Pugh v. Hunt Motion Pro Hac Vice; Order

    IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs-Appellants, 

versus 

EDWIN EDWARDS, ET AL 

Defendants-Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

DEFENDANTS-APPELLEES' SUGGESTION FOR REHEARING EN BANC 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

Louisiana Department of Justice 
234 Loyola Avenue, 7th Floor 
New Orleans, Louisiana 70112 

(504) 568-5575 

M. TRUMAN WOODWARD, JR. 
209 Poydras Street 
New Orleans, LA 70130 

BLAKE G. ARATA 
201 St. Charles Avenue 
New Orleans, LA 70130 

A. R. CHRISTOVICH 
1900 American Bank Bldg. 
New Orleans, LA 70130 

MOISE W. DENNERY 
601 Poydras Street 
New Orleans, LA 70130 

ROBERT G. PUGH 
330 Marshall Street, Suite 1200 

Shreveport, LA 71101 

(318) 227-2270 

SPECIAL ASSISTANT ATTORNEYS GENERAL 

April 13th, 1988 



• 

- 

CERTIFICATE OF INTERESTED PERSONS  

The undersigned counsel of record certifies 

that the following listed persons have an interest in 

the outcome of this case. These representations are 

made in order that Judges of this Court may evaluate 

possible disaualification or recusal. 

Plaintiffs: 

Defendants: 

Attorneys 
for 
Plaintiffs: 

Ronald Chisom 

Marie Brookman 

Walter Willard 

Marc Morial 

Louisiana Voter 
Registration/Education Crusade 

Henry A. Dillon, III 

There are no nongovernmental 
defendants 

Julius L. Chambers 

Charles Stephen Ralston 

C. Lani Guinier 

Pamela S. Karlan 

NAACP Legal Defense and Educational 
Fund, Inc. 

William P. Quigley 

Ron Wilson 



• 

Roy Rodney 

Attorneys William J. Guste, Jr. 
for 
Defendants: M. Truman Woodward, Jr. 

Blake G. Arata 

A. R. Christovich 

Noise M. Dennery 

Robert G. Pugh 

• Rob rt/G. Pugh 
Le ld Counsel for 
Defendants-Appellees 



• 

STATEMENT OF COUNSEL 

I express a belief, based on a reasoned and 

studied professional judgment, that this appeal 

involves one or more questions of exceptional 

importance: 

The decision of this Court effectively sweeps 

away the statutes of approximately two-thirds of the 

states where two or more members of the judiciary may 

be elected to office from the same geographic area, 

without considering a full record based upon a factual 

development concerning the applicability of the 

"results test" as to judicial elections. 

R4ert G. Pugh 
Lad Counsel for 
Defendants-Appellees 



• 

- iv - 

TABLE OF CONTENTS AND CITATIONS  

Page, 

CERTIFICATE OF INTERESTED PERSONS . • .. 

STATEMENT OF COUNSEL 00 00 00 00 00 

TABLE OF CONTENTS AND CITATIONS • • • • • • iv 

STATEMENT OF THE ISSUE 00 00 00 00 00 vi 

STATEMENT OF THE COURSE OF PROCEEDINGS 
AND DISPOSITION OF THE CASE.. .. 00 00 O0 

STATEMENT OF ANY NECESSARY FACTS • • . • • • 3 

ARGUMENT AND AUTHORITIES .. • • • • • • . • 4 

CONCLUSION 00 00 00 00 00 00 .. 12 

CERTIFICATE OF SERVICE 

Cases 

Bhandari v. First National Bank of Commerce, 
829 F.2d 1343 (5th Cir. 1987), 
writs applied for (87-1293, filed 
February 2nd, 1988, 56 LW 3542) 

Campos v. City of Baytown, Texas, 
87-2359, April 1, 1988, 
Slip Opinion 2547, 2553 

Citizens for a Better Gretna  
v. City of Gretna, 

834 F.2d 496 (5th Cir. 1987) 

•• 

0• 

• . 

