Brief of Appellee The State of Louisiana

    APR-06-98 NON 08:3o LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 04 

IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 98-30004 

CLEMENT F. PERSCHALL, JR. 

V. 

THE STATE OF LOUISIANA 

Plaintiff-Appellant 

Defendant-Appellee 

APPEAL FROM 
THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF LOUISIANA 

BRIEF OF APPELLEE 
THE STATE OF LOUISIANA 

Richard P. Ieyoub, 
Attorney General, State of Louisiana 
State Capitol 
P.O. Box 94005 
Baton Rouge, Louisiana 70804-9005 

Peter J. Butler (Bar # 3731) - T.A. 
Peter J. Butler, Jr. (Bar #18522) 
Richard G. Passler (Bar # 21006) 
909 Poydras Street, Suite 2400 
New Orleans, Louisiana 70112 
Telephone: (504) 584-5454 

Tyron D. Picard (Bar #20473) 
P. 0. Box 61666 
Lafayette, Louisiana 70596-1666 
Telephone: (318) 983-0090 

Robert McDuff, Esq. 
767 N. Congress St. 
Jackson, Mississippi 39202 
Telephone: (601) 969-0802 

Counsel For The State Of Louisiana 

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Soo. 

Ne• 

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• 

FAX NO. 504 861 5440 • P. 05 

CERTIFICATE OF INTERESTED PERSONS 

The undersigned, counsel of record for the State of Louisiana, certifies that the 

following listed persons and/or entities may have an interest in this case. These 

representations are made in order that the Judges of this Court may evaluate possible 

disqualifications or recusals. 

1. Clement F. Perschall, Jr., Plaintiff-Appellant 

2. • State of Louisiana, Defendant-Appellee 

3. Ronald Chisom, Marie Bookman, Walter Willard, Henry Dillon, III, Marc 

Morial and the Louisiana Voter Registration/Education Crusade, Intervenors-

Appellees 

4. Jacqueline Carr, Intervenor-Appellant 

5. Peter J. Butler, Peter J. Butler, Jr., Richard G. Passler and the law firm of. 

Breazeale, Sachse & Wilson, L.L.P., counsel for the State of Louisiana 

6. Tyron D. Picard and the law firm of Picard & Stipe, counsel for the State of 

Louisiana 

7. Robert McDuff, counsel for the State of Louisiana 

8. Richard P. Ieyoub, Attorney General, State of Louisiana, counsel for the State 

of Louisiana 

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9. William P. Quigley, counsel for Ronald Chisom, Marie Bookman, Walter 

Williard, Henry Dillon, III, Marc Morial and the Louisiana Voter 

Registration/Education Crusade. 

Counsel of Record for the State of Louisiana 

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,Tt 

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44r' 

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• 

.11•••• 

• 

STATEMENT REGARDING ORAL ARGUMENT 

The State of Louisiana respectfully suggests to the Court that oral argument is 

not necessary or proper in this appeal because resolution of the issues presented are 

quite clear under applicable jurisprudence as is evidenced by the opinion in this case 

authored by the Hon. Charles Schwartz, Jr. Further, the facts and legal arguments are 

adequately set forth in the briefs, making oral argument unnecessary and unwarranted. 

Simply put, this case is moot and, thus, this Court is without jurisdiction. 

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TABLE OF CONTENTS 
PAGE 

CERTIFICATE OF INTERESTED PERSONS  

STATEMENT REGARDING ORAL ARGUMENT   iii 

TABLE OF AUTHORITIES   

STATEMENT OF RTRISDICITON   1 

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW  1 

STATEMENT OF ME CASE  2 

A. Course of Proceedings and Disposition in Court Below 2 

B. Statement of Facts  3 

SUMMARY OF ARGUMENT 6 

ARGUMENT 7 

CONCLUSION   18 

CERTIFICATE OF SERVICE 20 

CERTIFICATE OF COMPLIANCE 21 

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TABLE OF AUTHORITIES 

I. CASES 

Chisom v. Roemer, C.A. No. 86-4075 (ED. La.)   passim 

Chisom v. Roemer, 501 U.S. 380, 111 S. Ct. 2354,2368 (1991)   17, 18 

Clark v. Roemer, 777 F.Supp. 471 (M.D. La. 1991)   13 

Connor v. Williams, 404 U.S. 549 92 S. Ct. 656 (1972)   13, 15 

Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 335, 100 S. Ct. 
1166 (1980)   9 

