Correspondence from Stein to Judge Howard

    IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

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

MARTIN CROMARTIE, et al, 

Plaintiffs, 

V. 

JAMES B. HUNT, in his official capacity 

as Governor of the State of North Carolina, 

et al., PLAINTIFFS’ RESPONSE TO 

DEFENDANTS’ MOTION FOR 

SUMMARY JUDGMENT 

State Defendants, 

and 

ALFRED SMALLWOOD, et al., 

Defendant-Intervenors. 

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The Plaintiffs respond to the Motion for Summary Judgment by the State Defendants and 

would show unto this Court as follows: 

INTRODUCTION 

In a desperate attempt to avoid the trial for which this case was remanded by the Supreme 

Court, defendants have sought to invoke the doctrine of claim preclusion - sometimes referred to 

as res judicata. However, the facts they cite provide no support for their defense. Therefore the 

Court should deny their motion summarily and grant partial summary judgment to the plaintiffs on 

the issues raised by it. When this Court originally rendered its summary judgment against 

defendants in April 1998, it cogently explained why claim preclusion does not bar the plaintiffs in 

this case. That explanation applies equally today. 

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STATEMENT OF THE CASE 

On October 18, 1999 the defendants filed a motion for summary judgment seeking 

dismissal of plaintiffs’ constitutional challenge to North Carolina’s 1997 Congressional 

Redistricting Plan. As grounds for this motion, the defendants contended that the plaintiffs’ 

claims are barred by the doctrine of claim preclusion. Defendants also moved to dismiss plaintiff 

James Ronald Linville on the ground that he lacks standing to challenge District 12. 

FACTS 

The defendants’ Motion for Summary Judgment relies on the proceedings in the Shaw 

case which was filed on March 12, 1992 in the United States District Court for the Eastern 

District of North Carolina. Although the docket number of the case ( 92-202 CIV-5-1) remained 
  

the same thereafter, its caption changed somewhat. The case began as Shaw v. Barr; then its title 

became Shaw v. Reno; and after the first appeal to the Supreme Court, it was Shaw v. Hunt. 

Originally, there were five plaintiffs from Durham County, which was split by the Twelfth District; 

and there were both federal and state defendants. After Attorney General Reno and Assistant 

Attorney General John Dunne had been dismissed as defendants in the summer of 1993, various 

persons intervened in the case. Some, who were represented by the NAACP Legal Defense Fund, 

intervened as defendants. Others, who were connected with the Republican Party, intervened 

soon thereafter on the plaintiffs’ side. 

At trial the plaintiffs and plaintiff-intervenors maintained that the congressional 

redistricting plan enacted in 1992 by the General Assembly violated the equal protection clause of 

the Fourteenth Amendment because it had been drawn with a racially predominate motive and did 

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not pass the test of “strict scrutiny”. The Shaw district court held unanimously that the original 

plaintiffs, who all resided in Durham County, had standing as registered voters to challenge both 

the First and Twelfth Districts. The court also discerned a predominant racial motive for the plan; 

but then, by divided vote, the court ruled that the plan survived “strict scrutiny” and therefore was 

constitutional. 

The plaintiffs appealed again to the Supreme Court, which on June 13, 1996 reversed the 

District Court a second time and held that the Twelfth District was an weonstiions] racial 

gerrymander. However, the plaintiffs and plaintiff-intervenors lacked standing to attack the First 

District because none of them resided there. 

On July 3, 1996, only a few days after the Supreme Court rendered its decision, Martin 

Cromartie, Thomas Chandler Muse, and Glennes Dodge Weeks filed a suit in the Eastern District 

of North Carolina to challenge the First District in the 1992 plan as an unconstitutional racial 

gerrymander. They sought both declaratory and injunctive relief. See Cromartie v. Hunt (Docket 

#4.96-CV-104-H) (E.D.N.C.). On July 9, 1996 the plaintiffs and plaintiff-intervenors in the Shaw 

case filed a motion to amend the complaint in that action; and late Friday July 12, 1996 Judge 

Britt entered an order allowing the three persons who were then plaintiffs in Cromartie to join in 

Shaw v. Hunt by filing an amended complaint. Plaintiffs filed the amended complaint on July 15, 

1996. 

On July 15, 1996 Judge Malcolm Howard conducted a hearing in Cromartie on plaintiffs’ 

motion for preliminary and permanent injunction. According to the docket entries, during the half 

hour hearing Judge Howard reviewed the history of the case with counsel of record and those 

parties who were present and advised counsel of the order entered by Judge Britt three days 

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before. Plaintiffs’ attorney then “stated to the court that his clients would not agree to a voluntary 

dismissal of this action, but would consider joinder in the ‘Shaw’ litigation”. Cromartie v. Hunt 

Docket entry of 7/15/96. The plaintiffs then “orally motioned the court to continue this matter 

pending procedural aspects”. Id. 

Six weeks later on August 27, 1996 the plaintiffs moved to stay the action for 120 days 

and Magistrate Judge Denson granted a stay. The stay was extended thereafter from time to time 

and without opposition until October 17, 1997, when it was dissolved pursuant to a motion filed 

by plaintiffs a week before. 

Meanwhile in the Shaw case the plaintiffs and plaintiff-intervenors had been unsuccessful 

in their effort to have a new redistricting plan enacted for the November 1996 election. However, 

on March 31, 1997-just before a deadline set by the Shaw court-the General Assembly enacted a 

plan which removed Durham County from the Twelfth District and thereby deprived all of the five 

Shaw plaintiffs of their standing to attack that district. 

After the Department of Justice had precleared this plan, the three-judge district court in 

the Shaw case entered an order on June 9, 1997 directing the plaintiffs and plaintiff-intervenors 

“to advise the court by June 19, 1997 whether they intend to claim that the plan should be 

approved by the court because it does not cure the constitutional defects in the former plan and to 

identify the basis for that claim.” 

The plaintiffs responded that the “original Plaintiffs, as well as the three additional 

Plaintiffs, believe that the new plan does not adequately cure the constitutional defects in the 

former plan, which the Supreme Court held to be unconstitutional.” See Response Attachment 

#1. After various defects in the plan had been identified, plaintiffs pointed out that under the 1997 

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plan “none of the original Plaintiffs appear to have standing to challenge the new plan. United   

States v. Hays, 115 S.Ct. 2431 (1991)). The additional Plaintiffs do not reside in the Twelfth 

District as originally constituted, nor in the new Twelfth District”. Id. 

Their Response continued: 

7 Because of the lack of standing of the Plaintiffs, there appears to be no 

matter at issue before this court with respect to the new redistricting plan. 

Although Plaintiffs believe and claim that the new plan is unconstitutional, 

they recognize that due to their lack of standing, any attack on the 

constitutionality of the new redistricting plan should be undertaken in a 

separate action maintained by persons who have standing. 

WHEREFORE, Plaintiffs pray this Court: 

1. That the Court expressly find that the First District, as configured in the 

earlier plan, was unconstitutional because of the clear absence of narrow- 
tailoring; 

2. That this Court not approve or otherwise rule on the validity of the 

precleared congressional redistricting plan submitted to it on April 1, 1997; 

but if it does rule, that it hold the new plan to be unconstitutional; 

3. That the Court dismiss this action without prejudice to the right of any 

person having standing to maintain a separate action attacking the 

constitutionality of the precleared congressional redistricting plan. 7d. 

On September 12, 1997 the Shaw district court entered an order which approved the 1997   

plan “as having adequately remedied the specific constitutional violation respecting former 

congressional District 12 that was found by the Supreme Court of the United States in Shaw v. 

Hunt, 116 S. Ct. 1894 (1996)". See Shaw v. Hunt Order of September 12, 1997, Response 

Attachment #2. The order of September 12, 1997 also provided that “the claim added by 

amendment to the complaint in this action on July 12, 1996, which challenged on ‘racial 

gerrymandering’ grounds the creation of former Congressional District 1, is hereby dismissed, 

without prejudice, as moot.” Id. 

 



A contemporaneously filed Memorandum Opinion explained: “For reasons that follow, 

we conclude that the plan does adequately remedy the specific constitutional violation found as to 

the plaintiffs and plaintiff-intervenors in this case, and on that basis we will enter an order 

approving that plan to that extent and dissolving the extant injunction”. Response Attachment #3 

(Emphasis added). After noting the positions taken by the parties as to standing, the Shaw district 

court concluded that “though enactment of the plan submitted has not mooted the entire action, it 

has effectively mooted the Shaw claim added by amendment to challenge District 1.” Id. With 

respect to the changes made to District 1, the court stated: “Because as to that claim we therefore 

have no retained approved jurisdiction, it may be dismissed for mootness if the plan is approved as 

having adequately remedied the specific violation that has been determined as to District 12.” 1d. 

Finally, the Shaw court explained in a passage ignored in the defendants’ motion for 

summary judgment: 

We close by noting the limited basis of the approval of the plan that we are 

empowered to give in the context of this litigation. It is limited by the 
dimensions of this civil action as that is defined by the parties and the claim 

properly before us. Here, that means that we only approve the plan as an 

adequate remedy for the specific violation of the individual equal protection 

rights of those plaintiffs who successfully challenged the legislation’s creation of 

former District 12. r approval th not - cannot - run nd th 

remedial ith r h ies and th | protection 

violation found as to former District 12. Id. (Emphasis added). 

On July 22, 1997 the defendants moved in the Shaw case to consolidate with it not only 

the Cromartie case but also another case, Daly v. High (No.5:97-CV-750-BO) (E.D.N.C.). Daly 

v. High challenged not only various congressional districts but also some of North Carolina’s 

General Assembly districts. See id. The defendants submitted a memorandum in support of this 

motion on October 14, 1997. See Response Attachment 4. In this memorandum, the defendants 

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informed the Shaw court that “Mr. Everette (sic) moved the Court to dissolve the current stay so 

that he may file an amended complaint on behalf of Mr. Cromartie, Mr. Muse and certain other 

plaintiffs claiming Districts 1 and 12 in the State’s 1997 congressional redistricting plan are 

unconstitutional racial gerrymanders.” See id. at 2. 

On October 16, 1997 the Shaw court, fully informed of the plaintiffs’ intentions to amend 

in Cromartie and challenge both racially gerrymandered districts in the 1997 plan, denied the 

defendants’ motion to consolidate. On October 17, 1997 the stay in Cromartie was vacated that 

had been entered more than a year before, and that same day the amended complaint was filed in 

this action. 

Both the First and Twelfth Districts in the 1997 plan were challenged as being 

unconstitutional racial gerrymanders. The plaintiffs now were Cromartie, Muse, and Weeks - 

who on July 3, 1996 had filed the original complaint attacking the First District - and J. H. 

Froelich, R. O. Everett, Ronald Linville, and Susan Hardaway who were attacking the Twelfth 

District. At a later time Robert Weaver and Joel Bourne were also added as plaintiffs; and 

Glennes Weeks was voluntarily dismissed. 

On January 15, 1998, the Cromartie case was reassigned from Judge Howard, before 

whom it had been previously pending, to a three-judge district court panel. This panel had the 

same members as did the panel considering Daly v. High. (Docket 5:97-CV-750-B0). After 

plaintiffs had moved for a preliminary injunction and defendants had filed a cross motion for 

summary judgment, the court conducted a hearing on March 31, 1998. 