• • 00 

0 0 O• 

6 

8 

Clark v. Edwards, 
Civil Action No. 867-435-A 
(D.C. M.D. La.) 00 00 00 00 00 5, 7 

Eccles v. Peoples Bank, 
333 U.S. 426 (1948) .. • 00 00 00 13 



- v - 

Guerra V. Manchester Termination Cor 
498 F.2d 641 (5th Cir. 1974) . 

Kenned v. Silas Mason, Co., 
334 U.S. 249 (1948) .. 

• 

• • 

Martin V. Allain, 
658 F.Supp. 1183 (S.D. Miss. 1987) 

Mobile v. Bolden, 
446 U.S. 55, 100 S.Ct. 1490, 
64 L.Ed.2d 47 (1980) 

ThornbUrg v. Gin les, 
478 U.S. 30, 92 L.Ed.2d 25, 

106 S.Ct. 2752 

White v. Re ester, 

412 U.S. 755, 93 S.Ct. 2332, 
37 L.Ed.2d 314 (1973) 0 • 

United States Statutes 

42 U.S.C. t11973 

42 U.S.C. ,1983 

United States Rules 

Rule 12.(b)(6) • .. 

Louisiana Constitution 

Louisiana Constitution Article V, 
Sections 22 and 24 

The Senate Report No. 97-417 

• • • • 

0 • 

O 0 

0 • 

• • 

• 0 

O 0 

• • 

O 0 

0 • 

O 0 01 • 

• • 

O 0 

• • . . 

U.S. Code Congressional & Administrative 

News, 1982 pp. 206-207 . • 
• • 

• • 

• • 

6 

13 

5 

10 

7 

2 

2 

Passim 

10 



• • 

fl 

- v - 

Page  

Guerra V. Manchester Termination Cor., 
498 F.2d 641 (5th Cir. 1974) . • .. • • 6 

Kennedy.V. Silas Mason, Co., 
334 U.S. 249 (1948) .. .. • • .. .. 13 

Martin V. Allain, 
658 F.Supp. 1183 (S.D. Miss. 1987) .. • • 5 

Mobile v. Bolden, 
446 U.S. 55, 100 S.Ct. 1490, 
64 L.Ed.2d 47 (1980) • • 

ThornbUrg v. Gin  
478 U.S. 30, 92 L.Ed.2d 25, 

106 S.Ct. 2752 

White v. Re ester, 

412 U.S. 755, 93 S.Ct. 2332, 
37 L.Ed.2d 314 (1973) 

0 • 

10 

7 

f' United States Statutes 

L. 42 U.S.C. 6,119 73 •• •• 2 

42 U.S.C. ,1983 •• •• •. 2 

[; 
United States Rules 

L4 Rule 12 (b) (6) .• Passim 

Louisiana Constitution 

Louisiana Constitution Article V, 
Sections 22 and 24 10 

Lf.ai_s_iLLKt_111-EaEY 

The Senate Report No. 97-417 

U.S. Code Congressional & Administrative 

News, 1982 pp. 206-20 7 . • 

• • 



• 

- vi - 

STATEMENT OF THE ISSUE 

Once having made a determination that Section 

2 of the Voting Rights Act, 42 U.S.C. §1973, applies to 

judicial elections, should there have been a remand by 

the Court to permit the parties to develop a full 

factual record as to the applicability of the "results 

test" to judicial elections? 



• 

IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs-Appellants, 

versus 

EDWIN EDWARDS, ET AL 

Defendants-Appellees, 

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA 

DEFENDANTS-APPELLEES' SUGGESTION FOR PEHEARING EN BANC 

STATEMENT OF THE COURSE OF PROCEEDINGS  
AND DISPOSITION OF THE CASE  

The original Complaint was lodged on 

September 19th, 1986 and the First Amended Complaint 

was filed on September 30th, 1986. The Complaint, 

which was styled a class action brought on behalf of 

all blacks registered to vote in Orleans Parish, sought 

a three-judge panel. The suit challenged the process 



- 2 - 

of electing Louisiana Supreme Court Justices from the 

First District of the Louisiana Supreme Court. 

The First District is made up of four 

parishes from which two justices are elected at-large. 

