Marcus Jr.’s Motions for Leave of Court to File Brief as Amicus Curiae; Memo in Support of Motion. Calogero, Jr.’s Motions for Leave to Participate in Oral Argument; Amicus Curiae Brief

    IN TFIL 

UNITED STATES COURT OF APPEAL 

FOR THE FIFTH CIRCUIT 

NO. 88-3492 

RONALD CHISOM, et al 
Plaintiffs—Appellees 

versus 

EDWIN EDWARDS, et al 
Defendants—Appellants 

MOTION FOR LEAVE OF COURT TO 
FILE BRIEF AS AMICUS CURIAE AND FOR LEAVE 

TO PARTICIPATE IN ORAL ARGUMENT AS Amicus CURIAE  

NOW usrm COURT comes Walter F. Marcus, Jr., appearing herein through his 

undersigned counsel, who moves as follows: 

1. 

Mover is presently serving as an Associate Justice of the Louisiana State Supreme 

Court, having been elected from the First Supreme Court District of the State of 

Louisiana. Also presently serving as .an Associate Justice of the Louisiana State 

Supreme Court, having been elected from the same First Supreme Court District 

of the State of Louisiana, is Pascal F. Calogero, Jr. 

2. 

Under date of May 16, 1988, Mover filed with this Court a Motion for Leave of 

Court to File a Brief as Amicus Curiae with respect to the limited issue as to 



whether or not this Court should grant Plaintiffs-Appellees' Motion for an 

Injunction Pending Appeal; said Motion was granted by Order of this Court filed 

in the record on May 23, 1988. 

3. 

Thereafter, by Order of this Court entered on May 27, 1988, this Court denied 

the Motion of Plaintiffs-Appellees for an injunction and noted that any such 

request ordinarily must first be made in the district court. Thereafter, the 

matter was remanded to the district court at which time Plaintiffs-Appellees filed 

a Motion before that court seeking injunctive relief pending trial on the merits. 

4. 

Thereafter, on July 7, 1988, the district court issued an injunction enjoining the 

October 1, 1988 election for the position of justice on the Louisiana Supreme 

Court from the First Supreme Court District; on July 26, 1988, an Order was 

entered by this Court modifying the preliminary injunction issued by the district 

court to the extent that it permitted candidates to qualify for said October 1, 

1988 election pending a hearing on the merits of this case. 

5. 

Mover now wishes to file with this Court the original Brief which he filed with 

this Court on May 16, 1988 as amicus curiae in support of the position of Ronald 

Chisom, et al, now Plaintiffs-Appellees, requesting that the election presently 

scheduled for October 1, 1988 with reference to the seat on the Louisiana State 

2 



Supreme Court for the First Supreme Court District be enjoined; attached hereto 

as Exhibit "A" is a copy of said Brief which is styled "Motion for Leave of Court 

to File Brief as Amicus Curiae". 

6. 

Mover also requests leave of Court to participate in oral argument as amicus 

curiae on the condition that Plaintiffs-Appellees' counsel agree to share the time 

allotted to them for oral argument with Mover. 

WHEREFORE, Mover, Walter F. Marcus, Jr., requests leave of Court to file the 

attached Brief as amicus curiae in support of Plaintiffs-Appellees' position in this 

matter with respect to enjoining the election presently scheduled for October 1, 

1988 with reference to a seat on the Louisiana Supreme Court for the First 

Supreme Court District and further requests leave of this Court to participate in 

oral argument as amicus curiae on the condition that Plaintiffs-Appellees' counsel 

agree to share the time allotted to them for oral argument with Mover. 

BUTLER, HEEBE St HIRSCH 
712 American Bank Building 
New Orleans, Louisiana 70130 
Telephone (504) 524-3731 

BY:  
PETER J. BUTLER 

Counsel for MOVER, 
WALTER F. MARCUS, JR., 
ASSOCIATE JUSTICE, 
LOUISIANA STATE SUPREME COURT 

3 



CERTIFICATE OF SERVICE  

THIS IS TO CERTIFY that a copy of the foregoing Motion for Leave of Court to 

File Brief as Amicus Curiae and for Leave to Participate in Oral Argument has 

been forwarded to all counsel of record by either hand delivery this day or by 

depositing a copy of same in the United States mail, postage pre-paid, addressed 

to them at their respective offices. 

NEW ORLEANS, LOUISIANA, this   day of ,, 1988. 

