual. 
We emphasize that the court-approved settlement in Chisom, which is under the 
jurisdiction of the United States District Court for the Eastern District of 
Louisiana, is not affected by this judgment. 

Perschall at 30. It reaches this unprecedented conclusion only by relying on Pullman abstention 

doctrine: "This judgment serves the useful purpose and gives the practical effect of terminating 

the uncertainty or controversy giving rise to the proceeding as far as the Louisiana state court 

system is able in this Pullman abstention context." Id. at 18 (emphasis supplied). 

However, the Pullman abstention doctrine does not provide support for the Court's 

novel decision. Pullman abstention has been described as the doctrine 

that a federal court may, and ordinarily should, refrain from deciding a case in 
which state action is challenged in federal court as contrary to the federal 
constitution if there are unsettled questions of state law that may be dispositive 
of the case and avoid the need for deciding the constitutional question. 

Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4242 (2d ed. 1988) 

("Wright, Miller & Cooper"); see Harrison v. NAACP, 360 U.S. 167, 177 (1959). If a federal 

court does order abstention, traditionally, the parties are required to commence an action in 

state court seeking a declaratorY judgment on the state law issues. Wright, Miller & Cooper, 

§ 4242. In Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941), the Supreme Court 

directed a district court to abstain from deciding a case until the state courts settled the state 

law question. In explaining why it examined the questions concerning Texas law, the Court 

stated that the complaint introduces a constitutional issue which "the federal courts ought not 

enter unless no alternative to its adjudication is open. Such constitutional adjudication plainly 

can be avoided if a definitive ruling 9n the state issue would terminate the controversy." 

Pullman, 312 U.S. at 498. 

The basis for the Pullman abstention doctrine is to dispose of an action, not to have 

state courts provi4ei direction to the resolution of federal issues. See Mayor v. Educational 

Equality League, 415 U.S. 605, 624 (1974)(stating that neither abstention nor pendent 

jurisdiction should be utilized when "[a] decision...[on the state law issues] would not have 

approached resolving the case nor would it have provided a basis for granting relief'); Ba 24: ett 

14 



v. Bullit, 377 U.S. 360, 376-377(1964)(holding that abstention cases "principally concerned the 

applicability of the challenged statute to a certain person or a defined course of conduct, whose 

resolution in a particular manner would eliminate the constitutional issue and terminate the 

litigation"). Indeed, the necessity for abstention of the federal law under Pullman is to prevent 

a federal court from ruling in a case where that ruling could be upset by state law. Pullman, 

312 U.S. 500("In this situation a federal court of equity is asked to decide an issue by making 

a tentative answer which may be displaced tomorrow by a state adjudication"). As the Court 

held: 

The reign of law is hardly promoted if an unnecessary ruling of a federal court 
is thus supplanted by a controlling decision of a state court. The resources of 
equity are equal to an adjustment that will avoid the waste of a tentative decision 
as well as the friction of a premature constitutional adjudication. 

Id. 

As a result, the application of Pullman abstention doctrine to this case turns on its head 

the United States Supreme Court's ruling. There is no threat -- and neither the federal district 

court's remand order nor this Court's opinion identifies a threat -- to a decision under federal 

law being made in this case which could later be upset by a ruling by a Louisiana court under 

Louisiana law.' Nor could there be because, in order to do so, a Louisiana court would have 

to issue an opinion, invalidating the Chisom consent judgment, in violation of the Supremacy 

Clause of the United States Constitution. See Howlett v. Rose, 496 U.S. 356, 367 (1990); 

Northwest Pipeline v. Kansas Corp. Comm 'n., 489 U.S. 493, 509 (1989); City of New York v. FCC, 

486 U.S. 57, 63-64 (1988); R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 (1986). 

Instead of ruling on a sacred state law issue, this Court instead understands that the Chisom 

consent judgment exists, despite a ruling under Louisiana law. See Perschall at 30. 

The Court's analysis of the Pullman abstention doctrine under federal law must be 

reconsidered.' With Pullman abstention doctrine removed as a justification for reaching the 

merits, this Court must hold, as its opinion already makes clear, that an opinion on the 

'Another factol in determining whether to abstain is the availability of certification 
procedures does qqt require discussion. "[A]bstention is more readily ordered if there is a 
certification procedure available by which the state question can be answered more 
expeditiously than is possible if it must be litigated through the entire state hierarchy of courts." 
Wright, Miller & Cooper, § 4242; see Bellotti v. Baird, 428 U.S. 132, 151 (1976); Planned 
Parenthood Assn. of Kansas City v. Ashcroft, 462 U.S. 476, 493, n. 21 (1983); Scheinbetg v. Smith 
482 F.Supp. 529 (S.D. Fla. 1979), aff'd in part and vacated in part, 659 F.2d 476 (5th Cir. 1981). 
Here, as the Court held, there is no basis for certification given Louisiana's own laws and this 
Court's own rules. See La.Rev.Stat.Ann. § 13:72.1 (West Supp. 1983); La. S.Ct. Rule XII; see 
also Sandefur v. Cheny, 718 F.2d 682 (5th Cir. 1983). 

15 



• constitutionality of Act 512 would be merely advisory. This issue should be reheard and the 

issue of whether this ,decision was an advisory opinion revisited. Until now, no opinion under. 

Louisiana law provided such a change in the appropriateness of finality in deciding justiciability. 

This decision creates a change which is not easily distinguishable, particularly given the 

unavailability of Pullman abstention doctrine to provide a basis for distinction. 

•••• 

16 



CONCLUSION 

While the road to this point has been long, the work on this case in the Louisiana courts 

should not end with this recent decision. The implications are too far-reaching to end here. 

The issue of recusal must be addressed. The justiciable controversy issue must be addressed. 

Rehearing is the only viable option for a Court determining to prove that its decisions are just 

and its rulings appropriate. Moreover, there are issues regarding the factual and procedural 

history which must be clarified. For the foregoing reasons, defendant-intervenors respectfully 

re-submit this matter to this Court for rehearing and request additional time to supplement the 

application and brief now being submitted. 

