Brief of Appellant, Clement Perschall, Jr

    MAR-05-98 THU 17:13 •LOYOLA LAW CLINIC FAX NO. 504 861 5440 • P.02 

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

_ CASE NO. 98-30004 

CLEMENT F. PERSCHALL, JR. 

versus 

THE STATE OF LOUISIANA 

Defendant/Appellee 

BRIEF OF APPELLANT, CLEMENT F. PERSCHALL, JR. 

Plaintiff/Appellant 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

HONORABLE CHARLES SCHWARTZ, .TR. 

CLEMENT F. PERSCHALL, JR. 
In Proper Person 
110 Veterans Boulevard 
Suite 340. 

etairie, Louisiana 70005 
(504) 836-5975 



MAR-05-98 THU 17:14 • LOYOLA LAW CLINIC FAX NO. 504 861 5440 • P. 03 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

CLEMENT F. PERSCHALL, JR. 

STATE OF LOUISIANA 

APPELLANT 

NO. 98-30004 

APPELLEE 

CERTIFICATE INTERESTED PERSONS 

The undersigned appearing here and in proper person certifies that the 

following listed persons have an interest in the outcome of this case. These 

representations are made in order that the judges of this court may evaluate 

possible disqualification or recusal. 

1. The State of Louisiana represented by Peter J. Butler, LL&E 

Tower, Suite 2400, 909 Poydras Street, New Orleans, LA 70112. 

2. Ronald Chisom, Marie Bookman, Walter Willard, Marc Morial, 

Louisiana Voter Registration/Education Crusade, Henry . A. Dillon, III, 

intervenors, repTe§emted by William P. Quigley, Esq., Loyola University of 

New Orleans, School of Law, 7214 St. Charles Avenue, New Orleans, 

Louisiana 70118. 



MAR-05-98 THU 17:14 4111 ,LOYOLA LAW CLINIC FAX NO. 504 861 5440 P.04 

3. Jacqueline Carr appearing in proper person, St. Gabriel Correctional 

Institution, No. 129001, Gemini 5, P.O. Box 26, St. Gabriel, La. 70776. 

SO CERTIFIED, this the 3d day of March, 1998. 

- 

Clement F. Perscnail, Jr. - 

Ii 

MOP MC 'cn 17:17 504 861 5440 PAGE.04 



MAR-05-98 THU 17:15 O LOVOLA LAW CLINIC FAX NO. 504 861 5440 P. 05 

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

CLEMENT F. PERSCHALL, JR. 

V. 

STATE OF LOUISIANA 

APPELLANT 

NO. 98-30004 

APPELLEE 

STATEMENT REGARDING ORAL ARGUMENT 

Oral argument in this matter would be helpful to the court because the 

record in the federal district court does not include the entire record of the 

case when it was remanded to state court. An appreciation of the mootness 

question will include an understanding of the case in its totality. 

MAR 05 '98 17:3? 504 861 5440 PAGE.05 



' MAR-05-98 THU 17:15 4111,LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 06 

TABLE OF CONTENTS  

PAGE 

I. Statement of Subject Matter andCertificate Interested .Persons   

II. Statement. Regarding Oral Argument  iii 

III. Table .of Contents  
iv 

IV_ Table. of Authorities   

V. State of Subject Matter and. Appellate Jurisdiction   1 

VI. Statement of the Issues Presented. for Review  1 

VII. A. Statement of the. Case   1 

VIII. Statement of Facts Relevant to the Issue Presented for Review  8 

IX. A. Summary. of the. Argument  8 

X. , Argument   
10. 

;sa. . Conclusion   
20 

iv 

MAR 05 '98 17:38 504 861 5440 PAGE.06 



MAR-05-98 THU 17:16 LOYOLA LAW CLINIC FAX NO, 504 861 5440 P. 07 

TABLE OF AUTHORITIES  

CASE AUTHORITY 
PAGE 

Boston Firefiahters Uri.° Local 7118 v. Boston Chaster NAACP et al. 
. . 1 I., 14, . . 7 l9:4, • . E   11 

Calderon V. Moore, 518 U.S. 149, 116 S.Ct. 2066, 2067, 135 L. Ed. 2d 453 
(1996)   

18 

In Re Duncan, Tex, 139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219 (1891) 17 

Lakeside Imports, Inc. V. State, 94-0191 (La. 7/5/94); 639 So.2d 253 (La. 
1994).   

16 
Liner et al. v. JAFCO Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L. Ed.2d, 347 
Z13-62157'- li 

11 

McCarthy v. Garrahy, 460 F. Supp. 1042 (D.C.R.I. 1978)   11,17 

Minor v. Happersett Mo. 88 U.S. 162, 175, 21 Wall. 162, 22 L. Ed  627 
(1875)   

17 

Pompay et al. v. Broward County, 95 F.3d 1543 (CA 11th Cir., 1996) . 16 

Ryder v. U.S., 515 U.S. 177, 115 S.Ct. 2031, 132d L. Ed.2d 136, (1995) 
  15, 18 

Stokes v. Harrison, 115 so.2d 373 (La. 1959)   17 

STATUTORY AUTHORITY . 

28 USC § 2201   
13 

HISTORICAL REFERENCE 

Alexander Hamilton, James Madison and John Jay, The Federalist Papers, No. 
78, New York, New York, Bantam Books, 1982, p. 395 - 397   19 

MAR 05 '.92 17:32 504 861 5440 PAGE.0? 



