County of Los Angeles v. Garza Application to Reinstate a Stay of Court-Ordered Special Election Pending Determination of Writ of Certiorari

    No.

IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1990

COUNTY OF LOS ANGELES, et a l ,

v.

YOLANDA GARZA, et a l ,

Petitioners,

Respondents.

APPLICATION TO REINSTATE A STAY OF A COURT-ORDERED 
SPECIAL ELECTION PENDING DETERMINATION OF A 

PETITION FOR WRIT OF CERTIORARI

De Witt W. Clinton 
COUNTY COUNSEL OF 

LOS ANGELES 
Mary Wawro 
SENIOR ASSISTANT 

COUNTY COUNSEL 
648 Hall of Administration 
500 W. Temple Street 
Los Angeles, CA 90012 
Telephone: (213) 974-1811

Richard K. Simon 
Lee L. Blackman 
Erich R. Luschei
McDe r m o t t , w il l  & e m e r y
2029 Century Park East 
Suite 3800
Los Angeles, CA 90067-2917 
Telephone (213) 277-4110

John E. McDermott 
660 S. Figueroa Street, Suite 2300 
Los Angeles, CA 90017 
Telephone: (213) 955-4600

Counsel o f Record for Petitioners

John E. McDermott 
Richard C. Field 
Evan M. Eisland
CADWALADER, WICKERSHAM & TAFT 
660 S. Figueroa Street, Suite 2300 
Los Angeles, CA 90017 
Telephone: (213) 955-4600

Glen D. Nager
JONES, DAY, REAVIS & POGUE 
1450 G Street, N.W.
Washington, D.C. 20005-2088 
Telephone: (202) 879-3939

Counsel for Petitioners 
County of Los Angeles, et al.

EMELACY4/OCAP3a



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................................................................................... ii

I. Introduction.................................................................................................................. 1

II. Procedural History of the C ase .............................................................................  4

III. Standards for Granting a S tay ..............................................................................  7

IV. Application of the Stay Standards to
This Case.......................................................................................................................  9

1. The Balance of equities weighs
in favor of granting the stay.....................................................................  9

2. The "reasonable probability* of
granting certiorari..........................................................................................  14

3. The "fair prospect" that the 
decision below will be found
erroneous......................................................................................................... 14

V. Conclusion.................................    15

EMELACY4/OCAP3a



TABLE OF AUTHORITIES

CASES Page

Heckler v. Lopez. 463 U.S. 1328, 1330 (1982).................................................... 8, 9

Hicks v. Feiock. 479 U.S. 1305, 1306 (1986)....................................................... 9

Tohn Doe Agency v. Tohn Doe Corp.. ___U .S .____,
109 S.Ct. 852, 853-854 (1989)......... ......................................................................... 9

Tohnson v. Bechtel Associates Professional Corp..
801 F.2d 412, 415 (D.C. Cir. 1986 )........................................................................  2

New York v. Kleppe. 429 U .S. 1307, 1310 (1976)............................................  8

Republican State Central Committee v. Rikon Society,
409 U.S. 1222, 1227 (1972)..................................................'..................................... 8

United States v. Dilapi. 651 F.2d 140, 144 (2d
Cir. 1981), cert, denied. 455 U.S. 938 (1982).....................................................  2

Statutes & Rules

28 U .S.C . 2101(f)..........................................................................................................  8

Fed.R.App.P. 41(a)...................................................................................................... 2

Fed.R.App.P. 41(b)...................................................................................................... 2

Supreme Court Rule 1 0 .............................................................................................  14

Supreme Court Rule 23 .1 ..........................................................................................  8

Supreme Court Rule 23 .2 ..........................................................................................  8

Treatises

R. Stern, E. Grossman & S. Shapiro,
Supreme Court Practice 17.13 (6 ed. 1986).......................................................... 8

EMELACY4/OCAP3a -  l i  -



To the Honorable Sandra Day O'Connor, Associate Justice of the Supreme 
Court of the United States and Circuit Justice for the Ninth Circuit:

I. Introduction

Petitioners (defendants below) County of Los Angeles and three 

members of the Los Angeles County Board of Supervisors (jointly "County")1 

respectfully pray that an order issue reinstating a Ninth Circuit stay of a district 

court-ordered special election for the office of County Supervisor pending 

completion of Certiorari proceedings in this Court.