Respectfully submitted, 

William P. Quigley (Bar #7769) 
Loyola University School of Law 
7214 St. Charles Avenue 
New Orleans, LA 70118 
(504) 861-5590 

Ronald L. Wilson 
837 Gravier Street 
New Orleans, LA 70113 
(504) 525-4361 

Walter Willard 
• 

Lemle & Kelleher 
601 Poydras Street 
New Orleans, LA 70130 
(504) 586-1241 

Elaine R. Jones 
Director Counsel 
Norman J. Chachkin 
Charles Stephen Ralston 
Victor A. Bolden 
Jacqueline A. Berrien 
NAACP Legal Defense Sc. Educational 
Fund, Inc. 
99 Hudson Street 
Suite 1600 
New York, N.Y. 10013 
(212) 219-1900 

Counsel for Defendant-Intervenors, Ronald Chisom, et al. 

17 



S 

SUPREME COURT FOR THE STATE OF LOUISIANA 

NO. 96 CC 0322 

CLEMENT F. PERSCHALL, JR. 

VERSUS 

THE STATE OF LOUISIANA 

Certificate 

I HEREBY CERTIFY that a copy of the above and foregoing Application For 
Rehearing and Brief In Support Of Application For Reheariong has been forwarded to 
all counsel of record bx.1,epositips a copy thereof, postage prepaid, in the United 
States mail, on this  day of  ‘.1.\\I  , 1997 to the following: 

Honorable A. Foster Sanders, 
Judge 
19th Judicial District Court 
222 St. Louis Street 
Baton Rouge, LA 70802 

Richard P. Ieyoub 
Attorney General of Louisfana 
State Capitol, 22nd Floor 
Post Office Box 94005 
Baton Rouge, LA 70804-9005 

Peter J. Butler 
Peter J. Butler, Jr. 
Special Counsel for the State 
Louisiana 
755 Magazine Street 
New Orleans, LA 70130-3672 

Robert McDuff 
771 N. Congress St. 
Jackson, MS 39202 

Tyron D. Picard & Mark Stipe 
Petroleum Tower, Suite 330 
3639 Ambassador Caffrey Parkway 
Lafayette, LA 70503 

Clement F. Perschall, Jr. 
One Galleria Boulevard 
Galleria One, Suite 1107 
Metairie, LA 70001 

Honorable Stanley P. Lemoine 
Clerk of First Circuit Court of Appeal 

of 1600 North 3rd Street 
Baton Rouge, Louisiana 70802 

Victor A. Bolden 



UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

CLEMENT F. PERSCHALL. JR., 

Plaintiff, 

vs. 

THE STATE dF LOUISIANA. 

Defendant. 

and 

RONALD CHISOM. et at., 

Defendant-Intervenors. 

Civil Action No. 95-1265 

SECTION "A" 

MAGISTRATE: (1) 

DEFENDANT-INTERVENORS' REPLY TO STATE'S MOTION AND INCORPORATED 
MEMORANDUM TO DISMISS 

Defendant-intervenors, Ronald Chisom, et al., by their undersigned counsel, file this 

reply to the motion to dismiss filed by the State of Louisiana. The defendant-intervenors agree 

with the views expressed in the State's Motion and Incorporated Memorandum to Dismiss. As 

stated in the State's Motion and Incorporated Memorandum, Plaintiff sought only a declaration 

that La. Acts 1992, No. 512 ("Act 512") was unconstitutional. On July 1, 1997, the Louisiana 

Supreme Court issued a ruling granting the relief sought by plaintiff. This ruling renders moot 

the issue of whether this Court should make a similar declaration. Furthermore, because of 

the Louisiana Supreme Court's ruling, plaintiff no longer has a cognizable "injury" sufficient to 

invoke this Court's jurisdiction. 



Defendant State of Louisiana's Motion To Dismiss Should Be Granted  

Plaintiffs action should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of 

Civil Procedure for the Court now lacks jurisdiction over the subject matter. Fed. R. Civ. P. 

12(b)(1). The requirements of mootness and standing must be satisfied by any and every 

federal action. Article III of the United States Constitution requires nothing less. Article III 

"limits the jurisdiction of federal courts to 'Cases' and 'Controversies'. ." Lujan v. Defenders 

of Wildlife, 504 U.S. 555, 559 (1992). In this case, given the Louisiana Supreme Court's ruling, 

plaintiff's action can no longer satisfy these threshold requirements. Therefore, dismissal 

pursuant to Rule 12(b)(1) of the Federal Rules is appropriate. 

A. Plaintiffs Action is Moot 

Any legal action "must remain alive throughout the course of litigation, to the moment 

of final appellate disposition." Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, 

Federal Practice and Procedure, § 3533.2 (1984). If the matter no longer involves a live case or 

controversy, then the matter is quite simply moot and there is no need for any further action 

by a federal court. "[T]he definitive mootness of a case or controversy .... ousts the jurisdiction 

of the federal courts and requires dismissal of the case." Deposit Guaranty Nat'l Bank v. Roper, 

445 U.S. 326, 332-333 (1980); see Murphy v. Hunt, 455 U.S. 478, 481 (1982)(the issue must be 

"live" for mootness not to be found); Powell v. McCormack, 395 U.S. 486, 496 (1969) (case is 

moot when "the parties lack a legally cognizable interest in the outcome"); see also In re Tucson 

Estates, Inc., 912 F.2d 1162, 1170 (9th Cir. 1990) (cross-appeal taken by officers of bankrupt 

corporation became moot when state appellate court vacated underlying judgment, which was 

the basis for officers' cross-appeal concerning interpretation of bankruptcy court's stay of 

execution of judgment). The granting of the relief sought by a party in one court renders moot 

any remaining actions seeking the same relief. See James v. Singletwy. 995 F.2d 187, 188 (11th 



Cir. 1993)(party received relief in another tribunal); Simpson v. Camper, 974 F.2d 1030, 1031 

(8th Cir. 1992)(federal action moot when party receives in a state court proceeding "precisely 

the relief that petitioner has been seeking in . . . federal proceeding"). Plaintiffs action must 

now be considered moot. 