A few days later this Court granted summary judgment and issued a Memorandum 

Opinion. That opinion explained: “Although it was a final order, the September 12, 1997, 

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decision of the Shaw three-judge panel was not preclusive of the instant cause of action as the 

panel was not presented with a controlling challenge to the redistricting plan”. 

In an accompanying footnote, the district court pointed out: 

“In its final Memorandum Opinion, the three-judge panel in Shaw, noted that there 

was ‘no substantive challenge to the [1997] plan by any party to this action,’ and 

closed by explicitly ‘noting the limited basis of the approval of the plan that we are 

empowered to give in the context of this litigation. It is limited by the dimensions 
of this civil action as that is defined by the parties and the claims properly before 

us. Here, that means that we only approve the plan as an adequate remedy for the 

specific violation of the individual equal protection rights of those plaintiffs who 

successfully challenged the legislature’s creation of former District 12. Our 

approval thus does not-cannot-run beyond the plan's remedial adequacy with 

respect to those parties and the equal protection violation found as to former 

District 12. Shaw v. Hunt, No. 92-202-CIV-5-BR, at 8 (E.D.N.C. Sept. 12, 

1997)” 

Subsequently the state defendants appealed the summary judgment; and for the first time 

they raised the issue of claim preclusion in their jurisdictional statement. Not only did plaintiffs 

respond to this contention, but the Department of Justice in its amicus brief also took the position 

that claim preclusion had not been established by the defendants in this case. Although the 

Supreme Court noted probable jurisdiction and thereafter reversed the summary judgment which 

the plaintiffs had obtained as to the 1997 plan, neither the majority nor the concurring opinion 

referred to claim preclusion. 

Recently one plaintiff, Susan Hardaway, moved from the Twelfth District and was 

voluntarily dismissed as a plaintiff. Another plaintiff, Robert Weaver, died in 1999 and his wife, 

Lois Weaver was later substituted as a plaintiff. Also plaintiffs have moved to amend further the 

complaint with respect to the standing of Ronald Linville.’ 

  

'Linville had been a registered voter in sourtheastern Forsyth County and voted in the 

Twelfth District under the 1992 plan. His precinct was in a narrow corridor connecting other 

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Re ® 

  

SUMMARY OF ARGUMENT 

The defendants’ claim of claim preclusion is barred by their delay in raising the defense 

and by the law of the case. The clear language of the Shaw court’s own order makes clear that no 

claims were intended to be precluded. The defendants’ far-fetched theory of virtual 

representation is inapplicable to bar the claims of the plaintiffs, and especially the claims of those 

plaintiffs who entered this case after the Shaw litigation ended. 

ARGUMENT 

I. DEFENDANTS’ ASSERTION OF CLAIM PRECLUSION IS BARRED. 

In their Motion for Summary Judgment Defendants rely upon the September 12, 1997 

order of the three judge district court in Shaw v. Hunt as a judgment that precludes the claim of 

the plaintiffs in Cromartie. Although that judgment was entered more than two months before the 

defendants filed their answer of November 27, 1997, that answer did not specifically allege claim 

preclusion. Neither was claim preclusion asserted when the defendants moved for summary 

judgment on March 2, 1998. Indeed, not until they filed their jurisdictional statement did 

defendants even mention claim preclusion or virtual representation. 
  

parts of the district to the predominantly black precincts in Winston-Salem. The 1997 plan moved 
this corridor westward and narrowed it further. Linville has moved to amend the complaint to 
allege a particularized harm inflicted on himself and the other voters in his predominantly white 
precinct. Plaintiffs contend that Linville has standing to challenge not only the Twelfth District 
but also the racially constructed Fifth Congressional district, which the 1997 plan “bleached” by 
the removal of black voters from Winston-Salem. 

 



oe we 

  

The purpose of the doctrine of claim preclusion is to avoid waste of the time of the parties 

and the courts in relitigating issues that have already been determined. Therefore failure to raise 

the defense promptly after it becomes available must be treated as a waiver. Cf. Totalpan Corp. 

of Am. v. Colborne, 14 F.3d 824, 832 (2™ Cir. 1994); White v. American Airlines, Inc., 915 F.2d 

1414, 1424 (10™ Cir. 1990); Explosives Corp. of Am. v. Garlam Enters, 817 F.2d 894, 900-901 

(1* Cir. 1987). In this case the defendants base their preclusion defense on an order of which they 

were well aware when they filed their answer and various later pleadings. Yet they allowed the 

case to be heard on a dispositive motion on March 31, 1998 without alleging claim preclusion. 

Consequently they waived any right to allege preclusion of plaintiff's claims and are barred now 

from asserting this defense. 

Furthermore, in entering summary judgment for the plaintiffs this Court specifically ruled 

that in light of the language of the Shaw Court’s Order and Memorandum Opinion claim 

preclusion did not apply to the plaintiffs’ claims.” Although a question on claim preclusion was 

presented by defendant-appellants in their jurisdictional statement filed in the Supreme Court, 

during the oral argument none of the Justices questioned this Court’s holding that the plaintiffs 

were not precluded, nor was it referred to in the opinions filed. See Hunt v. Cromartie, 526 U.S. 

__, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). 

  

2Although the defendants had not raised the issue, the eventual defendant-intervenors did 

raise the issue in a proposed answer accompanying their motion to intervene. Their motion to 

intervene had not been granted at the time of the March 31, 1998 hearing on the summary 

judgment. The defendant-intervenors were not allowed to participate in the oral arguments when 

it was heard, although they did submit a brief in opposition to plaintiffs’ motion for summary 

judgment. This brief did not mention claim preclusion. Several months later, on July 22, 1998, 

this Court granted the defendant-intervenors’ motion to intervene. 

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A 

Indeed, the Supreme Court’s disposal of this case-remanding it back to this Court for a 

trial on the merits-is itself an implicit rejection of defendants’ claim preclusion arguments. Claim 

preclusion is a preliminary matter which must be decided before reaching the merits of a case. 

Before remanding this case back to this court for a trial on the merits, the Supreme Court must 

have considered and rejected defendants’ contention of claim preclusion. Under these 

circumstances, the law of the case is that the plaintiffs’ claims were not precluded. 

Il. THE SPECIFIC LANGUAGE OF THE ORDER ENTERED IN SHAW V. HUNT 
NEGATES ANY DEFENSE OF CLAIM PRECLUSION. 

Under the doctrine of claim preclusion, previously known as res judicata, “[a] final 

judgment on the merits of an action precludes the parties or their privies from relitigating issues 

that were or could have been raised in that action.” Federated Dep't Stores, Inc. v. Moitie, 452 

U.S. 394, 398, 101 S.Ct. 2424, 2428, 69 L.Ed.2d 103, 108 (1981). However, where there is a 

“second action between the same parties [which] is upon a different claim or demand, the 

judgment in the prior action operates as an estoppel only as to those matters in issue or points 

controverted, upon the determination of which the finding or verdict was rendered.” Cromwell v. 

County of Sac., 94 U.S. 351, 353, 24 L Ed. 195 (1876). 

The Fourth Circuit translates the Supreme Court holding into three essential elements that 

must be present for claim preclusion: (1) a final judgment reached on the merits; (2) the same 

cause of action; and (3) the same parties or their privies in both suits. See Nash County Board of 

Educ. v. Biltmore Co., 640 F.2d 484, 486 (4™ Cir. 1980). In this case, the defendants lack all 

three elements. There was no final judgment. The cause of action was not the same. And finally,  



  

" — 

the order that the defendants purport to rely on as preclusive did not apply to any of the past or 

present Cromartie plaintiffs directly or through their privies. 

After the Supreme Court had ruled that the Twelfth District was an unconstitutional racial 

gerrymander, the district court’s responsibility on remand was to oversee the fashioning of a 

remedy that would address the violations of the constitutional rights of the original plaintiffs. The 

1997 redistricting plan provided a very effective remedy for the original Shaw plaintiffs. Durham 

County, where they all resided, was removed from the Twelfth District and all of the county was 

placed in another district.? 

Since those original plaintiffs lacked standing to contest the 1992 First District and since 

the only violation that had been adjudicated in Shaw concerned the Twelfth District, the Shaw 

court recognized that it lacked authority to remedy the constitutional infirmities of the First 

District. In a hearing to consider a proposed remedy for previously adjudicated constitutional 

violations in the drawing of one district, no basis existed to adjudicate possible violations in the 

drawing of other districts. 

In its Order and Memorandum Opinion of September 12, 1997, the Shaw court 

specifically acknowledged the limitation on its authority. Furthermore, the language of that 

opinion makes perfectly clear that challenges to the 1997 plan could be made in actions brought 

by persons who did have standing.* Indeed, that language, which was never questioned by any of 

  

*Of the five original plaintiffs only two, Ruth Shaw and Melvin Shimm, actually resided in 

the 1992 Plan’s Twelfth District. In any event, any and all violations of the constitutional rights of 
the original Shaw plaintiffs were clearly remedied by placing all of Durham County in a much 
more geographically compact district with boundaries not drawn along racial lines. 

“We only approve the plan as an adequate remedy for the specific violation of the 

individual equal protection rights of those plaintiffs who successfully challenged the legislature’s 

-12. 

 



  

. he 

the parties, was so clear that to now ignore its plain meaning would give rise to due process 

issues. If defendants or defendant-intervenors disagreed with the obvious meaning of the 

language used by the Shaw court in its order of September 12, 1997, they should have made that 

disagreement known at the time by moving for reconsideration of the order or by taking an 

appeal. 

Although the Shaw court’s responsibility was to remedy the violation of the equal 

protection rights of the original Shaw plaintiffs, the defendants-for their own tactical reasons- 

sought to broaden that responsibility. They moved to consolidate both the Cromartie case and 

the Daly case with Shaw. However, the Shaw court summarily denied that Foron By so doing, 

the Shaw court emphasized that persons whose rights were violated by the creation of the racially 

gerrymandered First and Twelfth Districts were free to bring their own actions to curb these 

abuses, and that they were not required to pursue their claims in the context of the Shaw 

litigation. 

III. THE CLAIMS OF PLAINTIFFS CROMARTIE AND MUSE WERE NOT 

PRECLUDED BY THE SHAW PROCEEDINGS. 

Soon after filing their own action on July 3, 1996 to contest the First District as it existed 

in the 1992 plan, Cromartie and Muse, who both resided in Tarboro, joined as additional plaintiffs 

in Shaw in order to contest the First District in its 1992 version.” When asked by Judge Howard 

  

creation of Former District 12. Our approval thus does not-cannot-run beyond the plan’s 

remedial adequacy with respect to those parties and the equal protection violation found as to 

former District 12.” Shaw v. Hunt, No. 92-202-CIV-5-BR, at 8 (E.D.N.C. Sept. 12, 1997). 

’In so doing, they took the same action that had been taken in the Hays litigation after the 

Supreme Court ruled that the original plaintiffs lacked standing. There a separate action was 

13 

 



- ” 
on July 15, 1996 if they were going to take a voluntary dismissal of their own action, they 

  

declined to dismiss it. 