This is a redistricting case, in which the trial court determined that the 

1981 redistricting plan for electing the five-member Los Angeles County Board of 

Supervisors violated both the Equal Protection Clause of the Constitution and 

Section 2 of the Voting Rights Act. After staying the district court's remedial 

election plan pending appeal, the Ninth Circuit on November 2, 1990 affirmed the 

district court. A majority of the merits panel, one member dissenting, issued the 

mandate forthwith.2

1 The petitioners (defendants-appellants in the proceedings below) are County of Los 
Angeles; Los Angeles County Board of Supervisors; Deane Dana, Peter F. Schabarum, and 
Michael D. Antonovich, County Supervisors; Richard B. Dixon, County Administrative 
Officer; and Frank F. Zolin, County Clerk/Executive Officer.

The respondents (plaintiffs-appellees in the proceedings below) are Yolanda Garza, 
Salvador H. Ledezma, Raymond Palacios, Monica Tovar and Guadalupe De La Garza, 
individually and on behalf of all Hispanic registered voters in Los Angeles County; and 
United States of America. Tire respondents (intervenors-appellees in the proceedings 
below) are Lawrence K. Irvin, Rev. James M. Lawson, Jr., John T. McDonald, Jr., Ernestine 
Peters, Los Angeles Branch NAACP (National Association for the Advancement of Colored 
People), Southern Christian Leadership Conference of Greater Los Angeles, and Tire Los 
Angeles Urban League, individually and on behalf of all Black registered voters in Los 
Angeles County; and Sarah Flores. The respondents (defendants in the district court and 
filed a Brief in Support of Plaintiffs-Appellees in tire Court of Appeals) are Kenneth Hahn 
and Edmund D. Edelman, County Supervisors.

The Ninth Circuit Opinion appears in the concurently filed Appendix to Petition for 
a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ("App.") at 
A-l.

-1-

EMELACY 4/OC AP3a



Specifically, the Mandate (i) affirmed the judgment of the district court 

on liability and on its decision as to remedy, (ii) vacated the scheduling provisions 

of the district court's findings of August 6, 1989, and (iii) remanded the matter to 

the district court "for the purpose of determining the schedule for elections under 

the district court's redistricting plan." Opinion, Schroeder, Circuit Judge (App. A- 

27). Of greater concern here, however, is the panel majority's ruling that mandate 

issue forthwith, which had the effect of removing this matter from the jurisdiction 

of the Ninth Circuit, see Tohnson v. Bechtel Associates Professional Corp.. 801 F.2d 

412, 415 (D.C. Cir. 1986); United States v. Dilapi. 651 F.2d 140, 144 (2d Cir. 1981), 

cert, denied. 455 U.S. 938 (1982), automatically lifting the stay pending appeal of the 

district court's order, denying the County the benefits of both the automatic stay 

provision of Fed. R. App. P. 41(a) and the stay on motion provision of Fed. R. App. 

P. 41(b), and foreclosing a petition for rehearing or en banc review, unless the 

mandate was recalled.

On November 6, 1990, the County requested that the Ninth Circuit 

reinstate the stay of the court-ordered special election — now scheduled for January 

22, 1991 -  in an emergency motion to recall the mandate pending consideration of 

the County's simultaneously filed Petition for Rehearing, Suggestion for Rehearing 

En Banc and of any Petition for Writ of Certiorari to this Court. That motion was 

denied by a divided panel on November 7, 1990.3 On November 8, 1990, the 

district court scheduled a special supervisorial election for January 22, 1991.4 The 

Petition for En Banc Reconsideration was deemed denied on November 27, 1991.

The County respectfully submits that the panel majority erred 

substantially when it ordered that its mandate issue forthwith. Judge Kozinski's

3 App. A-49.

4 App. A-165.

-2-

EMEL ACY 4/OC AP3a



dissent as to the propriety of the district court's remedial plan was carefully 

premised on a survey of more than a dozen Supreme Court cases which are 

inconsistent with the decision of the panel majority on the subject of remedy. It 

presented an irrefutable case for the application of the Ninth Circuit's strong policy 

against the expedited issuance of a mandate and it provides a powerful reason for 

the issuance of a stay by this Court. Judge Kozinski's dissent, the constitutional 

signtficance of both the liability and remedial issues raised in this case, the speed 

with which they were presented and resolved, and the lack of any compelling 

reason why the Ninth Circuit and the Supreme Court should have had their 

opportunities for deliberation severely truncated, should have compelled a recall of

the mandate and a reestablishment of the status quo ante pending the conclusion of 

appellate review.