Erie Railroad Co. v. Thompldns, 304 U.S. 64, 58 S. Ct. 817 (1938)   8 

In re Tucson Estates, Inc., 912 F.2d 1162 (9th Cir. 1990)   9 

James v. Singletary, 995 F.2d 187 (11th Cir. 1993), cert denied, 510 U.S. 
896, 114 S. Ct. 262 (1993)  10 

Lawyer v. Department of Justice, 117 S. Ct. 2186 (1997)   18 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130 (1992)  9 

Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469 (1983)   10 

Murphy v. Hunt, 455 U.S. 478, 102 S. Ct. 1181 (1982)   9 

Perschall v. State of Louisiana, 697 So.2d 240 (La. 1997)  4 

Powell v. McCormack, 395 U.S. 486, 89 S. Ct. 1944 (1969)   9 

Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 (1964)   12 

Ryder v. United States, 515 U.S. 177, 115 S. Ct. 2031 (1994)   14, 15 

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OP 

Simpson v. Camper, 974 F.2d 1030 (8th Cir. 1992)   10 

Wells v. Edwards, 347 F. Supp 453 (M.D. La. 1972), summarily 
affd, 409 U.S. 1095, 93 S. Ct. 904 (1973)   17 

STATUTES 

Acts 1992, No. 512   passim 

M. OTHER 

13A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, 
Federal Practice and Procedure, § 3533.2 (1984)  9 

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••••• 

STATEMENT OF JURISDICTION 
Cr. 

cl 

The State of Louisiana acapts Clement F. Perschall, Jr.'s Statement of 
\J 

Jurisdiction, except insofar as the remainder of this brief explains how this case is 
( 

.moot and, thus, this Court is without jurisdiction. 

f 

• STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 

The plaintiff sought only a deFlaration of unconstitutionality of a state statute 
• 

in his state court lawsuit. After removal, the federal district court remanded the case 

to the Louisiana state court system to consider the state law issues. The plaintiffs 
0, • . , 

only other claim for relief came in a. state court summary judgment motion in which 

he sought a ruling voiding all decisions of the Louisiana Supreme Court over the past 

several years because of this purported =constitutionality. The Louisiana Supreme 

Court declared the statute =constitutional under state law, but declined to void its 

own prior decisions, recognizing that those decision remain valid under Louisiana law 

despite the declaration of unconstitutionality. Therefore, the sole issue presented for 

review is whether the federal district court, recognizing that the plaintiff had received 

his declaration of unconstitutionality, recognizing that the Louisiana Supreme Court 

had held that its prior decision's were nevertheless valid under Louisiana law, and 

recognizing that no other issues were properly before the court, acted properly in 

dismissing this case. 

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S . 

STATEMENT OF THE CASE 

A. Course of Proceedings and Disposition in Court Below. 

On January 26, 1995, Clement F. Perschall, Jr. ("Perschall") commenced this 

action by filing his Petition for Declaratory Judgment on the Constitutionality of Acts 

1992, No. 512 (the "Petition") in the 19th Judicial District Court for the Parish of East 

Baton Rouge ("19th JDC"). The Petition named as its sole defendant the State of 

Louisiana (the "State"). (I, 139-148).' 

Thereafter, the State removed the Petition to the United States District Court for 

the Middle District of Louisiana ("Middle District"), within which the 19th JDC lies. 

(I, 136-138). Pursuant to the State's Motion to Transfer, the Middle District 

transferred this action to the United States District Court for the Eastern District of 

Louisiana (the "Eastern District") because it related to a final consent judgment 

rendered by the Eastern District on August 21, 1992 in Chisom v. Roemer, C.A. No. 

86-4075. (I, 86, 111-115). Once transferred to the Eastern District, pursuant to the 

Eastern District's Local Rule requiring same, this matter was transferred to Division 

"A" of the Eastern District, the Honorable Charles Schwartz, Jr., the presiding Judge 

in Chisom. a, 81-83). 

'Citation to the record is to Volume and page. 

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Now 

'Imo, • 

\ale 

1•••• 

•••••••• 

The remainder of the proceedings and disposition in the Eastern District is set 

forth in the Statement of Facts, infra, and will not be repeated for purposes of brevity. 

B. Statement of Facts. 

The Petition only sought a declaration that Acts 1992, No. 512 ("Act 512") is 

unconstitutional. The foregoing is true not only in the manner in which Perschall 

titled his Petition, but also in the counts set forth in the Petition as well as the prayer 

therein. (I, 139-148). 