Subsequently, on March 31, 1997 the General Assembly enacted a 1997 plan which 

modified the Twelfth District and remedied the violation of the rights of the original plaintiffs in 

Shaw by removing their county from the Twelfth District. The 1997 plan also significantly 

modified the First District of the 1992 plan and thereby mooted the issue of whether that district 

was an unconstitutional racial gerrymander. In its order of September 12, 1997-the order on 

which defendants rely for their defense of claim preclusion-the Shaw court made clear that under 

these circumstances it had no occasion to rule on whether the 1997 version of the First District 

violated the rights of Cromartie, Muse, or anyone else. In short, the constitutionality of the First 

District both in the 1992 plan and the 1997 plan was left open by the Shaw district court’s order 

of September 12, 1997; and no one appealed that order. 

It seems obvious that an order which declines to rule on a claim cannot bar that claim. 

Any other result would offend both due process and common sense.’ Therefore, the claim of 

Cromartie and Muse was not precluded by the Shaw court’s order of September 12, 1997. 

In order to circumvent the language and circumstances of the Shaw remedial order, 

  

commenced by other persons, but those same persons were added as plaintiffs in the Hays case 
itself. 

°In this regard plaintiffs are not sure what to make of defendants’ assertion in their brief 
that “that judgment, and its no-decision as to District 1, are binding on plaintiffs Cromartie and 
Muse, and their co-plaintiffs. Having made their choice, they must take the consequences.” 
Defendants’ Brief at 5. Generally, the legal consequence of a “no-decision” is that there is in fact 
no decision, no holding, no judgment, no relief, no precedent, and no bar to litigating the matter in 
a proper manner. 

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defendants cite the judicial principle that “when a court of competent jurisdiction has entered a 

final judgment on the merits of a cause of action, the parties to the suit and their privies are 

thereafter bound ‘not only as to every matter which was offered and received to sustain or defeat 

the claim or demand, but as to any other admissible matter which might have been offered for that 

purpose.” Commission of Internal Revenue v. Sunnen, 333 U.S. 591, 597,68 8.Ct. 715, 719 92 

L.Ed. 898, 905-06 (1948) (quoting Cromwell v. County of Sac, 94 U.S. 351, 352, 24 L.Ed. 195 

(1877). 

The difficulty with this argument is that the Shaw court entered no final judgment on the 

merits of the claim asserted by Cromartie and Muse, or for that matter, on any claim that could 

have been asserted by Cromartie or Muse. By its terms, the order of September 12, 1997 did not 

purport to make any decision as to the constitutionality of the 1992 Plan’s First District, which 

the Shaw amended complaint had challenged, or of the 1997 plan’s First District. Under these 

circumstances, to apply claim preclusion to Cromartie and Muse will deny them their day in court 

and thereby violate their due process rights. 

Cromartie and Muse had filed their own action in the Eastern District of North Carolina 

before seeking to join the Shaw case as additional plaintiffs. Defendants contend that once 

Cromartie and Muse had become additional plaintiffs in Shaw, they were obligated to file such 

pleadings and take such steps as might be required to obtain in Shaw a decision as to the 

constitutionality of the First District in the 1997 plan. They purport to ground this contention on 

judicial economy and avoidance of repetitious litigation. 

However, Cromartie and Muse had started their own action to assert a claim which the 

plaintiffs in Shaw had no standing to assert. Once the claims of the original Shaw plaintiffs had 

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A. MN. 

been disposed of, the interests of judicial economy were furthered by ending the Shaw case and 

letting Cromatie and Muse proceed in their own case-the case now before this Court. The Shaw 

court recognized that this route should be followed; and no principle of law or public policy cited 

by defendants suggests anything else. 

When the Shaw court denied defendant’s motion to consolidate the Cromartie and Daly 

cases with Shaw, its decision was quite logical. The Shaw court was seeking to provide a remedy 

for a constitutional harm inflicted on certain registered voters in Durham County. On the other 

hand, in the pending Cromartie suit the constitutionality of the 1997 plan’s First District could be 

addressed after full discovery. Likewise, other persons who were registered voters in the 1997 

plan’s Twelfth District were left free to bring their own action to challenge that district and 

undertake the necessary discovery, or in the alternative to seek to join in the Cromartie suit. 

Meanwhile the Shaw litigation-in which the original plaintiffs had received their remedy by being 

removed from the Twelfth District and in which the claims for relief of Cromartie and Muse had 

been rendered moot-could be finally brought to an end. 

Defendants argue that “clearly the Shaw plaintiffs could have challenged the 1997 Plan’s 

District 1 in Shaw. Just as they amended their complaint in this case in 1997 to include the 1997 

Plan, they could have amended instead in Shaw to challenge the 1997 plan.” Defendants’ Brief at 

5.7 However, no reason existed to bar plaintiffs Cromartie and Muse from litigating their claims 

  

’ Defendants’ argument on this point is at odds with their contention that the Shaw 
remedial order was a final judgment on the merits of the 1997 plan. Defendants implicitly 
concede that the plaintiffs would have needed to amend their pleadings in Shaw in order to 
challenge the constitutionality of the First District of the 1997 plan. There can be no final 

judgment on the merits of a claim (that the First District of the 1997 plan was unconstitutional) if 

that claim was not plead. And if there is not a final judgment, there can be no claim preclusion. 

16s  



  

ne — 

in their own lawsuit or to compel them to litigate their claims as the sole remaining plaintiffs in a 

different lawsuit which they had recently joined. 

The defendants moved to consolidate Cromartie and Hunt, but their motion was denied. 

Therefore Cromartie and Muse retained the right to choose which ongoing suit was the better 

means for pursuing their claim against the First District of the 1997 plan. They chose to utilize 

their own lawsuit rather than Shaw. The court in Shaw consciously allowed them to have that 

choice by refusing to consolidate the cases. This Court deferred to that decision by going forward 

with the action on the amended pleadings. This sound judicial administration by both this Court 

and the Shaw court provides no basis for the defendants’ argument.” 

Claim preclusion requires: (1) a final judgment reached on the merits; (2) the same cause 

of action; and (3) the same parties or their privies in both suits. See Nash County Board of Educ. 

v. Biltmore Co., 640 F.2d 484, 486 (4™ Cir. 1980). If any claim in this lawsuit comes close to 

meeting the requirements of Nash for claim preclusion, it would be this very attempt of the 

defendants to confine all the constitutional challenges of North Carolina’s racially drawn 

Congressional districts to the Shaw court. With respect to defendants’ current claim that 

Cromartie and Muse be limited to pursuing their challenge to the First District of the 1997 Plan in 

  

3There are many ways to avoid the dangers defendants profess to fear. Actions can be 

consolidated; equitable discretion can be exercised by the court; laches can be invoked; and 

applicable precedents can be relied on. Moreover, the difficulties in successfully attacking 

cleverly disguised racial gerrymanders are great enough that such actions will not be lightly 

undertaken by plaintiffs in the first place. The real danger to the public welfare is created by 

defendants’ effort to create unwarranted barriers to the elimination of equal protection violations 

in the electoral process. 

L17- 

 



  

— he 

Shaw, a final judgment was rendered against the same defendants concerning the same defense.’ 

The court in Shaw denied the motion (a final judgment) of the state defendants (the same party) to 

consolidate Cromartie into Shaw (the same claim). 

Furthermore, defendants’ attempt to raise their defense of claim preclusion at this point, if 

successful, would forestall any substantive challenge to the 1997 redistricting plan on its 

constitutional merits. This is the truly objectionable tactical maneuvering in this case, and this 

Court should disapprove it. 

The defendants also attach some significance to the circumstance that Cromartie and Muse 

have been represented by Robinson O. Everett, who was one of the five original Shaw plaintiffs 

and also was counsel for those plaintiffs. If the Shaw district court never ruled on the 

constitutionality of the 1997 plan’s First District, the proceedings of that court could not bar 

Cromartie, Muse, or any other residents of that district-no matter who was their attorney. 

Moreover, it seems only logical that these plaintiffs would choose to be represented by an 

attorney who had considerable experience in battling racial gerrymanders. To penalize them for 

doing so would violate their due process right to be represented by counsel of their choice and 

would create an unwarranted obstacle to challenges of unconstitutional gerrymanders. 

In sum, none of the three elements for claim preclusion referred to in Nash are present in 

regard to Cromartie and Muse. In the Shaw remedial order, there was no final judgment on any 

  

°See Shaw v. Hunt Defendants’ Memorandum in Support of Motion to Consolidate, 

Response Attachment #4. In this memorandum the state defendants informed the Shaw court that 

Mr. Everett was about to “file an amended complaint on behalf of Mr. Cromartie, Mr. Muse and 

certain other plaintiffs claiming Districts 1 and 12 in the State’s 1997 congressional redistrict plan 

are unconstitutional racial gerrymanders.” Id. at 2. This motion to consolidate was denied in an 

order filed on October 16, 1997. 

-18- 

 



  

- a 

claim that Cromartie or Muse had standing to pursue. The defendants are themselves guilty of the 

very sin of which they accuse the plaintiffs-trying to relitigate a judicial battle that they have 

already lost. The Shaw court, after being fully informed of the intentions of plaintiffs to amend 

their complaint in Cromartie, denied the defendants’ motion to consolidate and allowed Cromartie 

and Muse to proceed with their challenge to the First District outside of Shaw. Thus, defendants’ 

motion in regards to Cromartie and Muse is clearly meritless and borders on frivolous. Therefore, 

the court should deny this motion as to the plaintiffs Cromartie and Muse and allow them to 

proceed to litigate their claim. 

IV. PLAINTIFFS FROELICH, R.O. EVERETT, LINVILLE, BOURNE, AND WEAVER 

ARE NOT BARRED BY CLAIM PRECLUSION. 

Several plaintiffs joined in the Cromartie case after the Shaw court’s order of September 

12, 1997. One of them, Lois Weaver, became a plaintiff only recently when she replaced her 

deceased husband, Robert Weaver. As to Joel Bourne and Lois Weaver, who reside in the First 

District, the Shaw court’s order could not give rise to claim preclusion because they were not 

parties to Shaw and as its language made clear, that order did not rule on the constitutionality of 

the First District in either its 1992 or 1997 version. 

Plaintiffs Froelich of Guilford County, R.O. Everett of Rowan County, and Ron Linville of 

Forsyth County also are not precluded by the Shaw proceedings from attacking the Twelfth 

District as drawn in the 1997 plan. None of them were parties in the Shaw litigation. 
  

Froelich submitted an affidavit in Shaw wherein he described the confusion created by 
the 1992 plan as to what congressional district his home precinct was in. Submitting an affidavit 

or being a witness is distinct from being a party. 

-19- 

 



  

oy 

The fact that the parties in both suits shared some similar interests and the same attorney “created 

no special representational relationship between the earlier and later plaintiffs.” South Central 

Bell Telephone Co. v. Alabama, 526 U.S. 160, —, 119 S.Ct. 1180, 1185, 143 L.Ed.2d 258 

(1999) (rejecting a finding of res judicata where the earlier and later plaintiffs had the same 

lawyer). 

