Defendants' Motion to Dismiss Appeal

    9 9 967 4953 FERGUSON STEIN [d1003 
Tib=m7veds 07.22.1998 ® Pe. 

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{ 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION | 

  

Civil Action No. 4.96-CV-104-B003) 

MARTIN CROMARTIE, er al,, 

Plaintiffs, 

V. 

JAMES B. HUNT, JR. in his official 
capacity as Governor of the State of North 
Carolina, ef al.. 

Defendants, | 

and | 

| ALFRED SMALLWOOD, er al., 

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Defendant-Intervenors, | 

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MOTION TO CONSOLIDATE AND SHORTEN TIME FOR RESPONSE 

NOW COME the defendants, by and through counsel, énd move the Court pursuant tp 

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Federal Rule of Civil Procedure 42(a), to consolidate this action for purposes of trial with the case 

of Daly v. Leake, C,A. No, 5:97-CV-750-BO. In addition, deferidants move the Court to shorten 

plaintiffs’ time for response to this motion to July 31, 1998. 

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The bases for this motion are set forth in Defendamt’ Memorandum in Support of 

Consolidation which accompanies this motion. 

 



    

14:50 FAX 919 967 4953 FERGUSON STEIN [d1004 
‘BE AML OR i LIT] ® IIY=/16-6763 B7.22,1998 ® P 3 

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Thig the 22nd day of July, 1998, 

07/23/98, WED, - 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

  

  

jare B. Smiley 
Special Deputy Attdgmey General 
N. C. State Bar No, [7119 

  N.C. Department of Justice 
P.O. Box 629 
Raleigh, N.C. 27602 
(919) 716-6900 | 

  

 



{ 919 967 4953 FERGUSON STEIN [hoo5 
"@® 919-716=6763 07.22.1998 1:50 ", 4 

@ \ 
J 

CERTIFICATE OF SERVICE 

  

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This is to certify that I have this day served a copy of the fdregoing Motion to Consolidate 

and Shorten Time for Response in the above captioned case pn all parties by hand-delivery or 

by facsimile and depositing these documents in the United States mail, first class mail, postage 

prepaid, as indicated, addressed ss follows: | 

Robinson O. Everett FACSIMILE AND US MAIL 
P.O. Box S86 
Durham, NC 27702 
Fax: 919-682-5469 
ATTORNEY FOR CROMARTIE PLAINTIFFS 

Ferguson, Stein, Wallas, Adkins, 
Gresham & Sumter, P.A, 

Suite 2 

312 W. Franklin Street 

Chapel Hill, NC 27516 
Fax: 919-967-4953 
ATTORNEYS FOR CROMARTIE DEFENDANT-INTERVENORS 

Adam Stein FACSIMILE AND US MAIL 

i 
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| 

| 

i 

Nathanael K. Pendley HAND-DELIVERY 
5951 Frye Bridge Road 
Clemmons, North Carolina 27012-9605 
ATTORNEY FOR DALY PLAINTIFFS 

| 
This the 22nd day of July, 1998, | 

TIRE 4s   
Tiare B. Smiley 
Special Deputy Attorney General 

  

FO DATA\WRSPLIT\DISTRICT\CRAOMAR TNCONSOLID MOT 

 



4953 : FERGUSON STEIN Koos 
M1Y-71B6BT7TEI 87.22,1998 ® Pr. 

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION | 
[1 

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Civil Action No. 4-96-CV-104-BO(3) 

| 

MARTIN CROMARTIE, et al.. | 

Plaintiffs, 

Ys, 

) 
) 

) 
) 

) 
JAMES B. HUNT, JR, in his official ) 
capacity as Governor of the State of North ) 
Cerolina, ef al., ) 

) 

) 
) 
) 
) 
) 
) 
) 

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| 

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Defendants, | 

and 

J 
ALFRED SMALLWOOD, ef al., | 

Defendant-Intervenors, 

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DEFENDANTS’ MEMORANDUM IN SUPPORT iq CONSOLIDATION 

Defendants have moved the Court pursuant to Federal i of Civil Procedure 42(a), u 

consolidate for purposes of trial the case of Daly v. Leake, No. 5:97-CV-750-BO(3), with the case 

of Cromartie v. Hunt, No, 4:96-CV-104-BO(3). Consolidation of these cases is appropriate bis 

- - - v 4 [] a - - - 

the actiona involve common questions of law and fact; in addition, consolidation will avoid the risk 

of inconsistent adjudications end limit the burden on parties, Witnesses and available judicial 

resources posed by separate trials. i 

 



07/22/98 WED 14: { 53 FERGUSON STEIN dooT 
ERR SIY HL SREL 319-716-6763 B7.22,1998 ® F. & 

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FACTS | | 

The Daly litigation involves an equal protection challengs 10 various North Carolina State 

House and State Senate Districts,' as well as Congressional Distficts | and 3, as unconstitutional 

racial gerrymanders. Similarly, the Cromartie litigation involves|an equal protection challenge to 

Congressional District 1 as an unconstitutional racial gerrymehder: Both of these cases are 

currently pending before the same three-judge panel. 