The Plaintiffs First Supplemental and Amending Petition (the "Supplemental 

Petition") merely added an additional count seeking to have Act 512 declared 

unconstitutional. The prayer of the Supplemental Petition also merely sought a 

declaration that Act 512 is =constitutional. 551-552). 

By Order and Reasons dated July 5, 1995 the Eastern District remanded 

Perschall's Petition to the 19th JDC for a determination of the constitutionality of Act 

512 under Louisiana law. (II, 307-313). The Eastern District further ordered that it 

retained jurisdiction of all other issues in this lawsuit pending the resolution by the 

Louisiana state courts of the constitutionality of Act 512 under Louisiana law. (Id.). 

By Minute Entry dated July 31, 1995, the Eastern District clarified its Order and 

MP, 

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Reasons dated July 5, 1995; however, the substance of the Order and Reasons 

remained the same. (III, 605-607). 

On July 1, 1997, the Louisiana Supreme Court issued its Opinion declaring Act 

512 to be unconstitutional in its entirety under Louisiana law. (III, 553-584).2 On 

September 5, 1997, the Louisiana Supreme Court denied rehearing of the case. (III, 

587). 

Once the Louisiana Supreme Court declared Act 512 unconstitutional under 

Louisiana state law, Perschall had obtained all of the relief he sought in his Petition 

and Supplemental Petition. In addition, the constitutionality of Act 512 was the sole 

issue remanded by the Eastern District to the 19th JDC. Accordingly, once the 

decision of the Louisiana Supreme Court became final on September 5, 1997, the 

remainder of this lawsuit was again before Judge Schwartz. 

In neither the Petition or Supplemental Petition did Perschall challenge the final 

consent judgment issued by the Eastern District in Chisom v. Roemer, C.A. No. 86-

4075, nor does Perschall's Petition or Supplemental Petition present a Voting Rights 

Act case. The nature of Perschall's Petition (at the time the Supplemental Petition had 

2The opinion is reported at Perschall v. State of Louisiana, 697 So.2d 240 (La. 
1997). 

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,11••• 

TWIN. 

••••.•• 

er••• 

not been filed) was recognized by the Eastern District in its July 31, 1995 Minute 

Entry, stating: 

"The present plaintiffs [sic] do not assail this Court's Chisom decree. 
Rather they [sic] seek a declaration as to the validity of Act 512. Their 
[sic] fight to seek adjudication of this distinct question is supported by 
the State's own admission that the Chisom consent judgment and Act 512 
'provide the State with two wholly independent, albeit identical, 
obligations' (emphasis added). See, Memorandum in Support of Motion 
for Reconsideration at 2." 

(III, 606). 

Although not raised as a claim in either the Petition or Supplemental Petition, 

on a Motion for Summary Judgment filed by Perschall in the 19th JDC he sought to 

have declared null all decisions of the Louisiana Supreme Court since the 

implementation of Act 512 came in to effect. In its Opinion of July 1, 1997, the 

Louisiana Supreme Court also resolved that matter, holding: 

"[W]e reject plaintiffs allegation that actions taken by this court during 
the Chisom seat's assignment pursuant to Act 512 are defective. This 
court's actions are valid and effectual under well-settled law." 

(III, 584). The Louisiana Supreme Court did not rehear this issue. Therefore, 

Perschall has received all of the relief he sought in the Petition and Supplemental 

Petition which he brought in this matter. Based upon Perschall's pleadings and the 

decision of the Louisiana Supreme Court, there was nothing remaining in this case to 

be decided by the Eastern District. 

5 

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Accordingly, on December 10, 1997, the Eastern District issued its Order and 

Reasons granting the State's Motion to Dismiss and dismissing this case as moot (LEI, 

460-474), from which this appeal is filed. 

SUMMARY OF ARGUMENT 

As Perschall states on pp. 1-2 of his Brief, "[t]his case is a declaratory judgment 

action relative to a determination of the constitutionality of Acts 1992, No. 512 ...." 

The Louisiana Supreme Court granted his declaratory judgment, holding the act 

unconstitutional under state law. The only other item of relief sought by Perschall 

here is stated at page 20 of his Brief: "[The appropriate remedy for this matter is an 

order declaring the decisions of the Louisiana Supreme Court rendered under the 

authority of Acts 1992, No. 512 to be void ab initio." In other words, Perschall seeks 

an injunction this Court ordering that all -- or nearly all — Louisiana Supreme Court 

decisions over the last several years are void and of no effect. 