Finally, none of these plaintiffs were or are in privity with Cromartie or Muse or the 

original Shaw plaintiffs. When a plaintiff in a current case was not a party to the earlier judgment, 

that plaintiff must be in privity with the original plaintiffs if the original judgment is to have any 

preclusive effect. See Hansberry v. Lee, 311 U.S. 32, 41-42 (1940) (discussing privity in class 

actions). Moreover, the original judgment must be a final judgment on the merits. See 18 James 

Moore, et al., Moore’s Federal Practice § 131.40[1] (3d ed. 1998). 

Privity is generally defined as the existence of an express or implied legal relationship 

between two or more parties, such as family members, members of a class action, employer- 

employees, administrators, and executors. See id. Someone in privity has been described as “a 

person so identified in interest with a party to former litigation that he represents precisely the 

same legal right in respect to the subject matter involved.” See Nash, 640 F.2d at 493. Privity 

has also been defined as stating “no reason for including or excluding one from the estoppel of a 

judgment. It is merely a word used to say that the relationship between the one who is a party on 

the record and another is close enough to include that other within res judicata.” Id. at 495 

(quoting Judge Goodrich’s concurring opinion in Bruszewski v. United States, 181 F.2d 419, 423 

(3 Cir. 1950)). 

20. 

 



In three situations a nonparty will be considered in privity with the parties in a prior suit so 

that preclusion is justified: “First, a nonparty who has succeeded to a party’s interest in property 

is bound by any prior judgments against that party.... Second, a nonparty who controlled the 

judgment... Third, federal courts will bind a nonparty whose interests were represented 

adequately by a party in the original suit...” Benson And Ford, Inc. v. Wanda Petroleum Co., 

833 F.2d 1172, 1174 (5" Cir. 1987) (quoting Freeman v. Lester Coggins T rucking, Inc. 771 F.2d 

860, 864 (5™ Cir. 1985)). 

The first situation is obviously inapplicable to this case. None of the Cromartie plaintiffs 

have succeeded to any Shaw plaintiff's interest in property. With respect to the second situation, 

in order for the subsequent party to have had control over the first action, that person must have 

“effective choice as to the legal theories and proofs to be advanced in behalf of the party to the 

action” as well as “control over the opportunity to obtain review.” Benson And Ford, Inc., 833 

F.2d. at 1174. Examples of control include the second party being the president or sole 

shareholder in a company, a parent corporation controlling a subsidiary, or a liability insurer 

assuming control over the insured’s defense. See id. It is not enough, however, that a nonparty 

“supplied an attorney or is represented by the same law firm; helped to finance the litigation; 

appeared as an amicus curiae; testified as a witness; participated in consolidated pretrial 

proceedings; undertook some limited presentations to the court; or otherwise participated in a 

limited way.” Id.; See also Gonzalez v. Banco Central Corp., 27 F.3d at 759. 

With respect to the third situation, the interests differ between the Shaw and Cromartie 

plaintiffs, even though all of them opposed the racial gerrymandering of the Twelfth District. The 

plaintiffs in Shaw collectively were concerned with the Twelfth District as it related to 

De  



representation of Durham County voters. None of the Cromartie plaintiffs have the same interest 

in the representation of Durham voters. J. H. Froelich’s interest lies in High Point; Ronald 

Linville’s interest pertains to segregated redistricting in the Kernersville area''; R.O. Everett's 

interest lies in Salisbury; and the remaining plaintiffs are concerned with racially segregated 

redistricting in the Tarboro area. Therefore their specific interests are not the same, even if all of 

them share an aversion to racial gerrymanders. The defendants claim that these Cromartie 

plaintiffs expected to be represented by the Shaw plaintiffs. Any such expectation would be 

  

llDefendants have also challenged Linville’s standing to bring this lawsuit since he lives in 

a precinct that borders the Twelfth District of the 1997 plan instead of inside the Twelfth District. 

At a minimum, he has standing to assert that the Fifth District is a racial gerrymander, due to the 

segregation of the mostly black neighborhoods of nearby Winston-Salem into the Twelfth 

Congressional District. See, e.g., Smith v. Beasley, 946 F. Supp. 1174 (D.S.C. 1996) 

(invalidating white majority legislative districts as violating the Equal Protection Clause as 

interpreted by Shaw v. Reno). 

Linville additionally has standing to complain of the racially gerrymandered Twelfth 

District within the context of Hays, because he “personally has been injured... by racial 

classification” and therefore “has standing to challenge the classification in federal court.” U.S. v. 

Hays, 515 U.S. 737, 744, 115 S.Ct. 2431, 2436, 132 L.Ed.2d 635, 641 (1995). 

Linville was assigned to the 1992 version of the Twelfth District when it used a different 

land bridge to connect black portions of Winston-Salem to the rest of the district. 24.86% of the 

total population of Forsyth County is African-American. In the 1997 plan, 72.9% of the total 

population of Forsyth County in the Twelfth District is African-American, while only 11.1% of 

the total population of Forsyth County in the Fifth District is African-American. See Weber 

Declaration Table 2, at 19. Thus in 1997, when the General Assembly used a different land bridge 

than in 1992, Linville’s predominantly white precinct (95.66% white voting age population) was 

no longer needed nor desired in the Twelfth District, and he was subjected to a racial classification 

by his deliberate segregation outside of a racially drawn district whose lines ran just next door to 

his own precinct. 

By drawing the line of the racially gerrymandered district right up to but not including the 

predominantly white precinct in which Linville resided, the General Assembly was telling Linville 

and the other voters in his precinct that they were too white to belong in the district right next to 

them. Linville was thus personally subjected to a racial classification by being deliberately 

segregated immediately outside of a racially drawn district whose boundary ran adjacent to his 

own precinct. Because he was personally subjected to a racial classification he has standing to 

challenge that classification, no matter how favorable the defendants believe the result of that 

particular classification was to Linville. 

22.  



  

A, in 

unreasonable, because the Cromartie plaintiffs could not be effectively represented by the Shaw 

plaintiffs, who lived in different areas and had different incentives to litigate. 

Moreover, the Shaw court’s order dealt only with the issue of whether the 1997 plan was 

an adequate remedy for the violation of the constitutional rights of the Durham plaintiffs. 

Obviously, the remedy was adequate for these plaintiffs because Durham County where they 

resided had been removed from the Twelfth District and was no longer divided as it had been 

under the 1992 plan. However, this was not true for Linville, Froelich, and Everett, on whom the 

1997 plan still inflicted a racial gerrymander that sliced their communities. For that very reason 

the order of September 12, 1997 specifically permitted other persons-if they had standing-to bring 

actions which would challenge the 1997 plan’s Twelfth District as being an unconstitutional racial 

gerrymander. 

V. THE DOCTRINE OF VIRTUAL REPRESENTATION DOES NOT APPLY TO ANY 
OF THE PLAINTIFFS 

To paper over the defects in their position, the defendants seek to invoke the doctrine of 

“virtual representation.” However, for “virtual representation”, the parties must have more than 

similarity of interests. Klugh v. United States-which the defendants failed to cite-makes this quite 

clear. 818 F.2d 294 (4™ Cir. 1987). 
  

"’Defendants’ failure to cite Klugh is remarkable in light of their extensive discussion of 
Tyus v. Schoemehl. 93 F.3d 449 (8" Cir. 1996). Although they spend over half a page drawing 
parallels between Tyus and the present case, Defendants’ Brief at 13, they fail to mention that 
Tyus distinguishes itself from Klugh, as well as from cases in other Circuits, which “would permit 
a nonparty to be bound by a prior judgment under a theory of virtual representation only in very 
limited, technical situations.” See Tyus at 454. Describing the use of virtual representation by the 
Fourth and other Circuits, the Tyus court observed that “under this view, virtual representation is 
little more than the doctrine of preclusion based on representation that has historically been 

3 

 



  

“ » 

In the Fourth Circuit, “the doctrine of virtual representation does not authorize 

application of a bar to relitigation of a claim by a nonparty to the original judgment where the 

interests of the parties to the different actions are separate or where the parties to the first suit are 

not accountable to the nonparties who file a subsequent suit.” Klugh, 818 F.2d at 300. “In 

addition, a party acting as a virtual representative for a nonparty must do so with at least the tacit 

approval of the court.” Jd. “The essential question is whether there is a disclosed relationship in 

which the party is accorded authority to appear as a party on behalf of others.” Id. (quoting 

Restatement (Second) of Judgments § 36(1), comment b). 

Klugh would obviously render virtual representation inapplicable to any of the Cromartie 

plaintiffs. There was no explicit or even tacit approval by the Shaw court for the plaintiffs in that 

case to act as virtual representatives for any of the Cromartie plaintiffs. Indeed, the Shaw court in 

its final remedial ruling, made perfectly clear its disapproval of any legal theory that would 

consider anyone else but the original Shaw plaintiffs to be bound by its ruling. 

In addition, Klugh does not allow the use of virtual representation to bar relitigation of a 

claim by a nonparty to the original judgment where the interests of the parties are separate or 

where the parties to the first suit are not accountable to the nonparties who later file a separate 

suit. Although similar, the interests of the Cromartie parties are quite separate from the interests 

of the original Shaw plaintiffs, because the harm they have suffered is related to the particular 

geographic areas in which they reside. Furthermore, the defendants have not alleged nor does 
  

accepted by courts.” Id. The Tyus court, on the other hand, aligned itself “with those courts that 
give wider use to virtual representation.” Id. Although the approach Tyus adopts is less 
demanding than the stricter Fourth Circuit approach, “a nonparty will be barred from bringing his 
claim only when ‘the balance of the relevant equities tips in favor of preclusion.’” Id. In this 
case, none of the equities tips in favor of preclusion. 

24. 

 



  

~~ — 

there exist a scintilla of evidence that would suggest that the original Shaw plaintiffs were 

accountable to the Cromartie plaintiffs. Thus, virtual representation as defined by the Fourth 

Circuit in Klugh is clearly inapplicable to this case. 

However, even under the cases which defendants have cited from some other circuits, the 

Cromartie plaintiffs fall outside the purview of virtual representation. In the First Circuit virtual 

representation has been described as an equitable theory evaluated on a case by case basis. See, 

e.g. Gonzalez v. Banco Central Corp., 27 F.3d 751, 761 (1* Cir. 1994). Several factors are 

considered when balancing interests. See id. (analyzing whether or not supposed beneficiaries of 

virtual representation had timely notice of the first suit, whether the first set of plaintiffs were 

legally responsible for or accountable to the second set of plaintiffs, whether there was a close 

relationship between the two groups of plaintiffs, whether the second set of plaintiffs had 

consented to be bound, and existence of tactical maneuvering). In this case the plaintiffs in the 

later case had notice from the order of September 12, 1997 that they had not been represented by 

the Shaw plaintiffs and were entitled to pursue their own suit. Certainly Shaw plaintiffs were not 

accountable or responsible to the Cromartie plaintiffs. If any tactical maneuvering occurred, it 

was performed by the defendants. 

According to Chase Manhattan Bank, NA v. Celotex Corporation, 56 F.3d 343 (2™ Cir. 

1995), which the defendants have also cited, “the key seems to be that the interests of the non- 

party have been adequately represented by others who have litigated the matter and have lost.” 