If the mandate is not recalled immediately and the stay of the district 

court's special election order not reinstated, the County and candidates for the 

County's First Supervisorial District will suffer immediate, serious and unnecessary 

harm which is not outweighed by any substantial interest in avoiding a modest 

delay in the scheduling of further Supervisorial elections. Each day that goes by 

without a stay in place will force the County and the candidates to spend time and 

money on a special election utilizing district boundaries set by the district court that 

ultimately may be found improper by the Supreme Court, and which lack even 

unanimous support of one panel of the Ninth Circuit. If the district court's remedial 

plan is overturned by this Court, candidates will have campaigned to no avail, 

money and effort of contributors and campaign workers will have been wasted, and 

the County will have redrawn its lines and spent a million dollars conducting a 

special election which will have had no effect. Indeed, prospective candidates could

-3-

EMELACY4/OCAP3a



be counting their votes just as the Supreme Court reverses the remedy imposed by 

the district court and voids the special election results.

Under an expedited schedule, this Court could consider whether the 

important issues raised in this case merit further review in a matter of weeks. There 

is no imminent deadline the passage of which will prevent effective relief. 

Reinstating the stay to enable the Supreme Court to effectively review the complex 

and important issues raised in Judge Kozinski's dissenting opinion, and to avoid 

serious and unnecessary harm to the candidates and to the County, is clearly 

warranted, particularly in view of the short delay necessary to accommodate 

Supreme Court review. That additional delay cannot seriously undermine the rights 

at issue.

As recognized by Judge Kozinski in his dissent, this is "an important 

and difficult case." (App. A-47.) Appellants respectfully submit that, in view of 

Judge Kozinski's thoughtful dissenting opinion with respect to the district court's 

remedial plan, the important legal and factual issues raised in this case, the 

pendency of the scheduled election, the strong policy against expedited issuance of 

the mandate, and the lack of harm to plaintiffs of a short delay to permit this Court 

to decide whether further review is warranted, the stay of the district court's order 

should be reinstated immediately.

II. Procedural History of the Case

The relevant procedural events in this case are as follows:

(a) September 24, 1981: the Los Angeles County Board of 

Supervisors adopts the challenged redistricting plan. Four elections (1982, 1984, 

1986 and 1988) are held under that plan.

-4-

EMELACY 4/OC AP3a



(b) August 24, 1988: plaintiffs Yolanda Garza, Salvador Ledezma,

Raymond Palacios, Guadalupe de la Garza, and Monica Tovar file their complaint, 

alleging that the County Board's 1981 redistricting plan fragments the Hispanic 

community, resulting in the dilution of Hispanic voting strength in violation of 

Section 2 of the Voting Rights Act, 42 U .S.C . 1973, and of the Fourteenth and 

Fifteenth Amendments to the United States Constitution.

(c) September 8, 1988: the United States files its complaint, alleging 

that the 1981 redistricting plan violates Section 2 of the Voting Rights Act, and its 

action is consolidated for trial with the Garza plaintiffs.

(d) January 3, 1990: trial on the merits commences.

(e) April 10, 1990: trial on the merits ends.

(f) June 4, 1990: the Honorable David V. Kenyon, District Judge, 

Central District of California, enters the District Court's Findings of Fact and 

Conclusions of Law ('Findings''),5 determining that the redistricting plan results in 

the dilution of Hispanic voting strength and was adopted for a discriminatory 

purpose.

(g) June 5, 1990: Sarah Flores, an Hispanic candidate, wins primary 

election in District 1 with 35% of the vote. Her nearest challenger received 20% of 

the vote.6

(h) June 27, 1990: pursuant to court order, the County submits its 

proposed remedial plan.

(i) July 23 to August 3, 1990: hearings are held on the remedy to be

granted.

App. A-50.

App. A-226.

-5-

EMELACY4/OC AP3a



(j) August 1, 1990: the district court rejects the County's remedial
plan.7

(k) August 3, 1990: the district court adopts a remedial plan and 

orders a special primary election for supervisor in District 1 on November 6, 1990.8 

The County moves for a stay of the order, pending expedited appeal to the Court of 

Appeals for the Ninth Circuit. The motion is denied by the district court.9

(l) August 3, 1990: the County files with the Ninth Circuit an 

application for a stay and an appeal on the merits. The County also moves for an 

expedited scheduling of the appeal.

