Opposition to Plaintiffs-Appellants' Motion for an Injunction Pending Appeal or, In the Alternative, For Issuance of the Mandate and Memorandum in Support Thereof; Affidavit of Kendall L. Vick; Memorandum in Support of Opposition to Plaintiffs-Appellants' Motion for an Injunction Pending Appeal or, In the Alternative, For Issuance of the Mandate

    IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs-Appellants, 

versus 

EDWIN EDWARDS, ET AL 

Defendants-Appellees. 

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

OPPOSITION TO PLAINTIFFS-APPELLANTS' MOTION 
FOR AN INJUNCTION PENDING APPEAL OR, IN THE 
ALTERNATIVE, FOR ISSUANCE OF THE MANDATE 

AND MEMORANDUM IN SUPPORT THEREOF 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

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

(504) 568-5575 

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

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

• 

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

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

ROBERT G. PUGH 
330 Marshall Street, Suite 1200 

Shreveport, LA 71101 
(318) 227-2270 

SPECIAL ASSISTANT ATTORNEYS GENERAL 

May 23rd, 1988 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT - 

No. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs-Appellants, 

versus 

,EDWIN EDWARDS, ET AL 

Defendants-Appellees. 

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

OPPOSITION TO PLAINTIFFS-APPELLANTS' MOTION 
FOR AN INJUNCTION PENDING APPEAL OR, IN THE 
ALTERNATIVE, FOR ISSUANCE OF THE MANDATE 

AND MEMORANDUM IN SUPPORT THEREOF 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

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

(504) 568-5575 

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

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

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

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

ROBERT G. PUGH 
330 Marshall Street, Suite 1200 

Shreveport, LA 71101 
(318) 227-2270 

SPECIAL ASSISTANT ATTORNEYS GENERAL 

May 23rd, 1988 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs-Appellants, 

versus 

EDWIN EDWARDS, ET AL 

Defendants-Appellees, 

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

OPPOSITION TO PLAINTIFFS-APPELLANTS' MOTION 
FOR AN INJUNCTION PENDING APPEAL OR, IN THE 
ALTERNATIVE, FOR ISSUANCE OF THE MANDATE  

Defendants-Appellees, through undersigned 

counsel oppose the motion of Plaintiffs-Appellants' for 

an injunction pending appeal, or in the alternative, 

for issuance of the mandate. 



1. 

Plaintiffs-Appellants seek their desired 

relief "pursuant to Fed. R. App. P. 8(a) and 41(b)." 

2. 

Plaintiffs-Appellants' Rule 8(a) relief is 

untimely for no such relief was sought in the Court 

below. 

3. 

Relief under Rule 41(b) is neither reasonable 

nor practicable in light of the current pleading status 

of this case. 

4. 

Attached hereto and made a part hereof by 

reference is an affidavit of Kendall L. Vick, Esquire, 

submitted in response to Plaintiffs-Appellants' claim 

that Defendants-Appellees have delayed these 

proceedings. 

5. 

For the foregoing reasons as amplified in the 

Memorandum submitted contemporaneously with this 



Opposition, Plaintiffs-Appellants' requested relief 

should be denied. 

May 23rd, 1988. 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

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

(504) 568-5575 

M. TRUMAN WOODWARD, JR. 
209 Poydras Street 
New Orleans, LA 70130 
(504) 569-7100 

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

By: 

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

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

40BERT G. PUGH 
Lead Counsel 

330 Marshall Street, Suite 1200 
Shreveport, LA 71101 

(318) 227-2270 

SPECIAL ASSISTANT ATTORNEYS GENERAL 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al. 
Plaintiffs-Appellants 

versus 

EDWIN EDWARDS, et al. 
Defendants-Appellees 

AFFIDAVIT OF KENDALL L. VICK 

STATE OF LOUISIANA 

PARISH OF ORLEANS 

KENDALL L. VICK, being duly sworn, deposes and says: 

1. I was Chief Counsel for the Louisiana Department of 

Justice, Office of the Attorney General, until March 11, 1988. 