•The plaintiffs alleged that the election system 

impermissibly dilutes, minimizes and cancels the voting 

strength of blacks who are registered to vote in 

Orleans Parish in violation of the 1965 Voting Rights 

Act, 42 U.S.C. § 1973, the Fourteenth and Fifteenth 

Amendments to the United States Federal Constitution, 

and 42 U.S.C. § 1983. 

The plaintiffs' request for a three-judge 

panel was denied and the case was docketed before a 

single judge by an order entered November 14th, 1986. 

The defendants filed a motion to dismiss 

pursuant to Rule 12(b)(6) on March 18th, 1987. The 

opinion of the trial 

motion was entered May 

a notice of appeal on 

dismissed on May 26th, 

court granting the defendants' 

1st, 1987. The plaintiffs filed 

May 7th, 1987; the appeal was 

1987. 

Judgment was entered dismissing the 

plaintiffs' complaint on June 8th, 1987, and the 

plaintiffs filed a notice of appeal on June 17th, 1987. 



3 

By order dated July 10th, 1987, the case was 

remanded to the District Court for the limited purpose 

of amending its written opinion; an Order Amending 

Opinion was entered on the 10th day of July, 1987. 

The decision of this Court was rendered on 

February 29th, 1988. Subsequent thereto an Order was 

issued extending the time period for the filing of an 

application for rehearing (and thus, also, this 

suggestion for rehearing en banc) to and including 

April 13th, 1911•8. 

STATEMENT OF ANY FACTS NECESSARY 
TO THE ARGUMENT OF THE ISSUE  

The only facts before the Court are those set 

forth in the complaint, as amended. Issue was not 

joined. The District Court sustained a Rule 12(b)(6) 

motion. Of course, many of the allegations in the 

complaint were merely legal conclusions. 



• 
- 4 

ARGUMENT AND AUTHORITIES 

The Panel's Opinion Is So OverBroad  
That It Reaches Issues Not Properly Before It  

And Implies A Result The Court May Not Pave Intended  

The essence of the Panel's opinion is found 

at Page 2306 of the slip opinion: 

"We conclude today that section 2, as amended 
in 1982, provides protection commensurate 
with the fourteenth and fifteenth amendments; 
therefore, in accordance with this Court's 
decision in Voter Information, section 2 
necessarily embraces judicial elections 
within its scope. Any other construction of 
section 2 would be wholly inconsistent with 
the plain language of the Act and the express 
purpose which Congress sought to attain in 
amending section 2; that is, to expand the 
protection of the Act." 

Having concluded that Section 2 from its 

inception in 1964 was co-extensive with Constitutional 

protections, the Court need not have gone further, for 

the case involved purely a motion to dismiss. 

Unfortunately, Sections B through D of the Panel's 

r.7 

opinion continues in obiter dicta to analyze the 1982 

legislative history. While the Court determined that 

the 1982 legislative history showed no intent to limit 

the original scope of Section 2, the Panel's broad 

statements contain terminology that is unnecessary at 

this point in the proceeding and which may cause lower 

courts to make evidentiary rulings on issues that have 



yet to be addressed'by this Court on a record developed 

after a full and complete trial. 

As the Court was aware, there are two cases 

in district courts involving Section 2 and judicial 

elections, cases that undoubtedly will be appealed to 

the Court: Martin V. Allain, 658 F.Supp. 1183 (S.D. 

Miss. 1987); and Clark v. Edwards, Civil Action No. 

86-435-A (D.C. M.D. La.). Martin involves the county, 

chancery, and circuit courts in Mississippi, and a full 

trial has been held, although a final order apparently 

has not yet been issued. Clark involves a 

class-action, state-wide challenge to the method by 

which Louisiana district court and court of appeal 

judges are selected in multi-member districts; trial 

is set for July 12, 1988. 

It was clear that the Court had to address 

whether the word "representative" in Section 2(b) of 

1/ the Act was a limitation on the entire Act's — 

applicability to judicial elections, for that was one 

of the points relied upon by the State in opposition to 

the plaintiffs' appeal; however, having determined 

that Section 2 as it existed prior to 1982 covered 

judicial elections, and having found no Congressional 

1/ 
Both of Section 2(a) and 2(b). 



