Correspondence from Winner to Guinier, Suitts, and Wheeler; from Winner to Dupree

    UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

CLEMENT F. PERSCRALL, JR. 

VERSUS 

THE STATE OF LOUISIANA 

* * * * * * * * * * * * * * * 

CIVIL ACTION 

NUMBER 95-1265-A-M2 

MEMORANDUM IN OPPOSITION TO INTERPLEADER 
PETITION BY RONALD CEISOMI ET AL 

MAY IT PLEASE THE COURT, 

This matter was initially filed by the undersigned, as the 

plaintiff r in a declaratory action to determine the 

constitutionality of Acts 1992, No. 512 of the Louisiana 

Legislature. This petition was filed in the 19th Judicial 

District Court for the Parish of East Baton Rouge, State of 

Louisiana. Prior to an answer being filed by the State of 

Louisiana, special counsel for the State of Louisiana filed a 

petition to remove the state proceeding to the United States 

District Court for the middle District of Louisiana. Special 

counsel for the State of Louisiana, thereafter, filed a motion to 

transfer this matter from the United States District Court of the 

Middle District to the United States District Court in the 

Eastern District. The motion to 'transfer was fixed for hearing 

on September 15 1 1995. Notwithstanding the fixing of a hearing, 

the court ex proprio motu issued an order dated March 28 1 1995 



transferring the matter to this Honorable Court. Prior to the 

order transferring this matter to the Eastern District, the 

undersigned submitted on April 6, 1995 a motion to reconsider the 

order of transfer for which the court never notified the 

undersigned of the granting or denying of said motion. The 

undersigned, presumed that the failure of the court to notify him 

constituted a denial of the motion. 

Once these proceedings were transferred to the Eastern 

District, special counsel submitted a letter to the judge 

assigned to this case requesting that it be transferred to 

Section A. Based upon the aforesaid letter, this matter was 

transferred to Section A. (In a prior memorandum the undersigned 

incorrectly stated that the contents of this letter were unknown. 

Apparently, due to the time frame in filing taking place in my 

office, the letter that was sent to ma by Mr. Butler had not made 

the file at the time the prior memorandum was dictated. The 

letter is referenced in the order by Judge Duval transferring 

this matter to Section A and my apologies are extended to Mr. 

Butler for the erroneous statement.) 

After this matter was transferred to Section Al all of the 

original Chisom plaintiffs with the exception of Mr. Marc Morial 

filed a motion to intervene in these proceedings as a party 

defendant. Plaintiff would suggest that these intervenors have 

2 



no basis for intervention for the following reasons: 

this court lacks subject matter jurisdiction; 

venue is improper as to this court pursuant to 28 

USC 1404; 

:az. the doctrine of abstention applies; 

IV. intervenors do not fulfill the requisites under 

Rule 24 of the Federal Rules of Civil Procedure for 

intervention; 

I. 

THIS COURT LACKS SUBJECT MATTER JURISDICTION 

Plaintiff would suggest that this Honorable Court lacks 

subject matter jurisdiction over the entire case as the State of 

Louisiana, the original defendant in this matter, has .not waived 

its sovereign innunity under the 11th amendment of the United 

States Constitution to be sued in federal court. Pursuant to the 

11th Amendment of the United States Constitution, an unconsenting 

state is immuned from suit brought in federal court by her own 

citizens, as well as, citizens of another state. 1 The fact that 

the State of Louisiana, through its special prosecutor, has 

removed this matter from state court to federal court does not 

constitute a waiver of the state's 11th amendment right. 

1 rdelman y, Jordu 415 US 651, 94 S. Ct. 1347, 39 Lad 2d 
662, (1974), at p..136041. 



The court in rreimanis V. Sea-LeInd Services, Inc., •654 P.2d 

1155 (5th Cir. 1981), noted: 

The appellant further argues that Louisiana waived its 
eleventh amendment immunity by entering into a consent 
judgment with Sea-Land. . .The short answer to this 
contention is that the attorney for the Department had 
no clearly expressed authority to waive eleventh 
amendment immunity. Indeed Louisiana has clearly 
expressed its intention to preserve its immunity. La. 
Rev. Stat. Ann. Title 13 Section 5106 (West Supp. 
1980), provides: No suit against the state, state 
agency, or political subdivision shall be instituted in 
any court other than a Louisiana State court." at p. 
1160. 

The Fifth Circuit again in the matter of paguall,Lii. 

Gectenheimu, 631 F.2d 1195 (5th Cir. 1980) notes that La. R.S. 