1d. at 345. However, “concepts summarized by the term privity are looked to as a means of 

determining whether the interests of the party against whom claim preclusion is asserted were 

35. 

 



w - 

represented in prior litigation.” /d. at 346. If this pronouncement by the Second Circuit is 

applied, once again virtual representation does not apply here. 

In the Fifth Circuit “[t]he test in determining whether a person is covered by the doctrine 

of virtual representation is whether that person is bound by the judgment of the trial court by 

virtue of the fact that he or she was ‘represented’ by a party to the original suit.” Harris County 

Texas v. Carmax Auto Superstores Inc., 177 F.3d 306, 317 (5" Cir. 1999); See also Royal Ins. 

Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1297 (5™ Cir. 1992) (for virtual 

representation to exist the parties must enjoy an express or implied legal relationship whereby the 

party in the first suit is responsible to the subsequent party filing later suits raising identical 

issues). Nothing in any of the facts implies a legal relationship whereby the Shaw plaintiffs were 

responsible to the Cromartie plaintiffs, and the issues in Cromartie were not identical to Shaw. 

The Sixth Circuit requires that the court “look for and balance a variety of 

elements—including whether the facts demonstrate a close nonlitigating relationship, participation, 

apparent acquiescence, discussions about the first action, deliberate maneuvering to avoid the 

effects of the first action, and an express or implied legal relationship in which the parties to the 

first suit are said to be ‘accountable’ to parties to the second.” Bittinger v. Tecumseh Products 

Co., 123 F.3d 877, 881 (6™ Cir. 1997). “Virtual representation is undesirable when its case-by- 

case analysis would replace settled rule-like procedures such as Rule 23 for class actions.” Jd. In 

this case, the prerequisites specified in Bittinger are missing-although the defendants frequently 

implied in the depositions of the Cromartie plaintiffs that this case was really a class action suit. 

Of course it is not.  



  

— » 

The Seventh Circuit has characterized the doctrine of virtual representation as “a 

common-law kind of class action.” Ahng v. Allsteel Inc., 96 F.3d 1033, 1037 (7" Cir. 1996). 

Thus, it takes a “dim view” of applying virtual representation outside class action suits. 

Debraska v. City of Milwaukee, 1999 WL 683951 at 3 (7™ Cir. 1999); See also Tice v. American 

Airlines, Inc., 162 F.3d 966, 971 (7 Cir. 1998) (only one unpublished decision in the Seventh 

Circuit has accepted virtual representation as binding on subsequent parties). 

The Eighth Circuit, in contrast to the Fourth and Fifth Circuits, agrees “with those courts 

that give wider use to virtual representation.” Tyus v. Schoemehl, 93 F.3d 449, 454 (8" Cir. 

1996). In Tyus some of the plaintiffs, apparently part of a closely-knit group of black elected 

officials, sought to withdraw from a Section 2 vote dilution case, then failed to respond timely to 

a motion for summary judgment, and later sought unsuccessfully to amend an adverse judgment. 

See id. at 452. After being blocked in an effort to file a new; identical lawsuit, these original 

plaintiffs and others added in the new case sought to consolidate their appeals together with the 

first case. See id. In Tyus, the claims raised in the first and second suits were identical. See id. 

Also. the earlier suit was decided on a motion for summary judgment. Neither of these facts 

apply to this case. The Cromartie plaintiffs have different claims and the basis for the supposed 

final judgment is a remedial order which expressly left open the possibility for other plaintiffs to 

challenge the 1997 plan. 

The Eleventh Circuit uses a factor based test which looks at “participation in the first 

litigation, apparent consent to be bound, apparent tactical maneuvering, [and] close relationships 

between the parties and non parties.” Jaffree v. Wallace, 837 F.2d 1461, 1467 (11™ Cir. 1988). 

27- 

 



  

ww ™» 

The facts of the present case make clear that these factors are not present. For example, neither 

Bourne, Weaver, Everett, nor Linville had any participation in the Shaw case, and none of the 

Cromartie plaintiffs gave any apparent consent for their claims to be bound by the order entered 

in the Shaw remedial hearing. 

The Cromartie plaintiffs in the First District could not have been virtually represented by 

the original Shaw plaintiffs in the Twelfth because there was no legal relationship between the 

parties that would bind the Cromartie plaintiffs to the Shaw remedial order. Their standing, their 

rights, their claims all involved the First District, and not the Twelfth. And the Shaw court 

specifically held that the holding was narrowly restricted to the Shaw plaintiffs in the Twefth 

District. Conversely, the original Shaw plaintiffs had no ability to virtually represent anyone’s 

rights and claims as to the First District, because they had no standing in the First District. It is 

illogical that someone could be “virtually represented” by others who had no standing to assert his 

or her interests, and who clearly did not “have a disclosed relationship in which the party is 

accorded authority to appear as a party on behalf of others.” Klugh, 818 F.2d at 300. 

Likewise, with respect to the Twelfth District no basis exists for the defendants’ claim that 

Froelich, R.O. Everett, and Linville were virtually represented by the Shaw plaintiffs. In the 

response filed by those plaintiffs in the Shaw case on June 19, 1997 they pointed out that they had 

no standing to attack the 1997 plan’s Twelfth District; and as noted before, there is no basis to 

hold that a plaintiff's claim is precluded by an earlier judgment rendered against a person who had 

no standing to represent that plaintiff's interests. 

The defendants’ contention that the plaintiffs’ claim is precluded because they were in 

privity with-or “virtually represented by”-Robinson O. Everett seems ludicrous. For one thing, 

28- 

 



  

Everett himself-according to the Supreme Court’s holding in Shaw v. Hunt-lacked standing to 

challenge the Twelfth District because he did not reside therein. Again, someone who has no 

standing can not be a proxy for others in a suit. Secondly, his service as the lawyer for the 

original Shaw plaintiffs is no basis for privity or virtual representation. See, e.g. Benson and 

Ford, Inc. v. Wanda Petroleum Co., 833 F.2d 1172, 1175 (5™ Cir. 1987) (parties were 

represented by the same attorney and asserted same claim based upon same facts, but due to 

absence of express or implied legal relationship later action was not precluded). Nor does the 

circumstance that his cousin, R.O. Everett, wrote Robinson Everett to express support for his 

efforts to challenge racial gerrymandering constitute any basis for barring R.O. Everett from suing 

to challenge the Twelfth District, because even in the circuits adopting a broader view of virtual 

representation, a letter of support does not create an express or implied legal relationship. 

In sum, defendants’ invocation of virtual representation is obviously futile under the 

precedents of the Fourth Circuit, nor would it succeed in other circuits, however broadly they 

might interpret virtual representation. Furthermore, it bears emphasis that if a single plaintiff in 

Cromartie is not barred by virtual representation as to the First District, it would make no 

difference that all the other First District plaintiffs were barred. And the same would hold true 

with respect to the Twelfth District. 

CONCLUSION 

As is readily discernible, the defendants’ attempt to invoke claim preclusion is completely 

meritless. This Court rejected it before and should reject it again. For the reasons stated above, 

plaintiffs respectfully request that the Court deny defendants’ motion for summary judgment but 

20. 

 



instead grant plaintiffs partial summary judgment with regard to the affirmative defense of claim 

  

preclusion pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. 

Respectfully submitted this the 8 day of November, 1999 

Robinson O. Everett 

Everett & Everett 

N.C. State Bar No.: 1385 

Attorney for the Plaintiffs 
P.O. Box 586 

Durham, NC 27702 

Telephone: (919)-682-5691 

  

Williams, Boger, Grady, Davis & Tuttle, P.A. 

by: AMWBA~ B Mtr / pan 

Martin B. McGee 

State Bar No.: 22198 

Attorneys for the Plaintiffs 

P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704)-782-1173 

  

Douglas E. Markham 

Texas State Bar No. 12986975 

Attorney for the Plaintiffs 
333 Clay Suite 4510 
Post Office Box 130923 

Houston, TX 77219-0923 

Telephone: (713) 655-8700 
Facsimile: (713) 655-8701 

  

«30. 

 



Robert Popper 

Attorney For Plaintiffs 

Law Office of Neil Brickman 

630 3™ Ave. 21% Floor 
New York, NY 10017 

Telephone: (212) 986-6840 

Seth Neyhart 

Attorney For Plaintiffs 

N7983 Town Hall Road 

Eldorado, WI 54932 

Telephone: (920) 872-2643 

 



"e —— 

CERTIFICATE OF SERVICE 

  

I certify that I have this day served the foregoing Plaintiffs’ Response to Defendants’ 

Motiowt for Summary Judgment by hand delivery to the following addresses: 

Ms. Tiare B. Smiley, Esq. 
Special Deputy Attorney General 

North Carolina Department of Justice 

114 W. Edenton St., Rm 337 

P.O. Box 629 

Raleigh, NC 27602 

Phone # (919) 716-6900 

Mr. Adam Stein 

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

312 W. Franklin St. 

Chapel Hill, NC 27516 

Phone # (919) 933-5300 

In addition, I have served the above document to the following address by U.S. Mail: 

Mr. Todd A. Cox 

NAACP Legal Defense & Educational Fund, Inc. 

1444 Eye Street, NW 10" Floor 

Washington, DC 20005 

This the 8" day of November, 1999 

— 

  

Robinson O. Everett 

Attorney for the Plaintiffs 

«32 

 



    

od ha 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

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

ALFRED SMALLWOOD, et al, 

Defendant-Intervenors. 

MARTIN CROMARTIE, et al, ) 

Plaintiffs, ) 

) 
v. ) 

) 
JAMES B. HUNT, in his official capacity ) 

as Governor of the State of North Carolina, ) 

et al, ) PLAINTIFFS’ MOTION FOR 

State Defendants, ) PARTIAL SUMMARY JUDGMENT AS 

) TO THE AFFIRMATIVE DEFENSE OF 

and ) CLAIM PRECLUSION 

) 
) 
) 
) 

  

Pursuant to Rule 56 of the Federal Rules of Civil Procedure and for the reasons stated in 

Plaintiffs’ Response to Defendant’s Motion For Summary Judgment, Plaintiffs respectfully move 

the Court to enter judgment for partial summary judgment against the defendants as to the 

defense of claim preclusion. 

This the 8" day of November, 1999 Z. Ld NC — 

  

Robinson O. Everett 

Everett & Everett 

N.C. State Bar No.: 1385 

Attorney for the Plaintiffs 
P.O. Box 586 

Durham, NC 27702 

Telephone: (919)-682-5691 

 



ww 

Williams, Boger, Grady, Davis & Tuttle, P.A. 

by: 
  

Martin B. McGee 
State Bar No.: 22198 

Attorneys for the Plaintiffs 
P.O. Box 810 
Concord, NC 28026-0810 
Telephone: (704)-782-1173 

  

Douglas E. Markham 

Texas State Bar No. 12986975 

Attorney for the Plaintiffs 

333 Clay Suite 4510 

Post Office Box 130923 

Houston, TX 77219-0923 

Telephone: (713) 655-8700 

Facsimile: (713) 655-8701 

Robert Popper 

Attorney For Plaintiffs 

Law Office of Neil Brickman 

630 3 Ave. 21% Floor 
New York, NY 10017 

Telephone: (212) 986-6840 

Seth Neyhart 

Attorney For Plaintiffs 
N7983 Town Hall Road 

Eldorado, WI 54932 

Telephone: (920) 872-2643  



  

od " 

CERTIFICATE OF SERVICE 

I certify that I have this day served the foregoing Motion for Partial Summary Judgment as 

to the Affirmative Defense of Claim Preclusion by hand delivery to the following addresses: 

Ms. Tiare B. Smiley, Esq. 

