Brief on Behalf of Intervenor/Respondents Ronald Chisom, Et Al

    SUPREME COURT FOR THE STATE OF LOUISIANA 

NO. 96 CC 0322 

CLEMENT F. PERSCHALL, JR. 

VERSUS 

THE STATE OF LOUISIANA 

ON GRANT OF CERTIORARI 

BRIEF ON BEHALF OF INTERVENORS/RESPONDENTS 
RONALD CHISOM, MARIE BOOKMAN, WALTER 

VVILLARD, HENRY DILLON, III, AND THE 
LOUISIANA VOTER REGISTRATION/EDUCATION 

CRUSADE 

William P. Quigley (Bar #7769) 
Loyola University School of Law 
7214 St. Charles 
New Orleans, LA 70118 
(504) 861-5590 

Ronald L. Wilson 
18th Floor, 210 Baronne 
New Orleans, LA 70112 
(504) 525-4361 

Walter Willard 
1100 Poydras, Suite 2150 
New Orleans, LA 70112 
(504) 568-0541 

Elaine R. Jones 
Director-Counsel 
Norman J. Chachkin 
Charles Stephen Ralston 
Victor A. Bolden 
Jacqueline A. Berrien 
NAACP Legal Defense and Educational 
Fund, Inc. 
99 Hudson Street 
Suite 1600 
New York, New York 10013 

Counsel for Intervenors/Respondents 
Ronald Chisom, et al. 



TABLE OF CONTENTS 

INDEX OF AUTHORITrES.   ii 

I. STATEMENT OF THE CASE   1 

II. SUMMARY OF ARGUMENT  6 

III. ARGUMENT   6 

A. LOUISIANA LAW DOES NOT GOVERN THE SUBSTANTIVE 
ISSUES TO BE RESOLVED IN THIS CASE   6 

1. Louisiana Law Cannot Override Or Interfere With 
Federal Law   7 

2. Any Ruling Under Louisiana Law Invalidating 
Act 512 Would Invalidate Federal Law   8 

IV.. CONCLUSION   11 



TABLE OF AUTHORITIES 

Cases: Pages: 

Chisom v. Edwards, 
659 F. Supp. 183 (E.D. La. 1987)   passim 

Chisom v. Edwards, 
839 F.2d 1056 (5th Cir. 1988)   2, 3 

Chisom v. Edwards, 
970 F.2d 1408 (5th Cir. 1992)   5, 11 

Chisom v. Edwards, 
975 F.2d 1092 (5th Cir. 1992)   6, 10 

Chisom v. Edwards, 
No. 86-4075 (E.D. La.)   2 

, Chisom v. Roemer, 
' 501 U.S. 380 (1991)   3, 11 

R- City of New York v. FCC, 
486 U.S. 57 (1988)   9 

General Motors Corp. v. Abrams, 
897 F.2d 34 (2nd Cir. 1990)    9 

Howlett v. Rose, 
496 U.S. 356 (1990)     9 

, Jeffers v. Clinton, 
762 F. Supp. 257 (E.D. Ark. 1991)   9 

League of United ytin Amer. Citizens Council No. 4434 
v. Clements, 

914 F.2d 620 (5th Cir. 1990)   3 

League of United Latin Amer. Citizens Council No. 4434 
v. Clements, 

999 F.2d 831 (5th Cir. 1993)   5, 9 

Lockett v. Board of Ed. of Muscogee Co. School Dist., 
447 F.2d 472 (5th Cir. 1971)   12 

North Carolina State Bd. of Educ. v. Swann, 
402 U.S. 43 (1971)   10 

Northwest Pipeline v. Kansas Corp. Comm'n., 
489 U.S. 493 (1989)   9, 10 

R.J. Reynolds Tobacco Co. v. Durham County, 
479 U.S. 130 (1986)   9 

Sullivan v. First Affiliated Securities, Inc., 
813 F.2d 1368 (9th Cir.), cert. denied, 484 U.S. 
850 (1987)   9 