2. I was counsel of record representing the State 

Defendants in the above-captioned case until my departure from 

the Department of Justice. 

3. The Department of Justice, on behalf of the State 

Defendants, made every reasonable effort to expedite proceedings 

in this case. 

4. A status conference was held on February 18, 1988, at 

which time the Court suggested the parties file cross motions for 

summary judgment. William Quigley, counsel for the Plaintiffs, 

declined, stating that the motion would be too burdensome to 

prepare. 



5. At the February 18th status conference, I urged the 

Court, in the interest of time, to permit the Defendants an 

opportunity to submit a motion to dismiss. I subsequently filed 

a motion to dismiss on March 18, 1988. The motion was granted on 

May 1, 1987. 

6. On July 9, when the Plaintiffs moved for expedited 

hearing, I did not oppose the motion. The motion was 

subsequently denied. 

7. I was planning to be out of the country on December 10, 

1987, when oral argument was scheduled. When I was informed that 

argument would have to be continued for one month, I withdrew the 

motion. 

8. The Defendants' motion for extension of time in which 

to petition for rehearing was due solely to my departure from the 

Department of Justice. Additional time was needed to secure and 

prepare substitute counsel for State Defendants. 

Sworn and Subscrib 
Before me this 

ay, 1988. 

3. ic 

OSEPHW.FRITZ,J11. 
NOTARY PUBLIC 

Polish of JeffsEon, State af Louisiana 
COZZUSII84011 13 iliSUO4 for Life. 

day 

K ndall L. V- ck 



IN THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, ET AL 

Plaintiffs-Appellants, 

versus 

EDWIN EDWARDS, ET AL 

Defendants-Appellees, 

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

MEMORANDUM IN SUPPORT OF 
OPPOSITION TO PLAINTIFFS-APPELLANTS' MOTION 
FOR AN INJUNCTION PENDING APPEAL OR, IN THE 
ALTERNATIVE, FOR ISSUANCE OF THE MANDATE  

In this case the district court granted .a 

12(b)6 motion. Following a decision by this Court to 

reverse and remand, Defendants-Appellees filed a motion 

for a rehearing by the panel as well as a suggestion 

for rehearing en banc, neither of which have been acted 

upon, as of the date of this Memorandum. Meanwhile, 

Plaintiffs-Appellants have moved for an injunction 

pending appeal or, in the alternative, for issuance of 

the mandate. This memorandum expresses the reasons why 

Defendants-Appellees oppose the motion. 



I. Any Request for a Preliminary Injunction Should  
First be Presented to the District Court,  

and Issuance of the Mandate is Inappropriate  
During the Pendency of a Petition for Rehearing  

Rule 8(a) provides, in pertinent part: 

[Mn order granting an injunction 
during the pendency of an appeal must 
ordinarily be made in the first instance in 
the district court. A motion for such relief 
may be made to the court of appeals or to a 
judge thereof, but the motion shall show that 
application to the district court for the 
relief sought is not practicable, or that the 
district court has denied an application, or 
has failed to afford the relief which the 
applicant requested, with the reasons given 
by the district court for its action. 

Since the Court's decision to reverse and 

remand, no injunctive relief has been sought in the 

court below. Rule 8(a) clearly makes such requested 

relief in the dis\trict court a condition precedent to 

an application for such injunctive relief in this 

Court. 

Rule 41(b) provides, in pertinent part: 

The timely filing of a petition for rehearing 
will stay the mandate until disposition of 
the petition unless otherwise ordered by the 
court. If the petition is denied, the 
mandate shall issue 7 days after entry of the 
order denying the petition unless the time is 
shortened or enlarged by order. 

The correlation between injunctive relief and mandate 

is best set forth in the case of United States v.  

El-O-Pathic Pharmacy, 192 F.2d 62 (9th Cir. 1951), 

where, following a complete trial on the merits, even 



though the Court believed the United States was 

entitled to immediate relief by way of a temporary 

injunction, the Court nevertheless held: 

We are of the opinion that upon the 
showing made by the United States, it is 
entitled to immediate relief by way of a 
temporary injunction which, as this court's 
opinion discloses, is required in the 
interest of the protection of the public. 