The Eastern District acted properly in declining this request for relief and 

dismissing Perschall's remaining federal case. As the Eastern District noted, Perschall 

has received his declaration of unconstitutionality from the Louisiana Supreme Court. 

The remaining question raised by Perschall -- whether decisions of that court going 

back several years should be voided -- is purely a state law issue, and the Louisiana 

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Supreme Court has decided it against Perschall. Even if it were a federal law issue, 

Perschall has no standing to raise it since he has not alleged that he was a litigant 

before the Louisiana Supreme Court in any of these prior cases. 

The Eastern District acted properly in dismissing this case. 

ARGUMENT 

The prayer for relief set forth in Perschall's Supplemental Petition (which was 

filed after this case was remanded to Louisiana state court) provides: 

"WHEREFORE, plaintiff prays that he be granted leave of court to file 
this First Supplemental and Amended [sic] Petition and after all delays 
had there be judgment herein in favor of the plaintiff and against the 
State of Louisiana declaring Acts 1992, No. 512 unconstitutional." 

(M, 552). The conclusion in the Opinion issued by the Louisiana Supreme Court after 

remand of this case to Louisiana state courts provides: "Act 512 is hereby declared 

unconstitutional in its entirety." (HI, 584). Thus, despite Perschall's protestations to 

the contrary, he has received all of the relief he specifically sought in this lawsuit. 

Therefore, this case is now moot. 

Perschall does allude to "such other general and equitable relief' as being 

something to which he is entitled. The only such relief Perschall identifies, however, 

relates to that portion of the Opinion issued by the Louisiana Supreme Court regarding 

the effect, under Louisiana law, of the declaration of Act 512's unconstitutionality on 

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the decisions of the Louisiana Supreme Court since that Act's implementation. 

Perschall now asks this Court to grant the relief the Louisiana Supreme Court was 

unwilling to grant, and to order that all -- or nearly all -- of its decision over the last 

several years are void and of no effect. He states at page 20 of his Brief: "[T]he 

appropriate remedy for this matter is an order declaring the decisions of the Louisiana 

Supreme Court rendered under the authority of Acts 1992, No. 512 be void ab initio." 

Even if that issue was actually set forth in Perschall's Petition or Supplemental 

Petition (it was not), it was properly resolved by the Louisiana Supreme Court as a 

matter of state law. In its Opinion of July 1, 1997, the Louisiana Supreme Court cited 

Louisiana law and held: 

"[W]e reject plaintiffs allegation that actions taken by this court during 
the Chisom seat's assignment pursuant to Act 512 are defective. This 
court's actions are valid and effectual under well-settled law." 

(HI, 584). The Erierbound Eastern District' was not in a position to hold otherwise; 

rather, it was required to apply Louisiana substantive law and rule as to how it 

believes the Louisiana Supreme Court would decide that issue. In this case, the 

Eastern District did not have to make such a prediction as the Louisiana Supreme 

Court already ruled. Regardless, the entire issue is beyond the scope of Perschall's 

lawsuit. 

'Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938). 

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FAX NO, 504 861 5440 40 P.19 

Article III of the United States Constitution "limits the jurisdiction of federal 

courts to 'Cases' and 'Controversies' ..." Luian v. Defenders of Wildlife, 504 U.S. 555, 

559, 112 S. Ct. 2130, 2136 (1992). In this case, given the ruling of the Louisiana 

Supreme Court, Perschall's action can no longer satisfy this threshold jurisdictional 

requirement. 

Any legal action must remain alive throughout the course of the litigation, to 

the moment of final appellate disposition. 13A Charles A. Wright, Arthur R. Miller 

& Edward H. Cooper, Federal Practice and_Pro_c_edure, § 3533.2 (1984). When a 

matter no longer involves a live case or controversy, it is moot and the federal courts 

should not take any further action. "[T]he definitive mootness of a case or 

controversy ... ousts the jurisdiction of the federal courts and requires dismissal of the 

case." Deposit Guaranty Naftaank v. Roper, 445 U.S. 326, 335, 100 S. Ct. 1166, 

1172 (1980); see Murphy v.i-lunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183 (1982) 

(issue must be "live" for mootness not to be found); Powell v. McCormack, 395 U.S. 

