Motion to Intervene as Appellees Memorandum of Law in Support of Motion to Intervene

    PHI MAR 0 8 1998 

No. 98-30004 

IN THE 
TED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

CLEMENT F. PERSCHALL, JR., 

Plaintiff-Appellant, 

V. 

STATE OF LOUISIANA, 

Defendant-Appellee 

and 

RONALD CHISOM, ET AL. 

Proposed Appellee-Intervenors 

On Appeal from the 
United States District Court 

for the Eastern District of Louisiana 

MOTION TO INTERVENE AS APPELLEES 

• c UR T OF 
REcEiv 

4,0 

MAR 4 1998 

fi'LEA NS, L 

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

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

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

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

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

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



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

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

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

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

unconstitutional. 

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

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

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

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

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

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

would be necessary. 

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

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

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

Louisiana. 

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

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

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

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

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

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

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

2 



proposed appellee- intervenors under the Chisom consent decree. 

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

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

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

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

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

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

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

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

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

affected by plaintiff-appellant's appeal. 

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

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

of Civil Procedure. 

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

to intervene as appellees in the above entitled action. 

Respectfully submitte 

P. Quigley 
niversity 

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

Elaine R. Jones 
Director-Counsel 

'In Chisom, the nominal defendant was the Governor of the State of Louisiana, sued in his 
official capacity. 



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

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

Counsel for Defendant-Appellee Intervenors 



No. 98-30004 

IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

CLEMENT F. F'ERSCHALL, JR., 

Plaintiff-Appellant, 

V. 

STATE OF LOUISIANA, 

Defendant-Appellee 

and 

RONALD CHISOM, ET AL. 

Proposed Appellee-Intervenors 

On Appeal from the 
United States District Court 

for the Eastern District of Louisiana 

MOTION TO INTERVENE AS APPELLEES 

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

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

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

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

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

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



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

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

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

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

unconstitutional. 

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

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

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

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

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

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

would be necessary. 

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

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

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

Louisiana. 

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

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

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

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

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

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

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

2 



proposed appellee- intervenors under the Chisom consent decree. 

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

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

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

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

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

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

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

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

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

affected by plaintiff-appellant's appeal. 

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

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

of Civil Procedure. 

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

to intervene as appellees in the above entitled action. 

Respectfully submitted, 

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

Elaine R. Jones 
Director-Counsel 

'In Chisom, the nominal defendant was the Governor of the State of Louisiana, sued in his 
official capacity. 



,; 

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

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

Counsel for Defendant-Appellee Intervenors 



No. 98-30004 

IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

CLEMENT F. PERSCHALL, JR., 

Plaintiff-Appellant, 

V. 

STATE OF LOUISIANA, 

Defendant-Appellee 

and 

RONALD CHISOM, ET AL. 

Proposed Appellee-Intervenors. 

On Appeal from the 
United States District Court 

for the Eastern District of Louisiana 

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO INTERVENE 

Introduction  

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

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

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

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

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

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



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

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

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

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

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

issues. 

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

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

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

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

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

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

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

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

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

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

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

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

making unnecessary anything more with regard to intervention. 

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

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

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

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

intervention by the Chisom plaintiffs is necessary. 

2 



Factual Background and Procedural History 

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

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

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

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

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

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

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

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

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

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

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

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

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

52 percent of the registered voters. Id. 

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

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

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

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

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

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

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

the United States Constitution. 

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

3 



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

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

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

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

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

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

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

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

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

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

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

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

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

certiorari in both cases. Id. at 390. 

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

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

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

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

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

The Court stated in particular about Louisiana: 

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

4 



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5 



S 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1092 (5th Cir. 1992). 

6 



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Louisiana Supreme Court). 

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

7 



S 

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

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

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

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

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

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

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

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

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

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

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

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

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

8 



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

rehearing were denied. See Exhibit "E". 

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

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

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

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

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

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

the terms of the Chisom consent decree. 

Summary of Argument  

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

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

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

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

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

This motion presents the uncommon instance where intervention should be permitted 

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

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

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

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

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

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

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

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

9 



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

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

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

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

leave to intervene as appellee-intervenors. 

ARGUMENT 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

10 



• 

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

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

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

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

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

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

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

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

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

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

the appellate stage should be granted. 

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

determined from all the circumstances." Corley v. Jackson Police Deptt., 755 F.2d 1207, 1209 (5th 

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

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

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

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

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

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

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

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

pending and of his interest, he made no effort to intervene"); see 22,680 Acres Of Land In 

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

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

11 



• 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

action).4 

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

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

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

12 



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

13 



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

action. 

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

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

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

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

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

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

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

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

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

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

impairment of an interest. 

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

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

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

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

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

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

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

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

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

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

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

14 



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

15 



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

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

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

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

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

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

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

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

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

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

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

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

Chisom applicants adequately. 

Conclusion  

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

them to intervene in this matters as appellees. 

Respectfully submitted, 

P. Quigley 
niversity S 

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

Elaine R. Jones 
Director-Counsel 

16 



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

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

Counsel for Proposed Appellee-
Intervenors 



CERTIFICATE OF SERVICE 

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

APPELLEES AND MEMORANDUM OF LAW IN SUPPORT OF MOTION TO 

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

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

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

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

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

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

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