MAR-05-98 THU 17:16 _LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 08   

I. STATEMENT OF SUBJECT MATTER 

AND APPELLATE JURISDICTION 

A. The basis for subject matter jurisdiction in the district court was 

pursuant to 28 U.S.C., Section 1441(b). The facts establishing the basis for 

jurisdiction were the allegations by the State of Louisiana that the original 

petition filed by applicant in 19th Judicial District Court of the Parish of 

East Baton Rouge, State of Louisiana, alleged relief on a claim arising under 

the Constitution of the United States. All is set forth in paragraph XLVIII 

of Plaintiffs petition at p. 10, TR 148. 

B. The basis for jurisdiction in the court of appeals is pursuant to 28 

U.S.C., Section 1291. The District Court by "Order and Reasons" dated 

December 10, 1997, with a date of entry of December 11, 1997, and by 

subsequent order dated December 16, 1997, with a date of entry of 

December 16, 1997, dismissed. Plaintiffs action of the basis of mootness, 

thereby, rendering a final judgment against Plaintiff. •(See TR 458 and 460.) 

A notice of appeal was filed on December 31, 1997, within the 30-day time 

period from the entry of the aforesaid orders in accordance with FRAP 4. 

II. STATEMENT OF THE ISSUES 

PRESENTED FOR REVIEW 

The sole issue presented for review is whether the finding by the 

Louisiana Suprerpe, Court that Acts 1992, No. 512, is unconstitutional renders 

the case moot, including any relief Perschall may be entitled to under his 

prayer for general and equitable relief. 

III. A STATEMENT OF THE CASE 

A. Nature of the Case. 

This case is a declaratory judgment action relative to a determination of 

1 

MOP PC ,c3R 17:1q sma RA1 Sel4M PAGF.08 



' MA-05-98 THU 17:17 4111 LOYOLA LAW CLINIC FAX NO. 504 861 5440 4111 P. 09  

the constitutionality of Acts 1992, No. 512, which created an eighth justice 

on the Louisiana Supreme Court. The petition alleges violations of both the 

United States Constitution and the Louisiana Constitution. 

B. Course of the Proceedings. 

1. This declaratory action was filed by Perschall on January 16, 

1995, in the 19th Judicial District Court for the Parish of East Baton Rouge, 

State of Louisiana. (See TR 139.) 

2. The State of Louisiana removed the case to the United States 

District Court for the Middle District of Louisiana based upon a federal 

constitutional question. (See TR 136.) 

3. The State of Louisiana asked the court in the Middle District to 

transfer the matter directly to Judge Schwartz ii the Eastern District Court 

for Louisiana because the State alleged that this action was related the matter 

of Chisom et al. v. Roemer et al. .which was tried before Judge Schwartz. 

Acts 1992, No. 512, was the basis for the Consent Decree in Chisoin. (See 

TR 114.) 

4. The Federal Court in Baton Rouge accommodated the State by 

transferring the case to the Eastern District, however, the Judge declined the 

State's request to specifically allot it to Judge Schwartz. (See TR 86.) 

5. The matter was allotted to Judge Duvall. 

6. The State then noticed the clerk that it felt that this case was 

related to the matter of Chisom_et al. v. Roemer, et al. and asked that the 

matter be transferred to Judge Schwartz. (See TR 82.) 

7. The request from the• State was granted and this action was 

assigned to Judge Schwartz. (See TR 81.) 

8. Perschall sent a letter to Judge Schwartz suggesting that he may 

2 

MAR 05 '98 17:39 504 861 5440 PAGE.09 



MAR-05-98 THU 17:18 4111.LOYOLA LAW CLINIC FAX NO. 504 861 5440 P.10 

have already formed an opinion as to the constitutionality of Acts 1992, No. 

512, when he ruled on a motion in the Chisom matter which sought to 

preclude Judge Ortigue from having to resign the eighth seat on the 

Louisiana Supreme Court upon reaching his 70th birthday. Judge Schwartz 

treated the letter as a motion to recuse him which he denied. (See TR 9 

and TR 1.) 

9. Perschall filed a motion to dismiss or to have the court abstain 

from hearing the action and to return it to state court. (See TR 351.) 

10. The state asserted that Perschall's action was a collateral attack on 

the Chisom consent decree, thereby, making his action moot. (See TR 606.) 

11. Notwithstanding the collateral attack/moomess theory of the State, 

Judge Schwartz found that the Louisiana constitutional issues raised in 

Perschall's petition should be adjudicated in state court and by Order dated 

July 5, 1995, and supplemented by Order dated August, 1995, remanded the 

case to state court solely for the determination of the constitiitionAlity of Acts 

1992, No. 512, under the Louisiana State Constitution. (See TR 606 and TR 

307.) 

12. Upon the return of the case to state court, various discovery 

matters were initiated by Perschall, including the depositions of Supreme 

Court Justices Calogero and Marcus. At first the depositions were agreed 

upon by the justices through Mr. Peter Butler, Sr., the attorney for the State 

of Louisiana, and fixed for October, 1995, however, they were cancelled three 

days prior to their taking without explanation. 

13. The State filed a motion for a protective order for the purposes 

of denying Perschall the right to take those depositions. (See TR 562.) 