Peter J. Butler 

4 



IN THE 

UNITED STATES COURT OF APPEAL 

FOR THE FIFTH CIRCUIT 

NO. 88-3492 

RONALD CHISOM, et al 
Plaintiffs-Appellees 

versus 

EDWIN EDWARDS, et al 
Defendants-Appellants 

MOTION FOR LEAVE OF COURT TO 
FILE BRIEF AS AMICUS CURIAE  

NOW INTO COURT comes Walter F. Marcus, Jr., appearing herein through his 

undersigned counsel, who requests leave to file a brief as amicus curiae with this 

Court with respect to the limited issue as to whether or not this Court should 

grant Plaintiffs-Appellees' Motion for an Injunction pending appeal or, in the 

alternative, for issuance of the Mandate, and in support thereof, alleges as 

follows: 

Mover is presently serving as an Associate Justice of the Louisiana State Supreme 

Court, having been elected from the First Supreme Court District of the State of 

Louisiana. Also presently serving as an Associate Justice of the Louisiana State 

Supreme Court, having been elected from the same First Supreme Court District 

of the State of Louisiana, is Pascal F. Calogero, Jr. 

EXHIBIT "A" 



2. 

Mover avers that an election is presently scheduled for October 1, 1988 with 

reference to the seat on the Louisiana State Supreme Court presently occupied by 

Justice Calogero. Any party desiring to qualify as a candidate in said election 

must formally indicate his desire by filing the necessary qualification 

documentation with the Office of the Secretary of State, State .of Louisiana, in 

July of 1988. 

3. 

Mover further avers that an election is presently scheduled for the Fall of 1990 

with reference to the seat on the Louisiana State Supreme Court presently 

occupied by Mover. Any party desiring to qualify as a candidate in said election 

must formally indicate his desire by filing the necessary qualification 

documentation with the Office of the Secretary of State, State of Louisiana, in 

.the Summer of 1990. 

4. 

In the event that Plaintiffs-Appellees are successful in their challenge to the 

current use of a multi-member election district as set forth above, it is not likely 

that a final judicial determination with reference to said challenge will be 

forthcoming prior to October I, 1988. However, it appears likely that a final 

judicial determination with reference to the issues raised in the instant suit would 

be forthcoming prior to the Fall of 1990. 

2 



5. 

Under the existing jurisprudence, in the event that the First Supreme Court 

District were to be redistricted into two (2) separate judicial districts, Mover, 

normally, would have the opportunity to qualify as a candidate for reelection as 

an Associate Justice of the Louisiana State Supreme Court from either of the two 

newly created districts; however, if the presently scheduled election for October 

1, 1988 occurs as scheduled, the party who is elected to that seat could 

conceivably serve as a Justice of the Supreme Court for a period of ten (10) 

years, having been duly elected from the presently existing First Supreme Court 

District. 

6. 

Assuming that (a) Plaintiffs-Appellees are successful in their challenge to the 

current use of a multi-member election district as set forth above, and (b) further 

assuming that a final judicial determination with reference thereto would be 

forthcoming after the presently scheduled election on October 1, 1988, but prior 

to the presently scheduled election for the Fall of 1990, then it would be 

uncertain as to which electorate would select the candidate seeking election to. 

the State Supreme Court in the election scheduled in the Fall of 1990. 

7. 

Mover avers that it would serve the interests of justice and that it would be fair 

to any candidate who wishes to qualify for election as a justice to the Louisiana 

State Supreme Court from the presently constituted First Supreme Court District, 

if this Court would grant Plaintiffs-Appellees' Motion to enjoin the presently 

3 



scheduled election for October 1, 1988 with reference to said seat or, 

alternatively, to immediately issue its Mandate. 

8. 

It is suggested that Mover, who is now serving as an Associate Justice of the 

Louisiana State Supreme Court, having been elected from the First Supreme Court 

District of the State of Louisiana, has an interest in this proceeding which would 

permit him to file a brief as amicus curiae pursuant to Rule 29 of the Federal 

Rules of Appellate Procedure; in accordance with said Appellate Rule, Mover 

conditionally attaches hereto the proposed brief which he wishes to file with the 

Court in this matter. 

WHEREFORE, Mover, Walter F. Marcus, Jr., requests this Court for leave to file a 

brief as arnicus curiae in this matter, which brief is conditionally attached to this 

Motion in accordance with Rule 29 of the Federal Rules of Appellate Procedure. 