Special Deputy Attorney General 
North Carolina Department of Justice 

114 W. Edenton St., Rm 337 

P.O. Box 629 

Raleigh, NC 27602 

Phone # (919) 716-6900 

Mr. Adam Stein 

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

312 W. Franklin St. 

Chapel Hill, NC 27516 

Phone # (919) 933-5300 

In addition, I certify that I have served the above mentioned document by U.S. mail to the 

following address: 

Mr. Todd A. Cox 

NAACP Legal Defense & Educational Fund, Inc. 

1444 Eye Street, NW 10" Floor 
Washington, DC 20005 

This the 8" day of November, 1999 

ya 
  

Robinson O. Everett 

Attorney for the Plaintiffs 

 



  

    ATTACHMENT #1     

 



 0® "o® 

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

  

No. 92-202-CIV-5-BR 

RUTH O. SHAW, et al. 

Plaintiffs, 

and 

JAMES ARTHUR "ART" POPE, 
et al, 

Plaintiff-Intervenors, 

v. RESPONSE TO ORDER OF 
JUNE 9, 1997 

JAMES B. HUNT, JR, et al., 

Defendants, : 

and 

RALPH GINGLES, et al., 

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a
 

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Defendant-Intervenors. 

The Plaintiffs respond as follows to the Court's Order of June 9, 1997, that they 

and Plaintiff-Intervenors advise the: Court whether they intend to claim that the plan 

precleared by the Department of Justice does not cure constitutional defects in the 

former plan and, if so, what is the basis for the claim: 

1. The original Plaintiffs, as well as the three additional Plaintiffs, believe that ay 

the new plan does not adequately cure the constitutional defects in the former plan, 

1 

  

   

 



i "0® 
which the Supreme Court held to be unconstitutional. Shaw v. Hunt, 116 S.Ct. 1894 

(1996). 

2. Like its predecessor, the new plan was predominately motivated by race, 
and does not survive "strict scrutiny." 

3. The Supreme Court found that in the earlier plan the Twelfth District was 
not narrowly tailored. Furthermore, a comparison of the new plan’s majority-black First 
District with the majority-black First District of the earlier plan makes clear that the 
First District in the earlier plan was also race-motivated, not "narrowly tailored," and 
could have been far more compact and more consistent with "communities of interest.” 

4. The new plan fragments counties and cities unnecessarily, ignores 
communities of interest, and remains bizarre in appearance. The differences between 
the new plan’s majority-black Twelfth District and the unconstitutional majority-black 
Twelfth District of the earlier plan are cosmetic, and the creation of the new Twelfth 
District was predominately motivated by race. 

3 The Twelfth District in the new plan is based on the racially 

gerrymandered, unconstitutional Twelfth District in the original 1992 plan and the First 

District in the new plan is based on the racially gerrymandered, unconstitutional First 
District in the original 1992 plan. Thus, each of these districts improperly relies on the 
unconstitutional earlier plan and so violates the principles established in Abrams v. 

Johnson, Nos. 95-1425, 95-1460, 1997 U.S. Lexis 3863, which was decided today, June 19, 

1997. Likewise, the Twelfth and First Districts in the new plan reflect the continuing 
efforts of the Department of Justice to interpret and apply sections of the Voting Rights  



a® " o® 
Act in an unconstitutional manner; and also for this reason the new plan violates Abrams 

   
v. Johnson. The relationship between the new Plan and the original plan that was held 
  

unconstitutional in Shaw v. Hunt is so close that the new plan must be treated as the   

"fruit of the poisonous tree" and held to be tainted by the violations of equal protection 

in the earlier plan. 

6. By virtue of the changes that have been made by the redistricting plan 

submitted to this Court on April 1, 1997, none of the original Plaintiffs appear to have 

standing to challenge the new plan. United States v. Hays, 115 S.Ct. 2431 (1995). The 

additional Plaintiffs do not reside in the Twelfth District as originally constituted, nor in 

the new Twelfth District. 

7 Because of the lack of standing of the Plaintiffs, there appears to be no 

matter at issue before this Court with respect to the new redistricting plan. Although 

Plaintiffs believe and claim that the new plan is unconstitutional, they recognize that due 

to their lack of standing, any attack on the constitutionality of the new redistricting plan 

should be undertaken in a separate action maintained by persons who have standing. 

WHEREFORE, Plaintiffs pray this Court: 

1. That the Court expressly find that the First District, as configured in the 

earlier plan, was unconstitutional because of the clear absence of narrow-tailoring; 

2 That this Court not approve or otherwise rule on the validity of the 

precleared congressional redistricting plan submitted to it on April 1, 1997; but if it does 

rule, that it hold the new plan to be unconstitutional; 

3. That the Court dismiss this action without prejudice to the right of any 

 



   ' 0©® ‘ 0® 
person having standing to maintain a Separate action attacking the constitutionality of the 
precleared congressional redistricting plan. 

Respectfully submitted this the 17% of June 1997. 

Robinson O. Everett 
Attorney for Plaintiffs 
N.C. State Bar No. 1384 
301 West Main St., Suite 300 
Durham, North Carolina 27702 
Telephone: (919) 682-5691 

yi S, 
Marfin B. McGee 
Attorney for Plaintiffs 
N.C. State Bar No. 22198 
147 Union Street South” 
P.O. Box 810 
Concord, North Carolina 28026-0810 
Telephone: (704) 782-1173 

  

  

  

 



wh “o® 
CERTIFICATE OF SERVICE 

The undersigned attorney hereby certifies that a copy of the attached response to 
Order filed June 9, 1997 has been served upon the attorneys for each of the parties by 

placing a copy of same in the United States mail, postage pre-paid, addressed to them as 
follows: 

Deputy Attorney General Edward Speas 
North Carolina Department of Justice 
P.O. Box 629 
Raleigh, North Carolina 27602-0629 

Anita S. Hodgkiss, Esquire 
Ferguson, Stein, Wallas, Adkins, Gresham & Sunter, P.A. 
741 Kenilworth Avenue, Suite 300 
Charlotte, North Carolina 28204 

Tom Farr, Esquire 
Maupin, Taylor, & Ellis, P.A. 
P.O. Drawer 19764 
Raleigh, North Carolina 27619-9764 

This the Is of June 1997. 

is lie 
Robinson O. Everett 
Attorney for Plaintiffs 
N.C. State Bar No. 1384 
301 West Main St., Suite 300 
Durham, North Carolina 27702 
Telephone: (919) 682-5691 

  

 



  

    ATTACHMENT #2     

 



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 
CIVIL ACTION NO. 92-202-CIV-5-3R 

  

  

RUTH ©. SHAW, et al., ) SE 

) ; ks 7 i= hry 

Plaintiffs, ) 74 ED 
. ) : ) . ” 

JAMES ARTHUR “ART” POPE, et al., ) SEP 

o . ) OArn 2 1997 Plaintiff-Incerverors, ) 8, TR 
on, Prom HYiE] a 

) = icy or Clery 
Ld, ) No ALURT 

) - CAR 

GOVERNOR JAMES B. HUNT, in his ) 

official capacity as Governor cf ) 
the State of North Carolina, ) 
et al., ) 

: ) 
Defendants, ) 

) 
RALPH GINGLES, et al., ) 

) 
Defendant-Intervenors. ) 

) 

ORDER $ y 
  

Fer. reasons given in the contamporanaougly filed 

Memorandum Cpinion, it is ORDERED 

1.” That the congressiona. redistricting plan (1997 N.C. 

Sess. Laws, Ch. 11) submitted by the state defendants to this court 

for review on April 1, 1897, is ‘hersby APPROVED as raving 

adequately remedied the specific constitutional violazion 

respecting former congressional District 12 that was found by the 

  

Supreme Court of the United States in Shaw v. Hurt, 116 S. Ct. 1834 

{~.996} ; 

2. Tha: this court’s injunction entered con July 30, 

1535, which inter slis,  orohlibived the conducti of further 
  

 



ccngressional elections pending approval a remedial 

redistricting plan is hereby DISSOLVED; 

3. That the claim added ky amendment to the complaint in 

this action on July 12, 1995, which challenged on “racial 

gerrymandering” grounds the creation cf former congressional 

District 1, is hereby DISMISSED, without prejudice, as mcot; and 

4. Defendants’ motion suggasting a schedule and process 

for apprcving the state’s new congressional radistricting plan is 

DENIED as nmoct. 

Tais ra of Septemker, 1937. 

For the Court: 

2 EAT 
XN. Earl Brict, United Stares 

District Judge 

  

 



   

    ATTACHMENT #3     

 



  

oe J 
IN THE UNITED STATES DISTRICT COURT 

“OR THE EASTERN DISTRICT OF NORTH CAROLINA 
WESTERN DIVISICN 

CIVIL ACTION NO. 92-202-CIV-S5-BR 

RUTH O. SHAW, et al., 

  

Plaintiffs, 

JAM=ZS ARTHUR “ART“ POPE, ef al., 

?laintiff-Intervenors, 

v. 

‘GOVERNOR JAMES B. HAUNT, in his 
official capacity as Governor cf 
the State of North Carolina, 
et al., 

Defendants, 

RALPH GINGLES, et al., 

Defendanz-Intervenors. 

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MEMORANDUM OPINION > 

  

PER CURIAM: x ' 

This matter is before the court upon submission by the 

stat=-defendants of a congressional recistricting plan enacted by 

tre General Assembly of North Carolina ir compliance with this 

ccurt’s injunctive decree of July 20, 1996. The submission seeks 

apprcval of the plan as having adequately remedied che 

constitutional violation found by the Supreme Court of he Uriced 

Srates’ in. haw wv. ‘Hunt, 116 S. Ct. 'a8ca {1996}, ‘and, in   

consaquence, a dissclution of this court’s injunction against the 

conduct cf further congressional elections pending that approval. 

  

 



    

For reasons that follcw, we conclude that the plan does 

adequately remecy the specific corstituticnal violation found as to 

the plaintiffs and plaintiff-intervenors in this case, and on that 

basis we will enter an order approving the plan to that extent and 

dissolving the extant injunction. 

> 

On June 13, 1995, the Supreme Court of the United States 

entered its judgment remandirg this action for further proceedings 

by this court in conformity witha the Supreme Court’s decision that 

- North Carolina’s then-extant congrasssional redistricting plan was 

unconstitutional because unjustified “racial gerrymandering” in the 

location and ccnfiguration of District 12 violated equal protection 

rights <f some of the named plaintiffs in the ac-ion. Shaw, 116 

S. CT. eat-1899. 

Pending receipt cof the Supremes Court's mandates which did 

noc issue immediately, this court, on July 12, 1996, granted an 

unopzosed motion by plaintiffs and plaintiff-intervenors to apend 

tne complaint in the action to add new Parties and to raise a Shaw- 

claim challerge to District i. 