13:5106 has been held to deprive counsel of authority to consent 

to suit in federal court. 2 Because the plaintiff did not raise 

the 11th Amendment privilege at the trial level, the State of 

Louisiana was given a full preview of the plaintiff's case 

without the risk of loss. After judgment was rendered against 

the State of Louisiana it raised its 11th amendment privilege for 

the first time on appeal. The court in sympathy to the plaintiff 

stated: 

The State has asserted its immunity only after it 
sought a favorable verdict and lost before the jury. 
Had it prevailed, Louisiana would doubtless be claiming 
the case was tried with its consent. That today's 

2 pAgnall v,..Awitunaupiniez, 631 P.2d 1195 (5th cir. 1980) at 
p. 3. See also AT&T v. Madison Parish Police Jury, 465 FoSupp. 
168 (W.D. La. 1977). 

4 



- I _ ,UE - 

decision might permit such an inequity cannot overcome 
Louisiana's plain constitutional right in the absence 
of clearly expressed law to the contrary." at p. 4 

The absence of clearly expressed law to the contrary is 

found within the Louisiana Declaratory Action statute, Article 

1871 at seq. of the Louisiana Code of Civil Procedure. Under 

those provisions, Louisiana law grants to its courts of record 

the right to adjudicate the constitutionality of a state statute. 

This statute is not applicable to federal courts but solely to 

state courts. 

Based upon the laws of the State of Louisiana and its rights 

under the 11th Amendment of the united States Constitution, this 

Honorable Court lacks subject matter jurisdiction. As no subject 

matter jurisdiction exists for the main demand, this court is 

without authority to rule on the motion for intervention. 3 

- 

VENUE IS IMPROPER AS TO THIS COURT 
PURSUANT TO 28 USC 1404 

The transfer of this matter from the Middle District Court 

to the Eastern District Court was done pursuant to 28 USC 

1404(a). Under the statute, the transferee court must be a court 

where the action "might have been brought". In Hoffman V.  

Blaski,'363 US 335, 80 S.Ct. 1084 (1960), the court in addressing 

3 EMILLY.2.111=2.2xsaluction_Comp_any, 768 F.2d 669 (5th 
Cir. 1985) at p. 675. 

5 



the language "where it might have been brought", held: 

"We agree with the Seventh Circuit that: 

'If when a suit is commenced, plaintiff has a 
right to sue in that district, indevendently 
of the wishes.of the defendant, it .2.s a 
district where (the action] night have been 
brought. If he does not have that right, 
independently of the wishes of the defendant, 
it is not a district where it might have been 
brought and it is immaterial that the 
defendant subsequently [makes himself 
subject, by consent, waiver of venue and 
personal jurisdiction defenses or otherwise, 
• to the jurisdiction of some other forum]" at 

P. 344 

Following the reasoning in EDffmin, before this matter could 

be transferred to the Eastern District of Louisiana, the 

tranoferring court had to find that the plaintiff, which is not 

the State of Louisiana, could have brought this suit initially in 

the Eastern District of Louisiana. The only basis for bringing 

this matter into federal court by the plaintiff would have been 

under the federal question jurisdiction of the court. 

Pursuant to 28 USC 1391(b), a proper venue would have been 

the domiciled of the defendant or the place where the substantial 

parts of the events which gave rise to litigation occurred. As 

this is a declaratory action against the State of Louisiana one 

needs to look as to where the government activities occur which 

gave rise to this' action and/or where one might consider the scat 

of government exist. 

6 



• 

The action which precipitated this suit was the passing of 

an act of the Louisiana Legislature in Baton Rouge, Louisiana. 

As Baton Rouge, Louisiana is within the boundary of the Middle 

District Court venue would have been proper in the Middle 

District Court not the Eastern District Court. 

If one looks to those in government responsible for 

enforcing the laws of Louisiana, one will note that the Governor 

of the State and the Attorney General are charged with that 

responsibility. The principal offices of both of these offices 

is in Baton Rouge. Again the proper place of venue being the 

Middle District Court and not the Eastern District Court. 4 

As the plaintiff in this matter would have had no basis for 

initiating a suit in federal court against the State of Louisiana 

in the Eastern District, it is urged that the provisions of 28 

USC 1404 (a) could not be fulfilled, thereby denying this court 

jurisdiction. 

It is respectfully urged and suggested that this court lacks 

the jurisdiction to entertain the interpleader petition as the 

court lacks jurisdiction over the main demand. Accordingly, the 

petition for intervention should be denied. 

4 ERA helicopter's Inc, v. qtAte of Louisiana, 651 F. Suppe 
448 (M.D. La. 1987) 

7 



3: 

//I. 