BUTLER, HEEBE & HIRSCH 
712 American Bank Building 
New Orleans, Louisiana 70130 
Telephone (504) 524-3731 

BY:  
PETER J. BUTLER 

Counsel for MOVER, 
WALTER F. MARCUS, JR., 
ASSOCIATE JUSTICE, 
LOUISIANA STATE SUPREME COURT 

4 



IN THE 

UNITED STATES COURT OF APPEAL 

FOR THE FIFTH CIRCUIT 

NO. 87-3492 

RONALD CHISOM, et al 
Plaintiffs-Appellees 

versus 

EDWIN EDWARDS, et al 
Defendants-Appellants 

MEMORANDUM IN SUPPORT OF MOTION FOR 
LEAVE OF COURT TO FILE BRIEF AS AMICUS CURIAE  

Mover, together with Justice Pascal F. Calogero, Jr., is presently serving as an 

Associate Justice of the Louisiana State Supreme Court from the First Supreme 

Court District. This district comprises the Parishes of Orleans, Jefferson, St. 

Bernard and Plaquernines. An election is presently scheduled for Justice 

Calogero's seat for October 1, 1988, whereas Mover's election is not until two (2) 

years later (1990). 

In the event the election presently scheduled for October 1, 1988 is permitted to 

proceed, it will result in Justice Calogero, or another party, being elected for a 

term of ten (10) years from the entire district. If Plaintiffs-Appellees are 

successful and the district is divided into two districts as requested, it would be 

difficult, if not impossible, to designate which of the two districts would be 

selected for the 1990 election. If one of the districts were designated, the 

electorate of the other district would be deprived of its right to elect a Justice 

from that district for a period of ten (10) years. Moreover, Mover would be 

deprived of the opportunity usually afforded a public official, whose district has 



• 

• 
A 

been divided, to run for election in either of the two newly created districts. 

This would be patently unfair. 

While one could argue that if the presently scheduled election for October 1, 1988 

were held, and if thereafter the instant challenge to the existing First Supreme 

Court District were successful, then the successful candidate in the October 1, 

1988 election should be unseated and new elections held with respect to both of 

the newly created judicial districts. However, that Justice could then argue that 

since he was elected for a ten year term to the Louisiana State Supreme Court 

from a then validly existing district, any attempt to later unseat him as a Justice 

of the State Supreme Court would be unjustified and unfair. This argument would 

be considerably enhanced if this Court, having been requested to enjoin said 

election, chose not to so do. 

Accordingly, Mover respectfully requests that this Court grant Plaintiffs-

Appellees' Motion to Enjoin the election presently scheduled for October 1, 1988 

with reference to the First Supreme Court District of the State of Louisiana or, 

alternatively, to immediately issue its mandate. 

Respectfully submitted, 

BUTLER, HEEBE St HIRSCH 
712 American Bank Building 
New Orleans, Louisiana 70130 
Telephone (504) 524-3731 

BY:  
PETER J. BUTLER 

Counsel for MOVER, 
WALTER F. MARCUS, JR., 
ASSOCIATE JUSTICE, 
LOUISIANA STATE SUPREME COURT 



IN THE UNITED STATES COURT OF APPEAL 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al 
Plaintiffs-Appellants 

versus 

EDWIN EDWARDS, et al. 
Defendants-Appellees 

MOTION FOR LEAVE TO PARTICIPATE IN ORAL ARGUMENT 
BY AMICUS CURIAE 

NOW INTO COURT, through undersigned counsel, comes 

Pascal F. Calogero, Jr., amicus curiae herein, who respectfully 

requests that this Court grant him leave to participate in the 

oral argument of this matter for the following reasons: 

1. 

The brief that amicus curiae has filed in this matter 

makes points which have not been discussed in the briefs of the 

parties. 



2. 

The position of amicus and of the 

defendants-appellants in this appeal are alike. The effect of 

the district court's injunction on amicus is different, 

however, from its effect on defendants-appellants who are named 

as representatives of the State. Amicus is the only person 

whose election and judicial career are directly affected by 
• 

these proceedings. 

3. 

Amicus believes that his position deserves the 

attention of this Court and cannot be adequately presented 

unless he is afforded an opportunity to argue orally. 

4. 

Federal Rule of Appellate Procedure 29 permits an 

amicus curiae to participate in oral argument for extraordinary 

reasons. Amicus submits that the circumstances here so qualify. 



5. 

Should this motion not meet with the Court's favor, 

amicus will ask this Court to allow amicus to share alloted 

time for argument with defendants-appellanats provided that 

defendants-appellants agree. 