* * * 

However, we do not find it desirable that the 
mandate issue forthwith in view of the fact 
that the time for filing petition for 
rehearing has not expired. We should hesitate 
to issue a mandate knowing that at the time 
it is issued we might have to recall it in 
order to entertain any petition for 
rehearing. 

Under Rule 62, Rules of Civil Procedure, 
28 U.S.C.A., two modes of procedure are open 
to the appellant neither of which involves a 
shortening of the time for the issuance of 
the mandate. Subdivision (c) of Rule 62 
authorizes the district court to grant an 
injunction during the pendency of an appeal. 
Subdivision (g) of the same Rule recognizes 
the power of this court to grant an 
injunction during the pendency of the appeal 
here. 

The motion of the United States is not 
in terms, an application for an injunction by 
this court, and it should not be entertained 
as such a motion not only because it does not 
seek such relief but also because this court 
is not as well equipped as is the district 
court to enforce an injunction of the type 
here sought. Because the United States may 
obtain an injunction pending the time until 
mandate shall have reached the district court 
upon application to that court under Rule 
62(c), we deny the motion that mandate be 
issued forthwith. 



It is of course generally the rule that 
when an appeal is perfected the district 
court loses jurisdiction to take further 
action in the cause, but subdivision (c) of 
Rule 62 is an exception to that general rule 
and a recognition of the long established 
right of the trial court, after an appeal, to 
make orders appropriate to preserve the 
status quo while the case is pending in the 
appellate court. Newton v. Consolidated Gas 
Co. of New York, 258 U.S. 165, 177, 42 S.Ct. 
264, 66 L.Ed. 538. 

Under the old equity rule 74, 28 
U.S.C.A. Appendix, 226 U.S. 670, the trial 
judge was permitted to make such an order 
when he allowed the appeal, "at the time of 
such allowance". Subdivision (c) of Rule 62, 
omits reference to any specific time when the 
district court may grant such an injunction, 
and we think that under common principles of 
construction, this authority of the district 
court must now be held to continue throughout 
the period when the appeal is pending. Such 
injunction must be supported by appropriate 
showing and findings. Mayflower Industries 
v. Thor Corporation, 3 Cir., 182 F.2d 800. 
* * * 

Accordingly the motion that mandate be 
issued forthwith is denied without prejudice 
to the right of appellant hereafter to make 
application to this court for such further 
order as it may hereafter be advised to seek. 

Id. at 79-80. 

This El-O-Pathic Pharmacy case was cited in 

the case of Armstrong v. Board of Education of City of  

Birmingham, Ala, 323 F.2d 333 (5th Cir. 1963) at 343 

(dissent by Judge Gewin). Although it is better 

perhaps to find something to cite in a majority opinion 

than in a dissenting opinion, Judge Gewin's admonition 

(specifically to this issue) is well taken, otherwise 

the case teaches us nothing to help here, one way or 



5 

the other. In the Armstrong case, the district judge 

believed that state administrative remedies needed to 

be exhausted first. The majority opinion, however, 

believed that such an approach was contrary to reported 

decisions of the Fifth Circuit. 

Although the case dealt with the All-Writs 

Act, this Court, in discussing Rule 8, stated: 

In effect the relief sought is the 
suspension of an injunction. No application 
has been made to a district court, as 
required by. Rule 8, Federal Rules of 
Appellate Procedure. The argument is made 
that it would be vain to do so because of the 
action taken by the District Court for the 
Southern District of Texas in another matter. 
That, however, is not an adequate reason for 
noncompliance with Rule 8. 

As an appellate court, we cannot take 
evidence or hear matters initially. We are 
dependent entirely on the record made in a 
trial court. None has been made. Miller v. 
Connally, 354 F.2d 206 (5th Cir. 1963). All 
parties agree that the Texas Department of 
Corrections made a change in its policy on 
May 18, 1982, after this emergency petition 
was filed. We lack evidence of the effect of 
that change. 