All the relief sought by the plaintiff has been granted. Both the Petition for Declaratory 

Judgment and the First Supplemental and Amending Petition filed by the Plaintiff sought only 

a declaration that Act 512 was unconstitutional. See Motion And Incorporated Memorandum 

To Dismiss at 1-2 and Exhibits 1 and 2. The Louisiana Supreme Court has issued a ruling 

granting plaintiff this relief. See id. at Exhibit 3. Since the plaintiff has already been afforded 

complete relief, the action should be dismissed as moot. 

B. Plaintiff Lacks Standing To Maintain This Action 

Stated another way, having received the relief sought. plaintiffs action not only becomes 

moot, but plaintiff now no longer has standing to pursue the action. "[Title core component 

of standing is an essential and unchanging part of the case-or-controversy requirement of 

Article III." Lujan, 504 U.S. at 560. To have standing, a three-prong test must be satisfied. 

"First, the plaintiff must have suffered an 'injury in fact' -- an invasion of a legally protected 

interest." Id. The "injury in fact" must be both "(a) concrete and particularized and (b) actual 

or imminent, not conjectural or hypothetical." Id. Second, there must be a causal connection 

between the injury and the defendant's action. Id. "Third, it must be 'likely,' as opposed to 

merely speculative,' that the injury will be 'redressed by a favorable decision." Id. at 561 

(quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)). Plaintiff cannot 

satisfy this standard. 

Plaintiff Perschall does not have standing to pursue this action any further. When the 

Louisiana Supreme Court ruled in plaintiffs favor and declared Act 512 unconstitutional. 

3 



plaintiff lost any claim to having an injury upon which standing could be based. See Powder 

River Basin Resource Council v. Babbitt. 54 F.3d 1477. 1485 (10th Cir. 1995)(plaintifis action. 

based on the refusal of the state to reimburse plaintiff for its attorney's fees, "lost the injury on 

which its standing was originally based" when the Wyoming Supreme Court ordered the state 

to pay for the attorney's fees incurred by plaintiff). Thus, plaintiff lacks standing and this 

action should be dismissed for lack of jurisdiction. 

Conclusion 

For the reasons stated above and addressed in the State of Louisiana's Motion And 

Incorporated Memorandum To Dismiss, this Court should dismiss this action pursuant to Rule 

12(b)(1) of the Federal Rules of Civil Procedure. 

Respectfully submitted, 

Ronald L. Wilson 
837 Gravier Street 
New Orleans, LA 70113 

Elaine R. Jones 
Director-Counsel 

Norman J. Chachkin 
Charles Stephen Ralston 
Victor A. Bolden 
Jacqueline A. Berrien— 
NAACP Legal Defense & Educational 
Fund, Inc. 

99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 219-1900 

P. Quigley 
o. 7769) 
University 

4 St. Charles Avenue 
New Orleans, LA 70118 
(504) 861-5590 

Walter Willard 
1100 Poydras 
Suite 2150 
New Orleans, LA 70112 
(504) 568-0541 

4 



CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Plaintiff's DEFENDANT-INTERVENORS' 

REPLY TO MOTION AND INCORPORATED MEMORANDUM TO DISMISS, have been 

served by depositing same in the United States mail, first class postage prepaid, on this 

November 3, 1997, addressed to the following: 

Clement F. Perschall, Jr., Esq. 
One Galleria Boulevard 
Galleria One, Suite 1107 
Metarie, Louisiana 70001 
Telephone: (504) 836-5975 

Richard P. Ieyoub 
Attorney General, State of Louisiana 
State Capitol 
P.O. Box 94005 
Baton Rouge, Louisiana 70804-9005 

Robert McDuff, Esq. 
767 N. Congress Street 
Jackson, Mississippi 39202 
Telephone: (601) 969-0802 

Peter Butler (Bar# 3731)-T.A. 
Peter J. Butler, Jr. (Bar# 18522) 
Richard G. Passler (Bar# 21006) 
LL&E Tower, Suite 2400 
909 Poydras Street 
New Orleans, Louisiana 70112 
Telephone: (504) 584-5454 

Tyron D. Picard (Bar# 20473) 
Mark Stipe (Bar# 19803) 
Petroleum Tower, Suite 330 
3639 Ambassador Caffrey Parkway 
Lafayette, Louisiana 70503 
Telephone: (318) 983-0090 

Jacqueline Carr 
L.C.I.W.- Post Office Box 26 
St. Gabriel, Louisiana 70776 

5 



• 
UJF NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

National Office 

Suite 1600 
99 Hudson Street 

New York, N.Y. 10013-2897 (212) 219-1900 Fax: (212) 226-7592 

October 15, 1997 

Honorable Isabelle Katz Pinzler 
Acting Assistant Attorney General for Civil Rights 
United States Department of Justice 
Tenth Street and Constitution Avenue, N.W. 
Washington, D.C. 20530 

Comment Regarding the State of Louisiana's Submission of the 
Redistricting Plan for the Louisiana Supreme Court, Act 776, 1997 
Regular Session, Section 5 Submission File No. 97-2518  

Dear Acting Assistant Attorney General Pinzler: 

We write on behalf of our clients, Ronald Chisom, et al., concerning the submission 
by the State of Louisiana of Act 776 of the 1997 Regular Session of the Louisiana 
Legislature (hereinafter "Act 776"), which provides, inter alia, for new election districts for 
the Louisiana Supreme Court. Because the members of the Louisiana Supreme Court are 
elected directly by the voters of the State, this redistricting must adhere to the requirements 
of the Voting Rights Act of 1965. See Chisom v. Roemer, 501 U.S. 380 (1991). The 
implementation of Act 776 would result in the retrogression of African-American voting 
strength, and we therefore urge the Attorney General to interpose an objection to the 
implementation of this legislation, pursuant to Section 5 of the Voting Rights Act. 

I. The Factual and Procedural Background of Chisom v. Roemer and Perschall v. State 
of Louisiana Prior To Act 776  

Before 1992, no African-American had ever been elected to the Louisiana Supreme 
Court, although African-Americans constitute nearly one-third of Louisiana's population 
and a majority in Louisiana's largest parish, Orleans Parish. See Chisom v. Edwards, 839 
F.2d 1056, 1058 (5th Cir. 1988). The seven justices on the Supreme Court of Louisiana 
were elected from six geographical judicial districts. Id. at 1056. With the exception of the 
First District of the State Supreme Court, each of the judicial districts elected one Supreme 
Court justice. Id. The First District of the State Supreme Court ("First Supreme Court 
District"), consisting of four parishes (Orleans, St. Bernard, Plaquemines, and Jefferson 
Parishes), elected two Justices at-large. Id. In the late 1980's, African-Americans 
represented approximately 32 percent of the registered voters in the First Supreme Court 

Contributions are 
deductibk for U.S. 
bsconte tax ptoposts. 