14. Perschall attempted to take the deposition of Mayor Marc Morial 

3 



Mg-05-98 THU 17:18 4111 LOYOLA LAW CLINIC FAX NO. 504 861 5440 P.11 

but was precluded from doing such because Mr. Moriars body guard would 

not permit the Orleans Parish Civil Sheriffs deputy in Mr. Moriars office to 

effectuate service of his deposition subpoena; 

15. Mr. Morial, by motion filed through Mr. William Quigley, sought 

to have his deposition prevented; 

16. The State of Louisiana filed motions to have Perschall's claim 

dismissed for lack of jurisdiction over the subject and/or that the matter was 

moot and/or that the local or special law issue raised in Perschall's petition 

should be stricken. These motions were denied. (See TR 562.) 

17. The State of Louisiana Motion for Protective Order to Preclude 

the Depositions of the Justices of the Supreme Court was denied by the trial 

court. (See TR 562.) 

18. The State of Louisiana filed writ applications to the First Circuit 

of Appeal relative to the denial of its aforesaid motions. (See TR 562.) 

19. The First Circuit Court of Appeal declined consideration on the 

two writ requests for the failure of the state to comply with the local rules 

on writ requests. (See TR 562 and 563.) 

20. On February 5, 1996, the State filed a Writ • Application to the 

Louisiana Supreme Court relative to the denial of their Writ Applications to 

the First Circuit Court of Appeal. (See TR- 563.) 

21. Nay/ jithstanding Perschall's Motion for Partial Summaty Judgment 

which was fixed for February 26, 1996, and a trial date of April 24, 1996, 

Justice Victory of the Louisiana Supreme Court issued an order on February 

15, 1996, staying all proceedings of this case until further orders of the 

Louisiana Supreme Court. (See TR 563.) 

• 22. Upon the filing of the State's writ application, Perschall was 

4 

MAR 05 '98 17:41 504 861 5440 PAGE.11 



MAR-05-98 THU 17:19 LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 12 

notified by the Louisiana Supreme Court that an opposition to the State's 

request was required, although no such rule mandates such. 

23. Coupled with the aforesaid opposition, Perschall filed a motion to 

recuse all justices then on the bench with the 

who was not on the Supreme Court bench in 

involvement with the Acts 1992, Number 512. 

exception of Justice Victory, 

1992 nor appeared to have any 

A transcript of the Louisiana 

Howe Committee considering the bill which later became Act 1992, No. 512, 

reflected that Justice Calogero, Marcus and Dennis participated as witnesses 

and supporters of the bill at the hearing. Further, Justice Dennis is reported 

to have testified that the other members of the Supreme Court supported the . 

bill. (See Record Excerpts, tab 7.) 

24. As a result of Perschall's motions, Justices Calogero, Marcus and 

Bemette Johnson recused themselves. The motion as to the other justices 

sought for recusal was denied without a hearing or explanation, all as 

reflected by the Supreme Cotes letter notice of March 14, 1996. (See TR 

563.) 

25. This case remained in limbo until by Order dated July 12, 1996, 

the Supreme Court asked the litigants to brief the issue of whether or not 

the Louisiana courts should respond to the federal district court's partial 

invocation of the abstention doctrine, particularly since the federal consent 

decree in the Chisom litigation pervades "all or most of the State 

constitutional issues in the. present case." (See TR 563.) • 

26. After briefs were filed no further action occurred until the 

Supreme Court's order of November 8, 1996, which provided in part: 

. . we have decided to bypass the lower courts and bring up 
all aspects of the case ... Because of the importance of this case 
to the public and to the orderly process of government, we 
exercise our supervisory jurisdiction and grant certiorari, brmgmg 

5 

mnm mc Inn 4 ,1*A4 =MA CC1 =AAM of-Inc in 



MAR-05-98 THU 17:20 *LOYOLA LAW CLINIC FAX NO. 504 861 5440 P.13 

the entire case up to this Court for argument and decision" (at p. 
2.) 

Further the Court's order required that the following issues be included 

in the litigant's briefs: 

a. 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? (footnote omitted). 

b. Does the Federal Court's remand order constitute 
certification of a question of Louisiana law to the 
Su_preme Court of Louisiana which has discretion to 
refuse such certified questions from the Supreme 
Court of the United States and the Federal Courts of 
Appeal? 

c. Does Act 512 violate the Louisiana constitution? (at 
p. 3.) (See TR 563.) • 

27. The Supreme Court by letter dated December 2, 1996, addressing 

Perschall's Motion to Lift the Stay to Take Discovery and for an Evidentiary 

Hearing, denied same and the Supreme Court retaining the authority to 

remand the case to the trial court for discovery and for an evidentiary 

hearing in the event the Court deemed it necessary. 

28. Oral argument in the case was fixed for February 24, 1997. 

(See TR 563.) 

29. To .r9pJace the justices recused from this matter, the members of 

the Louisiana Supreme Court selected Chief Judge Charles A. Marvin of the • 

Court of Appeals for the 2d Circuit and Judge Freddie Pitcher, Jr., of the 

Court of Appeals for the 1st Circuit to complete a panel of seven to hear 

the case. 

30. On February 7, 1997, Plaintiff filed a Motion to Recuse Ad HoC 

6 

MOP MC ,c1c1 17:A2 Said RAT Seld91 PAnF_13 



MAR-05-98 THU 17:20 410, LOYOLA LAW CLINIC FAX NO. 504 861 5440 • P.14 

Judge Freddie Pitcher, Jr., on the basis that the creation of the district of the 

1st Circuit Court of Appeal from which Judge Pitcher was elected also in 

violation of the Louisiana Constitution and in particular Article 5, Section 9 

and La. R.S. 13:312(1). 