(m) August 9, 1990: a motions panel of the Ninth Circuit (Nelson, 

Beezer, and Kozinski, Circuit Judges) temporarily grants the stay pending oral 

argument on the application. The Ninth Circuit also grants the motion for 

expedited scheduling of the appeal.10

(n) August 16, 1990: the motions panel enters an order (a) staying 

the runoff election scheduled for November 6, 1990 under the 1981 redistricting 

plan, (b) staying that part of the district court's order that directed the County to 

prepare for and hold a new primary election in a new supervisorial District 1 created 

by the district court and (c) directing that the parties address any further arguments 

with respect to a stay in the merits briefs.11

(o) October 3, 1990: Briefing on the merits is completed.

_____________(P) October 10, 1990: Oral argument on the merits is heard.

7 App. A-197.

App. A-216, see a]so, App. A-152, Findings of Fact issued by district court on 8/6/90.

? App. A-219.

10 App. A-220.

11 App. A-164.

-6-

EMELACY4/OCAP3a



(q) November 2, 1990: the merits panel (Schroeder, Nelson and 

Kozinski, Circuit Judges) enters a partly split and partly unanimous decision which 

(a) affirms the judgment of the district court on liability and on its decision as to 

remedy (b) vacates the scheduling provisions of the district court's order of August 

6, 1989, (c) remands the matter to the district court for the purpose of determining 

the schedule of elections under the district court's redistricting plan, and (d) orders 

the mandate issued forthwith.12

(r) November 6, 1990: the County files with the Ninth Circuit an 

emergency motion to recall the mandate and stay further issuance thereof pending 

determination of a petition for rehearing, suggestion for rehearing en banc and, if 

necessary, petition for writ of certiorari. The County also files a petition for 

rehearing and suggestion for rehearing en banc.

(s) November 7, 1990: the merits panel denies the County's 

emergency motion notwithstanding Judge Kozinski's vote to grant it.13 The Petition 

for Rehearing and Suggestion for Rehearing En Banc is forwarded to each active 

judge of the Ninth Circuit.

(t) November 8, 1990: the district court adopts a schedule for a 

special election under which candidate filing commenced on November 9, 1990 and 

the election will be held on January 22, 1991.14

HI. Standards for Granting a Stay

The All Writs Act, 28 U .S.C . 1651, provides the Supreme Court or a 

Justice thereof with the authority to 'issue all writs necessary or appropriate in aid

12 App. A-l.

13 App. A-49.

14 App. A-165.

-7-

EMELACY 4/OC AP3a



of [its] jurisdiction and agreeable to the usages and principles of law. * Thus, where

a federal court of appeals has refused to grant a stay of, or to enjoin, a district court

judgment pending an appeal before the court of appeals, the Court or an individual

Justice can grant a stay or injunction to prevent a case from otherwise becoming

moot and to protect its ultimate jurisdiction. See R. Stern, E. Grossman & S.

Shapiro, Supreme Court Practice 17.13 (6 ed. 1986); S. Ct. R. 20.1; Republican

State Central Committee v. Rikon Society. 409 U.S. 1222, 1227 (1972) (Rehnquist,

J.); Heckler v. Lopez. 463 U.S. 1328, 1330 (1982) (Rehnquist, J ., in chambers); New

York v. Kleppe. 429 U.S. 1307, 1310 (1976) (Marshall, J., in chambers), ("the most

compelling justification for a Circuit Justice to upset an interim decision by a court

of appeals would be to protect this Court's power to entertain a petition for

certiorari before or after the final judgment of the court of appeals.').

Moreover, the authority for the Supreme Court or any Justice thereof

to recall a mandate and to grant a stay of a mandate pending application to the

Supreme Court for a writ of certiorari is found in 28 U .S.C . 2101(f), which states

In any case in which the final judgment or decree of any 
court is subject to review by the Supreme Court on writ of 
certiorari, the execution and enforcement of such 
judgment or decree may be stayed for a reasonable time 
to enable the party aggrieved to obtain a writ of certiorari 
from the Supreme Court. The stay may be granted by a 
judge of the court rendering the judgment or decree or by 
a justice of the Supreme Court . . .

Stemming from these statutory provisions, Supreme Court Rule 23.1 

states that '[a] stay may be granted by a Justice of this Court as permitted by law ,' 

and Rule 23.2 provides that '[a] petitioner . . . may present to a Justice of this Court 

an application to stay the enforcement of the judgment sought to be reviewed on a 

writ of certiorari.'