The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part 
of the National Association for the Advancement of Colored People 
(NAACP) although LDF was founded by the NAACP and shares its 
commitment to equal rights. LDF has had, since 1957, a separate . 

Regional Offices 

Suite 301 
1275 K Street, NW 
Washington, DC 20005 
(202) 682-1300 
Fax: (202) 682-1312 

Suite 208 
315 West Ninth Street 
Los Angeles, CA 90015 
(213) 624-2405 
Fax: (213) 624-0075 



Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 2 

District and whites represented approximately 68 percent of the District's population. Id. 
Over half of the First Supreme Court District's registered voters lived in Orleans Parish, 
where African-Americans comprised 52 percent of the registered voters. Id. 

In 1986, Ronald Chisom and several other African-American voters, as well as the 
Louisiana Voter Registration Education Crusade (hereinafter "Chisom plaintiffs"), filed a 
class action lawsuit in the United States District Court for the Eastern District of 
Louisiana("United States District Court") on behalf of all African-Americans registered to 
vote in Orleans Parish. Chisom v. Edwards, 659 F.Supp. 183 (E.D. La. 1987). The Chisom 
plaintiffs alleged that the system of electing Justices to the Louisiana Supreme Court 
violated Section 2 of the Voting Rights Act of 1965, 42 U.S.C. §1973, as well as the 
Fourteenth and Fifteenth Amendments to the United States Constitution. 

The United States District Court held that Section 2 of the Voting Rights Act did 
not apply to state judicial elections because judges are not "representatives" under the Act, 
thereby dismissing the Chisom plaintiffs' complaint for failure to state a claim upon which 
relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6). See id. at 183-187. The Chisom 
plaintiffs appealed that ruling to the United States Court of Appeals for the Fifth Circuit 
("Fifth Circuit"). 

A panel of Fifth Circuit judges disagreed with the District Court and held: 

After consideration of the language of the Act itself; the policies behind the 
enactment of Section 2; pertinent legislative history; previous judicial 
interpretations of Section 5, a companion section to Section 2 in the Act; and 
the position of the United States Attorney General on this issue; we conclude 
that Section 2 does apply to the election of state court judges. We therefore 
reverse the judgment of the district court. 

Chisom v. Edwards, 839 F.2d at 1058. The Fifth Circuit panel originally remanded the case 
back to the United States District Court. Id. at 1065. However, based on the intervening 
decision from the Fifth Circuit in League of United Latin Amer. Citizens Council No. 4434 
v. Clements, 914 F.2d 620 (5th Cir. 1990) (en banc) ("LULAC I") the Court of Appeals 
subsequently remanded the Chisom case to the District Court with instructions to dismiss 
the complaint.' In LULAC I, the Fifth Circuit held that Section 2 did not apply to judicial 
elections. Id. at 390. The Chisom and LULAC plaintiffs appealed to the United States 
Supreme Court, which granted certiorari in both cases. Id. at 390. 

On June 20, 1991, the United States Supreme Court held that Section 2 of the 
Voting Rights Act applies to state judicial elections in general, and to the election of 
Supreme Court Justices in Louisiana in particular. Chisom v. Roemer, 501 U.S. 380, 401-02 
(1991). The Court held that when states, like Louisiana, decide to choose judges by 

'Like Chisom, LULAC involved the election of state court judges, but in Texas. 



Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 3 

election, rather than by appointment, then these judges are appropriately "representatives" 
under the Voting Rights Act. The Court stated in particular about Louisiana: 

When each of several members of a court must be a resident of a separate district, 
and must be elected by the voters of that district, it seems both reasonable and 
realistic to characterize the winners as representatives of that district. Indeed, at 
one time the Louisiana Bar Association characterized the members of the Louisiana 
Supreme Courts representatives for that reason: 'Each justice and judge now in 
office shall be considered as a representative of the judicial district within which is 
situated the parish of his residence at the time of his election.' 

Id. at 401(quoting Louisiana State Law Institute, Project of a Constitution for the State of 
Louisiana with Notes and Studies 10309 (1954)(1921 Report of the Louisiana Bar 
Association submitted to the Louisiana Constitutional Convention)). The Supreme Court's 
decision reversed the Fifth Circuit's ruling and remanded Chisom back to the Fifth Circuit 
Court of Appeals "for further proceedings consistent with th[e Court's] opinion." Id. at 404. 

Following the Supreme Court's reversal and remand to the Fifth Circuit, the parties 
to the Chisom litigation reached a settlement. The Louisiana Legislature agreed to use its 
power under the Louisiana Constitution to assign temporarily a judge to be elected from 
the Fourth Circuit Court of Appeals to the Louisiana Supreme Court until the year 2000, 
in order not to disrupt the terms of any incumbent. The temporary assignment process had 
been used by the Court on many occasions before and there was precedent from the 
Louisiana Supreme Court that such an assignment was wholly consistent with Louisiana 
constitutional and statutory law. See State v. Bell, 392 So.2d 442, 442-443 (La. 
1981)(permitting Louisiana Supreme Court to assign a judge to any court under Louisiana 
Constitution); see also State v. Petterway, 403 So.2d 1157 (La. 1981).2 

The Louisiana Legislature enacted Acts 1992, No. 512 ("Act 512") as part of its 
settlement of the Chisom litigation. The legislation eliminated the four parish, multi-
member election district which included Orleans Parish, and instead called for the creation 
of a Supreme Court District consisting solely of Orleans Parish. La. R.S. 13:101.1. Act 512 
further that, during the 1998 Regular Session, the Louisiana Legislature was to reapportion 
the districts of the Louisiana Supreme Court into seven districts, rather than six districts, 
for elections beginning in the year 2000. Id. Each of the newly created Supreme Court 
districts would elect a single Justice to the Supreme Court. In the event of a vacancy from 
the First Supreme Court District prior to the year 2000, the Act provided that there will 
be an election for a Supreme Court Justice from the newly created Orleans Parish district. 
Id. The Act also provided for the creation of a temporary additional judgeship for the 
Court of Appeals for the Fourth Circuit, to be elected by voters from Orleans Parish 

2In exchange, the Chisom plaintiffs agreed to dismiss their claims under Section 2 
of the Voting Rights Act and the Fourteenth and Fifteenth Amendments of the United 

States Constitution. 