31. By letter dated February 20, 1997, Perschall's Motion for Recusal 

was denied without a hearing. 

32. By judgment dated July 1, 1997, the Louisiana Supreme Court 

found that Acts 1992, Number 512, was unconstitutional in its entirety. (See 

TR 554.) 

33. Application for a rehearing was filed by the Chisom, et al.  

intervenors and the State of Louisiana. 

34. The Chisom, et al. intervenors filed a Motion to Recuse Justices 

Kimball, Knoll, Lemmon, Traylor and Victory on August 4, 1997. 

35. The Motion for Recusal filed by the intervenors was denied on 

August 14, 1997, without a hearing. 

36. On September 5, 1997, the Supreme Court for the State of 

Louisiana denied the rehearing request by all applicants. (See TR 587.) 

37. On October 14, 1997, the State of Louisiana filed a Motion to 

Dismiss Perschall's lawsuit in the United States District Court for the Eastern 

District of Louisiana on the alleged basis of its now being moot. (See IR 

535.) . 

38. By Order and Reasons dated December 10, 1997, and judgment 

dated December 16, 1997, the Honorable Judge Schwartz dismissed Perschall's 

action on the basis of mootness. (See TR 460 and TR 458.) 

7 

MAR 05 '98 17:43 504 861 5440 PAGE.14 



MAR-05-98 THU 17:21 Ilk LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 15 

IV. STATEMENT OF FACTS RELEVANT TO 'I'HE 

ISSUE PRESENTED FOR REVIEW 

1. Perschall alleges at paragraph XLVIII of his original petition that 

Acts 1992, No. 512, of the Louisiana Legislature is unconstitutional in that it 

violates Plaintiffs rights to due process, rights to equal protection, right to 

vote, a denial of his property right as to his practice of law, his right to a 

representative and republic form of government as provided by the United 

States Constitution and the Louisiana Constitution; (See Petition for 

Declaratory Judgment at p. 10, TR 550.) 

2. Acts 1992, No. 512, appears to have been authored in whole 

and/or in part by all justices sitting on the Louisiana Supreme Court in 1992, 

including Justices Calogero and Marcus who were intervenors in the Chisorn  

matter as reflected by the remarks of Justice Dennis at the hearing of the 

House Committee on Government Affairs on June 9, 1992. (See Record 

Excerpts, Tab 7.) 

3. The remand order from the federal district court to the 19th 

Judicial District Court for the Parish of East Baton Rouge of July 31, 1995, 

emphatically limited the remand to a determination of the constitutionality of 

Act 512 under state law. The federal district court specifically retained 

jurisdiction over the remainder of the case including what appropriate relief 

the court would ..grant Plaintiff in the event of a decision in Plaintiffs favor. 

(See order of district court of July 31, 1995, at TR 607.) 

V. A SUMMARY OF THE ARGUMENT 

This case is not moot because. 

1. The remand order from the United States District Court to the 

state court was solely for the determination of the constitutionality of Acts 

8 

MAR 65 '98 17:43 504 861 5440 PAGE. 15 



. •..• • - • 

MAR-05-98 THU 17:21 •LOYOLA LAW CLINIC FAX NO. 504 861 5440 •P.16 

1992, No. 512. The federal order did not relinquish the Court's jurisdiction 

as to a determination of the appropriate remedy that Perschall may be 

entitled to in the event Plaintiff is successful. Therefore, any determination 

by the state court as to Plaintiffs prayer that all acts of an unconstitutionally 

composed court shall be void ab initio was not within the purview of the 

remand order of the federal court; 

2. A denial of Plaintiffs request that all acts of an unconstitutionally 

composed Louisiana Supreme Court be declared void ab initio and without 

effect by the Louisiana Supreme Court is not an adjudication of Perschall's 

United States Constitutional rights to due process, his rights to property, his 

right to vote and his right to a republic and representative form of 

government. The supremacy clause of the U. S. Constitution dictates that 

such a decision would violate Perschall's U. S. Constitutional right to due 

process, right to vote and a right to a republican from of government. The 

, availability of a partial remedy is sufficient to prevent a case from being 

moot. 

3. Perschall is entitled to general and equitable relief upon the 

finding that Acts 1992, No. 512, is unconstitutional in its entirety. 

4. Perschall, as an active legal practitioner, would have to address 

the constitutional composition of the Louisiana Supreme Court with any client 

he represents bgpre the Court. Each such client would have an individual 

right to bring a suit against the Court's composition.. Under the theory that 

where the controversy is capable of repetition yet evading review, an 

exception to mootness exists, and Perschall should be entitled to further 

relief. 

5. The lack of a remedy to Perschall will chill his right to vote. 

9 

MAR O5 '98 17:44 504 861 5440 . PAGE. 16 



MAR-05-98 THU 17:22 LOYOLA LAW CLINIC FAX NO. 504 861 5440 0 P. 17 

VI. ARGUMENT 

MAY IT PLEASE THE COURT, 

This case involves the determination of the constitutionality of the 

composition of the Louisiana Supreme Court as created by Acts 1992, No. 

512. Acts 1992, No. 512, was the basis for the formulation of the consent 

decree in the case of Chisom et al. v. Roemer et al., Matter No. 86-4075, of 

the United States District Court for the Eastern District of Louisiana. This 

consent decree was signed by the Honorable Charles Schwartz, Jr., on August 

21, 1992. (See TR 236.) This consent was entered into after there had 

been a trial on the merits and the trial court found for the defendants, the 

State of Louisiana and against the Chisom plaintiffs. (See TR 213.) At the 

time the consent decree was entered into, the Chisom matter was on appeal 

to the United States Fifth Circuit Court of Appeal. By order of the Court 

of Appeals, the matter was remanded to the district court to effectuate the 

settlement filed by all parties. (See TR 222.) 