Wherefore, Pascal F. Calogero, Jr., requests leave of 

court to participate in the oral argument in this matter. 

harles A. K nlage, Jr. 
717 St. Charles Avenue 
New Orleans, La. 70130 
(504) 581-2400 

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

Attorneys for Mover 
Pascal F. Calogero, Jr. 
Associate Justice 
Louisiana Supreme Court 



CERTIFICATE 

I hereby certify that on the clal411  day of July, 

1988, I served a copy of the foregoing on all counsel of record 

via the United States Postal Service, properly addressed, and 

postage prepaid. 

harles A. Kronlage, Jr. 
717 St. Charles Ave. 
New Orleans, Louisiana 70130 
(504) 581-2400 

,v,114/1 

George M. Strickler, Jr ,. 
LeBlanc, Strickler, & Woolhandler 
639 Loyola Ave. 
Suite 1075 
New Orleans, La. 70113 
(504) 581-4346 



IN THE UNITED STATES COURT OF APPEAL 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al 
Plaintiffs-Appellants 

versus 

EDWIN EDWARDS, et al 
Defendants-Appellees 

MOTION FOR LEAVE TO FILE 
BRIEF AS AMICUS CURIAE  

NOW INTO COURT, through undersigned counsel, comes 

Pascal F. Calogero, Jr., who respectfully requests leave to 

file a brief as amicus curiae with this Court in connection 

with Defendants-Appellants' appeal from the order of the 

district court enjoining the 1988 election for Justice of the 

Louisiana Supreme Court from the First Supreme Court District. 

In support of this request, mover avers that: 

1. 

He is currently serving as an Associate Justice of the 

Louisiana Supreme Court. He began his service on the Louisiana 

Supreme Court after he was elected in 1972 to fill a two year 

unexpired term from the First Supreme Court District (Parishes 

of Orleans, Jefferson, St. Bernard and Plaquemines). In 1974, 



he was reelected by the voters of the First Supreme Court 

District to serve a full fourteen year term. 

2. 

Justice Calogero qualified, on the 27th of July, 1988, 

for the office of Supreme Court Justice, First Supreme Court 

District for a term which, beginning on January 1, 1989 

succeeds the one he presently serves. To this point in time 

only one other person, Darlene Jacobs, a white woman attorney, 

has also qualified. The qualifying period for the election 

ends at 5:00 p.m. on July*29, 1988. 

3. 

Justice Calogero is a lifelong resident of the First 

Supreme Court District. He now , resides in Jefferson Parish. 

4. 

Justice Calogero has not been made a party to this 

proceeding, and indeed has not appeared herein as an 

intervenor. With respect to the merit of plaintiffs' Section 2 

Voting Rights Act claim in this litigation, he has taken no 

position and will, of course, accept the resolution by the 

Federal courts. 

5. 

The judgment of the district court enjoining the 1988 

election is of direct concern to Justice Calogero who has 

invested time, effort and money in connection with his 

reelection bid in the 1988 race. He opposes 



plaintiffs' effort, so far in part successful, to enjoin his 

election, and respectfully requests leave of this Court to file 

a brief as amicus curiae which sets forth the grounds for his 

opposition to the judgment of the court below. 

6. 

For the foregoing reasons, it is submitted that 

Justice Calogero has an interest in this proceeding which 

should allow him to file a brief as amicus curiae pursuant to 

Rule 29 of the Federal Rules of Appellate Procedure, and in 

accordance with Rule 29, the brief which he proposes to file in 

this matter is attached hereto and conditionally submitted to 

this Court. 

7. 

Mover is aware that Local Rule 31.2 of this Court 

provides that one who wishes to submit a brief amicus curiae 

should ordinarily move to do so prior to the filing of the 

brief by the principal parties whose position he supports. 

Here the amicus curiae supports the position of the 

defendants-appellants, but was, as a practical matter, unable 



to make any filing prior to the time that the appellants filed 

their brief because appellants, in an effort to facilitate 

expedited consideration of the appeal, filed their brief on 

July 14, 1988, only one day after the notice of appeal was 

filed. Under these unusual circumstances, mover requests leave 

to submit his amicus brief at this time. 