11 



Pages 

Swann v. Charlotte-Mecklenburg Bd. of Ed., 
501 F.2d 383 (4th Cir. 1974)   12 

Thomason v. Cooper, 
254 F.2d 808 (8th Cir. 1958)   12 

Travia v. Lomenzo, 

382 U.S. 287 (Harlan, J. in Chambers, 1965)   12 

United States v. City of Miami, 
664 F.2d 435 (5th Cir. 1981)   9 

United States v. State of Texas, 
356 F. Supp. 469 (E.D. Tex.), aff'd, 495 F.2d 1250 
(5th Cir. 1972)   12 

•, Washington v. Washington State Commerical Passenger 
Fishing Vessel Ass'n, 

' 443 U.S. 658 modified on other grounds sub nom., 
Washington v. United States, 444 U.S. 816 (1979)     10 

Wesch v. Folsom, 
6 F.3d 1465 (11th Cir. 1993)   12 

STATUTES-FEDERAL 

Fed. R. Civ. P. 12(b)(6)   3 

28 U.S.C. §1447   6 

Voting. Rights Act of 1965, 42 U.S.C. §1973   passim 

U.S. Const., Art VI, cl. 2   9 

STATUTES-STATE 
La. Const. Art. 5 § 4   5 

La. Const. Art. 5, § 5(A)   5 

La. R.S. 13:101.1   2, 4:11 

La. R.S. 13:312.4   3 

111 



MAY IT PLEASE THE COURT: 

This brief is respectfully filed on behalf of Respondent-Intervenors Ronald Chisom, 

Marie Bookman, Walter Willard, ,Henry Dillon III, and the Louisiana Voter 

Registration/Education Crusade ("Respondent-Intervenors") in accordance with this Court's 

Order dated November 8, 1996 "granting certiorari, [and] bringing the entire case up to this 

court for argument and decision." 

This is an action challenging Acts 1992, No. 512 ("Act 512"), now codified as La. 

R.S. 13:101.1; 13:312.4, and the assignment of a Judge of the Fourth Circuit Court of 

Appeal (the "Fourth Circuit") to this Court for a temporary and determinable period of 

' time. The assignment of this judgeship was a basis for the settlement of the federal voting 

rights case known as Chisom v. Edwards, No. 86-4075 (E.D. La.). 

I. STATEMENT OF THE CASE 

• Before the enactment of Act 512, no black had ever served on the Louisiana 

Supreme Court, although blacks constitute nearly one-third of Louisiana's population and 

comprise a majority in Louisiana's largest parish, Orleans Parish. See Chisom v. Edwards, 

839 F.2d 1056, 1058 (5th Cir. 1988). The seven justices on the Supreme Court of Louisiana 

were elected from six geographical judicial districts. Id. at 1056. With the exception of the 

First District of tii,State Supreme Court, each of the judicial districts elected one Supreme 

Court justice. Id. 

The First District of the State Supreme Court ("First Supreme Court District"), 

comprised of four parishes (Orleans, St. Bernard, Plaquemines, and Jefferson Parishes), 

elected two Justices at-large. Id. In the late 1980's, blacks represented approximately 

thirty-two percent of the registered voter population in the First Supreme Court District 

and whites represented aPproxirnately sixty-eight percent of the District's population. Id. 

Over half of the First Supreme Court District's registered voter population lived in Orleans 

Parish, where blacks comprised fifty-two percent of the registered voter population. Id. 

In 1986, Ronald Chisom and a group of other blacks, as well as the Louisiana Voter 

Registration Education Crusade (hereinafter "Chisom plaintiffs"), filed a class action lawsuit 

in the United States District Court for the Eastern District of Louisiana("United States 

District Court") on behalf of all blacks registered to vote in Orleans Parish . Chisom v. 

1 



Edwards, 659 F.Supp. 183 (E.D. La. 1987). The Chisom plaintiffs alleged that the system 

of electing Justices to the Louisiana Supreme Court violated, inter alia, Section 2 of the 

Voting Rights Act of 1965, 42 U.S.C. §1973. 

The United States District Court held that Section 2 of the Voting Rights Act did 

not apply to state judicial elections because judges are not "representatives" under the Act, 

thereby dismissing the Chisom plaintiffs' complaint for failure to state a claim upon which 

relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6). See id. at 183-187. The Chisom 

plaintiffs appealed that ruling to the United States Court of Appeals for the Fifth Circuit 

("Fifth Circuit"). A panel of Fifth Circuit judges disagreed with the District Court and 

held: 

After consideration of the language of the Act itself; the policies behind the 
enactment of Section 2; pertinent legislative history; previous judicial 
interpretations of Section 5, a companion section to Section 2 in the Act; and 
the position of the United States Attorney General on this issue; we conclude 
that Section 2 does apply to the election of state court judges. We therefore 
reverse the judgment of the district court. 