486, 496, 89 S. Ct. 1944, 1951 (1969) (case is moot when "the parties lack a legally 

cognizable interest in the outcome"); see also In re Tucson Estates. Inc., 912 F.2d 

1162, 1170 (9th Cir 1990) (cross-appeal taken by officers of bankrupt corporation 

became moot when state appellate court vacated underlying judgment, which was the 

basis for officers' cross-appeal concerning interpretation of bankruptcy court's stay of 

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execution of judgment). The granting of the relief sought by a party in one court 

renders moot any remaining actions seeking the same relief. See James v. Singletary, 

995 F.2d 187, 188 (11th Cir. 1993), cert. denied, 510 U.S. 896, 114 S. Ct. 262 (1993) 

(party received relief in another tribunal); Simpson v. Camper, 974 F.2d 1030, 1031 

(8th Cir. 1992) (federal action moot when party received in a state court proceeding 

"precisely the relief that petitioner has been seeking in ... federal proceeding"). AU 

the relief actually sought by Perschall in his Petition and Supplemental Petition has 

been granted to him by the Louisiana Supreme Court. Thus, this action is moot. 

Had the Eastern District issued any opinion other than to dismiss this case as 

moot, it would have rendered an improper advisory opinion. See, Michigan v. Long, 

463 U.S. 1032, 1042, 103 S. Ct. 3469, 3477 (1983). The position of the Eastern 

District (as well as this Court) in this case is analogous to the situation where the 

United States Supreme Court sits in review of state court decisions based on mixed 

issues of federal and state law. In such cases, in order to prevent issuing an advisory 

opinion, the United States Supreme Court will not review judgments of state courts 

that rest on adequate and independent state grounds. Id. 

As previously noted, Perschall's request that the Louisiana Supreme Court 

decisions be rendered void is a matter of state law. Even if it were a matter of federal 

law, Perschall has no standing to raise the issue. 

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Nevertheless, Perschall claims in his Summary of Argument that he 

"As an active legal practitioner, would have to address the constitutional 
composition of the Louisiana Supreme Court with any client he 
represents before the Court. Each such client would have an individual 
right to bring a suit against the Court's composition. Under the theory 
that where the controversy is capable of repetition yet evading review, 
an exception to mootness exists, and Perschall should be entitled to 
further relief." 

Perschall's Brief; p. 9. 

Even if there were a basis for Perschall's allegation that Act 512's 

unconstitutionality renders void all decisions by the Louisiana Supreme Court, 

Perschall himself would not have standing to raise the claim -- only those who were 

litigants could have such standing. In other words, if one of Perschall's clients was a 

litigant and was saddled with an allegedly void decision of the Louisiana Supreme 

Court, that litigant would have to raise the claim. Perschall here cannot raise the claim 

himself simply because he is the attorney for the former litigant. No court has ever 

held that an attorney has standing himself or herself to raise a legal claim of one of his 

or her clients. 

Moreover, even if Perschall as an attorney did have standing to raise claims of 

his clients, he nowhere alleges that any of his clients ever were litigants before the 

Louisiana Supreme Court since Act 512 has been implemented. Thus, any purported 

harm to them is speculative at best. 

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Even if Perschall did have standing, federal law does not support his effort to 

void years of Louisiana Supreme Court decisions. Ever since the United States 

Supreme Court adopted the one-person, one-vote rule in the 1960s, see, Reynolds v.  

Sims, 377 U.S. 533, 84 S. Ct 1362 (1964), and since the Voting Rights Act was 

passed in 1965, courts have from time to time declared the composition of various 

elected bodies to be unlawful. This has happened to state legislatures, county and 

parish governing boards, city councils, school boards, and even elected state courts. 

In the legion of cases dealing with these issues, none have held that the decisions of 

those bodies are void. 

It is simply nonsensical to assume, as Perschall here does, that the alleged 

invalidity of the composition of an elected body renders void all of its decisions. If 

it were as Perschall contends, the result would be chaos. If state legislative districts 

or congressional districts in use for years were held to be unconstitutional, as has 

happened in many states, all of the laws passed by that legislature or by Congress 

during that time period would be invalid. If state judicial election districts were held 

• to violate the Voting Rights Act, as in Clark v. Roemer, 777 F. Supp. 471 (M.D. La. 

1991), all of the criminals convicted and sentenced by those courts would be allowed 

to walk out of prison and all of the civil judgments would be set aside. 