THE DOCTRINE OF ABSTENTION APPLIES 

A mere glance of the pleadings in this matter will quite 

aptly illustrate that this suit is engendered by state issues. 

But for one count referring to the 14th Amendment to the United 

States Constitution, all other counts in the petition reflect 

violations of either state statutes and/or the state 

constitution. This declaratory action was filed in state court 

because the issues are predominately state issues and should 

rightly be decided by a state court. 

The court in polline v. City of npv Orleans, 757 F.SuPP• 

715, (ED. La. 1991) stated: 

". • • the federal doctrine of abstention takes form 
because of our fundamental notions of the structure of 
our government. Thus, one of these special 
circumstances is triggered when a state court 
interpretation of a state law at issue would render 
unnecessary or substantially modify the federal 
constitutional question. . . 

Abstention under such special circumstances is anchored 
by the need to recognize and enhance principals of 
federalism by avoiding premature federal constitutional 
adjudication, interference with important state 
functions, and decisions on questions of state law 
better solved by state courts. . . 

The values of federalism spotlighted by the supreme 
Court in Eullman. . . . Poatta.p, announced three 
threshold factors a district court should consider when 
deciding whether or not to abstain: 1) whether the 
federal disposition of a question of state law can 
eliminate or narrow the scope of the federal 
constitutional issue; 2) whether the state law question 

8 



presents difficult, obscure or unclear issues of state 
law; and 3) whether a federal decision could later 
conflict with subsequent state court decisions 
concerning the state regulatory program or scheme, thus 
engendering more confusion." at p. 719. 

Under the Pullman test, only one of the aforesaid factors 

need be found for the court to abstain from hearing the case.' 

This court is confronted with claims that Acts 1992, No. 512 of 

Louisiana Legislature offends the Louisiana Constitution of 1974, 

as well as, other Louisiana statutory provisions. These claims, 

are uniquely state issues, which, if resolved by the state 

courts, could necessarily end the dispute without federal 

intervention. 

If a state court rules that Acts 1992, No. 512 violates 

article 5, section 3 of the Louisiana Constitution of 1974, then 

the issues before this court would become moot, or at the very 

least, substantially altered. 

Other serious and unclear state law issues also thread their 

way through this matter. Plaintiff asserts that not only does 

Acts 1992, No. 512, as it amends La. R.S. 13:312.4, violates 

Article 5, section 3 of the Louisiana Constitution of 1974, but 

it also violates Article 3, section 12 of the Louisiana 

Constitution of 1974, Article 3, section 13 of the Louisiana 

Constitution of 1974, and Article 1, section 2 of the Louisiana 

I B011_1.../ifL/4,Sity_flOrltilllar supra at p. 719. 

9 



Constitution. 

It is evident that serious state issues, as to the 

constitutionality of Acts 1992, No. 512 are unsettled and need to 

be addressed by a state court. This court cannot ignore the 

distinct responsibility of the state court system to resolve the 

substantial and dominant state constitutional issues without the 

intervention of the federal court. The issues before this court 

are susceptible to an interpretation by the state court that 

would moot or substantially limit the federal questions before 

this court. The allegations in plaintiff's petition fall 

completely within the factors enumerated by Tullman. 

In the event this court should maintain jurisdiction, it 

would be required to address the state constitutional issues 

before ever addressing any violation of the 14th Amendment of the 

United States Constitution.' The Louisiana Supreme . Court 

recognizing a deference to federal issues to the adjudication of 

state issues, noted in State V. Perry, 610 Soad 746 (La. Sup. 

1992)i 

"Both the United States Supreme Court and this court 
adhere to the rule that the court will not pass upon a 
federal constitutional question, although properly 

6 Webster v. Reproductive Health Services, 492 U.S. 490, 
526, 109 S.Ct. 3040, 3060, 106 L.Ed2d 410 (1989). 

10 



presented by the record, if there is also present some 
other ground upon which the case may be disposed. 
• 

• 

Greater judicial efficiency, and coherence are promoted 
when we address state law issues first. . .Because this 
court is the final arbiteg 9ftlie meaning of the state 
constitution and law,, our disposition of a case on 
state ground usually will terminate the litigation 
without the necessity of federal review. Furthermore, 
because our state Declaration of Rights incorporates or 
expands most of the federal Bill of Rights standards, a 
decision by this court upholding an individual state 
constitutional rights rarely will call for a further 
review by the Supreme Court." (emphasis added) at p. 
751. 

Aside from the arguments made, a perfect example of why 

abstention is appropriate is reflected in the decision of IBA 

Helicopter's Inc. vs. State of Louisiana 615 F. Supp. 448 (M.D. 