COMMON QUESTIONS OF LAW 
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Both of these actions involve equal protection challenges th representative districts enacted 

by the North Carolina General Assembly and allege unlawful racjal gerrymanders based on Shaw 
I 

v. Remo, S09 U.S. 630, 113 §. Ct. 2816, 132 L. Ed. 2d 635 (1993) (Show 1). and its progeny. In both 

cases, the Court must determine whether race was the predominant factor in the construction of the 

challenged districts and traditional redistricting criteria were Suborbtnated to race, Bushv. Vera, 517 

U.S. 952, 962-63, 116 S. Ct. 1941, 1953, 135 L. Ed. 2d 248, 259'(1996). If the Cour determines 

that race predominated, then the Court must apply strict scrutiny to determine whether the challenged 

\ 
1 

  

! Daly plaintiffs are challenging House Districts 7, 28, 79, B87, 97 and 98, and Senate 
Districts 4, 6, 7, 38 and 39, : 

2 Cromartie includes a challenge to Congressiona| District 12 in the State's 1997 
congressional plan, Section 2 of Chapter 11 of the 1997 Session Laws. However, the challenge to 
District 12 has been rendered moot by the judgment of this Court declaring District 12 
unconstitutional and the permanent injunction requiring the State 1p enact a new congressional plan, 
Chapter 2 of the 1998 Sessions Laws (the 1998 plan), which substantially modified the boundaries 
of District 12. Daly also includes challenges to Congressional Di 5, 6,9 and 12 in the 1997 
congressional plan. These challenges have been rendered moot by the enactment of the 1998 
congressional plan which substantially modified the boundaries of these four districts. Neither the 
Cromartie ot Daly plaintiffs have amended their complsints wo ¢hallenge District 12 in the 1998 
plan, Because Districts 1 and 3 were re-enacted in the 1998 legislation with no modificationsto their 
boundaries, these claims by the Cromar(ie and Daly plaintiffs aré¢ not moot. 

2 ' 
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WED 14:51 FERGUSON STEIN do08 
" 1 w AFR LHL A7.22.1998 @ Py 

districts are narrowly tailored to further 8 compelling state interest, Bush, 517 U.S. at 977.78. | 16 

S.Ct at 1960, 135 L. Ed. 2d at 269. If the State has a strong basis in evidence for concluding that 

creation of a majority-minority district is reasonably necessary to comply with Section 2 of the 

Voting Rights Act, and the resulting district substantially sdressoni violation, then strict scrutiny 

is satisfied. Bush, 517 U.S, at 978-79. 116 S. Ct. at 1960, 135 L Ed. 2d at 268-69. Similarly, o 

avoid retrogression under Section 5 of the Voting Rights Act, the seation of minority districts may 

be justified by the State so long as the boundaries of these denict do not go beyond what is 
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“reasonably necessary” to avoid retrogression. Bush, $17 U.S, at’ 978-79, 116 §, Ct, at 1961, 135 

cases, 

L.Ed. 2d nt 269. The Court will be applying these same legal standards in the Daly and Cromartie 

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| CoMmMoN QUESTIONS OF FACT 

The Daly and Cromartie plaintiffs are both chall=nging Co) gressional District | as a racial 

gerrymander,’ Thug, the motivation of the General Assembly a! creating the district is a major 

factual issue which will be presented to the Court in both cases. Tre plaintiffs’ burden of proof and 

the kind of evidence to be offered are identical, In the event that strict scrutiny is epplied, an 

identical showing of the State's compelling imerests under he Voting Rights Act would be 

necessary, The State would offer the same experts and other witnesses and evidence to establish that 

= a [3 1 Ld 1] | hb] L] ; race did not predominate in drawing the congressional district, or, in the alternative, that the district 

is narrowly tailored. Defendants anticipate that the same or similgr witnesses would be offered by 
) 

  

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3 Daly plaintiffs also challenge Congressional District 3, an overwhelmingly majority 

white district which shares boundaries with District 1. In the unlikély event the challenge ta District 
3 survives summary judgment under United States v, Hays, 515 U.S. 737, 115 §. Ct. 2431, 132 L. 
Ed, 2d 635 (1995), the offer of proof for District 3 would be similar to that for District 1, 

3  



VED 4:51 FAX 919 967 4953 FERGUSON STEIN hoo9 
Me PEEL LI TION 919-716-8763 @?.22.1998 @® P. 8 

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both sets of plaintiffs, The same legislative staff members likely would be witnesses for the State 

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and the plaintiffs in both cases. 