Chisom v. Edwards, 839 F.2d 1056, 1058 (5th Cir. 1988). The Fifth Circuit originally 

remanded the case back to the United States District Court, id. at 1065, but later 

remanded the case back to the District Court with instructions to dismiss the complaint, 

based on an intervening decision from the Fifth Circuit, League of United Latin Amer. 

Citizens Council ia. --4434 v. Clements, 914 F.2d 620 (5th Cir. 1990) ("LULAC 1").' Chisom 

v. Roemer, 501 U.S. 380, 387-390 (1991). In LULAC, an en banc panel of the Fifth Circuit 

held that Section 2 did not apply to judicial elections. Id. at 390. The United States 

Supreme Court granted certiorari in both Chisom and LULAC. Id. at 390. 

On June 20, 1991, the United States Supreme Court held that Section 2 of the 

Voting Rights applies to state judicial elections in general and to the election of Supreme 

Court Justices in Louisiana in particular. Id. at 400-402. The Court held that when states, 

like Louisiana, decide to choose judges by election, rather than by appointment, then these 

judges are appropriately "representatives" under the Voting Rights Act. As the Court 

stated in particular about Louisiana: 

When each of several members of a court must be a resident of a separate district, 
and must be elected by the voters of that district, it seems both reasonable and 

'Like Chisom, LULAC involved the election of state court judges, but in Texas. 

2 



realistic to characterize the winners as representatives of that district. Indeed, at 
one time the Louisiana Bar Association characterized the members of the Louisiana 
Supreme Courts representatives for that reason: 'Each justice and judge now in 
office shall be considered as a representative of the judicial district within which is 
situated the parish of his residence. at the time of his election.' 

Id. at 401(quoting Louisiana State Law Institute, Project of a Constitution for the State of 

Louisiana with Notes and Studies 10309 (1954)(1921 Report of the Louisiana Bar 

Association submitted to the Louisiana Constitutional Convention)). The Supreme Court's 

decision reversed the Fifth Circuit's ruling and remanded Chisom back to the Fifth Circuit 

Court of Appeals "for further proceedings consistent with this opinion." Id. at 404. 

The State of Louisiana subsequently enacted Acts 1992, No. 512 ("Act 512") in order 

to settle the Chisom litigation. The legislation created a Supreme Court District comprised 

of Orleans Parish, removing Orleans Parish from inclusion in a district with St. Bernard, 

Plaquemines and Jefferson Parishes. La. R.S. 13:101.1. It further provided that, during the - - - - 

1998 Regular Session, the Louisiana Legislature was .to reapportion the districts of the 

Louisiana Supreme Court into seven districts, rather than six districts, for elections 

beginning in the year 2000. Id. In the event of a vacancy from the First Supreme Court 

District prior to the year 2000, the Act provides that there will be an election for a 

Supreme Court Justice from the newly created Orleans Parish district. Id. The Act also 

provided for the .cr,ation of a temporary additional judgeship for the Court of Appeal for 

the Fourth Circuit to be elected by voters from Orleans Parish and assigned to the 

Louisiana Supreme Court until the year 2000, when elections would be held under the 

newly drawn election districts. La. R.S. 13:312.4. The Act thus avoids shortening the term 

of office of any Louisiana Supreme Court Justice holding office on June 22, 1992, the time 

of its enactment. Id. 

Act 512 "was earthily crafted" to avoid interference with or invalidating any other 

Louisiana laws. See League of United Latin Amer. Citizens Council No. 4434 v. Clements, 

999 F.2d 831, 848 (5th Cir. 1993)("LULAC H"). "The consent decree did not set aside any 

state laws -- and not by accident." LULAC II, 999 F.2d at 848. Under Art. 5 § 4 of the 

Louisiana Constitution, the Louisiana Legislature "can create more supreme court districts 

with a two-thirds vote from both houses," Id. Act 512 was enacted by the necessary two-

thirds vote in both houses. Id. (citing Official Journal of the Proceedings of the Senate of 

3 



S 

the State of Louisiana, 18th Reg. Sess. at 24 (June 18, 1992); Official Journal of the 

Proceedings of the House of the State of Louisiana, 18th Reg. Sess. at 31 (June 16, 1992)). 