La. 1987). In this case, the plaintiff had sued the State of • 

Louisiana seeking a declaration that all or some parts of 

Louisiana's sales and use tax statutes were-unconstitutional 

and/or violated the plaintiff's federal constitutional 

protections under the Commerce Clause, the Equal Protection and 

Due Process Clauses. Judge Polozola in dismissing the matter for 

lack of subject matter jurisdiction stated: 

"It is not necessary for the court to determine whether 
BRA can avail itself of the procedures set forth in La. 
R.S. 47:1576 because ERA does have a 'plain, speedy and 
efficient remedy' to contest the validity of the taxes 
involved in the case under Articles 1871 and 1872 of 

11 



the Louisiana Code of Civil Procedure. [Louisiana 
Declaratory Judgment Act] 

The issue involved in this suit is very simple: ERA 
challenges the constitutionality of the state taxes 
involved herein on the grounds that the taxes as 
applied to it violate the Commerce, Equal Protection 
and Due Process clauses of the United States 
Constitution. The State Declaratory audgment statute 
clearly allows ERA to present this question to the 
appropriate .state court. . ." (emphasis added) at p. 
450. 

• The court should take note that in the ERA case, as in this 

case, a state declaratory judgment action is sought against the 

State of Louisiana. In the ERA case three United States 

constitutional issues were apparently raised, whereas, in this 

case only one is being raised by the plaintiff. The federal 

court recognized the appropriateness of the state making an 

adjudication on the state constitutional issues and not the 

federal court. 

INTERVENORS DO NOT FULFILL THE REQUISITES UNDER RULE 24 
OF THE FEDERAL RULES OF CIVIL PROCEDURE It= INTERVENTION 

Intervenors have moved this court to intervene as of right 

pursuant to Rule 24(a) of the Federal Rule of Civil Procedure, 

and for permissive intervention under Rule 24(b) of the Federal 

Rule of Civil Procedure. Intervenors recognize that they have 

right by statute to intervene, but they suggest that they have a 

12 



right of intervention pursuant to Rule 24(a)(2). 

In support of compliance with that section of the rules, the 

intervenors contend: 

"It would be hard to imaqine a case that falls more 
squarely within the meanIng and purpose of Rule 24(a) 

. if Act 512 is declared unconstitutional, the 
rights of the movants under the Consent Decree will be 
irrevocably lost." at p. 3 of intervenor's memo 

Under Section (a)(2) of Rule 24, the applicant for 

intervention must have an interest relating to the transaction 

which forms the subject matter of the action. In defining this 

"interest", the court in New 

Avelino, 732 P.2d 452, (5th Cir. 1984), held that: 

• "intervention [of right] still requires a 'direct, 
• substantial, legally protectable interest in the 

proceedings'." at p. 463 

Intervenors assert no basis of a substantial legally 

protected interest in these proceedings. The fact is that they 

have no substantial or legally protectable interest in these 

proceedings. This action is for a declaration as to the 

constitutionality of a state statute. They are not private 

attorney generals, nor do they have any other standing to defeAd 

the constitutionality of a state statute under the Louisiana 

state declaratory action. 

They infer that the declaratory action brought by the 

plaintiff is an attempt to vacate the consent judgment obtaized 

13 



'13 

by the intervenors in the Chisom case. A declaration of 

unconstitutionality of Acts 1992, No. 512 will not vacate the 

provisions of their Consent Decree. Intervenors under Rule 60(b) 

of the Federal Rules of Civil Procedure will have adequate 

recourse if a decision is rendered adversely as to Acts 1992, No. 

512. Further the cause of action which the Chisom plaintiffs may 

feel they have does not die with a declaration of 

unconstitutionality of Acts 1992, No. 512. Accordingly, no 

rights of the plaintiff are being impaired. 

• . The intervenors, surely, were aware that their private 

litigation would not be a basis for the determination of the 

legal rights of others who may somehow be indirectly affected by 

their consent decree. The court in pnited Stateq_ya, City at 

AAPII2RakULUMUUNal 519 F.2d 1147, (5th Cir. 1975), noted that: 

we believe that courts fully understand that such 
[consent decrees] do not purport to be definitive 
statements of the parties' legal rights and will accord 
them little or no weight in the determination of the 
rights of persons not party to them." at p. 1152 

Accordingly, plaintiff, not a party to the ghliss, consent 

decree, would have no legal ability to impede or impair any of 

intervenor's alleged interest or rights. Further, the Man= 

plaintiffs have a right under their consent decree to seek a 

binding legal solution. 