Moreover, even if our jurisdiction were 
properly invoked, it is well settled that 
relief under the All-Writs Act is not 
available unless the applicant has shown that 
he has no other adequate remedy. In re 
Chicago, R.I. & P.Ry., 255 U.S. 273, 41 S.Ct. 
288, 65 L.Ed. 631 (1921); Noble v. Eicher, 
143 F.2d 1001 (D.C.Cir. 1944) (per curiam). 

In Re Montes, 677 F.2d 415, 416 (5th Cir. 1982). 

Injunctive relief is best considered and, if 

applicable, granted by a court of original jurisdiction 



6 

[particular here where the case rests in a factual 

vacuum]. In fine, the problem is not whether this 

injunction question seems appropriate for this Court's 

attention, rather, it is whether injunctive questions 

of this nature would retard the Court's ability to 

perform its heavy appellate responsibility. If so, it 

becomes inappropriate to use this Court as a forum of 

first impression for the adjudication of this 

injunction dispute. In resolving that basic 

jurisprudential concept of inappropriateness, the 

availability of another forum, where all the injunctive 

issues can be raised and determined, should play a 

decisive role. 

This Court is structured to perform as an 

appellate tribunal, and, therefore, ill-equipped for 

the task of fact-finding. Where it is called upon to 

determine the propriety of an injunction pending 

appeal, it must awkwardly engage in a fact-finding role 

without actually presiding over the introduction of 

evidence. 

II. Prior Voting Rights Cases Involving Requests  
for a Preliminary Injunction Make Clear the  

Impropriety of Such an Injunction Here  

"Injunctive relief is an extraordinary and 

drastic remedy, not to be granted routinely, but only 

when the movant, by a clear showing, carries the burden 

of persuasion." Holland American Insurance Co. v.  



7 

Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985); 

Canal Authority of State of Florida v. Callaway, 489 

F.2d 567 (5th Cir. 1974). 

The plaintiffs would have this Court believe 

that a preliminary injunction bringing state election 

processes to a screeching halt is a common and accepted 

practice. After all, as the plaintiffs quote, the 

Supreme Court stated in Reynolds v. Sims, 377 U.S. 533 

(1964), that "it would be the unusual case in which a 

court would be justified in not taking appropriate 

action to insure that no further elections are  

conducted under the invalid plan." Plaintiffs' Brief 

at 14-15, quoting 377 U.S. at 585 (emphasis in 

Plaintiffs' Brief). The plaintiffs, however, 

overlooked the all-important prefatory language in the 

same sentence. The entire sentence reads: 

It is enough to say now that, once a State's  
legislative apportionment scheme has been  
found to be unconstitutional, it would be the 
unusual case in which a court would be 
justified in not taking appropriate action to 
insure that no further elections are 
conducted under the invalid plan. 

(emphasis supplied). 

Of course, there has been no finding of 

unconstitutionality here. Instead, this case is at its 

most preliminary stage. The Supreme Court in Reynolds  

went on to counsel caution in determining whether to 



8 

enjoin an election even when an existing electoral plan 

had been found invalid: 

However, under certain circumstance, such as 
where an impending election is imminent and a 
•State's election machinery is already in 
progress, equitable considerations might 
justify a court in withholding the granting 
of immediately effective relief in a 
legislative apportionment case, even though 
the existing apportionment scheme was found 
invalid. In awarding or withholding 
immediate relief, a court is entitled to and 
should consider the proximity of a 
forthcoming election and the mechanics and 
complexities of a state election laws, and 
should act and rely upon general equitable 
principles. With respect to the timing of 
relief, a court can reasonably endeavor to 
void a disruption of the election process 
which might result from requiring precipitate 
changes that could make unreasonable or 
embarrassing demands on a state in adjusting 
to the requirements of the court's decree. 
As stated by Mr. Justice Douglas, concurring 
in Baker v. Carr, "any relief accorded can be 
fashioned in the light of well-known 
principles of equity." 

