Motion for Leave of Court to File Brief as Amicus Curiae; Affidavit of Darleen M. Jacobs; Order; Original Brief Submitted on Behalf of Darleen M. Jacobs, Amicus Curiae

    D. COURT CY- APP LAO-

T. ED 

3 U 1988 

tr_ t t4e uelri g 
CLEW, 

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs/Appellees 

VERSUS 

EDWIN W. EDWARDS, ET AL 

Defendants/Appellants 

MOTION FOR LEAVE OF COURT TO FILE  
BRIEF AS AMICUS CURIAE  

NOW INTO COURT, through undersigned counsel, comes 

Darleen M. Jacobs, who respectfully requests leave of this 

Honorable Court to file a brief as amicus curiae with respect 

to the limited issue of whether or not this Court should issue 

an order staying the preliminary injunction granted in this 

case on July 7, 1988 by the United States District Court for 

the Eastern District of Louisiau (Charles Schwartz, J.) 

insofar as to permit qualifying for the October 1, 1988 

scheduled primary election for the Louisiana Supreme Court 

First Judicial District. In connection with this present 

motion, amicus curiae, Darleen M. Jacobs, respectfully alleges 

as follows: 



1. 

Amicus curiae, Darleen M. Jacobs, mover herein, is a full 

age resident of the State of Louisiana, and resides within the 

territorially boundaries of the Louisiana Supreme Court First 

Judicial District. Mover is an attorney at law licensed to 

practice in the State of Louisiana, and has been so licensed 

continuously since October of 1911. 

2. 

Mover is competent to qualify as a candidate for the 

Louisiana Supreme Court First Judicial District pursuant to 

Article 5, Section 24 of the Louisiana Constitution of 1974. 

Mover is the only person to date who has publicly announced her 

intention to qualify as a candidate for the Louisiana Supreme 

Court First Judicial pursuant to Louisiana Revised Statute 

18:467, or at such time as qualifying is permitted to begin by 

the United States Courts under the framework of this litigation. 

3. 

Mover avers that a primary election had been scheduled 

for October 1, 1988, pursuant to Louisiana State law to fill 

the vacancy that will be created in the Louisiana Supreme Court 

First Judicial District by the expiration of the term office of 

Justice Pascal F. Calogero, which term will expire in December, 

1988 in accordance with Article 5, Section 3 of the Louisiana 

Constitution of 1974. 

4. 

Mover avers that the election has been enjoined by the 

United States District Court for the Eastern District of 

Louisiana (Charles Schwartz, J.). 



5. 

In the absence of the aforementioned injunction, 

qualifications for the office of the Louisiana Supreme Court 

First Judicial District would commence on Wednesday, July 25, 

1988 in accordance with Louisiana Revised Statute 18:467(1). 

Mover desires and is entitled to qualify as a candidate for the 

office of Louisiana Supreme Court First Judicial District at 

such time as qualifications are permitted to be received. 

6. 

Mover is not a plaintiff in this cause, nor is a member 

of plaintiffs class. However, as the only publicly announced 

candidate for the office of Louisiana Supreme Court First 

Judicial District for that seat currently held by Pascal F. 

Calogero, plaintiff has an interest in the outcome of this 

litigation, as it effects her right to conduct an effective 

campaign for the Louisiana Supreme Court First Judicial 

District, or its successor District as to be determined by this 

Court, within the time guidlines for campaigns between the 

qualifying period and the primary election. 

7. 

Mover avers that all candidates who lawfully qualify for 

=1 
the office of the Louisiana Supreme Court First Judicial 

District should be entitled to a sufficient time to conduct 

their election campaigns for a lawful election free of any 

cloud which is created by the preliminary injunction currently 

in force which would prohibit the October 1, 1988 election; and 

therefore would submit that it would be a vain and useless 

exercise for this Honorable Court to stay the preliminary 



injunction of Judge Charles Schwartz insofar as to permit 

qualifying for the October 1, 1988 election which has currently 

been enjoined. While the injunction is in place, mover would 

submit that no purpose is served to allow qualifying for an 

election that cannot occur, and, by virtue of any injunction, 

neither the candidate qualification period nor the primary 

election can proceed. 

8. 

Mover avers that it would serve the interest of justice 

and it would be fair to any candidate who wishes to qualify for 

election as a Justice to the Louisiana Supreme Court from the 

First Judicial District to enjoin the qualification of 

candidates until the merits of this case has been determined, 

or until the preliminary injunction ordered by Judge Schwartz 

has been lifted in its entirety. 