Under Art. 5, § 5(A) of the Louisiana Constitution, the Legislature also has the authority 

to "create[ ] an additional place for a judge on the Court of Appeal for the Fourth Circuit, 

who, upon election, would be assigned to the supreme court to serve, in reality, as the 

eighth justice," id., a temporary judgeship "to expire with a vacancy on the supreme court 

from the first district." Id. "The vacancy would be filled by an election in the newly created 

seventh district comprised of Orleans Parish." Id. 

Act 512 was entirely contingent on the entry of a federal court order: 

This legislation shall be null, void, and of no force and effect whatsoever if 
a consent decree approving this legislation to be entered into between all 
parties in federal litigation involving the at-large election of two justices from 
the presently existing first supreme court district, which is pending on the 
docket of the United States Court of Appeals for the Fifth.Circuit_and which. 
is styled Chisom v. Edwards, is not entered into by the appropriate federal 
court. 

Acts 1992, No. 512, §2. After Act 512 was signed into law, all parties to the Chisom 

litigation filed a Joint Motion to Remand to Effectuate Settlement Chisom v. Edwards, 

970 F.2d 1408, 1409 (5th Cir. 1992). The Fifth Circuit granted this motion and remanded 

the case "to the United Stated District Court for the Eastern District of Louisiana for the 

limited purpose of effectuating a settlement." Id. at 1409. The Court of Appeals intended 

to dismiss the appeals, "[u]pon notification that a consent judgment has been entered by 

the district court . . . ." Id. On August 21, 1992, the United States District Court entered 

a consent decree which incorporated Act 512 into its final order and judgment. Consent 

Judgment, August 21, 1992 (E.D. La.). On October 6, 1992, the Fifth Circuit dismissed the 

appeals pending in the case. Chisom v. Edwards, 975 F.2d 1092 (5th Cir. 1992). 

In 1995, nearly thrte years after the entry of the consent judgment in the Chisom 

case, Plaintiff, Clement F. Perschall, Jr. ("Plaintiff') filed a "Petition for Declaratory 

Judgment on the Constitutionality of Acts 1992, No. 512" against the State of Louisiana in 

the 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana, 

Division A . Plaintiff alleges that Act 512 violates both the Louisiana and United States 

Constitutions. The State removed the action to the United States District Court for the 

Middle District of Louisiana, which subsequently transferred the action to the United States 

4 



District Court for the Eastern District for Louisiana, which had issued the consent 

judgment in the Chisom case. The Chisom plaintiffs, not named in the Perschall action, 

moved to intervene and are now a part of this new litigation. 

The United States District Court for the Eastern District of Louisiana "remanded" 

the issue of the constitutionality of Act 512 under state law to the state court.2 On July 

12, 1996, this Court requested that all parties to this litigation file briefs on "whether to 

allow the case to proceed in normal fashion or to bypass the lower courts on the threshold 

issue." Order, dated July 12, 1996. The State of Louisiana filed briefs which requested that 

this Court grant certiorari and review the entire case. As this Court stated in doing so: 

Because of the importance of this case to the public and to the orderly 
. processes of government, we exercise our supervisory jurisdiction and grant 

certiorari, bringing the entire case up to this court for argument and decision. 

Order, dated November 8, 1996 at 2. The Court has asked to the parties to address, at 

least, three issues: 

1. Should the Louisiana court respond to the federal court's remand order if to 
do so would require rendition of an advisory opinion or of a declaratory 
judgment that will not terminate the uncertainty or controversy that gave rise 
to the proceeding -- that is, a judgment declaring that Act 512 violates the 
Louisiana Constitution unless saved by the federal consent decree? 

2. Does the federal court's remand order constitute certification of a question 
of Louisiana law to the Supreme Court of Louisiana which has discretion to 
refuse such certified questions from the Supreme Court of the United States 
and die federal courts of appeals? 