We feel that the District Court in this case 
acted in a most proper and commendable 
manner. It initially acted wisely in 
declining to stay the impending primary 
election in Alabama, and properly refrained 
from acting further until the Alabama 
Legislature had been given an opportunity to 
remedy the admitted discrepancies in the 
State's legislative apportionment scheme, 
while initially stating some of its views to 
provide guidelines for legislative action. 
And it correctly recognized that legislative 
reapportionment is primarily a matter for 
legislative consideration and determination, 
and that judicial relief becomes appropriate 
only when a legislature fails to reapportion 
according to federal constitutional 
requisites in a timely fashion after having 
had an adequate opportunity to do so. 

Id. at 585-86. 



9 

If the Supreme Court expressed reluctance to 

enjoin elections when "the existing apportionment 

scheme was found invalid," certainly to grant an 

injunction here during the initial stages of pleading 

is inappropriate. In the panel opinion this Court 

merely held inappropriate a dismissal based on Rule 

12(b)(6) of the Federal Rules of Civil Procedure. 

Justice Black demonstrated an unwillingness 

to approve interference with state elections in Oden v.  

Brittain, 396 U.S. 1210 (1969). There he denied an 

injunction sought by blacks against an imminent local 

election, commenting that "[Unterference by federal 

courts in state elections has always been a serious 

business." Id. at 1211. 

As Section I of this brief points out, an 

injunction should be first sought in the district 

court. For that reason most of the decisions involving 

injunctive relief are district court decisions. In 

Dillard v. Crenshaw County, 640 F. Supp. 1247 (M.D. 

Ala. 1986), a group of black citizens sought injunctive 

relief pursuant to § 2 of the Voting Rights Act. 

Dillard involved an action challenging at-large systems 

used to elect county commissioners in Alabama. There 

the court agreed that .the plaintiffs had proven a 

likelihood of success on the merits, and that their 

prima facie case had been unrebutted. Nevertheless, 



- 10 - 

the court refused to enjoin or postpone scheduled 

elections, stating: 

The court does not wish to be left in the 
position of having either to extend the terms 
of incumbents or to appoint temporary 
replacements to serve until the new plans are 
in place. Both alternatives would 
effectively deny the entire electorate the 
right to vote and thus seem to offend basic 
principles of representative government. 

Id. at 1363. 

Banks v. Board of Education, 659 F. Supp. 394 

(C.D. Ill. 1987), also involved a request for 

injunctive relief pursuant to § 2. This was a class 

action on behalf of all blacks registered or eligible 

to register to vote challenging election procedures for 

several local bodies in the Peoria, Illinois, area. 

Once again the district court refused to enjoin an 

election, holding as follows: 

Assuming, however, that the Plaintiffs could 
show a reasonable likelihood of success in 
proving their voting rights claim prior to 
the April 7 election, the Court would not be 
in a position to remedy this possible 
violation until it had made a decision after 
a complete trial on the merits and had the 
opportunity to consider possible forms of 
relief. Thus, if the Court were to enjoin 
the April 7 election, the Court would 
necessarily have to extend the terms of the 
present office holders until after a trial is 
held (and, if Plaintiffs prevailed at the 
trial, until after implementing a new 
election system). In the meantime, the black 
voters of Peoria would be no better off 
because they would still be represented by 
the public officials currently in office, 
elected under the system they claim is 
illegal. On the other hand, enjoining the 



April 7 election would have the effect of 
preventing all of the voters in the 
respective election districts from exercising 
their right to vote and elect new 
representatives this year. Moreover, if the 
Court were to find that the Plaintiffs did 
not prove their voting rights claim at trial, 
the Court would have to either order a 
special election to replace the enjoined 
April 7 election or allow the present 
candidates to remain in office an even 
greater length of time. While none of these 
alternatives presents a perfect solution to 
the problem facing the Court, the Court 
believes that the best answer is to allow the 
election of April 7 to go forward so that the 
public officials whose terms are due to 
expire can be replaced and so that the 
election procedures, already substantially in 
place, will not be disrupted or made useless. 