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11••=• 

Of course, that is not the law, and no court has ever ruled that the acts of an 

elected body are void simply because the composition of that body is somehow 

unlawful. For example, in Connor v. Williams, 404 U.S. 549, 92 S. Ct. 656 (1972), 

the Supreme Court dealt with allegations that the Mississippi legislature, as chosen in 

the 1971 elections, was unconstitutionally composed because of one-person, one-vote 

violations in the makeup of the election districts. The plaintiffs in that case sought to 

have the 1971 elections set aside so that a constitutionally elected legislature could be 

elected to fill out the remainder of the four-year term before the next regularly 

scheduled elections, some three years away in 1975. However, the United States 

Supreme Court held that even if the plan was unconstitutional, there would be no need 

for special elections and the existing legislature could remain in office until 1975. 

_c_onnoi., 404 U.S. at 550-551, 92 S. Ct. at 658. Moreover, the United States Supreme 

Court noted, that the legislature itself could enact a new and constitutional plan for 

future elections if it so chose. Id., at 552 n.4, 92 S. Ct. at 658 n.4. Obviously, if the 

unconstitutionality of the prior plan rendered all legislative actions void, the United 

States Supreme Court Would not have allowed that legislature to remain in office 

another three years without resolving the constitutional issue. Moreover, the United 

States Supreme Court would not have said that the legislature may pass a law 

.13-

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.11••••• 

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••••• 

redistricting itself if all of the legislature's actions would be void.' Thus, Perschall's 

contention here that he is unable to provide predictable legal advice because the Act's 

unconstitutionality renders void all decisions by the Louisiana Supreme Court is 

simply ludicrous, has no basis in law or reality, and is an insufficient ground on which 

to find this case not moot. 

Perschall also argues that Ryder v. United States, 515 U.S. 177, 115 S. Ct. 2031 
• 

(1995) holds that "a person is entitled to a hearing before a properly constituted court 

and accordingly, any person who appears before the Louisiana Supreme Court, which 

is not properly constituted, will have an equally strong federal constitutional argument 

to contest its composition not ...limited solely to Louisiana law." His quotation from 

Ryder on page 15 of his Brief reveals that it is inapposite. Indeed, Ryder specifically 

noted that point we previously made here: that federal law does not require the 

wholesale setting aside of prior governmental decisions even though there is some 

purported legal defect in the composition of the governmental body at issue. As the 

Court stated in Ryder: "The [de facto officer] doctrine has been relied upon by this 

Court in several cases involving challenges by criminal defendants to the authority of 

a judge who participated in some part of the proceedings leading to their conviction 

The principle that an elected officer's actions are considered valid even if 
there is some alleged legal defect in the election system is sometimes known as the 
"de facto officer" doctrine. (III, 582-584). 

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and sentence." 515 U.S. at 181, 115 S. Ct. at 2034. Ryder did not apply the de facto 

officer doctrine to the circumstances in that case, but that was because (1) the 

defendant in Ryder challenged the tribunal hearing his specific case before the case 

was heard, and (2) Ryder involved the specific requirements of the Appointments 

Clause, Art. II, § 2, cl. 2, of the United States Constitution. 515 U.S. at 182, 115 S. 

Ct. at 2034. Those conditions do not exist here, where Perschall is challenging the 

authority of the Louisiana Supreme Court in prior cases where he was not a litigant, 

and where his federal challenge is based not on the appointments clause, but the 

Fourteenth Amendment. See, Ryder, 515 U.S. at 183, 115 S. Ct. at 2036 (discussing 

Connor v. Williams, 404 U.S. 549, 92 S. Ct. 656 (1972) a Fourteenth Amendment 

case).5 

The mere fact that the Louisiana Supreme Court has declared Act 512 

unconstitutional does not in and of itself mean that that Court is either illegal or 

unconstitutional. As acknowledged by all parties, the Chisom consent judgment 

issued by the Eastern District itself established the composition of the Louisiana 

Supreme Court from its date until a date certain in the future. That judgment is final 

and executory today. The Louisiana Supreme Court is composed, and has been 

'Although Perschall refers in his Brief to a variety of federal constitutional 
provisions, only the Fourteenth Amendment was raised in his Petition in this case. 
Petition at p. 9. 

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APR 06 '98 11:14 504 861 5440 PAGE.25 



APR-06-98110N 08:40 LOYOLA LAW CLINIC FAX NO. 504 861 5440 4  P. 26 

composed since the Chisom consent judgment was rendered on August 21, 1992, 

pursuant to the Chisom consent judgment, not just Act 512. Its dictates establish the 

composition of the Louisiana Supreme Court, notwithstanding the holding that Act 

512 (which is not the Chisom consent judgment) violates the Louisiana Constitution. 

