Plaintiffs Opposition to Defenses Motion to Reconsider grant of Partial Summary Judgment

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., : Civil Action No. 82-1192 

Plaintif{s Section D (C) 

-against THREE JUDGE COURT CASE 
  

| 

{{ DAVID C. TREEN, eté., et 

OPPOSITION TO MOTION 

10 RECONSIDER 
  

The defendants in this action have moved for reconsideration of the 

| grant of partial summary judgment declaring that Act No. 697 of the 1976 

| Louisiana Legislature is unconstitutional. That Act established the congress- 

ional districts for Louisiana in use prior to the presently scheduled elections | 

| to be held in the Fall of 1982. 

Two arguments are presented by the defendants. The first is that 

128 U.S.C. 2284 which requires the convening of a three judge district court 

in an action challenging the apportionment of congressional districts, 

| allegedly prohibits a single judge from entering any judgment on the merits. 

The second is that2. U.S.C. 2(c) allegedly requires election under the old 

districts until the new districts are precleared by the U. S. Department of 

Justice under Section 5 of the Voting Rights Act. 

As to the first claim that the three-judge court statute prohibits 

| the entry of partial summary judgment, the U. S. Supreme Court has created 

an exception. In Bailey v. Patterson, 369 U.S5.31 (1962), the Court stated: 

"We hold that three judges are similarly not 

required when, as here, prior decisions make 

frivolous any claim that a state statute on 

its face is not unconstitutional." --369 U.S. 
at 33 

It is clear from Bailey that where the statute attacked is patently unconstitu- 

tional on its fact--in other words, a defense of unconstitutionality is 

frivolous--a single judge may pass upon a motion for summary judgment.  



Dixon v. Attorney General of Pennsylvania, 313 F. Supp. 653 (M.D. Pa., 1970) 
  

ll at 654 n. 3. 

based on a statute which has since been repealed (28 U.S.C. 2281,. which 

| required a three judge court to determine claims of unconstitutionality of 

| state statutes), is still applicable today. The same logic present in the 

| Bailey opinion is applicable in this case. 

It is not seriously argued that the 1976 plan of apportionment is 

| constitutional subsequent to the 1980 census. The overall population 

|| variance produced today under that plan is 21.95%. See White v. Weiser, 412 
  

ll U.S. 783 (1973); Wells v. Rockefeller, 394 U.S. 542 (1969); and Kirkpatrick v. 
    

Defendants did not challenge these facts and 

| counsel for the defendants orally represented to the Court that he was not 

| opposed to plaintiffs' motion with regard to the application of that plan in 

| future elections. Judge Collins granted the motion for partial summary 

|| judgment and declared the plan unconstitutional "in its prospective application | 

| only, and cannot be used for the regularly scheduled congressional elections 

in the Fall of 1982." That pronouncement was certainly within the Bailey 

| exception. 

Furthermore, the instant motion for reconsideration is moot. As 

| pointed out above, Judge Collins' order referred to prospective application 

| only and specifically the Fall 1982 elections. Since that Order was entered, 

| the United States Department of Justice has precleared Act 20 of the First 

Extraordinary Session of 1981 (November 20, 1981), establishing new 

congressional districts to be used in the Fall 1982 elections. Under terms of 

| that Act, the 1976 Act is repealed and no elections can be held under it. 

| Judge Collins' Order is identical in application with Act 20--they both 

| prohibit use of the former plan. Accordingly, defendants’ request for 

reconsideration of that Order is moot, since even if Judge Collins' Order 

| were vacated, the result would be identical.  



CONCLUSION: Judge Collins' Order was properly issued in that the 

challenged plan was patently unconstitutional. With the defendants not 

filing an opposition and in fact agreeing with plaintiffs, relative to the 

Patterson. Even if he was without power to act, however, the issue has 

|| become moot with the preclearance of a subsequent plan by the Department of 

Justice under the Voting Rights Act. 

Dated: July 13, 1982 

Respectfully Submitted, 

R. JAMES KELLOGG 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

Certificate Service STANLEY HALPIN 

| certify that a copy of the foregoing pleading 631 St. Charles Avenue 
has been served upon counsel for all parties New Orleans, Louisiana 
to this gloceitiag, hy ating the save 19 

70130 each by first class United States mail, prope 504/524-0016 ly addressed and postage 

of 
  

NAACP Legal Defense & 

Educational Fund, Inc. 

Jack Greenberg 

James M. Nabrit, III 

Napoleon B. Williams 

Lani Guinier 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

  

By: 
  

Attorney for Plaintiffs