The Plaintiffs argue that elected 
officials who have been elected under an 
unlawful system have no right to be office 
holders, and candidates do not have a right 
to compete in unlawful elections. This 
presupposes that the election system 
currently in place for members of the Park 
District Board, Board of Education, and City 
Council are in violation of the Voting Rights 
Act. As this Court has already mentioned, 
the most that the Plaintiffs could prove 
prior to the april 7 election would be that 
they would likely prevail in a trial on the 
merits of their voting rights claim. Because 
this element of uncertainty would exist even 
if the Court were• to hear evidence on the 
Plaintiffs' request for preliminary 
injunction, the Court decides that it is a 
better practice to go ahead with the election 
procedures already in place to replace the 
office holders whose terms will expire. If, 
after a trial on the merits, the Court 
decides that the election system in place 
violates the Voting Rights Act, the Court can 
decide how to deal with the people who have 
been elected to these offices at that time. 

* * * 



- 12 - 

The proper focus of this decision is 
upon the balancing of the equities in which a 
court must engage in deciding a request for a 
preliminary injunction, as well as the public 
interest which is affected by such a remedy. 
The right of a person to vote for his or her 
representatives in Government, and to have 
that vote count the same as everyone else's 
vote, is a foundation upon which all the 
other rights and liberties of this country 
are based. The Court must treat any 
allegations that such rights are being 
violated very seriously. But in its 
eagerness to make sure that one group's 
voting rights are not being violated, the 
Court must also be cautious not to 
unnecessarily upset the established election 
process. In this case, granting a 
preliminary injunction against the April 7, 
1987 election, regardless of the merits of 
the Plaintiffs' Complaint, would not serve 
the public interest because it would disrupt 
an election process already well advanced 
toward election day and deprive all of the 
citizens of the respective voting districts 
of their right to replace public officials 
whose terms will be expiring soon. 

Id. at 403-404. 

The district court also denied an injunction 

in Knox v. Milwaukee County Board of Election  

Commissioners, 581 F. Supp. 399 (E.D. Wis. 1984). The 

court noted in that § 2 case that an injunction would 

disenfranchise nearly one million voters. The court 

concluded "that the prejudice created by an injunction 

here would be of the highest magnitude." Id at 405. 

The plaintiffs cite one case from this Court 

supporting their right to preliminary injunction. 

Watson v. Commissioners Court of Harrison County, 616 

F.2d 105 (5th Cir. 1980). That case, however, was a 



-• 13 - 

reapportionment case brought under the Fourteenth 

Amendment, the Fifteenth Amendment, 42 U.S.C. § 1983, 

and § 5 of the Voting Rights Act. A complaint had been 

filed in 1975 attacking a reapportionment plan for 

County Commissioners in Harrison County, Texas. In 

1977 the Justice Department also objected to the plan. 

This Court in a 1980 decision agreed that an election 

should be enjoined, noting that "[ilf an election were 

held as planned, it would be based on the 1965 

reapportionment plan, which all the parties and the 

Court seem to agree is unconstitutional." Id. at 107. 

Thus, in Watson there was agreement by all parties that 

the current plan of apportionment was unconstitutional, 

and the Justice Department had disapproved the 1975 

plan. The Court held that there could be no delay in 

reapportionment "[i]n the peculiar circumstances of 

this case." Id. No such "peculiar circumstances" have 

been shown here in this § 2 case. 

The plaintiffs also cite Harris v. Graddick, 

593 F. Supp. 128 (M.D. Ala. 1984), a case in which a 

preliminary injunction was granted in a § 2 dispute. 

Plaintiffs do not mention, however, that the injunction 

merely required appointment of more black poll 

officials. 

the relief 

state. and 

The district court specifically found that 

"will not disrupt or unreasonably burden the 

county political process." Id. at 135. 



- 14 - 

Appointment of more polling officials is certainly a 

much less drastic step than enjoining a pending 

election for the highest judicial body in a state. 