WHEREFORE, Pascal F. Calogero, Jr., requests leave of 

court to file the attached amicus curiae brief herein. 

arles A. Kronlage, Jr. 
717 St. Charles Avenue 
New Orleans, Louisiana 70130 
(504) 581-2400 

George M. Strickler, Jr. 
LeBlanc, Strickler & Woolhandler 
639 Loyola Ave. 
Suite 1075 
New Orleans, La. 70113 
(504) 581-4346 

Attorneys for Mover, 
Pascal F. Calogero, Jr. 
Associate Justice, 
Louisiana Supreme Court 

-4-



CERTIFICATE 

I hereby certify that on the day of July, 

1988, I served a copy of the foregoing on all counsel of record 

via the United States Postal Service, properly addressed, and 

postage prepaid. 

ar es A. Kr nlage, Jr. 
717 St. Charles Ave. 
New Orleans, Louisiana 70130 
(504) 581-2400 

eorge M. Strickler, Jr. 
LeBlanc, Strickler, & Woolhandler 
639 Loyola Ave. 
Suite 1075 
New Orleans, La. 70113 
(504) 581-4346 



IN THE UNITED STATES COURT OF APPEAL 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al 
plaintiffs-Appellants 

versus 

EDWIN EDWARDS, et al 
Defendants-Appellees 

AMICUS CURIAE BRIEF 
SUBMITTED BY 

PASCAL F. CALOGERO, JR. 

Charles A. Kronlage, Jr. 
717 St. Charles Ave. 

New Orleans, Louisiana 70130 
(504) 581-2400 

George M. Strickler, Jr. 
LeBlanc, Strickler & Woolhandler 

Suite 1705 
639 Loyola Avenue 

New Orleans, Louisiana 70113 
(504) 581-4346 

Attorneys for Amicus, 
Pascal F. Calogero, Jr. 



IN THE UNITED STATES COURT OF APPEAL 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al 
Plaintiffs-Appellants 

versus 

EDWIN EDWARDS, et al 
Defendants-Appellees 

AMICUS CURIAE BRIEF 
SUBMITTED BY 

PASCAL F. CALOGERO, JR. 

Charles A. Kronlage, Jr. 
717 St. Charles Ave. 

New Orleans, Louisiana 70130 
(504) 581-2400 

George M. Strickler, Jr. 
LeBlanc, Strickler & Woolhandler 

Suite 1705 
639 Loyola Avenue 

New Orleans, Louisiana 70113 
(504) 581-4346 

Attorneys for Amicus, 
Pascal F. Calogero, Jr. 



IN THE UNITED STATES COURT OF APPEAL 
FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al 
Plaintiffs-Appellants 

versus 

EDWIN EDWARDS, et al 
Defendants-Appellees 

BRIEF OF AMICUS CURIAE, 
PASCAL F. CALOGERO, JR., 

IN SUPPORT 'OF DEFENDANTS' APPEAL 

Amicus Curiae Pascal F. Calogero I Jr • I respectfully 

submits the following in support of defendants' appeal from the 

district court's order enjoining the 1988 election for 

Louisiana Supreme Court Justice from the First Supreme Court 

District. 

Justice Pascal F. Calogero, Jr. is one of the two 

elected Justices from Louisiana's First Supreme Court 

District. The other is Justice Walter F. Marcus, Jr. Justice 

Calogero's term expires on December 31, 1988. Justice Marcus's 

term expires on December 31, 1990. Justice Calogero was first 

elected to the Louisiana Supreme Court in 1972 and took his 

oath of office on January 10, 1973. Justice Marcus was first 

elected to the Louisiana Supreme Court in 1972 and took his 



oath of office in March, 1973. If reelected Justice Calogero 

will succeed Chief Justice John A. Dixon, Jr. as Chief Justice 

of the Louisiana Supreme Court on April 8, 1990, assuming there 

is no interruption in his service, or if there is such 

interruption, no question is raised as to whether he will 

continue to be "the judge oldest in point of service" (Art. 5 

§6 La. Const. 1974). It is the October 1, 1988 election for 

the term to succeed his present expiring term which has been 

enjoined by judgment of the district court. 

Justice Calogero is not a party in these proceedings. 

Until a request for an injunction was filed in this Court on 

May 9, 1988, Justice Calogero had not taken a position in this 

litigation, preferring instead to await the result and accept 

the outcome in the lawsuit concerning the applicability of 

Section 2 of the Voting Rights Act and any ultimate change in 

configuration of the First Supreme Court District. 

Only after plaintiffs asked this Court for an 

injunction on May 9th and after Justice Marcus filed an amicus 

curiae brief with this Court supporting the request for an 

injunction, did Justice Calogero respond. He filed an amicus 

curiae brief in this Court on May 23, 1988 opposing plaintiffs' 

request for injunction. Chief Justice John A. Dixon, Jr., as 



"the chief administrative officer of the judicial system of the 

State" of Louisiana (Art. 5, §8 La. Const. of 1974) also filed 

an amicus curiae brief in this Court, on May 26, 1988 f opposing 

the injunction request. 