To implement their stay jurisdiction, the Circuit Justices of the Court 

have established three general criteria that the stay applicant must satisfy to rebut

-8-

EMELACY4/OCAP3a



the presumption that the decisions below are correct. See, e.g ., Hicks v. Feiock 

479 U .S. 1305, 1306 (1986)(0'Connor, J„  in chambers); Tohn Doe Agency v. Tohn

CorP -  ___ U.S. ___, 109 S.Ct. 852, 853-854 (1989) (Marshall, J.); Heckler v.

Lopez, 463 U.S. at 1330. In sum, the applicant must make the following three part 

showing:

1. That the balance of equities weighs in favor of a stay;

2. That there is a 'reasonable probability' that four Justices will 

consider the certiorari issues sufficiently meritorious to grant certiorari; and

3. That there is a 'fair prospect' that a majority of the Court will 

conclude that the decision below was erroneous.

fV- Application of the Stay Standards to This Case

1. The balance of equities weighs in 
favor of granting the stay________

On June 4, 1990, one day before the primary in the last Supervisorial 

election to be conducted before the adoption of a new redistricting plan based on 

the 1990 Census, the United States District Court for the Central District of 

California (the Honorable David V. Kenyon) issued Findings of Fact and 

Conclusions of Law which resolved the liability issues in this case in favor of the 

plaintiffs.15 On August 6, 1990, two months after the primary election, and three 

months before the ongoing run-off was to be completed, the district court enjoined 

the run-off election for the County's First Supervisorial District and ordered the 

County to conduct a new primary election in a new First Supervisorial District

The Findings of Fact and Conclusions of Law of the District Court on Liability, App. 
at A-50.

-9-

EMELACY4/OC AP3a



drawn by the district court.16 On August 16, 1990, a split morions panel of the 

Ninth Circuit (Judges Beezer and Kozinski in favor, and Judge Nelson against) 

entered a stay of the special election pending resolution of the merits of the 

County's appeal.17

On November 2, 1990, a merits panel of the Ninth Circuit (Judges 

Schroeder, Nelson, and Kozinski) entered a decision which unanimously upheld the 

district court's determination on liability but was divided in upholding the propriety 

of the remedy adopted by the district court.18 The majority of the merits panel 

ordered the matter remanded immediately to the district court and instructed the 

district court to schedule a new primary election under the district court's remedial 

redistricring plan at the earliest practical opportunity. Despite Ninth Circuit policy 

to the contrary19 and the dissenting view of Judge Kozinski that immediate issuance

16 The Findings of Fact and Conclusions of Law and Remedial Order of the district 
court following the remedy phase, App. A-152; sgg also. August 3, 1990 orders, App. A-197.

17 App. A-164.

18 App. A-l.

19 The Ninth Circuit General Orders provide:

Fed. R. App. P. 40 and 41(a), (b) contemplate that, following a 
decision by this court, mandate shall not issue forthwith, but 
that time should be allowed after entry of judgment for the 
filing of a petition for rehearing, suggestion for rehearing en 
banc, and a petition for writ of certiorari. It is the policy of this 
court that only in exceptional circumstances should a panel 
order the issuance of mandate forthwith upon the filing of a 
disposition.

General Orders of the Ninth Circuit, pp. 16-17 (March 1989) (emphasis added).

The General Orders suggest circumstances which may be considered 'exceptional.' 
Those circumstances include:

[I]nstances where it appears from the record that a petition for 
rehearing, suggestion for rehearing en banc, or petition for writ 
of certiorari would be legally frivolous, where the losing litigant 
is attempting to defeat a just result by interposing delaying

-10-

EMELACY4/OCAP3a



of the mandate in this 'important and difficult case' places 'a n  unnecessary burden 

upon the parties, the district judge, our own colleagues, and the Justices above u s,' 

the majority directed that the mandate issue immediately.20

tactics, or where an emergency situation requires that, to 
effectuate a just result, the action of the court should become 
final, and mandate issue, at once.

Id- at 17; see also Circuit Advisory Committee Note to Rule 41-1.

In his dissenting opinion, Judge Kozinski argued compellingly against expedited 
issuance of the mandate: ^

Reluctantly, I must also part company with my colleagues in 
their decision to issue the mandate forthwith. As it is clear 
from this action that this panel will not grant a stay, we place 
an unnecessary burden upon the parties, the district court 
judge, our own colleagues and the Justices above us.