Finally, a preliminary injunction was granted 

in an apportionment case involving boards of 

supervisors in several counties in Mississippi in Cook  

v. Luckett, 575 F. Supp. 479 (S.D. Miss. 1983). The 

injunction was not granted until after an evidentiary 

hearing, and the court found that "(a111 of the 

defendant boards of supervisors admitted, either in 

their answer, in their briefs, or at the hearing, that 

they were aware that the districts of their county were 

malappotioned." Id. at 481. The court also 

specifically found that 1980 census figures had been 

available for two years, yet none of the counties had 

submitted plans for redistricting to the Attorney 

General for pre-clearance. Of course, this is not an 

apportionment case, nor has there been any admission of 

wrongdoing. 

III. The Doctrine of Laches Militates Against  
Granting of a Preliminary Injunction Here  

The plaintiffs argue that a preliminary 

injunction is now necessary because the defendants have 

allegedly "dragged their feet" in this lawsuit; in 

fact, the opposite is true--because of the plaintiffs 

delay in bringing this suit, they are not entitled to a 



- 15 - 

preliminary injunction. An affidavit of former counsel 

of record for defendants, Kendall L. Vick, Esq., points 

out that the State has not delayed this matter and has 

instead "made every reasonable effort to expedite 

proceedings in this case." In fact, the defendants did 

not oppose the plaintiffs' motion for expedited 

hearing. The only reason Mr. Vick attempted to 

reschedule the oral argument was because he was 

planning to be out of the country on the scheduled 

date. When he found out that, if postponed, the 

argument could not occur until one month later, he 

withdrew his motion. Finally, the only reason why an 

extension of time was necessary for the petition for 

rehearing was because of the need for substitute 

counsel when he departed from the Louisiana Department 

of Justice. 

Rather than the defendants delaying, the 

plaintiffs have delayed. This action could have been 

filed any time since 1965 when the Voting Rights Act 

was passed, or, at any rate, any time after its 

amendment in 1982. A district court held that a 

preliminary injunction in a voting rights case was 

barred by laches because "[n]o reason appears why the 

complaint could not have been filed last year." 

Pohoryles v. Mandel, 312 F. Supp. 334 (D. Md. 1970). 

Here, of course, there is no reason that the complaint 



- 16 - 

could not have been filed several years ago, so that 

there would be plenty of time for pleadings to be 

filed, discovery to be taken, a trial on the merits, 

and any necessary appeals. 

IV. The Issuance of an Immediate Mandate  
Will Substantially Prejudice  

Defendants-Appellees' Procedural Remedies  

Plaintiffs-Appellants, in Memorandum Page 19, 

state: 

. .[I]f this Court were to rule 
immediately on the State's pending petitions, 
the State might still petition for 
certiorari. The mandate will automatically be 
stayed for an additional 30 days to give the 
State an opportunity to prepare its petition, 
see Fed. R. App. P. 41. 

FRAP 41(b) reads: 

Stay of Mandate Pending Application for 
Certiorari. A stay of the mandate pending 
application to the Supreme Court for a writ 
of certiorari may be granted upon motion, 
reasonable notice of which shall be given to 
all parties. The stay shall not exceed 30 
days unless the period is extended for cause 
shown. If during the period of the stay 
there is filed with the clerk of the court of 
appeals a notice from the clerk of the 
Supreme Court that the party who has obtained 
the stay has filed a petition for the writ in 
that court, the stay shall continue until 
final disposition by the Supreme Court. Upon 
the filing of a copy of an order of the 
Supreme Court denying the petition for writ 
of certiorari the mandate shall issue 
immediately. A bond or other security may be 
required as a condition to the grant or 
continuance of a stay of the mandate. 