6 

intent in 1982 to limit the scope of the Act, there was 

no need for the court to indicate that the term 

"representative" is a synonym for "candidate." 21 

2/ 
It may be that, with the full record before it in 

both Martin and Chisom, this or another Court may reach 
the same conclusion. It is also possible, however, 
that an entirely different conclusion could be reached, 
one that treats the 1982 amendments as an expansion of 
the Act while at the same time recognizing that 
different words used in the same statute are to be 
accorded different meanings. As was noted in Bhandari  
v. First National Bank of Commerce, 829 F.2d 1343 at 
1345 (5th Cir. 1987), writs applied for (87-1293, filed 
February 2nd, 1988, 56 LW 3542), a case in which the 
Court rejected the finding of Congressional intent in 
Guerra v. Manchester Termination Corp., 498 F.2d 641 
(5th Cir. 1974): 

It has• been said that there is no greater 
injustice than to treat unequal things equally, 
and we are not disposed to do so...unless the 
Congress has clearly demanded it': (Emphasis 
supplied). 

In a case properly before it, this Court may 
well hold that Congress indeed meant something 
different when it used the word "representative" rather 
than "candidate," in light of the sparse legislative 
history of the meaning of the term "representative," 
and in light of the differences in terminology between 
different sections of the Act (the term "candidate" 
appears elsewhere in Section 11 and Section 14). This 
would allow words to be accorded "their natural 
meaning" in. a context where words have an 
"ascertainable meaning." 829 F.2d at 1349, 1350. 

Therefore, the Court may well conclude, on 
the basis of a complete record, rather than one based 
on the perfunctory record that results from a Motion to 
Dismiss, that Congress intended to expand the holding 

(Footnote Continued) 



7 

For example, if a trial were to be held in 

Clark, 2/ would the dicta in Chisom be taken by the 

trial court as an imprimatur to apply the same 

evidentiary standards as in legislative elections? If 

"representative" and "candidate" mean the same thing, 

is the same "results test" applicable to legislative 

and judicial elections? These are not a mere 

rhetorical questions, for the plaintiffs in Clark have 

already filed objections to proposed evidence and 

exhibits in reliance on statements in Citizens for a 

Better Gretna v. City of Gretna, 834 F.2d 496 (5th Cir. 

of White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 
L.Ed.2d 314 (1973), a case that involved only 
legislative positions. By using the term 
"representative," the Court may find that Section 2(b) 
now extends to the executive as well as legislative 
branch of government, but that the "results test" which 
was added cannot be used in -judicial elections. 

Whether this is the conclusion that will be 
reached by this or another panel remains to be seen. 
What should be clear, however, is that the discussion 
in which this Court engaged about the identity of the 
words "representative" and "candidate" was not 
necessary. 

3/ 
Settlement discussions in Clark are ongoing, as a 

result of which the original trial date of April 12, 
1988 has been moved to July 12, 1988. 



- 8 - 

1987), tboth a petition for a panel rehearing, and 

suggestion for rehearing en banc were filed on January 

6th, 1988. These are pending, see Fifth Circuit 

Reporter April, 1988 Vol 5, No. 6 p.4291, a case 

involving legislative elections. 1/ 

The "results test" under Section 2(b) is not 

a static, hard, and unyielding construct but is rather 

. 5/ 
a fluid and flexible analysis. — Inflexible data 

/ Cited, Campos v. City of Baytown, Texas, 87-2359, 
April 1, 1988, Slip Opinion 2547, 2553. 