In his Conclusion at page 20 of his Brief, Perschall suggests that this Court 

issue an order "declaring the decisions of the Louisiana Supreme Court rendered under 

the authority of Acts 1992, No. 512 to be void ab initio." In so doing, Perschall 

ignores that such a request is beyond the scope of his Petition and Supplemental 

Petition. Further, this very argument was considered and rejected by the Louisiana 

Supreme Court analyzing Louisiana law. (III, 582-584). Moreover, Perschall's 

argument ignores the fact that Act 512 and the consent judgment issued by the Eastern 

District in Chisom are separate and independent methods accomplishing the identical 

result -- removing one has no impact because the other remains in place. 

Perschall also seeks to justify his argument on the basis that his "vote[s] for 

justices to the Louisiana Supreme Court" are somehow being affected. See, 

Perschall's Brief at pp. 9 and 16-18. Nowhere does he explain how those votes are 

being affected. That alone is reason for dismissal of this argument. 

Further, there simply is no way that his "vote[s] for justices to the Louisiana 

Supreme Court" are somehow being affected. To the extent that he previously voted 

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APR 06 '98 11:15 504 861 5440 PAGE.26 



APR-06-98 NON 084 LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 27 

•••01.. 

tmodIF 

Immo 

••••••• 

••••1111. 

••••• 

••••• 

for Chief Justice Calogero and Justice Marcus, who are the justices elected from 

Perschall's district and who were sitting prior to Act 512 and the issuance of the 

consent judgment in Chisom, they remain on the Louisiana Supreme Court. 

Moreover, as indicated in Perschall's Petition, he is a resident of Orleans Parish. 

Therefore, he is allowed to vote for the Fourth Circuit seat created by Act 512 (as well 

as the Chisom consent judgment) and assigned to the Louisiana Supreme Court. Thus, 

by virtue of Act 512 (as well as the Chisom consent judgment), Perschall is permitted 

to vote for three of the eight judges who are involved in cases appealed to the 

Louisiana Supreme Court. He can hardly complain about his vote being negatively 

impacted. 

Moreover, even if he lived far across the State, Perschall could not make out a 

claim that his vote was negatively impacted by Act 512's unconstitutionality. It has 

long been held that the one-person, one-vote rule does not apply to judicial elections. 

Wells v. Edwards, 347 F. Supp. 453 (M.D. La. 1972), summarily affd, 409 U.S. 1095, 

93 S. Ct. 904 (1973); Chisom v. Roemer, 501 U.S. 380, 111 S. Ct. 2354, 2368 (1991).6 

6 As noted by the United States Supreme Court in Chisom, that case was 
brought not under the one-person, one-vote doctrine, but under the distinct doctrine 
of racial vote dilution. The plaintiffs in Chisom contended that the multi-member 
district unlawfully submerged and diluted the votes of the black majority in Orleans 
Parish by combining them with the heavily white electorate in surrounding parishes 
to create the state's only multi member Supreme Court district, which was majority 

(continued...) 

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APR 06 '98 11:15 504 861 5440 PAGE.27 



APR-06-98 MON 08:51k LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 28 
LI 

4111•••• 

Thus, the fact that a voter in one part of the state can vote only for one justice, while 

a voter in another can vote for multiple justices, does not unlawfully impact upon the 

vote of the former. If it did, the pre-existing scheme that allowed voters in Orleans 

and surrounding parishes to vote for two justices, while everyone else voted for only 

one, would have been struck down long ago. 

In summary, there is no way that Act 512's unconstitutionality can be said to 

negatively impact Perschall's vote.' 

CONCLUSION 

Accordingly, for all the foregoing reasons, this Court should affirm the decision 

of the Eastern District which dismissed this case. 

6(...continued) 
white. Chisom v. Roemer, 501 U.S. 380, 111 S. Ct. 2354, 2358-59, 2368 (1991). 

'As Judge Schwartz noted at pp. 9-10 of his order dismissing this case, 
"plaintiffs complaint does not assail this Court's Chisom consent judgment." Even 
if it did, this case is not the proper vehicle for such a challenge. And even if it were, 
the United States Supreme Court in Lawyer v. Department of Justice, 117 S. Ct. 2186 
(1997) has made it clear that a state, represented by its attorney general, may enter into 
a voting rights consent judgment even absent a federal court finding of a violation of 
federal law and even if the provisions of the decree override state law. The Louisiana 
Supreme Court's decision in Perschall's case also recognizes the validity of the 
Chisom consent judgment independent of the constitutionality of Act 512. 