9. 

As the only publicly announced candidate for Justice of 

the Louisiana Supreme Court First Judicial District, mover has 

an interest in this proceeding which would permit her to file a 

brief as amicus curiae pursuant to Rule 29 of the Federal Rules 

of Civil Procedure; in accordance with that Rule, mover 

conditionally attaches hereto the proposed amicus curiae brief 

which she wishes to file with this Court in this matter. 

10. 

In view of the expedited briefing schedule that was 

ordered by this Honorable Court on July 20, 1988, Darleen M. 

Jacobs, amicus curiae herein, respectfully requests this 

Honorable Court for leave to submit her amicus curiae brief in 



memorandum form. In view of the extraodinarily short period 

which has been ordered by this Court to hear arguments on the 

merits of a stay of the preliminary injunction issued herein 

for the purpose of permitting qualifications for the enjoined 

October 1, 1988 election pursuant to Louisiana Revised Statute 

18:467, amicus curiae avers that it will be impossible for her 

to fully comply with the Federal Rules of Appellate Procedure 

and particularly the Local Rules of this Honorable Court 

relating to the proper form which briefs must conform to. 

WHEREFORE, mover, Darleen M. Jacobs, respectfully 

requests this Honorable Court to grant her leave to file a 

brief as amicus curiae in this matter, which brief is 

conditionally attached to this motion in accordance with Rule 

29 of the Federal Rules of Ap late Proce 

IAN C. BEC WITH 
83 St. Louis Street 
New Orleans, Louisiana 
522-3287 and 522-0155 

CERTIFICATE OF SERVICE  

I hereby certified tha 
1988 served a copy of the f 
via the United States Posta 
postage prepaid. 

BRIAN C. BECKWITH 

70112 

of Jul 
recor 
ed, a d 



IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs/Appellees 

VERSUS 

EDWIN W. EDWARDS, ET AL 

Defendants/Appellants 

AFFIDAVIT  

STATE OF LOUISIANA 

PARISH OF ORLEANS 

BEFORE ME, the undersigned authority, duly qualified and 

commissioned in the Parish and State aforesaid, personally came 

and appeared: 

' DARLEEN M. JACOBS 

who, after being duly sworn by me, deposed and stated that she 

is the mover seeking leave of this Honorable Court to file an 

amicus curiae in this matter; that in connection •with her 



position she has read the above and foregoing Motion for Leave 

to File Amicus Curiae Brief filed herein, finds the allegations 

and representations made therein to be t correct, to the 

best of her knowledge, informatio 

NOTARY PUBLIC 



IN THE 

UNITED STATES COURT bF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs/Appellees 

VERSUS 

EDWIN W. EDWARDS, ET AL 

Defendants/Appellants 

ORDER  

Considering the above and foregoing Motion for Leave to 

File Amicus Curiae submitted herein by Darleen M. Jacobs; 

IT IS ORDERED that Darleen M. Jacobs be and hereby is 

granted leave of this Honorable Court to file an amicus curiae 

brief; 

IT IS FURTHER ORDERED that the Clerk of this Honorable 

Court be directed to receive and file the amicus curiae brief 

submitted herein conditionally by mover, Darleen M. Jacobs, 

pursuant to Rule 29 of the Federal Rules of Appellate Procedure. 

1988. 

New Orleans, Louisiana, this day of 

U.S. CIRCUIT JUDGE 



Pr`tl, 14,7* . N„t • s 
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p . 

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4.114, -7t 

-11:10 

JUl. 1988 

. i r. 
CLERK 

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

N. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs/Appellees 

VERSUS 

EDWIN W. EDWARDS, ET AL 

Defendants/Appellants 

ORIGINAL BRIEF SUBMITTED ON BEHALF OF  
DARLEEN M. JACOBS, AMICUS CURIAE  

MAY IT PLEASE THE COURT: 

STATEMENT OF THE CASE  

This case involves the method of electing Justices to the 

Louisiana Supreme Court from the First Supreme Court District 

as defined by Louisiana Revised Statute 13:101 (see generally 

Chisom vs. Edwards, 839 F.2d 1056 (5th Cir. 1988) which holds 

that Section 2 of the Voting Rishts Act, 42 USC Section 1973, 

applies to judicial elections). Under the present scheme, the 

Louisiana Supreme Court First Judicial District comprises the 

Parishs of Orleans, St. Bernard, Plaquemines, and Jefferson in 

the State of Louisiana, and currently 'elects two (2) Justices. 