3. Does Act 512 violate the Louisiana Constitution? 

Id. at 3 (footnotes omitted). The Court also noted that, if the appropriateness of Act 512 

under Louisiana law is not an issue, then plaintiff's due process claims should be decided 

by the federal court. See id. at n.2. ("A judgment declaring that Act 512 does not violate 

the Louisiana Constitution would leave plaintiff's due process claims to be decided by the 

2Where there is a jurisdictional defect or a defect in the procedure by which a case was 
removed, the usual course is to remand the entire matter to state court. See 28 U.S.C. § 
1447. Moreover, as the State of Louisiana has advised this Court, there is no formal 
procedure by which a district court may certify questions of state law to this Court. See 
Brief of the State of Louisiana at 5. Nevertheless, we do not believe that this Court need 
tarry on these questions. The district court's remand order was based upon its supposition 
that this Court's determination on the state law validity of Act 512 "would in all likelihood 
moot or substantially alter the plaintiff's single federal constitutional claim." Order, dated 
July 5, 1995, at 5. As we show below, this supposition is incorrect. Although we agree with 
the State that in fact Act 512 violates neither the Louisiana Constitution nor any other 
provision of Louisiana law, it is, in fact, federal law, not state law, which is controlling with 
respect to plaintiff's substantive claims in this matter. 

5 



federal court.") 

The State of Louisiana, the Applicant, has filed a brief which addresses the three 

questions posed by this Court. In essence, the State makes four arguments regarding the 

Perschall litigation. First, it is nothing more than a collateral ,attack on the consent 

judgment entered into in the Chisom case and therefore, should be dismissed insofar as 

state court proceedings are concerned. Second, any ruling by this Court on the 

constitutionality of Act 512 would be advisory, because the consent judgment in Chisom 

remains in place regardless of any action by this Court. Third, the United States Court of 

Appeals for the Fifth Circuit has already held, and an analysis of Louisiana law makes 

clear, that the Chisom consent judgment, Act 512 and the present composition of the 

Louisiana Supreme Court are proper both under federal law and the Louisiana 

Constitution. Fourth and finally, respondent-plaintiff •Perschall lacks standing to bring this 

action.' 

II. SUMMARY OF ARGUMENT 

The substantive issues in this case, quite simply, involve federal law, not state law. 

In this case, the application of federal law, as required by the Supremacy Clause of the 

United States Constitution, means that a subsequent state law or court order cannot 

invalidate a federal court order. If Act 512 were sought to be invalidated by a ruling under 

Louisiana law, even under the Louisiana Constitution, effectuation of such a judgment 

would require invalidation of a federal court order, and there is no basis under the law for 

such a result. 

III. ARGUMENT 

A. LOUISIANA LAW DOES NOT GOVERN THE SUBSTANTIVE ISSUES 
TO BE RESOLVED IN THIS CASE 

Except for standing', there are no state law issues for this Court to resolve. The 

'To avoid repetition of arguments already made by the applicant State of Louisiana, 
respondent-intervenors Chisom et al. adopt and incorporate by reference the arguments 
presented by the State. This brief addresses, without unnecessarily duplicating, the issue 
of whether and to what extent federal law governs the resolution of this case. 

"The issue of plaintiff standing to bring his purported state law claims before the state 
court is governed by Louisiana law and is the only state law issue this Court should decide. 
For the reasons set forth by the State of Louisiana in its brief, this Court should dismiss 
plaintiffs state law claims for lack of standing. Brief of the State of Louisiana at 9-12. 

6 



salient issues in this case involve federal law. Federal law is protected, by the Supremacy 

Clause of the United States Constitution, from subsequently being undermined by any 

action purportedly resting upon state law, whether by a state legislature or state court and 

whether by way of state statute or a state's constitution. Act 512 is entitled to the 

protection afforded federal law because, without the federal court order in Chisom, Act 512 

does not exist. It follows that because of the federal court order in Chisom, Act 512 cannot 

cease to exist because of reliance on state law. 

1. Louisiana Law Cannot Override Or Interfere With Federal Law 

The Supremacy Clause of the United States Constitution guarantees that federal law 

will be the "Law of the Land." Once federal law -- either by the Constitution, statute or 

couit order -- has been established, state law -- whether by statute or court order -- cannot 

invalidate that federal law. The Supremacy Clause of the United -States Constitution 

provides in relevant part: 

This Constitution, and the Laws of the United States which shall be made in 
Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges 
in every State shall be bound thereby . . . . 