An original party plaintiff in the Chisom matter was Marc Morial who 

later became Senator Morial and who was a co-sponsor of the bill which 

subsequently became Acts 1992, No. 512. (See TR 206.) Justices Walter F. 

Marcus, Jr., and Pascal F. Calogero, Jr., of the Louisiana Supreme Court 

intervened in the Chisom matter. (See TR 208 and 211.) 

Mr. Morie,s-Activities involving the bill which subsequently became 

Acts 1992, No. 512, are in part reflected by the minutes of the State Senate 

Judiciary Committee of June 2, 1992. (See TR 185.) The participation of 

Justices Calogero, Marcus and then Justice Dennis are reflected by the 

excerpts from the meeting on the House Committee on Government Affairs 

on June 9, 1992. (See Record Excerpts, Tab 7.) This excerpt was appended 

10 

MAR 05 '98 17:44 504 861 5440 PAGE. 17 



MAR-05-98 THU 17:23 LOYOLA LAW CLINIC FAX NO. 504 861 5440 P.18 

to plaintiffs motion to recuse the justices of the Louisiana Supreme Court 

filed in the state proceedings in February 1996.) 

Included in the decision of the Louisiana Supreme Court that Acts 

1992, No. 512, was unconstitutional in its entirety, was an expression of the 

Court that the decisions rendered by that court, albeit while unconstitutionally 

composed, were legal and binding. As part of Perschall's petition for 

declaratory relief, Perschall had prayed that the decisions of the court be void 

ab initio, as well as, for all general and equitable relief. Once the decision 

had been rendered and became final, the State of Louisiana moved the 

federal district court to dismiss Perschall action as moot. Notwithstanding 

the expressed mandate of Judge Schwartz's remand order that he and only he 

would determine the remedy available to Perscha 11 , Judge Schwartz acquiesced 

to the declaration of the Louisiana Supreme Court that its judgments rendered 

by an illegally constituted court . were nevertheless legal and binding. Judge 

Schwartz accordingly found that Perschall had received all the relief he 

sought and granted the motion of the State of Louisiana to dismiss the case. 

The question of whether an 'action is moot is one of federal law.' To 

avoid moonless there must be present both live issues and parties with 

legally cognizable interests2 or an exception to moonless must exist. An 

exception to mootaess exists where the controversy is capable of repetition 

yet evading rev.ieye In this case there is an additional issue as to the 

1 Liner et al. v. JAFCO. Inc., 375 6.s. 301, 304, 84 S.Ct. 391, 393, 11 L. Ed.2d, 347 (1964). 

2 Boston Firefighters Union. Local 7118 v. Boston Chapter. NAACP. et al., 468 U.S. 1206, 
104, S.Q. 3576 (1984), L. Ed. 2d 

3 McCarthy v. Garrahy, 460 F. Supp. 1042, 1044 (D.C.R.I. 1978) citing Reynolds v. Simms, 
377 U.S. 533, 555, 84 Sct. 1362, 1378, 12 L. Ed.2d, 506 (1964). 



MAR-05-98 THU 17:23 LOYOLA LAW CLINIC FAX NO. 504 861 5440 S P. 19 

question of mootness and that is the effect of Judge Schwartz's remand order 

which reserved to the jurisdiction of the federal district court the sole 

authority to determine what remedy Perschall may be do if Acts 1992, No. 

512 was unconstitutional. Thus the mootness argument consists of three 

related issues: 

1. whether the remand order of Judge Schwartz to the state court 
precludes any issue of mootness. 

2. whether there are live issues and parties with legally cognizable 
interests; 

3. whether the exception to mootness exists in this case; 

ISSUE 1. WHETHER TI-IE REMAND ORDER OF JUDGE 
SCHWARTZ TO THE STATE COURT PRECLUDES ANY 
ISSUE OF MOOTNESS. 

• Judge Schwartz's Order of July 31, 1995, which was issued after his 

initial remand order of July 5, 1995 and which was the result of the State's 

Motion For Reconsideration of the earlier order, provides in part: 

"Inherent in this Court's prior order and reasons was the 
expectation that once the Louisiana judiciary determined the 
state law constitutionality of Act 512, it will be for this Court 

i to take whatever action s appropriate in accordance with the 
Voting Rights Act and federal _jurisprudence, including determining 
the impact of that state court decision on the Chisom consent 
judgment. However for purposes of clarity the Court will grant 
the State's motion insofar as to specifically limit remand to the 
issue of the constitutionality of Act 512 under state law. The 
Court retains jurisdiction over the remainder of this case 
includiu the plaintiffs prayer for general and equitable 
relief.... 

"IT IS FURTHER ORDERED that the Motion for 
Reconsideration is hereby GRANTED insofar as the State request 
clarification of this Courts prior order and reasons to reflect that 
the constitutionality of Act 512 is the sole issue remanded to 
the Nineteenth Judicial District for the Parish of East Baton 
Rouge, Louisiana % and that this Court retains jurisdiction over 
all other issues in this case."(emphasis added)(see TR 606-607) 

The trial court in its decision dismissing this matter seeks to implicitly 
revise its remand order by stating that, 

• 12 



MAR-05-98 THU 17:24 LOYOLA LAW CLINIC FAX NO. 504 861 5440 • P. 20 

"the Louisiana Supreme Court necessarily addressed plaintiffs 
allegation to the effect that a declaration that Act 512 is 
unconstitutional renders void all• decisions of the Louisiana 
Supreme Court issued during the time the Act was effective." 