• 
Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 4 

exclusively, and assigned to the Louisiana Supreme Court until the year 2000, when 
elections would be held under the newly drawn election districts. La. R.S. 13:312.4. Act 
512 thus avoided shortening the term of any Louisiana Supreme Court Justice holding 
office on June 22, 1992, the time of its enactment. Id. 

Act 512 "was carefully crafted" to avoid interfering with or invalidating any other 
Louisiana laws. See League of United Latin Amer. Citizens Council No. 4434 v. Clements, 
999 F.2d 831, 848 (5th Cir. 1993)("LULAC IF). "The consent decree did not set aside any 
state laws -- and not by accident." LULAC II, 999 F.2d at 848. Under Art. 5 § 4 of the 
Louisiana Constitution, the Louisiana Legislature "can create more supreme court districts 
with a two-thirds vote from both houses" Id. Act 512 was enacted by the necessary two-
thirds vote in both houses. Id. (citing Official Journal of the Proceedings of the Senate of 
the State of Louisiana, 18th Reg. Sess. at 24 (June 18, 1992); Official Journal of the 
Proceedings of the House of the State of Louisiana, 18th Reg. Sess. at 31 (June 16, 1992)). 
Under Art. 5, § 5(A) of the Louisiana Constitution, the Legislature also has the authority 
to "create[ ] an additional place for a judge on the Court of Appeal for the Fourth Circuit, 
who, upon election, would be assigned to the supreme court to serve, in reality, as the 
eighth justice," id., a temporary judgeship "to expire with a vacancy on the supreme court 
from the first district." Id. "The vacancy would be filled by an election in the newly created 
seventh district consisting of Orleans Parish." Id. 

Act 512 was entirely contingent on the entry of a federal court order: 

This legislation shall be null, void, and of no force and effect whatsoever if 
a consent decree approving this legislation to be entered into between all 
parties in federal litigation involving the at-large election of two justices from 
the presently existing first supreme court district, which is pending on the 
docket of the United States Court of Appeals for the Fifth Circuit, and which 
is styled Chisom v. Edwards, is not entered into by the appropriate federal 
court. 

Acts 1992, No. 512, §2. After Act 512 was signed into law, all parties to the Chisom 
litigation filed a Joint Motion to Remand to Effectuate Settlement. Chisom v. Edwards, 970 
F.2d 1408, 1409 (5th Cir. 1992). The Fifth Circuit granted this motion and remanded the 
case "to the United Stated District Court for the Eastern District of Louisiana for the 
limited purpose of effectuating a settlement." Id. at 1409. The Court of Appeals indicated 
that it would dismiss the appeals, H[u]pon notification that a consent judgment has been 
entered by the district court. . . ." Id. On August 21, 1992, the United States District 
Court entered a consent decree which incorporated Act 512 into its final order and 
judgment. Consent Judgment, August 21, 1992 (E.D. La.). On October 6, 1992, the Fifth 
Circuit dismissed the appeals pending in the case. Chisom v. Edwards, 975 F.2d 1092 (5th 
Cir. 1992). 

In 1995, nearly three years after the entry of the consent judgment in the Chisom 



Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 5 

case, Plaintiff Clement F. Perschall, Jr. ("Perschall"), an attorney proceeding pro se, filed 
a "Petition for Declaratory Judgment on the Constitutionality of Acts 1992, No. 512" against 
the State of Louisiana in the 19th Judicial District Court for the Parish of East Baton 
Rouge, State of Louisiana, Division A. Perschall alleged that Act 512 violates both the 
Louisiana and United States Constitutions. The State removed the action to the United 
States District Court for the Middle District of Louisiana, which subsequently transferred 
the action to the United States District Court for the Eastern District of Louisiana, where 
ultimately the case was assigned to Judge Schwartz, who was the presiding judge in the 
Chisom case. The Chisom plaintiffs, not named in the Perschall action, moved to intervene 
and became a part of this new litigation. 

The United States District Court for the Eastern District of Louisiana "remanded" 
the issue of the constitutionality of Act 512 under state law to the state court. On July 12, 
1996, the Louisiana Supreme Court requested all parties to file briefs on "whether to allow 
the case to proceed in normal fashion or to bypass the lower courts on the threshold issue." 
Order, dated July 12, 1996. The State of Louisiana filed briefs which requested that the 
Louisiana Supreme Court grant certiorari and review the entire case. The Court stated in 
doing so: 

Because of the importance of this case to the public and to the orderly 
processes of government, we exercise our supervisory jurisdiction and grant 
certiorari, bringing the entire case up to this court for argument and decision. 

Order, dated November 8, 1996 at 2.3 

3The Louisiana Supreme Court asked the parties to address, at least, three issues: 

1. Should the Louisiana court respond to the federal court's remand order if to 
do so would require rendition of an advisory opinion or of a declaratory 
judgment that will not terminate the uncertainty or controversy that gave rise 
to the proceeding -- that is, a judgment declaring that Act 512 violates the 
Louisiana Constitution unless saved by the federal consent decree? 

2. Does the federal court's remand order constitute certification of a question 
of Louisiana law to the Supreme Court of Louisiana which has discretion to 
refuse such certified questions from the Supreme Court of the United States 
and the federal courts of appeals? 