The two regularly elected Justices in the Louisiana Supreme 

Court First District presently are the Honorable Walter Marcus 



S. • 
and the Honorable Pascal F. Calogero. Of those two Justices, 

the present term of Justice Pascal F. Calogero is due to expire 

in December 31, 1988 pursuant to the Louisiana Constitution and 

the decision of the Louisiana Supreme Court in Calogero vs.  

State ex rel. Treen, 445 So.2d 736 (La. 1984). Owing to this 

prospective vacancy, Louisiana had scheduled a primary election 

for Justice of the Louisiana Supreme Court from its First 

Judicial District, the said primary election to be held on 

October 11 1988. 

As this Court is undoubtly aware, the present litigation 

is brought by a group of black registered voters in the Parish 

of Orleans which complains that the present system of electing 

Justices to the Louisiana Supreme Court from the First District 

is violative of the Constitutions of both United States of 

America and the State of Louisiana, as well as the Civil Rights 

Act, in that the present scheme would unfairly dilute the 

voting strength of black voters so as to deprive duly qualified 

black candidates of their right to run for and win a seat on 

the Louisiana Supreme Court, as well as the rights of black 

voters (who presently constitute a majority of the voting 

strength of registered voters in the Parish of Orleans) to 

elect judicial candidates who would fairly represent the Parish 

of Orleans, State of Louisiana in the Louisiana Supreme Court. 

On July 7, 1988, the United States District Court for the 

Eastern District of Louisiana (Charles Schwartz, J.) entered a 

preliminary injunction which would 



prohibit defendants/appellants (who are hereafter collectively 

referred as 'the State' or 'the State of Louisiana') from 

conducting any primary or general elections to fill the 

vacancy which will be created by the expiration of the term of 

the present Justice, Pascal F. Calogero. Following the entry 

preliminary injunction, the State has subsequently made motions 

to stay the injunction pending appeal (which motion was denied, 

as well as motions before this Honorable Court to expedite the 

appeal on the grant of the injunction, as well as a motion for 

a partial stay, pending the disposition of the appeal, to 

permit the two (2) day qualifying period to commence in July, 

1988 pursuant to Louisiana Revised Statute 18:467, which would 

be required for all candidates who would seek to appear on any 

ballot for the Louisiana Supreme Court First Judicial District 

in an election which would occur on October 1, 1988. 

The present brief which is submitted by amicus curiae, 

Darleen M. Jacobs limits itself solely to the issue of whether 

or not this Honorable Court should issue a partial stay and 

permit qualifications to occur on July 25 and 26 of 1988, in an 

apparent attempt to hold the scheduled October 1, 1988 primary 

election if this Honorable Court would determine in the interim 

that the preliminary injunction of Judge Charles Schwartz was 

improvidently issued. Amicus curiae will respectfully argue 

that the motion for partial stay shouldbe denied, and that in 

the event this Honorable Court determines to overturn the 

preliminary injunction of Judge Schwartz, to then open a new 



S 
qualifying period for a special primary election for the 

Supreme Court First District so as to permit all candidates to 

conduct their campaigns within the time guidelines supplied by 

Louisiana law, uneMcumbered and unfettered by any injunctions 

which would otherwise prohibit the election from going 

forward. 

ARGUMENT  

I. IT WOULD BE A VAIN AND USELESS EXERCISE TO PERMIT 
QUALIFICATIONS TO AN ENJOINED ELECTION. 

Amicus curiae, Darleen M. Jacobs, as would appear from 

her attached Motion for Leave to File Amicus Curiae Brief and 

attached Affidavit, is a female attorney licensed to practice 

law within the State of Louisiana and is a resident of the 

First Supreme Court District as it is presently constituted. 

Pursuant to Article 5, Section 24 of the Louisiana Constitution 

of 1974, amicus curiae, Darleen M. Jacobs, is possessed of the 

qualifications to stand as a candidate for the Louisiana 

Supreme Court First Judicial for the seat presently held by 

Justice Pascal F. Calogero, and is indeed the only publicly 

announced candidate for that position, in that no other 

potential candidate, including the present incumbent, has 

publicly announced an intention to qualify and run for the 

upcoming vacancy in the Louisiana Supreme Court First Judicial 

District. 