It is submitted that under the circumstances 

prevailing in this case, Louisiana's Constitution and statutory 

laws concerning its Supreme Court election process should be 

respected and the 1988 election conducted absent a clear 

showing of irreparable harm to the plaintiffs, a showing which 

is not evident in this case. Plaintiffs have acknowledged that 

start up time would be necessary, making a 1989 election or, 

even moreso, a 1990 election more in accord with their 

desires. Accordingly, it is argued that plaintiffs suffer no 

irreparable harm from the State's conducting the 1988 First 

Supreme Court District election in the presently 

constitutionally prescribed four parish area, where there is 

ample opportunity to complete the litigation and carve 

plaintiffs an appropriate remedy prior to the presently 

scheduled 1990 election covering the area with which plaintiffs 

are concerned. 

It is also apparent, however, that underlying these 

legal issues are political realities, relative not only to 

plaintiffs' rights and desires, but also to the public careers, 



and the judicial service of the two Louisiana Supreme Court 

First District incumbent justices. Assuming plaintiffs prevail 

in the United States Supreme Court and in the district court, 

and the 1988 election is not enjoined, nor thereafter 

invalidated, the 1990 election for the seat on the Supreme 

Court presently held by Justice Marcus, an Orleans Parish 

resident, will almost certainly be conducted in a black 

majority district consisting of all or most of Orleans Parish. 

If the 1988 election is enjoined, the remedy will just as 

surely entail dividing the existing four parish district in 

such a way that one of the districts will have a black majority 

and consist of all or most of Orleans Parish. The other will 

consist mostly of the suburban parishes of Jefferson, St. 

Bernard, and Plaquemines. The present incumbents will either 

be assigned districts from which they might seek re-election or 

perhaps, as urged by Justice Marcus in amicus brief, the two 

incumbent justices will be afforded an option of running in one 

district or the other (if elections in the two districts are 

held at the same time ). 

We will address in this brief several indications that 

the trial judge in enjoining Justice Calogero's election did 

not properly weigh the relevant equities and abused his 

discretion in enjoining the 1988 election. 



Amicus submits that the trial judge's discretionary 

decision and the granting of this injunction does not find 

support in the law and the facts in this case. The trial judge 

created equitable concerns where none in fact existed and 

totally failed to consider the public interest, •the right of 

the electorate and the rights of amicus as an incumbent public 

official. 

1) The sole basis for the district judge's finding 

that plaintiffs would suffer irreparable harm is his conclusion 

that amicus, if re-elected in 1988, would have an unfair 

advantage in any future election conducted in a single member 

district. There is no evidence in the record to support the 

court's conclusion. A district judge's "hunch" about the 

benefits of incumbency to a white candidate in a majority black 

district cannot be an adequate basis for enjoining a 

constitutionally mandated election. 

The trial judge's reasons for enjoining the election 

also suggest a predisposition toward the ultimate relief to be 

accorded in this case which would be grossly unfair to amicus. 

The trial judge presupposes that the black majority district 

must be, or will be, assigned for the seat which succeeds the 

term presently being served by amicus (the suburban resident), 

rather than for the seat of the 1990 incumbent (the Orleans 

resident). 



The assumption by the district judge that amicus will 

have to run in the black majority district is made 

notwithstanding that amicus is not the resident of Orleans, 

which is surely to constitute all or most of the black majority 

district if plaintiffs prevail on their merits claim. The 

district judge's reference to amicus' "unfair advantage" makes 

sense only if the district judge were to require amicus, as 

opposed to Justice Marcus, the Orleans Parish resident, to run 

in 1989 or 1990 in a district encompassing most f Orleans 

Parish. 

2) There is no explanation in the district judge's 

findings as to how the rights of black voters in the First 

Supreme Court District will be prejudiced by allowing the 1988 

election to go forward. If the plaintiffs are right on the 

merits of the case, the only appropriate relief will be 

elections held in single member districts, one of which will 

have a black majority. But this right of the plaintiffs cannot 

be exercised until after plaintiffs have succeeded on the 

merits of the case and the First Supreme Court District has 

been divided. In the interim, someone must sit on the 

Louisiana Supreme Court from the First Supreme Court District. 

How black voters will be prejudiced by allowing them and all 



other voters in the First Supreme Court District to 

democratically select the Justice to serve the District, at 

least until this litigation is resolved, is not explained. 