3. Does Act 512 violate the Louisiana Constitution? 

Id. at 3 (footnotes omitted). The Court also noted that, if the appropriateness of Act 512 
under Louisiana law is not an issue, . 
then plaintiff's due process claims should be decided by the federal court. See id. at n.2. 
("A judgment declaring that Act 512 does not violate the Louisiana Constitution would 



Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 6 

The Louisiana Supreme Court heard oral arguments in the Perschall case on 
February 24, 1997. The seven member Court was different in composition than normal. 
Chief Justice Calogero and Justices Marcus and Johnson recused themselves from any 
consideration of the matter. Chief Judge Charles Marvin of the Second Circuit Court of 
Appeals and Judge Freddie Pitcher of the First Circuit Court of Appeals were appointed 
as associate justices ad hoc to ensure that a seven-member Court would hear this case.4 

Legislative Consideration of Louisiana Supreme Court Redistricting 

Act 512 and the Chisom consent judgment state the following with respect to the 
redistricting timetable for the Supreme Court Districts: 

During the 1998 Regular Session, the legislature shall reapportion the districts of 
the Louisiana Supreme Court into seven districts in accordance with applicable 
state and federal law at the time of the reapportionment based upon the 
most current census data. Except as provided in Subsection C, the districts 
created by the reapportionment shall become effective on January 1, 2000, 
and supreme court elections occurring on and after January 1, 2000 shall be 
based on such districts. 

La. R.S. §13:101.1(B). (emphasis added). Nevertheless, the Louisiana Legislature 
reapportioned the Supreme Court districts during the 1997 legislative session, without the 
Chisom plaintiffs' agreement to this deviation from the statute and consent judgment, or 
leave of Court to modify this term in the consent judgment. 

Louisiana House Bill No. 581 -- upon which Act 776 was based -- adopted the 
State's congressional districting plan for use in future Supreme Court elections. See House 
Bill No. 581, Regular Session, 1997, re-engrossed, at 3 (reproduced as Section 5 Submission 
of Act 776 of the 1997 Regular Session of the Louisiana Legislature, Exhibit G) (hereinafter 
"Section 5 submiSsion")("The state shall be divided into seven supreme court districts which 

leave plaintiff's due process claims to be decided by the federal court.") 

4The issue of recusal had been raised intermittently throughout the proceedings. In 
addition to seeking the recusal of Chief Justice Calogero and Justices Johnson and Marcus, 
the plaintiff also sought the recusal of every Louisiana Supreme Court Justice, except 
Justice Victory, on the ground that all of the 
remaining Justices were members of the Court at the time of the enactment of Act 512 and 
therefore, could be partial. Shortly before the scheduled oral argument, the plaintiff filed 
another motion for recusal, which argued that Judge Pitcher should be disqualified from 
hearing the case. Plaintiff alleged that Judge Pitcher, who is African American, had been 
elected by a majority Black district and therefore may be biased. 



• 
Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 7 

shall be the congressional districts"). The bill also called for the legislation to take effect 
in 1999 or, in the event that the temporary judgeship from the Fourth Circuit Court of 
Appeals is invalidated, in 1998, signaling the Legislature's awareness that a ruling in the 
Perschall case might nullify the temporary assignment. See H.B. No. 581 at 4("This Act 
shall become effective on January 1, 1999, and shall not affect any election held prior to 
that date, except that if said temporary additional judgeship is hold [sic] invalid, this Act 
shall become effective on July 1, 1998"). The final version of House Bill No. 581 -- Act 776 
-- did not adopt the redistricting plan based on the congressional districts. Nor did this 
plan make any reference to the possibility of the ChLsom seat becoming invalid. 

On June 19, 1997, the Louisiana Legislature passed Act 776; the Louisiana Supreme 
Court redistricting bill, which was signed into law by Louisiana's Governor on July 14, 1997. 
In contrast with Act 512, however, the new law divides Orleans Parish into two Supreme 
Court Districts. Compare La. R.S. 13:101.1(A) (One district is to be "comprised of Orleans 
Parish") with Act 776 at 1-4 (dividing Orleans Parish into Districts 1 and 7). Act 776 also 
differs from Act 512 in its timetable for implementation. Compare La. R.S. 
§13:101.1(B)("[T]he districts created by the reapportionment shall become effective on 
January 1, 2000, and supreme court elections occurring on and after January 1, 2000 shall 
be based on such districts") with Act 776 at 7("This Act shall become effective on January 
1, 1999, and shall not affect any election held prior to that date, except that if and when 
a vacancy occurs prior to January 1, 1999 . . . the provisions of R.S. 13:101 (District 1) and 
(District 7) and 101.1(D) shall become effective immediately upon the occurrence of the 
vacancy"). Thus, Act 776 proposes to change the geographic configurations of the election 
districts and the timetable for the implementation of these districts, as established by Act 
512. Act 776 provides for the continuation of an additional judgeship on the Court of 
Appeal for the Fourth Circuit to be elected from the first district of the Fourth Circuit to 
be assigned to the Louisiana Supreme Court. See Act 776 at 6. However, before 
Louisiana's Governor signed Act 776 into law, the Louisiana Supreme Court struck down 
as violative of the Louisiana Constitution, the one provision of Act 512 which remained 
virtually untouched by Act 776: the temporary assignment provision. 

On July 1, little more than a week after the end of the legislative session, the 
Louisiana Supreme Court issued an opinion in the Perschall case.5 The Court's opinion, 

'Members of the Louisiana Supreme Court, while deliberating over the fate of Act 512 
in the Perschall case, simultaneously played an active role in the reapportionment process. 
On April 23, Justice Harry T. Lemmon testified before the House and Governmental 
Affairs Committee, on behalf of himself and five other members of the Court. See Minutes 
of Meeting, Committee on House and Governmental Affairs, 1997 Regular Session, April 
23, 1997 at 3-4 (reproduced as Section 5 submission, Exhibit G). Justice Lemmon testified 
that the six justices were prepared to introduce their own plan for redistricting. Id. at 4; 
see Jack Wardlaw, Bill Would Replace Court Districts, New Orleans Times-Picayune, April 
24, 1997 at A3. Although it appears that some members of the La. Supreme Court 
submitted a redistricting plan, this plan was not included in the State's submission. 



Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 8 

written by Justice Kimball and joined by Justices Knoll, Lemmon, Traylor and Victory as 
well as associate justice ad hoc Marvin, held that, despite the supremacy of federal law and 
the existence of the Chisom consent judgment, there was a justiciable controversy. Upon 
reaching the merits of this case, the Louisiana Supreme Court found Act 512 to be 
unconstitutional. Perschall v. State of Louisiana, 697 So.2d 240 (La. 1997). 