"Simply stated, the Louisiana Supreme Court rejected plaintiffs 
argument under Louisiana law... As the State aptly points out, 
this Erie court is required to apply Louisiann substantive law and 
rule upon the issue accordingly.' (Emphasis added.) (See TR 472-
473.) 

The trial court initially abrogates its own order, which is the law of 

the case between the parties, as to its retention to the right to adjudge the 

remedy due in this matter. It then acquieices to the ruling of the Louisiana 

Supreme Court as to the effect of the decisions of the Louisiana Supreme 

Court while it is unlawfully constituted, based upon the Erie doctrine. The 

issue of whether the state court's decision is in conflict with any federal law 

or federal constitutional provision which may call into question the supremacy 

clause of the United States Constitution or any pre-emption of state law is 

not addressed by the court. Pursuant to its constitutional authority and 28 

USC § 2201, the trial court is given broad powers to fashion an appropriate 

remedy. The trial court erred in not granting Perschall relief. Especially, 

the trial court's failure to adjudge the decisions of the Louisiana Supreme 

Court void and without effect denies Perschall his constitutional rights to due 

process by denying him access to a constitutionally constructed court, one 

which was creat51..through a vote of the people as created by the state 

constitution which is guaranteed to Perschall by his right to a republican 

form of govemment. 

The trial court stresses the Erie doctrine as to the Louisiana Supreme 

.Court's expression of its decision on the efficacy of its prior decisions but it 

does not explain or rationalize the apparent conflict with the limitation the 

13 

MOP Mc IcIA 17:Ag PA1 cdAM ponp 's 



MAR-05-98 THU 17:25 4111 LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 21 

Supreme Court placed on the rendering of its opinion. The Court at the 

beginning of its decision stated: 

"Based on this review, we hold that Act 512 suffers from 
specific constitutional infirmities that require its invalidation. This 
holding is narrowly premised on the constitutional conflict that 
Act 512 creates between the state constitutional provision that 
imposes a numerative limit of justices on this court and the 
provision authorizing this court to assign lower court judges to 
any court. In so holding, we recognize the status quo shall 
remain intact, and this court, as it is currently composed and 
operating shall continue to function as a de jure court under 
the Chisom Consent Judgment. Because it is not before us, we 
express no• opinion of the effort to diversify this court's 
composition, ,.. we only address the unsettled state law issue 
surrounding the relationship between the numerative limit of 
Article ,V Section 3, and- the assignment power provision of 
Article V, Section 5(A)." (Emphasis addecl.)(See TR 554.) 

Two pages before it concludes the reasoning for its judgment the 

Supreme Court states: 

"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." (see TR 582) 

The very next paragraph it addresses the question of whether the 

decisions of the court should be void ab initio. Obviously, at this point the 

court has already declared itself to be a de jure court. Any . further • 

rationalization for the legality of its decision is pure dictum. The court is 

asserting that irrespective of its constitutional make up the Chisom consent 

decree is the bpjs, for its de jure status, thus, the legal basis for its 

decisions. Accordingly, the trial court erred in assuming that the dictum of 

the decision should be accorded the status of a decision on the issue of the 

efficacy of the judgments of the Court. It is suggested that even if what 

this author assumes to be dicta and non-controlling is in fact the decision of 

the justices of the Louisiana Supreme Court that the state constitution is not 

14 



MAR-05-98 THU 17:25 0 LOYOLA LAW CLINIC FAX NO. 504 861 5440 P.22 

the fundamental law of the state and that a violation of its provisions can 

provide legality to the acts created by an =constitutional law, the trial court 

should still have considered the effect of such a decision on the U. S. 

Constitutional rights of the plaintiff. 

In Ryder v. U.S.., 515 U.S. 177, 115 S.Ct. 2031, 132d L. Ed.2d 136, 

(1995), the Supreme Court reviewed the ramifications of a decision from an 

illegally constituted court. The Court found: 

"...his claim is based on the Appointments Clause of Article II of 
the Constitution - a claim that there has been a 'trespass upon the 
executive power of appointment" 

"...we decline to invoke the de facto officer doctrine in order to 
avoid deciding a question arising under Article Di of the 
Constitution, saying that the cases in which we had relied on that 
doctrine did not involve 'basic constitutional protections designed 
in part for the benefit of litigants. Any other rule would create 
a disincentive to raise ... challenges ... to questionable judicial 
appointments." 

"It simply cannot be said, therefore, that review by the properly 
constituted. Court of Military. Appeals gave petitioner. all the 
ppssibiity Guard Court. foror relief that Ig3,..feww -bzoia:ild)rfsverelygicvoens. ti;uciteedthCeroelsotre 

hold that the Court of Military Appeals erred in according de 
facto validity to the actions of the civilian judges of the coast 
Guard Court of Military Review. Petitioner is entitled to a 
hearing before a properly appointed panel of that court." 
(emphasis added) at p. 2035 -2038 

The Supreme Court recognizes that a person is entitled to a hearing 

before a properly constituted court. The rationalization for the decision was 

that there had :1).9eg a violation of the Appointment Clause of Article II of 

the Constitution. And under Ryder any person who appears before the 

Louisiana Supreme Court will have an equally strong federal constitutional 

argument to contest its composition not one limited solely to Louisiana law. 