Amicus curiae respectfully submits that this Court must 

deny the present request by defendants/appellants to order a 

partial stay in the preliminary injunction issued by Judge 

Schwartz to permit candidates to qualify pursuant to Louisiana 



Statute for the election scheduled for October 1, 1988, while 

leaving in place all forms of the injunction which would 

prohibit the election from actually occurring on the scheduled 

date. While the injunction is in place prohibiting the 

election, it would be grossly unfair to all potential 

candidates for the Louisiana Supreme Court First District 

(particularly nonencumbent candidates) who would be forced to 

conduct their campaigns in an atmosphere of uncertainty and 

great expense, for an election which may or may not occur. 

In their motion, defendants/appellants, the State of 

Louisiana, et al, would ask this Court to lift the preliminary 

injunction so as to permit qualifications, and, in the event 

that this Court decides on the merits of this appeal that the 

preliminary injunction was inprovidently granted, to hold the 

regularly scheduled election on October 1, 1988, allowing the 

winner of that election to take her seat on the Louisiana 

Supreme Court, and later set aside that election in its 

entirety in the event that a determination is made that the 

present scheme of electing Justices to the Louisiana Supreme 

Court is violative of the rights of plaintiffs, as alleged. 

Amicus curiae urges that this position by defendants/appellants 

is one that cannot be countenanced. Amicus curiae respectfully 

submits that the candidacy qualification process is integrally 

related to the election system, and that to permit 

qualification for an enjoined election would of necessity 

deprive duly qualified candidates of their right to campaign 

effectively for the vacant judicial period. 



• 
The Supreme Court of the United States of America has 

recognized, contrary to the position of appellants, that the 

candidacy qualification period cannot be considered in 

isolation from the election from which it forms a part. NAACP  

vs. Hamption County Election Commission, 47 U.S. 166, 177 

(1985). Under Louisiana law the dates for the filing period 

are directly dependent on the dates which the election is 

scheduled to occur. Louisiana Revised Statute 18:467, which 

sets the candidacy qualifying dates for various elections by 

direct reference to the dates on which the elections are 

scheduled to occur. The reason for the interrelationship 

between the qualifying period and the time of the primary 

election is quite clear; as appellants have urged, potential 

candidates decide whether or not to seek a particular office, 

and thus whether or not to satisfy the qualifying requirements, 

based on how they believe they will fare in an election. Thus, 

if the election is unfairly tainted, there would be no purpose 

served by permitting candidates to qualify for that tainted 

office, and it would be particularly unfair to expect 

nonencumbent candidates to expend the extraodinarily large sums 

of energy and money which would be required to maintain an 

effective campaign in the knowledge that it is likely that the 

entire election will be later set aside by order of the Federal 

Court. 

In this case, it is important that this Court note that 

in granting his preliminary injunction, the District Judge 

found (nor does the State presently contest) the plaintiffs 

here have already established a prima faciae case (Chisom vs.  

Edwards, slip opinion at p. 24) that the multimembered district 



system presently used in the First Supreme Court District 

unfairly dilutes the voting strength of black citizens in 

violation of Section 2 of the Voting Rights Act of 1964 (42 USC 

1973). 

The only reason which would justify candidates qualifying 

to occur on July 25 and 26, 1988 would be if an election would 

occur on October 1, 1988. If the primary is scheduled for any 

other date, it would be violative of Louisiana law under 

Revised Statute Section 18:467.1 (1988 Supp.). Further, the 

Supreme Court of the United States has repeatedly recognized 

that there is a potential adverse impact of premature 

qualifying dates. NAACP vs. Hamption County, supra. In the 

frame work of the present case, amicus curiae asserts that 

irregardless of whether or not the Federal Courts determine 

that the preliminary injunction of July 7, 1988, was 

improvidently granted in its entirety, it would be unfair and 

confusing to the voters of the present Louisiana Supreme Court 

First Judicial District to permit qualifying and to permit 

campaign activity, while the injunction remains in effect 

prohibiting the occurrence of the election on October 1, 1988. 

Rather, the best solution is for this Honorable Court to 

determine the merits of this present appeal, and, if the 

injunction is overturned, to then permit new qualifications to 

be opened for a new election date to be determined in 

accordance with Louisiana State law. 