Following reczipt of the Supreme Court's mandate and 

after holding a hearing on the implemencation of the required 

remedy for the constitutional violation, we entered an order on 

July 392, 199€, that enjoined the stats-defendants from conductir 

4ry congressional elections under the then existing redistricting: 

pian afer the 1996 elections, but allcwed the then ongoin 

| 
i 
{ 
| 
j 

 



    

w% K 

electoral process fcr those elections to proceed to completion. 

The order referred the develooment of a Droposed remedial plan to 

the General Assembly of North Carolina for exarcise of its primary 

jurisdiction ia the matter, with irstructions to enact and submit 

to this court a proposed remedial plan by April 1, 1997.. The order 

retained jurisdiction in this court to act in default of timely 

action by the General Assembly, for approval of any plan submitted, 

and for such further proceadings as might ke required. 

The General Assembly enacted a proposed remedial plan on 

March 31,1397 (1997 N.C. Sess. Laws, Ch. 11) and timely submitted 

it to this court for approval on April 1, 1937. Contemporaneously, 

the State submitted the plan for preclearance by the United States 

Department oI Justice pursuant to § S of the Voting Rights Act and 

we deferrsd action on thas plan rending action by the Justice 

Department. Sez McDaniel v. Sarchew, 452 T.S. 130 (1581). 
4 

While preclearance action was vending, we en-ered an 

  

order on May 28, 1997, denying intervention either of right or 

permiggively to =a number of African-American Cua and 

associations wno scught intervention both to suggest alternative 

remedial plans and to raise specific vota-dilut:ion challenges undar 

§ 2 of the Vcting Rights Act to certain districts in the prorosad 

nlan. We fcund no right to intervene under the provisions of 

fed. R. Tiv. P. 24(a), and declined to exercise our discretion to 

permit expansicn of this action to include new § 2 dilution claims 

under Feld. R. Civ. bP. 24(b). 

 



On June 9, 1997, the Department of Justice precleared the 

plan pursuant to § S of the Voting Rights Act. On that same day, 

we entered an order directing plaintiffs and plaintiff-intervenors 

to advise the court by June 19, 1997, whe-her they intend=d to 

object to apprcval of the plan by. this court and, if‘ so, to 

identify the hasis of their objections. 

In response, the plaiatiffs (both original and added), 

while asserting prctectively the plar’s iradequacy, disclaimed 

standing under the principles of United States v. Hays, 515 U.S.   

737 {1995}, to make ‘any challenge to the plan because, they 

asserted, none of the original plaintiffs resided in the “new” 

‘Twelfth District, nor did any of the added plaintiffs reside in 

either the original or “new” Twelfth. 

Separately responding, the plaintiff-intervenors, 

reasserting a position previously urged ky motion, also declined to 

make substantive objection to the plan. They cor.tended instead 

that the action, having been mooted by the legislative action, 

could only oe dismissed without udice cn that basis, i 

The state defendarts, replying to these separate 

disclaimers of standing and assertions that che entire action was 

moot contended (1) that there were both plaintiffs and plaintiff- 

intervenors with the requisite standing to make substantive 

challenges to the submitted plan as to both Cistricts 1 and 12, ard 

(2: that the action was nct mooted by virtue of the legislative 

action. On this basis, they contended that the parties with 

standing should be required to make such challenges as they could,  



    

and that this ccuxrt was empowered ard obligated to exercise its 
continuing jurisdiction to review the submitted plan to determine 

whether it remedies the constitutioral violation found by the 

Supreme Court. 

11 

We first address the issues presented by the lack-of- 

standing and mootness positions taken by the plaintiffs and 

plaintiff-intervenors and disputed ky the state defendants, and thre 

consequent declination by the vlaintiffs and plaintiff-intervenors 

‘to take any substantive position on the adequacy of the proposed 

remedial plan, then turn to the merits. 

1. To the extent the plairntiff-in-ervarors’ contention 

ls that the entire action has bear mooted by the legislature's 

eractment oI a remedial plan, thereby depriving this court cf 

jurisdiction even zc approve or disapzsrove the plan and deruiting 

a simple dismissal without prezudice, we reject the contention. 

Ne_z-her of the Supreme Court decisions relied Shon for "the 

Proposition Supports it; each is inapposite. 

In. Louisiana v, Have, 116.53. Ct. 2542 (1996), =a pending   

appeal frcm a taree-judge court-ordered rediscricting plan was 

dismissed as moot. In that case, the state ~egislature had ir zhe 

interval indepsrdently adopted ané enacted the plan. This 

ocviously mooted any basis for Supreme Court review of the district 

court order, whereas here the very matter pending judicial review 

is the legislative enactment. 

 



      

In Johnson wv. Northam, No. TCA 94-40025-MMP, 1996 WIL,   

297280 (N.D. Fla. May 31, 1996), a three-judge court, after nearing 

the parties on the adequacies of a legislative remedial plan and 

apprcving it, then ordered tha case “clcsed with respect to thre 

remec es that have been rendered to correct any constitutional 
infirmity found” in the challenged plan. Id. at *1. Rather than 

demonstrazing that a legislature’s enactmart and submission of a 

proposed remedial plan moots the acticn, the case demonstrates to 

‘the contrary che continuing jurisdiccion of ths court. to act in 

judicial review of the enacted plan before “closing” the case. 

We therefore conclude that legislative enactment of the 

submitted plan did not, by mooting the entire action, deprive this 

court of its expressly retained jurisdiction to review the plan for 

approval. 

2. Though enactment of the plan submitted has not 

moored the entire action, it has effectively mooted che Mohan. avai 

added by amendment to challerge Districz 1. As we expressly 

anticipated ir deferring ccnsideration oF that added claim vermding 

legislative acticn, the remedial plan significantly reconfigures 

the area formerly comprising that district, "making the clain 

challenging its former ccnfiguration, location, ané racial 

composition mcot. Because as to that claim we therefore have no 

retained approval jurisdiction, it may te dismissed for mootness iz 

the plan is approved as having adequately remedied the specific 

violation tha: has been determined as to District 12. 

 



" ww 
3. Assuming without deciding (the fact being disputed) 

that--as they assert--none of the plaintiffs resides in “new 

Districr 12.” any resulting lack of standing on their paxt to 

challerge the consgtitutionality of thac particular reconfiguraticn 

of districts cannot affect cur retained jurisdicticn to review the 

plan for its adequacy to remedy the viclation found as to former 

District 12. We are doubtful that the non-inclusion of successful 

plaintiffs in any particular reconfigured district that is assumed 

tc be the specific remedial district could be thought, because of 

the Hays residence requirsment, to deprive them of standing to 

challenge the remedial plan as inadequate for the purpose at issue. 

3ut we need not attempt to decide that quirky problem growing out 

of the Hays standing rule. It suffices for our purposes that, for 

reascns satisfactory to themselves, tha plaintiffs have formally 

chosen not to raise any substantive challenge to the adequacy cf 

the plan to remedy the specific violation found as “oc former 

District 12. 

In that circumstance, we may propsrly apprcve the olan as 

naving remedied the specif.c violaticn found on tre simple kasis 

that its adequacy for tha: purpose has not been challenged ky any 

Party to the litigation. Under long-seztled judicial redistrictin 

Principles, once a state lagislature enacts a remedial plan that is 

then precleared uncer § 5 of the Voting Rights Act, that clan “will 

then be the governing law unless it, too, is challenged and found 

to violate the Constitution.” Wise v. Lipscomb, 437 U.S. $38, '5S40   

(1978). That principle simply applies in this particular ccntaxt  



  

KK Le 
the general presumption that, until successfully challenged, state 
legislative enactments are in conformity with constitutional 

requirements. 

Trere having been nc substantive challenge to the plan by 

any party to this action, we will therefore approve it as ga 

constitutionally adequate remedy for the specific violation found 

by che Supreme Court in this case. 

3. We close by noting the limited basis of the approval 

of the plan that we are empcwerad to give in the context of this 

litigation, Jc is limited by the dimensicns of this civil action 

as that is defined by the parties and the claims properly before 

1s. Here, that means that we only approve the plan as an adequate 

remedy for the specific violation of the individual equal 

Drotecticn rights of those plaintiffs who successfully challenged 

Coe legislature's creation of former District 132. Qur approval 

thus does rot--cannot--run keyond tre plan’s remedial ede deadyilich 

respect to thoss parties and the equal protection viola-ion found 
A 

a8 ro former District 12. 

IIT 

For the foregoing reasons, an order will be entered whic 

approves the submitted plar to the extent roted, dissolves the 

injunction of July 30, 1995 against the conduct of further 

ccrigrassional elections, and dismisses without prejudice, as moot, 

the claim added by amendment to challence former congressional 

District 1. 

 



    

    4 ATTACHMENT #     

 



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

Civil Action No. 92-202-CIV-5-BR 

RUTH O. SHAW. er al.. ) 

) 
Plaintiffs. ) 

) 
and ) 

) 
JAMES ARTHUR “ART” POPE, et al., ) 

) 
Plaintiff-Intervenors, ) 

) DEFENDANTS’ MEMORANDUM IN 

Vv. ) SUPPORT OF MOTION TO 

) CONSOLIDATE 

JAMES B. HUNT. JR.. et al.. ) 

) 
Defendants. ) 

) 
and ) 

) 
) 
) 
) 

RALPH GINGLES. er al.. 

Defendant-Intervenors. 

This memorandum is submitted by defendants in support of their motion to consolidate 

Cromartie v. Hunt (No. 4:96-CV-104-H2) (E.D.N.C.) and Daly v. High (No. 5:97-CV-750-BO) 

(E.D.N.C.) with this case for all purposes. 

CASES TO BE CONSOLIDATED WITH THIS CASE 

A. Cromartie v. Hunt. The complaintin this case was filed on July 3, 1996, by Robinson 

Everette on behalf of Martin Cromartie, Thomas Muse and Glennes Weeks claiming that North 

Carolina’s Ist Congressional Districtas contained in the State’s 1992 congressional redistricting plan  



    

® - 
was an unconstitutional racial gerrymander.! The defendants in Cromartie, as in this case, are the 

Governor and the State Board of Elections. By a series of consent orders, all proceedings in 

Cromartie have been stayed. On October 11, 1997. however, Mr. Everette moved the Court to 

dissolve the current stay so that he may file an amended complaint on behalf of Mr. Cromartie, Mr. 

Muse and certain other plaintiffs claiming Districts 1 and 12 in the State's 1997 congressional 

redistricting plan are unconstitutional racial gerrymanders. That amended complaint was lodged, 

but not filed, with the Court pending the Court’s lifting the stay. 