3) In response to the defendants' argument in brief 

that enjoining the 1988 election might place in question after 

December 31, 1988 the authority or the right of Justice 

Calogero to continue sitting on the Louisiana Supreme Court,the 

trial judge recited that if this court enjoins the election the 

question will then arise as to "how to fill the vacancy" under 

Louisiana contitutional law. The district court then stated at 

footnote 8 on page 32 of its reasons, "While this court 

expresses no authoritative position on the point at this time, 

this court notes that Louisiana Constitution of 1974, Article 

5, Sec.22b appears to provide fully for the contingency of any 

vacant seat on the Supreme Court." (Emphasis provided.) It 

should be noted, however, that the Louisiana Supreme Court's 

authority to appoint a qualified person to a judicial vacancy 

under Article 5, Sec. 22b is coupled with a disqualification of 

such appointee for seeking the office in the election to fill 

that seat. In effect the trial judge said, there's no problem 

if Justice Calogero's authority to remain on the Louisiana 

Supreme Court after December, 1988 is aborted by enjoining his 



election, for the Supreme Court can appoint whomever they 

choose, to the seat presently occupied by Justice Calogero. Of 

course, Justice Calogero would thereupon have the unenviable 

choice of accepting an appointment by his brethren, if 

tendered, assuring the imminent termination of his judicial 

service or leaving office for a year or more in order to run 

for the office and regain the seat, his service interrupted and 

accession to the position of Chief Justice possibly barred. 

That attitude on the part of the trial judge exhibits a strange 

insensitivity to the voters of the district and the rights of 

an elected public official who has served in office for the 

past sixteen years, particularly inasmuch as Louisiana law, we 

submit, is probably contrary to the district judge's assumption 

that a vacancy will likely be created. 2 

II 

Justice Marcus asked this Court, and then the district 

court, to enjoin the 1988 election so that he might later have 

the political option of running for the Louisiana Supreme Court 

in 1990 from either of the new districts which will be created 

if the present First Supreme Court District 

2 See "Response of the Amicus Curiae United States 
to Questions Posed by the Court Relating to This Appeal and to 
Appellants' Motion for Stay Pending Appeal", filed July 25, 
1988, footnote 7 at p. 10. 



is divided as a result of this litigation. His filing that 

brief was no doubt prompted by a reasonable belief that if 

plaintiffs prevail on the Section 2 claim, a resolution not 

likely before at least 1989, the logical and likely remedy for 

plaintiffs and one which plaintiffs no doubt prefer would be to 

hold the already scheduled 1990 election in a newly created 

black majority district consisting of all or most of Orleans 

Parish, the parish of his residence. 3 [As already noted 

Justice Calogero resides in the suburban area, within Jefferson 

Parish.] 

Justice Marcus expressed in his amicus curiae brief 

the view that if the present district is divided, simultaneous 

elections should be held in 1990 for both new districts, in 

order that he may select the new district (whether it includes 

his Orleans Parish residence or not) from which he would prefer 

to be a candidate in 1990. Thus, he asserts that the 1988 

election should be delayed until he is scheduled to run for 

3 Plaintiffs do not want a 1988 election, and time will 
not permit such an election in 1988 for a new black majority 
district. Plaintiffs have repeatedly emphasized that black 
candidates will need a certain amount of lead time to prepare 
so that they would have a reasonable chance of being elected. 
Nor have they ever stated that their interests would not be 
adequately served if the election for a black majority district 
were to be held in 1990. 



reelection, at which time he will be free, he anticipates, to 

be a candidate in either of the newly created districts. 

Amicus' response to this contention appears in briefs already 

filed in this Court on May 23, 1988, and in the district court 

on June 27, 1988. For ease of reference it is restated in the 

4 
footnote attending this discussion. 

4 The stated desire of Justice Marcus to protect 
(or enhance) his political options in the face of possible 
reapportionment of the First Supreme Court District is 
understandable. However, there is no legal basis to support 
that desired result, one which forces a two or even a one year 
delay of the 1988 election at the expense of the candidates who 
are running in 1988, the over five hundred thousand voters in 
the First Supreme Court District, and the Louisiana 
Constitution and statutory laws. The necessity for the 
continued orderly functioning of the state's judicial system 
alone militates against it. 

The amicus curiae brief of the 1990 incumbent refers 
to "the opportunity usually afforded a public official, whose 
district has been divided, to run for election in either of the 
two newly created districts." The opportunity to which 
reference is made, however, is one which might be afforded by 
constitutional or statutory provisions when the seats in 
question are regularly scheduled for simultaneous elections, 
not in situations like this where there is no such 
constitutional or statutory provision and the elections for the 
seats are staggered (as required by the Louisiana Constitution). 