5/ The Supreme Court's opinion in Gingles, in the 
majority portion of the opinion, specifically relies 
upon the Senate Report which accompanied the 1982 
amendments concerning the requirements to prove a 
Section 2 violation. Gingles, 106 S.Ct. at 2763, 
Footnote 7. The Senate Report No. 97-417 at 28, 29, 
U.S. Code Congressional & Administrative News, 1982 pp. 
206-20 1; quoted at 106 S.Ct 2759, 2760: 

"1. the extent of any history of official 
discrimination in the state or political 
subdivision that touched the right of the 
members of the minority group to register, to 
vote, or otherwise to participate in the 
democratic process; 

2. •the extent to which voting in the 
elections of the state or political 
subdivision is racially polarized; 

3. the extent to which the state or 
political subdivision has used unusually 
large election districts, majority vote 
reauirements, anti-single shot provisions, or 
other voting practices or procedures that may 
enhance the opportunity for discrimination 
against the minority group; 

(Footnote Continued) 



9 

from this Court, however may convert the "results test" 

in judicial elections to a Procrustean bed. Judges, 

unlike all members of the legislative branch, and 

unlike all but elected district attorneys in the 

4. if there is a candidate slating process, 
whether the members of the minority group 
have been denied access to that process; 

5. the extent to which members of the 
minority group in the state or political 
subdivision bear the effects of 
discrimination in such areas as education, 
employment and health, which hinder their 
ability to participate effectively in the 
political process; 

6. whether political campaigns have been 
characterized by overt or subtle racial 
appeals; 

7. the extent to which meMbers of the 
minority group have been elected to public 
office in the jurisdiction. 

Additional factors that in some cases have 
had probative value as part of plaintiffs' 
evidence to establish a violation, are: 

whether there is a significant lack of 
responsiveness on the part of elected 
officials to the particularized needs of the 
members of the minority group. 

whether the policy underlying the state 
or political subdivision's use of such voting 
qualification, prerequisite to voting, or 
standard, practice or procedure is tenuous. 

As the Supreme Court noted, the Senate 
Report's list of factors is "neither comprehensive 
nor exclusive. While the enumerated factors will 
often be pertinent to certain types of Section 2 



• 
- 10 - 

executive branch, must meet special qualifications. 

Unlike any other elected official, judges must be 

attorneys, must have practiced law for a minimum of 

five years, and must not have been previously appointed 

to the position for which they are campaigning. !/ 

For the Court to reject as "untenable" (slip 

opinion at Page 2307) any distinction between judicial 

and non-judicial officials prior to the creation of a 

full record is premature. For the Court to equate 

statutes passed with an intent to discriminate with 

statutes that may or may not pass the "results test" is 

provocative but unnecessary. 21 

violations, particularly to vote dilution claims, 
other factors may also be relevant and may be 
considered." 106 S.Ct. at 2764. 

6/ 
Louisiana Constitution Article V, Sections 22 and 

24. 

7/ 
The whole purpose of Section 2(b) was to overrule 

the intentional discrimination test required in Mobile  
v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 
(1980). What is now Section 2(a) was essentially old 
Section 2 of the Act; it was the addition of Section 
2(b) that added the criteria for the "results test," a 
test expressly applicable only to election of 
"representatives." Therefore, it is submitted that the 
following statement by the Court shows that it was 
perhaps inadvertently intermingling the "results test" 
of Section 2(b) with intentional discrimination, a 
practice that the Court (and Mobile as well as Voter  
Information) found always had been covered by both the 
Constitution and old Section 2: 

(Footnote Continued) 



• 

In essence, the sole issue before the 

District Court was whether to grant a motion to 

dismiss. The Court can hold that Section 2 (as it 

existed prior to 1982) applies to judicial elections. 

Thus, the District Court's opinion will be reversed and 

the case remanded. Since there was no evidence on 

whether the "results test" applies, since no 

statistical evidence was offered whatsoever before the 

District Court, and since that issue was not before the 

Court, the Court was overbroad in its statements. The 

Court can hold that Section 2 has always applied to the 

judiciary and leave the question of the "results test" 

to another day, after a factual development of the 

issue in the District Court. It is hornbook law that a 

court should decide a case on as narrow a ground as 

"To hold, as the State asserts, that such an 
egregious statute would not be subject to the 
requirements of Section 2 as well would lead 
to the incongruous result that, while, 
Louisiana could not adopt such a statute in 

1988, if that statute were in effect 
prior to 1982, minorities could only 
challenge the statute under the 
Constitution and not under the Voting 
Rights Act. Such a result would he 
totally inconsistent with the broad 
remedial purposes of the Act. 