U.S. Const., Art VI, cl. 2. This provision ensures that federal laws are considered "as much 

laws in the States as laws passed by the state legislature." Howlett v. Rose, 496 U.S. 356, 

367 (1990); see Northwest Pipeline v. Kansas Corp. Comm'n., 489 U.S. 493, 509 (1989); City 

of New York v. FCC, 486 U.S. 57, 63-64 (1988); R.J. Reynolds Tobacco Co. v. Durham 

County, 479 U.S. 130 (1986). 

A federal consent order or consent judgment is no different from any other judicial 

decision or any federal law passed by Congress. "The entry of a consent decree is more 

than a matter of agreement among litigants." LULAC II, 999 F.2d at 845. A consent 

decree "is a 'judicial act.' Id. (quoting United States v. Swift & Co., 286 U.S. 106, 115 

(1932). Moreover, a consent decree or judgment constitutes an "adjudication" by the court. 

Id. Federal court approval confirms that a decree is acceptable under the law. 

Because the consent decree does net merely validate a compromise but, by 
virtue of its injunctive provisions, reaches into the future and has continuing 
effect, its terms require more careful scrutiny. Even when it affects only the 
parties, the court should, therefore, examine it carefully to ascertain not only 
that it is a fair settlement but also that it does not put the court's sanction on 
and power behind a decree that violates Constitution, statute, or 
jurisprudence . . . If the decree also affects third parties, the court must be 

7 



satisfied that the effect on them is neither unreasonable nor proscribed. 

United States v. City of Miami, 664 F.2d 435, 441 (5th Cir. 1981) (en banc) (Rubin, J.). As 

a result, federal consent orders are provided as much protection under the Supremacy 

Clause as laws created by Congress. Jeffers v. Clinton, 762 F. Supp. 257, 258 (E.D. Ark. 

1991)(holding that Supremacy Clause obligates state to pay attorney's fees issued under a 

federal court order, notwithstanding any state law restrictions); see General Motors Corp. 

v. Abrams, 897 F.2d 34, 39 (2nd Cir. 1990)(finding that "a consent order . . . may preempt 

state legislation"); see also Sullivan v. First Affiliated Securities, Inc., 813 F.2d 1368, 1376 (9th 

Cir.), cert. denied, 484 U.S. 850 (1987)("The res judicata impact of a federal judgment is a 

' question of federal law which a state court is bound to apply under the Supremacy 

Clause"). 

Under the Supremacy. Clause, a ruling- under the -Louisiana • Constitution cannot - 

supersede or interfere with federal law or a federal consent judgment. Such a ruling cannot 

make it "impossible to comply with both" state law and federal law. Northwest Pipeline, 489 

U.S. at 509. Nor can state law "stand[ ] as an obstacle" to the achievement of the objectives 

of federal law. See id.; Washington v. Washington State Commerical Passenger Fishing Vessel 

Ass'n, 443 U.S. 658, 694-96, modified on other grounds sub nom., Washington v. United 

States, 444 U.S. 816,(i979); North Carolina State ,Bd. of Educ. v. Swann, 402 U.S. 43 (1971). 

When issues of federal law are present, state law may not override or interfere with 

their application to the controversy. Where, as here, issues of federal law are controlling, 

the application of any state law may be precluded. In those circumstances, there are no 

state law issues to be resolved, only federal rights to be upheld. 

2. Any Ruling Under Louisiana Law Invalidating Act 512 Would Invalidate 
Federal Law 

Act 512, while a Louisiana statute, was enacted to resolve federal litigation and to 

modify state law to make it congruent with the requirements of federal law, a result 

achieved when the modification was incorporated into a federal court order. The existence 

of this federal court order, and the impact of the order in the creation and maintenance 

of Act 512, requires that any legal analysis of Act 512's validity take into account the 

federal rights protected and implicated by this legislation. When such an analysis is 

8 



undertaken, there is no doubt that there is no relevant distinction between the federal 

court order in Chisom and Act 512. Any legal protection extended to the Chisom consent 

judgment must also be extended to; Act 512. Any ruling by this Court on the 

constitutionality of Act 512 under the Louisiana Constitution would, at best, be advisory 

and, at worst, be invalid under the Supremacy Clause of the United States Constitution. 