After finding the decision of the Louisiana Supreme Court addressed 

the issue of the status of its decisions the trial court found that no other 

15 



MAR-05-98 THU 17:26 LOYOLA LAW CLINIC FAX NO. 504 861 5440. P. 23 

remedy could be given plaintiff under his prayer for general and equitable 

relief. General and equitable relief is due if (i) no adequate remedy of law 

is available and (ii) irreparable injury exists or will exist.' 

• The genesis of this case deals with the fundamental law of the state of 

Louisiana. The remedies for a violation are to correct the actions done by 

the unconstitutional act and to preclude the continuance of such. Irreparable 

harm takes place if no action is taken because the entire basis for the law, 

the constitution, is removed from its position as the fundamental law from 

which all other laws emanate. There are two possible remedies which the 

trial court could have granted. One remedy would have been a finding that 

the acts of the court were void ab initio as to its working under Acts 1992, 

No. 512. The other remedy is an order requiring the Court to be 

constitutionally composed. 

ISSUE 2. WHETHER THERE ARE LIVE ISSUES AND 
PARTIES WITH LEGALLY COGNIZABLE INTERESTS; 

Perschall is a litigant with a legally cognizable interest. Perschall is a 

licensed Louisiana attorney who is an active practitioner. The fact that the 

Louisiana Supreme Court is unconstitutionally composed bears upon Perschall's 

ability to• practice his livelihood. "It has been recognized by the courts that 

to deprive a person of his right to pursue his chosen calling deprives him of 

his liberty and to prevent his continuing in a lawful business or pursuit in 

which he is alfei.4 engaged deprives him of his property?' 

Additionally, Perschall's right under Louisiana law to vote for justices 

of the Louisiana Supreme Court as provided by its Constitution remains 

Pornpay et al. V. Broward County. et al., 95 F.3d 1543 (CA llth Cir., 1996) at p. 1551. 

5 Lakeside Imtx)rts. Inc. V. State, 94-0191 (La. 7/5/94), 2; 639 So.2d 253, 255 (La. 1994). 

16 



• 

MAR-05-98 THU 17:27w LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 24 

unaddressed by the mere declaration of the unconstitutionality of the 

composition of the Louisiana Supreme Court. This right to vote has been 

given extraordinary protection and any infringement upon this right to vote 

automatically creates a presumption that this right is burdened. The facts of 

this case demonstrate the passage of the Act violates an expressed provision 

of the constitution and the Act was drafted with the assistance of public 

officials having not only legal training and including justices of the very 

Court affected by the Act, but by the very parties to a lawsuit for which the 

Act would form the basis for a consent decree to settle their dispute. Such 

facts warrant a remedy to insure the principle that the Constitution is the 

fundamental law and that public officials who are charged with upholding the 

Constitution must do so. 

Perschall has a constitutional right to a republican form of government 

pursuant to Article VI, Section 4, of the United States Constitution. By 

definition, a state is a political society consisting of the people inhabiting its 

boundaries.' A republic form of government is that which was evidenced by 

the state governments established when the Constitution of the United States 

was adopted.s 

"While the pe_o_ple are thus the source of political _power, their 
governments, National and State, have been• limited- by written  
constitutions and they have themselves thereby set bounds to their 
own power, as against the sudden impulses of mere majorities."' 

6 McCarthy v. Garrahy, infra 

Stokes v. Harrison, 115 so.2d 373 (La. 1959) at p. 378. 

B Minor v. Happersett. Mo., 88 U.S. 162, 175, 21 Wall. 162, 22 L. Ed. 627 (1875). 

9 In Re Duncan, Tex, 139 U.S. 449, 461, 11 S.Q. 573, 35 L. Ed. 219 (1891). 

17 

MOD Mq 100 17!AO • qMA mal qAAM PO = ,A 



MAR-05-98 THU 17:27 410 LOYOLA LAW CLINIC FAX NO. 504 861 5440 • P. 25 

All of the aforesaid interests are legally recognized right which are due 

protection. And notwithstanding the decision of the Louisiana Supreme 

Court, there still is the issue of a remedy to Perschall's constitutional right to 

have voted for a constitutionally correct Louisiana Supreme Court, his right 

to have his republican form of government upheld by the enforcement of the 

provisions of the Louisiana Constitution, and his property and liberty interest 

to practice before a constitutional tribunal in the Louisiana Supreme Court. 

The availability of even a partial remedy as to any of the outstanding issues 

is sufficient to prevent a case from being moot.' 

ISSUE 3. WHETHER THE EXCEPTION TO MOOTNESS 
EXISTS IN THIS CASE 

The exception to mootness, that being a controversy capable of 

repetition yet evading review is present. Perschall shall continue to have 

cases which may require appearances before the Louisiana Supreme Court. 

Perschall shall be obligated to assert on behalf of any such client the 

unconstitutional composition of the Louisiana Supreme Court. Each such 

client shall have his own individual right under the Louisiana Constitution 

and the United States Constitution to re-litigate this issue as illustrated by 

Ryder, supra. The highly likely probability of repetition of Plaintiffs claim 

falls within the exception to mootness requiring the court to. grant Plaintiff 

relief under his claim. 