*  *  *

[W]e do not all agree. Moreover, our disagreement goes to the 
heart of the district court's remedial plan. Should there be 
further review, any steps taken by the district court and the 
parties in implementing the majority opinion would be wasted. 
Ihe more prudent course, it seems to me. would be to let the 
parties consider their options in a sober, unhurried fashion, as 
contemplated by the Federal Rules of Appellate Procedurp.

My able colleagues have advanced very compelling arguments 
as to why the one person one vote rule should be construed as 
embodying the principle of equal representation. I have 
suggested that much of the Court's language and rational 
supports the opposite view, that it is the principle of electoral 
equality that lies at the heart of one person one vote. We are 
not in a position to resolve this issue, which grows out of a lack 
of meaningful guidance in a long series of Supreme Court 
opinions. Yet this issue will have immediate and growing 
significance as large populations of aliens are taking up 
residence in several of our largest states. The Supreme Court 
may deem it prudent to take up the issue before large-scale 
redistricting gets underway in 1991.

Given these considerations, I would preserve the opportunity to 
have the matter considered in deliberative fashion, unhurried 
by the pendency of an election. For better or for worse, the 
election was stayed, which allowed us to consider the case 
without the sword of Damocles hanging over our heads. I 
would offer the same opportunity for unhurried deliberation to

-11-

EMELACY4/OCAP3a



On November 6, 1990, the County filed an emergency motion 

requesting that the panel recall the mandate and stay further issuance thereof 

pending determination of the County's Petition for Rehearing and Suggestion For 

Rehearing En Banc and, if necessary, a Petition for Writ of Certiorari to the Supreme 

Court. The panel, again over the dissent of Judge Kozinski, denied the emergency 

motion on November 7, 1990.21 On November 8, 1990, the district court adopted a 

schedule for a special election under which candidate filing commenced on 

November 9, 1990, and a special primary election will be held on January 22, 1990.22 

On November 27, the Petition for Rehearing and Suggestion for Rehearing En Banc 

was deemed denied.

As of the filing of this Application, despite the real possibility that the 

decisions below ultimately will be reversed, potential candidates are commencing 

campaigns and the County is undertaking the costs to conduct a special election

our colleagues and to any of the Justices who might wish to 
consider the matter.

Kozinski, Circuit Judge, concurring and dissenting in part (App. A-47 to A-48) (citations 
omitted) (alterations and emphases added).

Judge Kozinski's compelling arguments clearly disposed of the first two exceptions to 
the Circuit policy against expedited issuance of the mandate set forth in the Ninth Circuit 
General Orders. A petition for rehearing or for a writ of certiorari based on those 
arguments hardly could be considered frivolous or interposed solely for delay.

The final exception was also plainly inapplicable. This was not an emergency 
situation that, to effectuate a just result, required that a special election be held at once. 
There was no imminent deadline, the passage of which would render meaningful relief 
ineffective. Special elections could have been scheduled a few months later to accommodate 
en banc and Supreme Court review which otherwise would be precluded and the case for 
all practical purposes over. Thus, a short delay to permit the Ninth Circuit to consider these 
important issues en banc and, if necessary, for the Supreme Court to also consider these 
issues, hardly would have prejudiced plaintiffs. Conversely, recalling the mandate and 
restoring the stay while the Ninth Circuit and the Supreme Court reviewed these issues 
would have prevented serious and otherwise unnecessary injury to the County and the 
candidates.

21 App. A-49.

22 App. A-165.

-12-

EMELACY 4/OC AP3a



under district lines which have gained the support of a bare majority of but one 

panel of the Circuit. For this reason and the others discussed below, the panel 

majority's decision to issue the mandate forthwith and deny a motion to recall it 

represents a severe departure from settled procedure which, unless stayed, will 

cause great and unnecessary harm to the public interest.

As a matter of equity, a stay is appropriate because each day that goes 

by without a stay in place will force the County and the candidates to spend 

money, time, and effort on a special election utilizing district boundaries set by the 

district court that ultimately may be invalidated by the Supreme Court. The cost to 

the County to hold a court-ordered primary in District 1 is estimated to be 

approximately $1 million.23

A short delay to permit review by this Court, on the other hand, 

avoids the terrible prospect of another round of costly elections that are 

subsequently invalidated. Prospective candidates under the redrawn plan, in other 

words, will not be put in a position where they have wasted their time and money.