Two different provisions under the Louisiana Constitution were considered probative 
of this issue: Article V, § 3 and Article V, § 5(A). The former provision placed a limit 
on the number of justices who can serve on the Louisiana Supreme Court. LA. Const. art. 
V, § 3 ("The supreme court shall be composed of a chief justice and six associate justices, 
four of whom must concur to render judgment"). The latter provision vested the Court 
with the authority to "assign a sitting or retired judge to any court. .. ." LA. Const. art. V, 
§ 5(A). To the Court, Article V, §3 and Article V, § 5(A) constitute "conflicting 
constitutional provisions regarding supreme court composition." Perschall, 697 So.2d at 255. 
The Court gave more weight to the specific provision (Art. V, § 3) than the general one 
(Art. V, § 5(A)). Id. at 256. Under the Court's analysis, harmonizing these "conflicting" 
constitutional provisions meant that: 

We must hold the Act unconstitutional under article V, section 3, insofar as 
it effectively imposes an eighth justice on the supreme court by the provisions 
of La. R.S. 13:312.4. 

Id. at 259. The Court also found that the unconstitutional portions of Act 512 could not 
be severed from those provisions which are constitutional. Id. at 259-260. Thus, the 
Louisiana Supreme Court struck down Act 512 in its entirety. 

Despite holding Act 512 unconstitutional, the Court did not recommend a change 
in the status quo: 

We realize that Act 512 does not exist in a vacuum. The State argues, and 
we agree, the Act and the Chisom Consent Judgment are separate and 
independent methods by which the negotiated remedy was implemented. 
Although the Act falls by this judgment, we recognize the status quo remains 

However, according to at least one press account, the plan submitted by the Louisiana 
Supreme Court did not contain a majority-Black Supreme Court district. Section 5 
submission, Exhibit G, Dan Juneau, "Court redistricting is confusing," unidentified 
publication, May 7, 1997. 

In late May, another Louisiana Supreme Court justice, Jeanette Knoll, objected to 
the congressional plan on the grounds that it would place her outside of her current 
district. Jack Wardlaw, Senate Delays Decision on Court Redistricting, New Orleans Times-
Picayune, May 22, 1997 at A6. Justice Knoll was quoted as saying: "I don't want to hurt 
anybody . . . I just want to be in my district." Id. 



• 
Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 9 

intact under the ChLsom Consent Judgment. Consequently, this court as it 
is currently composed shall continue to function as a de jure court with its 
actions valid and effectual. We emphasize that the court-approved settlement 
in ChLsom, which is under the jurisdiction of the United States District Court 
for the Eastern District of Louisiana, is not affected by this judgment. 

Id. at 260. The Court also dismissed plaintiff's argument that, if Act 512 is 
unconstitutional, then all decisions decided by the Court since the creation of Act 512 are 
now void. Id. at 260-61.6 

The Louisiana Supreme Court's ruling in Perschall calls into question the temporary 
assignment of a Fourth Circuit Court of Appeals judge to the Louisiana Supreme Court, 
insofar as such assignment is based upon Louisiana law.' The legal validity of the 
provision in Act 776 relating to the temporary assignment, Act 776 at 6, is now 
questionable in light of the Perschall decision. See Section 5 submission, Exhibit C. Thus, 
while Act 776 has been proposed to replace Act 512 in its entirety, this new law does not - 
- and cannot under Louisiana law -- include a provision providing for a temporary 
assignment to the Louisiana Supreme Court from an Orleans Parish-based district. 

III. The Attorney General Should Interpose An Objection Pursuant To Section 5 of the 
Voting Rights Act Because, If Implemented, Act 776 Will Have A Retrogressive  
Effect 

The State of Louisiana has the burden of demonstrating that the implementation of 
Act 776 "does not have the purpose and will not have the effect of denying or abridging the 

6Judge Pitcher, sitting as associate justice ad hoc, dissented from the Court's opinion, 
arguing that the Pullman abstention reasoning applied by the Court is not a basis for 
"overrid[ing] this court's long-standing policy of not giving advisory opinions." Upon 
reaching the merits, Associate Justice ad hoc Pitcher still found Act 512 constitutional, 
finding the legislation in accord with Article V, § 5(A) and not in conflict with Article V, 
§ 3. Perschall at 262 (Pitcher, J. dissenting). 

'The Chisom plaintiffs petitioned for rehearing on the grounds that: (1) the elected 
members of the Louisiana Supreme Court who participated in deciding the Perschall case 
and the constitutionality of Act 512, while lobbying the Louisiana Legislature to replace Act 
512, should have recused themselves from deciding the case and should recuse themselves 
from any rehearing of the matter; (2) the Louisiana Supreme Court erred as a matter of 
federal law with respect to its interpretation of the Pullman abstention doctrine; (3) 
Perschall lacked standing to bring this action and the Court failed to address this issue; and 
(4) the Court's ruling with respect to the constitutionality of assigning a judge temporarily 
to the Louisiana Supreme Court conflicted with prior decisions and actions of the Court. 
The Louisiana Supreme Court denied the application for rehearing and the ruling became 

final on September 5, 1997. 



Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 10 

right to vote on account of race or color," 42 U.S.C. § 1973c; see also Georgia v. United 
States, 411 U.S. 526 (1973); Procedures for the Administration of Section 5, 28 C.F.R. § 
51.52 ("The burden of proof is on a submitting authority"). The State cannot meet its 
burden here. The temporary assignment of a Fourth Circuit Court of Appeals judge to the 
Louisiana Supreme Court is an essential part of Act 512. The temporary assignment of a 
judge from the Fourth Circuit Court of Appeals to the Louisiana Supreme Court, a 
mechanism designed to ensure that African-American voters in Orleans Parish would have 
the right to elect the candidate of their choice to the Louisiana Supreme Court -- until the 
final implementation of the ChLsom settlement through the legislative adoption of a new 
Supreme Court redistricting plan and the conduct of elections thereunder. As a result of 
the Louisiana Supreme Court's ruling in Perschall, however, the validity of the provisions 
of Act 776 which purport to continue that temporary assignment has been called into 
question.8 