B. Daly v. High. The complaint in this case was filed in the Western District sometime 

in 1996 but never served on defendants. On January 21, 1997, plaintiffs filed an amended complaint 

and served that amended complaint on the defendants who are essentially identical to the defendants 

in this case. In the amended complaint a number of citizens claimed that several districts in the 

State's 1992 congressional redistricting plan as well as certain districts in the State’s 1992 legislative 

districting plans were unconstitutional racial gerrvmanders. Defendants moved to dismiss the 

amended complaint for improper venue. Plaintiffs never responded to that motion, and by order 

dated August 27, 1997, venue was transferred to the Eastern District. On October 9, 1997, plaintiffs 

moved to amend their amended complaint. In their second amended complaint, plaintiffs seek to 

challenge Districts 1 and 12 in the State’s 1997 congressional rediviricring plan as well as several 

districts in the State’s 1992 legislative redistricting plans. From the amended complaint it is plain 

that the focus of their congressional challenge is Districts 1 and 12. 

  

Mr. Cromartie, Mr. Muse and Ms. Weeks are also parties to this action having been 
added as plaintiffs by this Court’s. July 11, 1996, order which allowed plaintiffs’ motion to amend 
their complaint. 

 



    

had oo 
Respectfully submitted, this the 14th day of October. 1997. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

Min 
Edwin M. Speas, Jr. 

Senior Deputy Attorney General 

N.C. State Bar No. 4112 

rd 2 Lo 
iare B. Smiley 

Special Deputy Attorney General 

N.C. State Bar No. 7719 

  

  

North Carolina Department of Justice 

P. O. Box 629 

Raleigh. North Carolina 27602-0629 
Telephone: (919) 716-6900 

 



- Je 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 

WESTERN DIVISION 

Civil Action No. 92-202-CIV-5-BR 

RUTH O. SHAW. et al, 

Plaintiffs, 

and 

JAMES ARTHUR “ART” POPE, et al., 

Plaintiff-Intervenors, 

CONSOLIDATE 

Fed. R. Civ. P. 42(a) 
JAMES B. HUNT. JR.. et al.. 

Defendants, 

and 

RALPH GINGLES. et al., 

) 
) 
) 
) 
) 
) 
) 
) 
) 
) 

v. ) DEFENDANTS’ MOTION TO 

) 
) 
) 
) 
) 
) 
) 
) 
) 
) Defendant-Intervenors. 

Defendants’ move the Court pursuant to Rule 42(a) of the Federal Rules of Civil Procedure 

to consolidate Cromartie v. Hunt (No. 4:96-CV-104-H2) (E.D.N.C.) and Daly v. High (No. 5:97- 

CV-750-BO) (E.D.N.C.) with this case for all purposes. In support of this motion, defendants rely 

on their memorandum filed herewith.  



  

   » - 
STANDARDS FOR DETERMINING MOTIONS TO CONSOLIDATE 

Rule 42 motions are addressed to the Court’s broad discretion and provide a powerful tool 

for managing litigation to assure judicial economy, fairness and the interests of justice. See 8 JAMES 

WM. MOOREET AL., MOORE'S FEDERAL PRACTICE 42.10 (3d ed. 1997). The sole legal requirement 

that must be met for invoking the Court's discretion is that the cases to be consolidated present 

common issues of law or fact. Generally this means only that the cases should be of “like nature.” 

MOORE’S | 42.10 [1][b], p. 42-10. Once this threshold is met. the Court should consider 

conservation of resources, fairness, and the interests of justice in deciding whether to exercise its 

broad discretion. MOORE'S 4 42.10[4], pp. 42-16 to -18. 

CROMARTIE AND DALEY SHOULD BE CONSOLIDATED WITH THIS CASE 

The threshold Rule 42(a) requirementthat this case and Cromartie and Daly present common 

questions of law or fact is plainly met. The claims and legal theories advanced by the plaintiffs in 

this case are identical to the claims and legal theories advanced by the plaintiffs in Cromartie and 

Daly, and the facts found by this Court in ruling on the State's 1992 congressional plan provide the 

necessary framework for determining whether the State's 1997 congressional plan cures or continues 

the defects in the 1992 plan. Moreover, the partial identity of the plaintiffs in this case and in 

Cromartie (Cromartie and Muse) and the complete identity of the defendants in this case and in 

Cromartie and in Daly make these cases “apt candidates for consolidation.” Hanes Cos. v. Ronson, 

712 F. Supp. 1223, 1230 (M.D.N.C. 1988) (quoting 9 CHARLES ALAN WRIGHT & ARTHUR R. 

MILLER, FEDERAL PRACTICE AND PROCEDURE § 2384 (Ist ed. 1971)). See also MOORE’S 42.10 

[1c], p. 42-12. 

 



    

® ” 
The benefits which will result from consolidation of these cases are compelling. There will 

be at least a fifty percent savings in judicial resources. a doubling of legal resources for the plaintiffs, 

and the elimination of duplicative or repetitive discovery demands. All of this can be achieved 

without any prejudice or unfairness to any party in any of the cases. 

For these reasons, defendants request the Coin to enter an order consolidating Cromartie and | 

Daly with this case for all purposes. 

Respectfully submitted, this the 14th day of October, 1997. 

MICHAEL F. EASLEY 
ATTORNEY GENERAL 

pian 
Edwin M. Speas, Jr. 

Senior Deputy Attorney General 
N.C. State Bar No. 4112 

Fins 2 4d, 

  

  

Tiare B. Smiley 

Special Deputy Attorney General 
N.C. State Bar No. 7719 

North Carolina Department of Justice 
P. O. Box 629 
Raleigh, North Carolina 27602-0629 
Telephone: (919) 716-6900 

 



oe ww 

CERTIFICATE OF SERVICE 

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

Consolidate and Defendants’ Memorandum in Support of Their Motion to Consolidate in the 

above-captionedaction upon all parties to this case, Cromartie and Daly by depositing a copy in the 

United States mail. first-class postage prepaid, addressed as follows: 

Mr. Robinson O. Everett 
Post Office Box 586 
Durham, NC 27702 

Thomas A. Farr 
Maupin, Taylor, Ellis & Adams. P.A. 
Highwoods Tower One 
3200 Beechleaf Court, Suite 500 
Raleigh. NC 27619 

Ms. Anita S. Hodgkiss 
Ferguson. Stein. Wallas, Adkins. Gresham & Sumter, P.A. 
Suite 300 
741 Kenilworth Avenue 
Post Office Box 36486 
Charlotte, NC 28236-6486 

Mr. Nathanael K. Pendley 
Post Office Box 30070 
Winston-Salem, NC 27130-0070 

This the 14th day of October, 1997. 

  

al il Bidiv 
Tiare B. Smiley 

Special Deputy Attorney General 

F: DATA\WP6 I\SPLIMSHAW\CONSOLID MTN  



    

      ATTACHMENT #3   

 



o® "nlf 
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF NORTH CAROLINA 
EASTERN DIVISION 

MARTIN CROMARTIE, et. al. : Civil Action No. 04-CV-104-H2 

Plaintiffs, 

vs. 

JAMES B. HUNT, JR. 

Defendant. 

DECLARATION OF DR. RONALD E. WEBER   

I, Ronald E. Weber, Ph.D., declare pursuant to 28 U.S.C. 

1746 as follows: 

1. I am currently the Wilder Crane Professor of Government 

in the Department of Political Science at the University of 

Wisconsin, Milwaukee, Wisconsin; President of Campaign and 

Opinion Research Analysts, Inc.; former co-editor of The Journal 

  
of Politics and Chairman of the Department of Political Science 

at the University of Wisconsin, Milwaukee; former Fulbright 

Commission John Marshall Professor of Political Science at the 

Budapest University of Economic Sciences and the Central European 

University, Budapest, Hungary (1996-97); and former President of 

the Southern Political Science Association (1997-98). I received 

my B.A. in Political Science and History from Macalester College, 

St. Paul, MN, in 1964 and a Ph.D. in Political Science from 

Syracuse University in 1969, with specialties in American state 

1  



o® wh 

  

TABLE 2 

Proportion of Total Population in Split Counties 
by County for 1997 Congressional Districting Plan (HB 586--Plan A) 

African- 
county /City CD Total White % Amer, % 

Alamance 5 79,976 60,647 75.8 18,544 23.2 
Alamance 6 28,237 25,726 91.1 2,278 8.x 

Beaufort 1 23,714 14,659 61.8 8,948 37.7 
Beaufort 3 18,569 14,290 76.9 4,246 22.9 

Chatham 4 29,239 22,800 78.0 6,112 20.9 
Chatham 6 9,520 6,623 69.6 2,733 28.7 

Craven 1 25,279 14,207 56.2 10,920 43.2 
Craven 3 56,334 44,453 78.9 30,196 18.1 

Cumberland 7 127,913 94,213 73.7 27,363 21.4 
Cumberland 8 146,653 75,856 51..7 60,133 41.0 

Davidson 6 59,993 57,135 95.2 2,468 4.1 
Davidson 12 66,684 56,161 84.2 9,846 14.8 

Forsyth S 206,766 181,381 87.7 22,997 1.1 
Forsyth 12 59,112 15,537 26.3 43,105 72.9 

Granville 3 20,717 10,480 50.6 10,106 48.8 
Granville 2 37.6238 12,589 71.4 4,803 27.2 

Guilford 6 211,363 186,331 88.2 21,541 10.2 
Guilford 12 136,057 63,253 46.5 720,114 51.5 

Iredell 10 54,472 48,438 88.9 5,526 20.2 
Iredell 12 38,459 28,769 74.8 9,343 24.3 

Jones 1 8,553 5,045 659.0 3,461 40.5 
Jones 3 861 642 74.6 236 25.1 

Lenoir 1 31,016 11,887 38.3 18,959 61.1 
Lenoir 3 26,258 22,435 85.4 3,580 13.6 

Mecklenburg 9 292,808 264,604 90.4 21,026 7.2 
Mecklenburg 12 218,625 100,047 45.9 113,442 51.9 

Person 1 21,001 13,436 64.0 7,307 34.8 
Person 4 9,179 7,304 79.6 1,799 19.6 

19 

 



o® wh 
TABLE 2 (Ctd.) 

  

Proportion of Total Population in Split Counties 
by County for 1997 Congressional Districting Plan (HB 586--Plan A) 

African- 
County/City CD Total White x Aner. x 

Pitt 1 49,584 23,676 47.7 25,373 81.2 
Pitt 3 58,340 46,967 80.5 10,548 18.1 

Robeson 7 81,548 29,364 36.0 17,204 21.1 
Robeson 8 23,631 8,622 36.5 8,981. .38.0 - 

Rowan 6 77,499 70,819 91.4 5,979 7.7 
Rowan 12 33,106 21,032 63.5 11,794 35.6 

Sampson 2 22,745 14,114 62.1 7,985 - 35.1 
Sampson 7 24,552 16,159 65.8 7.701 31.4 

Wake 2 185,642 118,648 63.9 62,515 33.7 
Wake 4 237,738 205,363 86.4 25,548 10.7 

Washington 1 10,750 5,499 51.2 5,207 . 48.4 
Washington 3 3,247 2.057 863.4 1,153: 35.7 

Wayne 1 36,323 17,110 47.3 18,781 51.7 
Wayne 3 68,343 52,0682 76.2 15,012 22.0 

Wilson 1 43,517 21,008 48.2 22,181. :51.0 
Wilson 2 22,544 18,615 ..87.0 2,715 «= 12.0 

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