This suit ifisserted to reaffirm the importance of the Constitution as 

the fundamental law. And the importance of the preservation of our system 

of government and the difficulty to maintain such was succinctly noted by 

Alexander Hamilton who said: 

1° Calderon v. Moore, 518 U.S. 149, 116 S.Ct. 2066, 2067, 135 L Ed. 251 453 (1996). 

18 

MOD 17!Gi cad PA1 cdAM • 'Do= ,c 



MAR-05-98 THU 17:28 4111 LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 26 

"There is no position which depends on clearer principles, than 
that every act of a delegated authority, contrary to the tenor of 
the commission under which it is exercised, is void. No 
legislative act, therefore, contrary to the constitution can be valid. 
To deny this would be to affirm that the deputy is greater than 
his principal; that the servant is above his master, that the 
representative of the people are superior to the people themselves; 
that men acting by virtue of powers may do not only what their 
powers do not authorize, but what they forbid. . . . 

"A constitution is in fact and must be regarded by the judges as 
a fundamental law. . . 

"This independence of the judges is equally requisite to guard the 
constitution and the rights of individuals from the effects of those 
ill humours which the arts of designing men, or the influence of 
a particular conjunctures, sometimes disseminate among the people 
themselves, and which, though they speedily give place to better 
information and more deliberate reflection, have a tendency in the 
mean time to occasion dangerous innovations in the government, 
and serious oppressions of the minor party in the community. 
Though I trust the friends of the proposed constitution will never 
concur with its enemies [footnote omitted] in questioning that 
fundamental principle of republic government, which admits the 
rights of the people to alter, abolish, establish constitution 
whenever they find it inconsistent with their happiness; yet it is 
not to be inferred from this principle, that the representatives of 
the people,. whenever a momentary inclination happens to lay hold 
of a majority of their constituents incompatible with the 
provisions in the existing constitution, would on that account be 
justifiable in a violation of those provisions; or that the courts 
would be under a greater obligation to connive at infractions in 
this shape, then when they had proceeded wholly from the cabals 
of the representative body. Until the people have by some 
solemn and authoritative act annulled or changed the 
established form, it is binding upon themselves collectively, as 
well as individually; and no presumption, or even knowledge 
of their sentiments can warrant their representatives in a 
departure from it, prior to such act. But it is easy to see that 
it would require an uncommon portion of fortitude in the judges 
to do their duty as faithful guardians of the constitution, where 
legislativd mvasions of it had been instigated by the major voice 
of the community." (Emphasis added) 

11 Alexander Hamilton, James Madison and John Jay, The Federalist Papers, No. 78, New 
York, New York, Bantam Books, 1982, p. 395 - 397. 

• 19 



MAR-05-98 THU 17:29 LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 27 

CONCLUSION 

I would urge and suggest that the appropriate remedy for this matter is 

an order declaring the decisions of the Louisiana Supreme Court rendered 

under the authority of Acts 1992, No. 512 to be void ab initio. Such a 

ruling would reassert that the constitution as the fundamental law. 

Respectfully Submitted: 

-Clement F. Persc all, Jr. 
In Pro_per . Person 
110 \veterans Boulevard 
Suite 340 
Metairie, LA 70005 
Telephone: (504) 836-5975 

20 • 



MAR-05-98 THU 17:29 LOYOLA LAW CLINIC FAX NO. 504 861 5440 1110 P. 28 

CERTIFICATE OF SERVICE 

I certify that I have served a copy of the aforegone on all counsel of 

record by mailing same properly addressed and postage prepaid through the 

United States Postal Service on March 3, 1998. 

• 

C. F. l'eschall, Jr. 

21 



MAR-05-98 THU 17:30 4111LOYOLA LAW CLINIC FAX NO, 504 861 5440 P. 29 

punrrsIn) CERTIFICATE OF COMPLIANCE  

(PLAcz THIS AS LAST DOCUMENT IN YOUR BRIEF BEFORE THE BACK COVER) 

Pursuant to 5TH CIR. R. 32.2.7(c), the undersigned certifies this 

brief complies with the type-volume limitations of 5mEr CIR. R. 

32.2.7(b). 

1. EXCLUSIVE OF THE EXEMPTED PORTIONS IN ST13 C/R. R. 32.2.7(b)(3), 

THE BRIEF CONTAINS (select one): 

A.  /S/ 5/  words, oR 

B.   lines of text in monospaced typeface. 

2. THE BRIEF HAS BEEN PREPARED (select one): 

A. in proportionally spaced typeface using: 

Software Name and Version:   

in (Typeface Name and Font Size): r-ROlen).-,N 1c/  , OR 

B. in monospaced (nonproportionally ,spaced) typeface using: 

Typeface name and number of characters per inch: 

• 

3. IF TEE COURT SO REQUESTS, THE UNDERSIGNED WILL PROVIDE AN 

ELECTRONIC VERSION OF THE BRIEF AND/OR A COPY 02 TEE WORD OR 

LINE PRINTOUT. 

4. THE UNDERSIGNED UNDERSTANDS A MATERIAL MISREPRESENTATION 

IN COMPLET;NG THIS CERTIFICATE, OR CIRCUMVENTION .OF THE TYPE-

VOLUME LIMITS IN Szn C/R. R. 32.2.7, MAY RESULT IN THE COURT 'S 

STRIKING THE BRIEF AND IMPOSING SANCTIONS AGAINST THE PERSON 

SIGNING THE BRIM 

Signature of filing paEt., 
(PLACE THIS AS LAST DOCUMENT IN BRIEF BEFORE BACK COVER)