The State of Louisiana has not met its burden, under Section 5 of the Voting Rights 
Act, of showing that Act 776 will not cause retrogression of the voting strength of African-
Americans residing in Orleans Parish, Louisiana. If implemented, Act 776 will in fact have 
a retrogressive effect, in violation of Section 5. "The purpose of § 5 has always been to 
insure that no voting procedure changes would be made that would lead to a retrogression 
in the position of racial minorities with respect to their effective exercise of the electoral 
franchise." Beer v. United States, 425 U.S. 130, 141 (1976). Voting changes which diminish 
"the ability of minority groups to participate in the political process and to elect their 
choices to office" are retrogressive, and therefore objectionable under Section 5. Beer, id. 
More recently, the Supreme Court has reaffirmed that "Section 5 was directed at 
preventing a particular set of invidious practices, which had the effect of "undoing or 
defeating the rights recently won by nonwhite voters." Miller v. Johnson, 115 S. Ct. 2475, 
2493 (1995); see also Bush v. Vera, --- U.S. ---, 135 L.Ed.2d 248, 272 
(1996)("[n]onretrogression . . . mandates that the minority's opportunity to elect 
representatives of its choice not be diminished, directly or indirectly, by the State's 
actions"). As a consequence, the Department of Justice's determination of whether a plan 
passes muster under Section 5 involves analysis of how the proposed plan would affect 
minority voting strength relative to the current legally enforceable plan: in other words, 
whether the proposed plan is ameliorative and would strengthen minority voting strength 
or whether it is retrogressive and would set back minority voting strength. See Miller, 115 
S. Ct. at 2492-93. The Department of Justice typically performs retrogression analysis with 
reference to the existing voting practices in the jurisdiction. See Holder v. Hall, 114 S. Ct. 

8The ChLsom plaintiffs believe that the Perschall decision is not only erroneous, 
but also violates their due process rights under the Fourteenth Amendment of the 
United States Constitution, see Aetna Life Insurance Co. V Lavoie, 457 U.S. 813 
(1986)(holding that the failure of a state supreme court justice to recuse him or herself 
from a case where he or she has an interest in the outcome violates the Due Process 
Clause of the Fourteenth Amendment). Nevertheless, unless and until the decision is 
reversed by a higher court, it remains the law of the State of Louisiana. 



• 
Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 12 

may consider evidence of minority vote dilution in considering whether a plan is 
retrogressive or intentionally discriminates against minority voters. In Bossier Parish, the 
Court recognized that: "The fact that a plan has a dilutive impact therefore makes it 'more 
probable' that the jurisdiction adopting that plan acted with an intent to retrogress than 'it 
would be without that evidence." 137 L.Ed.2d at 748. There is significant evidence that 
this legislation will dilute minority voting strength if implemented, given the history of racial 
discrimination in the electoral process in Louisiana in general and the areas included within 
Louisiana's First Supreme Court District specifically. See e.g., Major v. Treen, 574 F.Supp. 
325, 351 (E.D. La. 1983) ("[R]acial bloc voting substantially impairs the ability of black 
voters in [Orleans] parish to become fully involved in the democratic process")"; Clark v. 
Roemer, 777 F. Supp. 471, 478 (M.D. La. 1991), appeal dismissed, 958 F.2d 614 (5th Cir. 
1992) (finding that "historical de jure and de facto restrictions on minority voting . . . [and] 
socio-economic factors" which reflected historic discrimination and the disparate economic 
and educational status of Black and white residents of Louisiana "have not been shown to 
have dissipated . . . [and] still operate to discourage more blacks than whites from full 
[political] participation"); Theriot v. Parish of Jefferson, 966 F.Supp. 1435, 1446 (E.D. La. 
1997)(noting that "there are remaining vestiges of discrimination . .. [and] race neutrality 
has not been achieved in Jefferson Parish at this time")." 

'The Treen Court also went on to state that: 

Application of [the] amended § 2 "results' test to the 
aggregate of the facts adduced at trial, including Louisiana's 
history of discrimination and the impact of that history on 
the present ability of blacks in Orleans Parish to join in the 
political process, the vestiges of discrimination which take 
the form of a marked disparity in the socio-economic 
conditions under which blacks and whites currently subsist, 
the parish's racially polarized voting, as exacerbated by the 
state's majority vote requirement, the tenuousness of the 
state policy underlying [congressional reapportionment 
legislation] and the history of its enactment, and the 
manipulation of district boundary lines so as to fracture a 
cohesive minority voting bloc, preponderates in favor of the 
[African-American residents of Louisiana]. 

574 F.Supp. at 354. 

"Even the three-judge court which struck down a second majority-black 
congressional district in Louisiana as a racial gerrymander held that the majority-black 
congressional district in Orleans Parish satisfied the requirements of Thornburg V. 
Gingles, 478 U.S. 30 (1986). See Hays v. State of Louisiana, 936 F.Supp. 360, 370 
(W.D.La.), app. dismissed as moot, 135 L.Ed.2d 1063, pet. for reh'g denied, 136 L.ed.2d 

551 (1996). 



Honorable Isabelle Katz Pinzler 
October 15, 1997 
Page 13 

Conclusion 

For the foregoing reasons, the Attorney General should interpose an objection to 
the implementation of Act 776. 

Please notify Victor Bolden if you have any questions concerning- this comment 
letter. Thank you for your consideration of these views and please notify us of your 
decision concerning the pending submission of Louisiana Act 776 of the 1997 Regular 
Session. 

Respectfully submitted, 

Elaine R. Jones 
Director-Counsel 

Norman J. Chachkin 
Jacqueline A. Berrien 
Victor A. Bolden 
NAACP Legal Defense & Educational Fund, Inc. 
99 Hudson Street 
Suite 1600 
New York, New York 10013 
(212) 219-1900 

William P. Quigley 
Loyola University School of Law 
7214 St. Charles Avenue 
New Orleans, LA 70118 
(504) 861-5590 

Ronald L. Wilson 
837 Gravier Street 
New Orleans, LA 70113 
(504) 586-1241 

cc: Elizabeth Johnson, Chief, Voting Section