Intervenors further allege that they will be denied adequate 

14 



representation in this matter. Intervenors bear the burden of 

establishing inadequacy of representation. 

In the matter of Envizomental DefenttinumiL_Inq. v.  

Sicroinson, 631 F.2d 738 (D.C. Cr., 1979) the court held: 

"The Supreme Court has held, however, that the test for 
intervention becomes more stringent when the applicant 
for intervention is a citizen of a state and the state 
is already a party to the suit. In that event, the 
Court has stated, the applicant must demonstrate 'some 
compelling interest in (its] own right, apart from 
(its] interest in a class with all other citizens and 
creatures of the state, which interest is not properly 
represented by the state.' 
• 

a 

Thus, to intervene in a suit in district court in which 
a state is already a party, a citizen. . of that state 
must overcome this presumption of adequate 
representation. . .The applicant for intervention must 
demonstrate that its interest is in fact different from 
that of the state and that interest will not be 
represented by the state.' at p. 740 

No such special interest is being alleged by the intervenors 

nor can one be asserted under the declaratory action 

proceeding. _ 

Further, it is not a question of whether the state will or 

will not provide adequate representation vis-a-vis the 

intervenors. State law charges the attorney general for the 

State of Louisiana and the Governor of the State with the 

15 



enforcement and protection of its laws.' The court in the matter 

of 'With v. pally, 764 F.2d 1265 (7th Cir., 1985) recognized that 

in a declaratory action regarding the constitutionality of a 

state statute, that the governmental body charged with compliance 

can be the only defendant.' 

As intervenors have shown no 

to fulfill the requisites of Rule 

exists. 

• Alternatively, intervenors would allege the right to 

permissively intervene pursuant to Rule 24(b) of the Federal 

Rules of Civil Procedure. However, the intervenors failed to 

state any independent jurisdictional grounds by which they may be 

permitted to intervene under Rule 24(b). It is well established 

that such an independent jurisdictional ground is necessary for 

permissive intervention.' The failure of the intervenors to 

assert such independent jurisdictional basis mandates that their 

petition be denied. If intervenors feel so strongly about the 

state's impotency to represent them, they may file appropriate 

factors which would permit them 

24(a), no right of intervention 

7 Article 4, section 5 of the Louisiana Constitution and 
Article 4, section 8. 

• ISAILMUSAUX, 764 F.2d 1265 (7th Cir., 1985) at p. 

768 F.2d 669 (5th 

Cit. 1985). 

1269. 

16 



amious briefs. 

It ie respectfully urged and suggested that the motion to 

intervene be dismissed. 

Clemeni-F. Pe'chan t Jr. 
Attorney at Law 
La. Bar Assoc. No. 10529 
One Galleria Boulevard 
Galleria One, Suite 1107 
Metairie, LA 70001 
Telephone: (504) 836-5973 

CERTIFICATE OF_ pERVIC: 

I certify that I have served a copy of the aforegone on all 

counsel of record by mailing same properly addressed and postage 

prepaid through the United States Postal Service on May 29, 1995. 

c944,4(  
C. Perechall, J*4 -

17 



• • 

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UNITED STATES DISTRICT COURT _151 zs 
FOR THE EASTERN DISTRICT OF LOUISIANA 

NEW ORLEANS DIVISION 

RONALD CHISOM, et al., 

Plaintiffs, 

UNITED STATES OF AMERICA, 

Plaintiff-Intervenor, 

vs. 

CHARLES E. ROEMER, et al., 

Defendants. 

Civil Action 
No. 86-4075-A 

CONSENT JUDGMENT 

On August 21, 1992, this Court entered an Order approving the Consent Judgment 

settling the matters at issue in this action. This Court retained jurisdiction until 

implementation of the final remedy set forth in that judgment. 

In August 21st judgment, the plaintiffs and the United States were designated 

prevailing parties in this litigaticn. As Chisom prevailing parties, the Chisom plaintiffs are 

entitled to attorneys' fees. The parties have now settled the attorneys' fees, and the Chisom 

plaintiffs, by their undersigned attorneys, have executed a release of all claims to fees for all 

time reasonably expended in this litigation. Thus, all plaintiffs entitled to attorneys' fees in 

this matter have no further claim to any fees, costs or expenses. 

This Consent Judgment is approved and entered this , 

.ninpre-*,  

day of  /VIUtitl,V1993. 

UNITED STATES DISTRICT JUDGE 

DATE OF ENTRY 



• 

Pamela S. Karlan, Esq. 
Attorney at Law 
99 Hudson St. 
16th Floor 
New York, NY 10013 

Re: 2:86-cv-04075