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APR 06 '98 11:16 504 861 5440 PAGE.28 



APR-06-98 NON 081i LOYOLA LAW CLINIC FAX NO. 504 861 5440 ip P. 29 

Respectfully submitted, 

Richard P. Ieyoub, 
Attorney General, State of Louisiana 
State Capitol 
P.O. Box 94005 
Baton Rouge, Louisiana 70804-9005 

Peter J. Butler (Bar # 3731) - 
Peter J. Butler, Jr. (Bar #18522) 
Richard G. Passler (Bar #21006) 
LL& E Tower, Suite 2400 
909 Poydras Street 
New Orleans, Louisiana 70112 
Telephone: (504) 584-5454 

Tyron D. Picard (Bar #20473) 
P. O. Box 61666 
Lafayette, Louisiana 70596-1666 
Telephone: (318) 983-0090 

Robert McDuff, Esq. 
767 N. Congress St. 
Jackson, Mississippi 39202 
Telephone: (601) 969-0802 

By:  
PETER J. 

Counsel for the State of Louisiana 

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APR 06 '98 11:16 504 861 5440 PAGE.29 



APR-06-98 MON 08:51m, LOYOLA LAW CLINIC 
11. 

FAX NO. 504 861 5440  P. 30 
111P 

nee/ 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the Brief of Appellee, the State 

of Louisiana, has this 2nd day of April, 1998 been forwarded to all counsel of record 

as follows: 

Clement F. Perschall, Jr., Esq. 
110 Veterans Boulevard 
Suite 340 
Metairie, LA 70005 
Telephone: (504) 836-5975 
Counsel for plaintiff, Clement F. 
Perschall, Jr., pro se 
Via By-Hand Delivery 

William P. Quigley, Esq. 
Loyola University of New 
Orleans School of Law 
7214 St. Charles Avenue 
New Orleans, Louisiana 70118 
Telephone: (504) 861-5590 • 
Counsel for intervenors, Ronald 
Chisom, Marie Bookman, Walter 
Willard, Henry Dillon, III, Marc 
Morial and the Louisiana Voter 
Registration / Education Crusade 
Via U. S. Mail 

Jacqueline Carr, Esq. 
L.C.I.W. - Post Office Box 26 
St. Gabriel, Louisiana 70776 
Counsel for intervenor, 
Jacqueline Carr, pro se 
Via U. S. Mail 

Richard P. Ieyoub, Attorney General, 
State of Louisiana 
State Capitol 
P.O. Box 94005 
Baton Rouge, Louisiana 70804-9005 
Via U. S. Mail 

Tyron D. Picard 
P. 0. Box 61666 
Lafayette, Louisiana 70596-1666 
Via U. S. Mail 

Robert McDuff, Esq. 
767 N. Congress St. 
Jackson, Mississippi 39202 
Via U. S. Mail 

- 20 - 

APR 06 '98 11:1? 504 861 5440 PAGE.30 



APR-06-98 MON 08:5k. LOYOLA LAW CLINIC FAX NO. 504 861 5440 P. 31 

CERTIFICATE OF COMPLIANCE 

Pursuant to 5th Cir. R. 32.2.7(c), the undersigned certifies this brief complies with the 

type-volume limitations of 5th Cir. R. 32.2.7(b). 

1. Exclusive of the exempted portions in 5th Cir. R. 32.2.7(b)(3), the brief contains: 

A. 5,296  words OR 

_ B.  lines of text in monospaced typeface. 

2. The brief has been prepared (select one): 

•••••1 

A. in proportionally spaced typeface using: 

Software Name and Version:  Word Perfect 6. 1 for Windows in 

(Typeface Name and Font Size)  Times New Roman 14 pt. , OR 

B. in monospaced (nonproportionally spaced) typeface using: 

Typeface name and number of characters per inch:  

3. If the Court so requests, the undersigned will provide an electriqiuc version of the 

brief and/or a copy of the word or line printout. 

4. The undersigned understands a material misrepresentation in completing this 

certificate, or circumvention of the type-volume limits in 5th Cir. R. 32.2.7, may result 

in the Court's striking the brief and imposing sanctions against the person signing the 

brief. 

a  
-21-

APR 06 '98 11:18 504 861 5440 PAGE.31