Nor will a short delay in implementation of the district court remedy 

prejudice plaintiffs in any substantial way. There are no irrevocable time deadlines 

that would render the relief plaintiffs seek ineffective if the election is stayed to 

permit Supreme Court consideration of the petition for writ of certiorari. A new 

primary election, regardless of who prevails, can be held within two months. Thus, 

if the stay application is granted, and the district court is later affirmed, the only 

harm to the plaintiffs will be a modest delay in the implementation of the special 

election. This balance of hardships in light of novel and difficult questions of law 

raised by the decision below make this an especially proper case for reinstatement of 

the stay pending ultimate judgment on the merits. Under any other approach,

23 See testimony of Charles Weissburd, p. 1158 of 8/3/90 transcript, App. A-195.

-13-

EMELACY4/OCAP3a



every party can be a loser; by reinstatement of the stay, the only potential loss is a 

short loss of time in implementation of the remedy. Logic, common sense, and 

avoidance of harm to the candidates, the County and the public warrant immediate 

reinstatement of the stay of the district court's order.

2. The 'reasonable probability' of granting 
certiorari ____________ ________ _

Supreme Court Rule 10 provides that a petition for writ of certiorari 

will be granted 'w hen there are special and important reasons therefore.' 

Moreover, while 'neither controlling nor fully measuring the Supreme Court's 

discretion,' Rule 10 provides an indication of the character of reasons that will be 

considered by the Court, including:

(c) When a state court or a United States court of 
appeals has decided an important question of federal law 
which has not been, but should be, settled by this Court, 
or has decided a federal question in a way that conflicts 
with applicable decisions of this Court.

Sup. Ct. R. 10.

For the reasons set forth in the County's Petition for a Writ of 

Certiorari, which is incorporated by reference and submitted herewith, this case 

presents important questions of broad application to minority vote dilution cases 

under both the Voting Rights Act and the Constitution. We respectfully submit that 

there is, at the least, a 'reasonable probability' that four Justices will consider these 

questions sufficiently meritorious to grant a writ of certiorari.

3. The 'fair prospect' that the decision below 
will be found erroneous ________________

In its November 2 decision (App. A -l), the Ninth Circuit erred, we

respectfully submit, on several issues of law. Each of these issues are set forth in

the County's accompanying petition for a writ of certiorari which is incorporated

-14-

EMELACY4/OCAP3a



herein reference. We respectfully submit that there is a 'fair probability' that the 

decision below will be found erroneous.

V. Conclusion

The Ninth Circuit opinions, both majority and dissenting, were issued 

slightly over three weeks after oral argument and only six weeks after submission of 

the briefs. The errors and ambiguities set forth in this application are a product of 

hurry. This is a case of first impression raising fundamental constitutional questions 

of monumental political and social consequence. It deserves fair appellate review 

before any irrevocable change in the status quo. Accordingly, petitioners request 

that an order be entered reinstating the stay of a special election ordered by the 

United States District Court pending completion of certiorari proceedings.

Dated: November 29, 1990

De Witt W. Clinton 
COUNTY COUNSEL OF 

LOS ANGELES 
Mary Wawro 
SENIOR ASSISTANT 

COUNTY COUNSEL 
648 Hall of Administration 
500 W. Temple Street 
Los Angeles, CA 90012 
Telephone: (213) 974-1811

Richard K. Simon 
Lee L. Blackman 
Erich R. Luschei
McDe r m o t t , w il l  & e m e r y

2029 Century Park East 
Suite 3800
Los Angeles, CA 90067-2917 
Telephone (213) 277-4110

Counsel for Petitioners 
County of Los Angeles, et al.

John E. McDermott 
660 S. Figueroa Street, Suite 2300 
Los Angeles, CA 90017 
Telephone: (213) 955-4600

Counsel o f Record for Petitioners

John E. McDermott 
Richard C. Field 
Evan M. Eisland 

Cadwalader, Wickersham & Taft 
660 S. Figueroa Street, Suite 2300 
Los Angeles, CA 90017 
Telephone: (213) 955-4600

Glen D. Nager
JONES, DAY, REAVIS & POGUE 

1450 G Street, N.W.
Washington, D.C. 20005-2088 

Telephone: (202) 879-3939

-15-

EMELACY4/OCAP3a