In the slip opinion of the District Court which grants 

the preliminary injunction which is appealed herein, the 

District Court specifically found that "Running an effective 



• 
campaign seat on a Supreme Court from the First Supreme Court 

District requires significant lead time to obtain endorsements, 

raise funds, and set up an effective campaign organization to 

publicize one's candidacy and get out the vote." To permit 

qualifying, while permitting the remainder of the injunction to 

continue in effect, would be to de facto deprive candidates 

their right to effectively campaign in the event this Court 

later determines to overturn the injunction and allow the 

election to commence. Louisiana voters would be unfairly 

confused if qualifying is permitted, in that all potential 

candidates would then be required to mount their campaigns, 

with the uncertainty that their campaigns may be ineffective, 

and their campaign monies wasted, if this Court determines that 

the election shall not commence on October 1, 1988. Amicus 

curiae respectfully submits that it has been estimated that the 

cost of mounting an effecting campaign for the Louisiana First 

Supreme Court District would be approximately $500,000.00, and 

would require the potential candidates to garner endorsements, 

raise funds, and present their candidacy to the people, all of 

which cannot be effectively done while it has been widely 

publicized that the election has been enjoined. Irregardless 

of the cost of such a campaign, amicus curiae emphatically 

asserts that it is her intention to mount a campaign for the 

Louisiana First Supreme Court District, and intends to win the 

election, whether or not the present encumbent chooses to seek 

re-election. 



• 
Amicus curiae would respectfully point out to this 

Honorable Court that the present encumbent in the Louisiana 

First Supreme Court District whose term expires on December 1, 

1988, Pascal F. Cologero, has previously appeared before this 

Honorable Court as both amicus curiae and affiant in the 

submissions before the District Court made by the State of 

Louisiana. In his submissions, Calogero has represented to 

this Court his intention to seek re-election to the First 

Supreme Court District, and has recounted his efforts to 

prepare for the upcoming election. Including amoung those 

preparations are the formation of organizing committees and the 

conducting of fund raising activities. (see Chisom vs. 

Edwards, slip opinion at p. 12). It is clear that the present 

attempt by defendants/appellants to lift the stay to permit 

qualifying is an obvious attempt to create an unfair advantage 

to the encumbent candidate in the upcoming Supreme Court 

election. In granting the preliminary injunction, the District 

Court was presented with evidence to the effect that fund 

raising by judicial candidates is heavily dependent on the 

perceptions of potential contributors regarding the likelihood 

of success, and that encumbency is a tremendous advantage to 

any candidate for public office, particularly in judicial 

elections. Thus, the effect of granting the relief sought by 

defendants would be to discourage potential nonemcumbent 

candidates from engaging in campaign activity, while the 

present encumbent continues to enjoy the advantages of his 

position as it relates to the upcoming anticipated election. 

Under this scenario, it is obvious that the request 



for relief by appellants herein is without merit, and must be 

denied in that the only possible effect to be gleaned from such 

relief would be to create a unfair advantage in campaign lead 

time to the present encumbent, to the deprivation of not only 

the voters of the presently 

First Judicial District but 

nonencumbent candidates who 

now-Justice Calogero. 

consituted Louisiana Supreme Court 

as well as all potential 

would challenge for the position of 

CONCLUSION  

This Court should not stay that portion of the District 

Court preliminary injunction to would permit qualifications for 

the October 1, 1988 election which is itself presently 

enjoined. Appellants have failed to show why the October 1, 

1988 election should go forward as scheduled, and have failed 

to show any irreparable injury which might occur if this Court 

were to permit qualifications on July 25 and 26, 1988. Whether 

to conduct qualifying is entirely dependent on whether to let 

the now enjoined election proceed. To lift the injunction on 

qualifying alone would send mixed signals to voters and 

candidates alike, would fail to insure that the 1988 election 

complies with the Voting Rights Act, and would only create an 

unfair advantage to the present encumbent if this Court would 

determine that the present Louisiana Supreme Court First 

District is unfairly constituted. 



ect v submit 

B IAN C. BECKWITH 
83 St. Louis Street 
New Orleans, Louisiana 
522-3287 and 522-0155 

70112 

CERTIFICATE OF SERVICE  

I hereby certify that I ve on this 22nd day of July, 
1988 served a copy of the fo ego ng on all -boun el o cord 
via the United States Postal ‘Sery ce pro erly dd ssed,,and 
postage prepaid. 1 

BrIAN C. BECK ITH 



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A FROFESSIONAL LAW CORPORATION 
I 823 ST. LOUIS STREET 

NEW ORLEANS, LOUISIANA 70112 

Pamela S. Carlan 
JuliusL. Chambers 
Charles S. Rolston 
C. Lani Guinier 
99 Hudson Street 
16th Floor 
New YoEk, New York 10413 

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