Although Cromartie does not include a challenge to to legislative districts, there ig 

congiderable overlap in the necessary evidentiary presentation in both cases. To the extent strict 

scrutiny applies and must be addressed, almost all of the mejority-minority State House and State 

Senate districts challenged by the Daly plaintiffs are located in coastal plain of eastern North 

Carolina, encompassed within the boundaries of Congressional District 1.Y The State's offer of proof 

for the legislative districts on the predominance and strict sertiy issues would utilize the same 

experts and other witnesses as for the congressional district. 

ARGUMENT 

Consolidation of cases is governed by Federal Rule of Civil Procedure 42(a), which provides! 

When actions involving a common question of law br fact are pending before 
the court, it may order a joint hearing or trial of any or all of the matters in issue in 
the actions; it may order all the actions consolidated; and it may make such orders 
concerning proceedings therein as may tend to avoid unncessary costs or delay. 

Daly and Cromartie are two equal protection redistricting challenghs pending before the same three- 

judge panel, Unquestionably, common issues of fact and law conniet the two cases; in addition, the 

cases involve “similar causes of action involving the same defendants claiming the same defenses, 

and common witnesses and testimonies.” Carpenter v. GAF Coi'p., 16 F.3d 1218, Nos, 90-3460, 

90-3461, 1994 WL 47781 (6th Cir. Feb. 15, 1994), “Cases should be consolidated if the risks of 

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! 

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g State House Districts 7, 79, 87, 97 and 98, and State Senate Districts 6, 7 are all 
majority-minority districts located in the eastern part of the State, The only challenged majority- 
minority district not located in the coastal plain is House District 28, which is located in Guilford 
County, 

 



  

07/22/98 WED 14:51 FAX 919 967 4953 FERGUSON STEIN 
FRG#H NC AG SPECIAL Lienrll) 919-716-6763 97.22.1998 ® 

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prejudice and confusion are outweighed by other factors.” /d. at "1. The critical question for the 
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Court is i ; 
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whether the specific risks of prejudice and possible confusion [ere] overborne by the 
rigk of inconsistent adjudications of common factual and legal issues, the burden on 
the parties, witnesses and available judicial resources posed by multiple lawsuits, the 
length of time required to conclude multiple suits as against a single one, and the 
relative expense to all concerned of the single-trial, multiple-trial alternatives. See 
Fed. R. Civ, P. 42; see generally 9 C, WRIGHT & A, MILLER, FEDERAL PRACTICE & 
PROCEDURE: Civil § 2383 (1971). 

Arnold v, Eastern Air Lines, Inc., 68} F.2d 186, 193 (4th Cir. rh cert. denied, 464 U.S_ 1040, 

104 §. Ct. 703, 79 L. Ed. 2d 168 (1984). Accord Cantrell v. GAF Gorp., 999 F.2d 1007, 1011 (6th 

~ Cir. 1993), | 

In the instant case, it is difficult to perceive any prejudice to the parties arising from 

consolidation, Since the matters age to be tried by the same thfee-judge panel without a jury, 

possible confusion is limited. The burden on the parties and wiesses posed by separate trials 

would be significantly reduced. The conservation of judicial resources is a manifest benefit of 

consolidation in this instance, “Conservation of judicial resources it a laudable goal.” Canmrell, 999 

F.2d at 1011. Although inconsistent adjudications of common cha and legal issues may not be 
i 
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a concern for this three-judge panel, consolidation assures thar the evidentiary record supporting the 

Court's adjudications are complete and consistent. Consolidation or these redistricting challenges 

2 
is in the best interests of the parties and the Court. 

[ 
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/ 

MOTION TO SHORTEN TIME FOR RESPONSE AND 
TO STAY FILING OF DISPOSITIVE oo 

Defendants have also moved the Court to shorten plainti 8’ time to respond to the motion 
f H 

to consolidate and to stay the filing of dispositive motions in Daly. Although the 1998 State 
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   07/22/98 WED 14:52 FAX 919 967 4953 FERGUSON STEIN 
FRDJM NC RE SPECIAL gdb 919~-716=6763% a7.22,1998 1 52 

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legislative elections are going forward under the existing redistricting plans, the Court has put the 
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Daly litigation on an abbreviated schedule, Discovery will be completed by July 31, 1998, and 

dispositive motions are due by August 14, 1998. In Cromartie, However, dispositive motions are 
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not due under the scheduling order in that case until January 15, 1 999. Although discovery does not 

need to be extended in Daly, it will be unnecessarily duplicative, time consuming and expensive for 

the defendants to file separate dispositive motions in the two coos Although there are some 
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separate issues relating to legislative districts that are not duplicative,® much of the legal discussion 
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and factual presentation would be very similar, if not identical for the two cases. All matters relating 

to Congressional District 1 necessarily would be tololteliatons: to the extent additonal 

evidentiary material is developed during discovery by the parties in Cromartie. 