The issue should not have been whether such an 
"egregious statute" would violate Section 2, but father 
whether a judicial election statute enacted with no 

(Footnote Continued) 



- 12 - 

• possible and should not give a broad opinion unless 

absolutely necessary. It is not necessary to reach the 

"results test" in this case and the panel should abjure 

any attempt to be expansive in its dicta. 

CONCLUSION 

The Court has reached a theoretically 

impossible result by effectively rendering a judgment 

on the merits for the plaintiff based on a 12 (b)(6) 

motion. Indeed a 12(b)(6) motion is an inappropriate 

vehicle for assessing issues of great importance, 

particularly those which reach constitutional 

dimensions. 

The Supreme Court has recognized that 

summary-type judgments are seldom proper in cases 

involving large public concerns. 

Judgments on issues of public moment based on 
such evidence raffidavitsl, not subject to 
probing by judges and opposing counsel, is 
apt to be treacherous. Caution is 
appropriate against the subtle tendency to 
decide public issues free from the safeguards 
of critical scrutiny of the facts, through 
use of a declaratory summary judgment. 

discriminatory intent could be attached under the 
"results test" of Section 2(b). This 
overstatement by the Court shows the necessity of 
tempering the breadth of the opinion pending the 
development of a full record. 



• 

- 13 - 

Eccles v. Peoples Bank, 333 U.S. 426, 434 (1948). 

These sentiments were repeated in Kennedy v. Silas  

Mason Co., 334 U.S. 249 (1948), a case dealing with an 

attempt by summary judgment motion to secure a 

determination that the parties were not covered by the 

Fair Labor Standards Act. 

In rejecting that attempt and in 

requiring that a full factual record be developed, 

the Court observed that "summary procedures, 

however salutary where issues are clear-cut and 

simple, present a treacherous record for deciding 

issues of far-flung import, on which this Court 

should draw inferences with caution from 

complicated courses of legislation, contracting 

and practice." 334 U.S. at 256-57. 

All of the above and foregoing is thus 

respectfully submitted. 

• WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

Louisiana Department of 
234 Loyola Avenue, 7th 
New Orleans, Louisiana 

(504) 568-5575 

M. TRUMAN WOODWARD, JR. 
209 Poydras Street 
New Orleans, LA 70130 
(504) 581-3333 

Justice 
Floor 
70112 

A. R. CHRISTOVICH 
1900 American Bank Bldg. 
New Orleans, LA 70130 
(504) 561-5700 



- 14 

• BLAKE G. ARATA 
201 St. Charles Avenue 
New Orleans, LA 70130 
(504) 582-1111 

By: 
// 

ROBERT G. PUGH 
Lead Counsel 

330 Marshall Street, Suite 1200 
Shreveport, LA 71101 

(318) 227-2270 

MOISE W. DENNERY 
601 Poydras Street 
New Orleans, LA 70130 
(504) 586-1241 

SPECIAL ASSISTANT ATTORNEYS GENERAL 



CERTIFICATE 

I HEREBY CERTIFY that a copy of the above and 

foregoing Defendants-Appellee's Suggestion for Panel 

Rehearing En Banc has this day been served upon the 

plaintiffs through their counsel of record: 

William P. Quigley, Esquire 
631 St. Charles Avenue 
New Orleans, Louisiana 70130 

Julius L. Chambers, Esquire 
Charles Stephen Ralston, Esquire 
C. Lani Guinier, Esquire 
Ms. Pamela S. Karlan 
99 Hudson Street 
16th Floor 
New York, New York 10013 

Roy Rodney, Esquire 
643 Camp Street 
New Orleans, Louisiana 70130 

Ron Wilson, Esquire 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, Louisiana 70112 

by depositing the same in the United States Mail, 

postage prepaid, properly addressed. 

All parties required to be served have been 

served. 

Shreveport, Caddo Parish, Louisiana, this the 

13th day of April, 1988. 

Robe t GL Pugh, 
Lead Counsel