For example, elections for seats in the Louisiana 
Legislature are scheduled simultaneously, and electors in 
districts that have been reapportioned have the right to run 
"at the next regular election" in "any district created in 
whole or in part from the district existing prior to - 
reapportionment...." La. Const, Art. 3, §4(B). 

In such instances, granting the incumbent the option 
of running in more than one of the newly created districts does 
not require shortening the term of any other incumbent, or 
cancelling an election held in any other district. Because all 
incumbent legislators run for reelection at the same time, 
allowing them the option of running in more than one district 
has no such adverse consequences. 

Footnote 4 continued on page 11 



One matter, however, which is worth noting in this 

brief, and concerning the element of fairness, is that the 1990 

incumbent has been afforded one option besides that of running 

Footnote 4 continued. 

In the staggered election system mandated by the 
Louisiana Constitution and involved here, however, there is 
only one election scheduled for the First Supreme Court 
District in 1990. Under these circumstances, no precedent 
requires this Court to accept the 1990 incumbent's suggestion 
that the 1988 election must be delayed for two years 
(abolishing the Constitutionally staggered term system) so that 
he can have the possibility of choosing between two 
simultaneous races in 1990. 

Further, even aside from the fact that the terms are 
staggered (and for good reason - to minimize radical changes in 
composition of the Court), we note that the Louisiana 
Constitution contains no provision for judicial elections 
similar to the option provided incumbent legislators by La. 
Const. Art. 3, §4(B). Nor is mover aware of any other 
authority which requires that upon reapportionment of a 
judicial district, the incumbent must be given the opportunity 
to run in more than one new district. 

Surely fairness dictates than an incumbent •be given a 
district from which to seek reelection at the conclusion of his 
term, even if the only district which holds an election at the 
conclusion of that term does not include the incumbent's 
residence. However, it is a different matter altogether to say 
that the incumbent must be given the choice of running in more 
than one of two new districts, particularly when, as here, 
extending that opportunity to one incumbent requires altering 
the term of another (by cancelling an election and artificially 
extending the latter's term). Note also that as already 
related the 1990 incumbent resides in Orleans, and asks for the 
alternate chance of running either in a new district that 
includes his Orleans residence or in the other newly created 
district which does not. 



in the 1990 election in a black majority district. He has been 

at liberty to qualify and run in the 1988 election in the same 

four parish district from which both he and the amicus herein 

were first elected (in separate but simultaneous races) in the 

year 1972. 5 Note that this same possibility of the 1990 

incumbent's running in 1988 was discussed in the amicus curiae 

brief filed in this Court on May 23, 1988. 

With all due respect to the district judge, his 

actions and reasons noted above indicate a misguided approach 

to the case both as a matter of law and insofar as his judgment 

might otherwise be supportable as a discretionary 

determination. That approach has led him to enjoin the 1988 

election erroneously. 

5 Two separate races for these two First Supreme 
Court District seats on the Louisiana Supreme Court was 
something of an anomaly, probably the only instance this 
century when that occurred. Chief Justice E. Howard McCaleb 
(with two years remaining on his term) and Associate Justice 
Walter Hamlin (with eight years remaining on his term) achieved 
the mandatory retirement age (seventy-five before the 1974 
Louisiana Constitution) within three months of each other. 
Justice Calogero was elected to the two year unexpired term and 
Justice Marcus was elected to the eight year unexpired term. 



CONCLUSION  

Justice Calogero submits that defendants should 

prevail in this appeal, and that the order of injunction of the 

district court should be reversed, permitting the 1988 election 

for Louisiana Supreme Court Justice from the First Supreme 

Court District to be conducted in accordance with law. 

arles A. K onlage, Jr. 
717 St. Charles Ave. 
New Orleans, Louisiana 70130 
(504) 581-2400 

eorge M. Strickler, Jr. 
LeBlanc, Strickler & Woolhandler 
Suite 1075 
639 Loyola Avenue 
New Orleans, La. 70113 
(504) 581-4346 

Attorneys for Amicus 
Pascal F. Calogero, Jr. 
Associate Justice 
Louisiana Supreme Court 



CERTIFICATE 

I hereby certify that on the day of July, 

1988, I served a copy of the foregoing on all counsel of record 

via the United States Postal Service, properly addressed, and 

postage prepaid. 

harles A. Krdfilage, Jr. 
717 St. Charles Ave. 
New Orleans, Louisiana 70130 
(504) 581-2400 

. • 

George M. Strickler, Jr. 
LeBlanc, Strickler, & Woolhandler 
639 Loyola Ave. 
Suite 1075 
New Orleans, La. 70113 
(504) 581-4346