For these reasons, defendants are requesting a shortened time for response by the plaintiff 

parties to the consolidation motion so that the Court can render ta decision before motions are due 

on August 14th in Daly. Under the circumstances, consolidation should be ordered inediately, 

and the filing of dispositive motions in Daly should be delayed to Jhnusry 15,1999, to coincide with 

the Cromariie schedule, In the alternative, defendants would request that the Court immediately 

consolidate the cases, and at least delay the filing of Gisposiive motions in Daly regarding 

Congressional District | until dispositive motions are filed in Crpmartt. In the event additional 

  

3 The factual inquiry into the predominant motive drjving the legislative redistricting 
process in 1992 when the legislative plans were enacted is separate from the inquiry inte the motives 
driving congressional redistricting in 1997. In addition, the Daly plaintiffs are challenging several 
overwhelmingly white legislative districts as well as majority-white Congressional District 3. By 
contrast, the Cromartie plaintiffs challenge only the majority-minority Congressional District 1. 
These differences in the two cases, however, sre manageable and do not outweigh the benefits to be 
derived from ¢onsolidation. 

 



   07/22/98 WED 14:52 FAX 919 9687 4953 FERGUSON STEIN 
FRM NC AG SPECIAL LITIGAT 319-716-6763 07.22.1998 ® 

evidence is developed regarding Congressional District 1 during Cromartie discovery, it is in the 

best interest of the panties and the Court that the same record be available to adjudicateall challenges 
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to the district in one consolidated proceeding. 

CONCLUSION 
1 

For the foregoing reasons, it is in the best interests of the parties and Judicial economy that 

the Daly and Cromartie cases be consolidated, For the same roast, the time for plaintiffs’ to 

respond to this motion should be shortened 10 July 31, 1998 (whi¢h provides nine calendar days), 

and the time for filing dispositive motions in Daly should be delayeli to January 15, 1999, consistent 
i 

with the Cromartie scheduling order. 

  

[do12 

dr 4 § 

 



07/22/98 WED 14:52 FAX 919 967 4953 FERGUSON STEIN 
_FRCHM NC R® SPECIAL LITISA 919-716-6763 @a7,22.1998 @ 

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This the 22nd day of July, 1998. | 

MICHAEL F. EASLEY 
ATTORNEY jv oR 

  

Edwin M, Chor a 
Chief Deputy Attorney SH 
N.C. State Bar No. 4 > 4 

  

iare { ae 
Special Deputy Afton General 
N. C. State Bar No. 7119 

N.C. Department of Justice 
P.O. Box 629 
Raleigh, N.C, 27602 
(919) 716-6900 

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07/22/98 WED 14:53 FAX 919 967 4953 FERGUSON STEIN d1014 

FRQM NC AG SPECIAL LITIGAT | 919-716-6763 R7.22.1998 CN P.13 

CERTIFICATE OF SERVICE 

This is to certify that 1 have this day served a copy of the foregoing Defendants’ 

Mcmorandum in Support of Consolidation in the above captioney case upon all parties by hand- 

delivery or by facsimile and depositing these documents in the United States mail. firs class mail, 

postage prepaid, as indicated, addressed as follows: 

Robinson O. Everett FACSIMILE AND US MAIL 
P.O. Box 586 
Durham, NC 27702 

Fax: 919-682-5469 

ATTORNEY FOR CROMARTIE PLAINTIFFS 

“Adam Stein FACILE AND US MAIL 

Ferguson, Stein, Wallas, Adkins, | 

Gresham & Sumter, PA, | 

Suite 2 | 

312 W, Franklin Street 
Chapel Hill, NC 27516 
Fax: 919- 067-4953 

ATTORNEYS FOR CROMARTIE DEFENDANT.INTERVENORS 

Nathanael K. Pendley ANDRE ERY 

5951 Frye Bridge Road 
Clemmons, North Carolina 27012-9605 
ATTORNEY FOR DALY PLAINTIFFS 

This the 22nd day of July, 1998. | 

/ Tiare B. Smiley 
Special Deputy - 

  

y General