As a court order entered into by the Chisom plaintiffs and the State of Louisiana 

and approved, in essence, by both the United States District Court of the Eastern District 

of Louisiana, Consent Judgment, August 21, 1992 (E.D. La.), and the United States Court 

of Appeals for the Fifth Circuit, see Chisom v. Edwards, 975 F.2d 1092 (5th Cir. 1992), the 

Chisom consent judgment must be considered as federal law with all of the force of federal 

law 'behind it. As federal law, the Chisom consent judgment is protected under the 

Supremacy Clause of the United States- Constitution. - --An adverse- --ruling- on - - the .-

constitutionality of Act 512 would make it "impossible to comply with both" the Louisiana 

Constitution and the Chisom consent judgment, if Act 512 is held unconstitutional. 

Furthermore, such a ruling would "stand[ ] as an obstacle" to the fulfillment of the consent 

judgment's objectives. The Chisom consent judgment made Act 512 operational. Act 512 

explicitly provides that: 

This legislation shall be null, void, and of no force and effect whatsoever if 
a consent. decree approving this legislation to be entered into between all 
parties in federal litigation involving the at-large election of two justices from 
the presently existing first supreme court district, which is pending on the 
docket of the United States Court of Appeals for the Fifth Circuit, and which 
is styled Chisom v. Edwards, is not entered into by the appropriate federal 
court. 

Acts 1992, No. 512, §2. If either the United States District Court of the Eastern District 

of Louisiana or the United States Court of Appeals for the Fifth Circuit refused to approve 

the legislation, then Act 512 would not have become Louisiana law. Act 512 is coterminous 

with the Chisom consent judgment. Compare La. R.S. 13:101.1; La R.S. 13:312.4, with 

Consent Judgment, dated August 21, 1992 (E.D. La). Without Act 512, there is no federal 

court order in Chisom. In order for the Chisom consent judgment to be protected, Act 512 

must be protected as wel1.5 

sEven the substantive provisions of Act 512 strongly suggest that this legislation was 
intended to resolve the federal Voting Rights Act issues at the heart of the Chisom V. 
Roemer case. The Chisom plaintiffs contended that the election of two at-large Supreme 

9 



Issues of federal law, rather than Louisiana law, thus must determine the fate of 

this case. If Act 512 were upheld under the Louisiana Constitution6, then this opinion 

would be merely advisory, given that the resolution of the case turns on issues of federal 

law. If Act 512 were held invalid under the Louisiana Constitution, then the Supremacy 

Clause would protect against such a decision being given any practical effect and any state 

court ruling to the contrary could be enjoined. 

In a similar case, Justice Harlan, • sitting in Chambers as Circuit Justice, held that a 

federal district court could enjoin all state court proceedings that might interfere with the 

carrying out of a reapportionment decree. Travia v. Lomenzo, 382 U.S. 287 (Harlan, J. in 

Chambers, 1965)(In Travia, a judgment issued by the highest court of the State of New 

York, declaring that the reapportionment plan ordered by the federal district court violated 

the Constitution of the State of New York had to yield to the Order of the federal court).- - - 

The Eleventh Circuit upheld the power of the federal district court to enjoin state court 

proceedings that could have interfered with a federal action involving redistricting under 

the Voting Rights Act. Wesch v. Folsom, 6 F.3d 1465 (11th Cir. 1993). In a case involving 

a school desegregation order, the Fifth Circuit Court of Appeals held: 

Lastly, there has now come to our attention through motion that the Superior 
Court of Muscogee County, Georgia has enjoined defendants from 
implementin,g_the desegregation plan as approved by the District Court. The 
District Court is directed to take such action at once, through the use of the 
injunctive process or otherwise, as may be necessary to protect defendants 
from the order or orders of the Muscogee Superior Court to the end that 
defendants may implement the desegregation plan. 

Lockett v. Board of Ed. of Muscogee Co. School Dist., 447 F.2d 472, 473 (5th Cir. 1971); see 

also United States v. State of Texas, 356 F.Supp. 469 (E.D. Tex.), affd, 495 F.2d 1250 (5th 

Cir. 1972); Thomason v. Cooper, 254 F.2d 808 (8th Cir. 1958); Swann v. Charlotte-

Mecklenburg Bd. of Ed., 501 F.2d 383 (4th Cir. 1974). 

Court Justices from the First Supreme Court District, rather than elections conducted in 
two districts of approximately the same size, one comprising the registered voters of 
Orleans Parish and the other comprising the registered voters of St. Bernard, Plaquemines 
and Jefferson Parishes, "impermissibly dilute[d], minimize[d] and cancel[ed] the voting 
strength of blacks who are registered to vote in Orleans Parish . . . ." Chisom v. Edwards, 
659 F.Supp. 183, 184 (E.D. La. 1987). Act 512 ensures the creation of a district limited to 
Orleans Parish alone. La. R.S. 13:101.1. 

°As noted above, respondent-intervenors adopt the positions taken by the applicant, 
regarding the constitutionality of Act 512 under the Louisiana Constitution. Brief of the 
State Of Louisiana at 5-7, 12-25. 

10 



Thus, Louisiana law will not determine the fate of Act 512. Rather, the fate of Act 

512 is inextricably linked to the fate of the Chisom consent judgment. Since the Supremacy 

Clause of the United States Constitution insulates the Chisom judgment from invalidation 

under Louisiana law, Act 512 must be insulated from such a fate as well. 

IV. CONCLUSION 

Act 512, based on the Chisom consent judgment, cannot be overturned without 

overturning the Chisom consent judgment. Therefore, federal law governs the resolution 

of the substantive issues in this case. For the foregoing reasons, respondent-intervenors 

respectfully request that this Honorable Court accordingly dismiss so much of this action 

as is before it based upon plaintiff's lack of standing and return the case to federal court 

for disposition. 

Respectfully submitted, 

William P. Quigley (Bar #7769) 
Loyola University New Orleans 
School of Law 
7214 St. Charles 
New Orleans, LA 70118 
(504) 861-5590 

Ronald L. Wilson 
18th Floor, 210 Baronne 
New Orleans, LA 70112 
(504) 525-4361 

Walter Willard 
1100 Poydras, Suite 2150 
New Orleans, LA 70112 
(504) 568-0541 

Elaine R. Jones 
Director-Counsel 
Norman J. Chachkin 
Charles Stephen Ralston 
Victor A. Bolden 
Jacqueline A. Berrien 
NAACP Legal Defense and Educational 
Fund, Inc. 
99 Hudson Street 
Suite 1600 
New York, New York 10013 
(212) 219-1900 

I ' 
Coinsel for ntervenors/R 
Roñald 9hispm, et al. / 

11 



SUPREME COURT FOR THE STATE OF LOUISIANA 

NO. 96 CC 0322 

CLEMENT F. PERSCHALL, JR. 

'VERSUS 

THE STATE OF LOUISIANA 

Certificate .. 

I HEREBY CERTIFY that a copy of the above and foregoing pleading has been 
forwarded to all counsel of record by depositi a copy thereof, postage-prepaid,-in- --
the United States mail, on this  V7 day o , 1996 to the following: 

Honorable A. Foster Sanders, Judge 
19th Judicial District Court 
222 St. Louis Street 
Baton Rouge, LA 70802 

Richard P. Ieyoub 
Attorney General of Louisiana 
State Capitol, 2iid Floor 
Post Office Box 94005 
Baton Rouge, LA 70804-9005 

Peter J. Butler 
Peter J. Butler, Jr. 
Special Counsel for the State 
Louisiana 
755 Magazine Street 
New Orleans, LA 70130-3672 

Robert McDuff 
771 N. Congress St. 
Jackson, MS 39202 

Tyron D. Picard & Mark Stipe 
Petroleum Tower, Suite 330 
3639 Ambassador Caffrey Parkway 
Lafayette, LA 70503 

Clement F. Perschall, Jr. 
One Galleria Boulevard 
Galleria One, Suite 1107 
Metairie, LA 70001 

Honorable Stanley P. Lemoine 
Clerk of First Circuit Court of Appeal 

of 1600 North 3rd Street 
Baton Rouge, Louisiana 70802