FRAP 41(a) provides that upon the timely filing of the 

petition for rehearing, mandate is stayed and that if 



- 17 - 

1 

the petition is denied, the mandate shall issue seven 

days after the entry of the order denying the petition 

unless the time is shortened or enlarged by order. In 

the event the mandate is issued forthwith, i.e. the 

seven day period is shortened to zero, then 

Defendants-Appellees would be deprived of their 

procedural remedy of seeking a .stay of mandate pending 

the filing of their writs of certiorari to the United 

States Supreme Court within the applicable thirty day 

period of time. It is self-evident that this case is 

one which will make a substantial impact on all of the 

states which have elective judiciary provisions in 

their statutes. ' The application of the Civil Rights 

Act to the judiciary will obviously be an issue of 

national public importance and one concerning which the 

United States Supreme Court has not previously had an 

opportunity to consider. For these compelling reasons 

an instantaneous mandate should not be issued. 

V. Louisiana Supreme Court Selection  
Provisions in its Constitution  

Louisiana has had eleven State Constitutions. 

As they relate to the issue here, they provide: 

1812 Constitution  

Art. 3, 5 9 Governor nominates and appoints with 
advice and consent of Senate. 

Art. 4, 5 3 Supreme Court consists of not less than 
three and not more than five justices. 



- 18 - 

Art. 4, § 5 Justices hold office for good behavior. 
No geographic requirements. 

1845 Constitution  

Art. 50 Governor nominates and with advice and 
consent of Senate appoints all offices under 
Constitution. 

Art. 64 One Chief Justice and three Associate 
Justices. Supreme Court holds office for eight 
years. No geographic requirements. 

1852 Constitution  

Art. 63 Supreme Court elected for ten year periods. 

Art. 64 Chief Justice elected at large. Describes 
geographic districts for four Associate Justices. 

"First District The parishes of 
Plaquemines, Saint Bernard, that portion of 
the Parish of Orleans on the right bank of 
the Mississippi River, and that portion of 
the city of New Orleans which lies below the 
line extending from the river Mississippi, 
along the middle of Julia street, until it 
strikes the New Orleans Canal, and thence 
down said canal to the lake. 

Second District - That portion of the city of 
New Orleans which is situated above the line 
extending along the middle of Julia street 
until it strikes the New Orleans Canal, and 
thence down said canal to the lake, and the 
Parishes of Jefferson, Saint John the 
Baptist, Saint Charles, Saint James, 
Ascension, Assumption, La Fourche Interior, 
Terre Bonne, West Baton Rouge, and Iberville. 

Third District - The parishes of Saint 
Tammany, Washington, Livingston, Saint 
Helena, East Baton Rouge, East Feliciana, 
West Feliciana, Point Coupee, Avoyeles, 
Tensas, Concordia, La Fayette, Vermillion, 
Saint Mary, Saint Martin, and Saint Landry. 

Fourth District - The parishes of Calcasieu, 
Rapides, Sabine, Natchitoches, De Soto, Caddo 
Bossier, Claiborne, Bienville, Caldwell, 
Union, Ouachita, Morehouse, Jackson, 



- 19 - 

Franklin, Catahoula, Madison, Carroll, and 
Winn." 

1861 Constitution  

Replaces "United States" with "Confederate States" 

1864 Constitution  

Art. 71 One Chief Justice and four Associate 
Justices. 

• 
Art. 79 Governor appoints Justices with advice and 

consent of Senate for eight year terms. No 
geographic requirements. 

1868 Constitution  

Art. 75 Chief Justice and four Associate Justices are 
appointed by Governor with advice and consent of 
Senate for eight years. No geographic 
requirements. 

1879 Constitution  

Art. 82 Chief Justice and four Associate Justices 
appointed by Governor with advice and consent of 
Senate. Initially staggered terms and then twelve 
year terms. 

Art. 83 Describes four geographic districts with two 
justices from one district,. 

• • • • The parishes of Orleans, St. John 
the Baptist, St. Charles, St. Bernard, 
Plaquemines and Jefferson shall compose the 
first district, from which two judges shall 
be appointed. 

The parishes of Caddo, Bossier, Webster, 
Bienville, Claiborne, Union, Lincoln, 
Jackson, Caldwell, Ouachita, Morehouse, 
Richland, Franklin, West Carroll, Est 
Carroll, Madison, Tensas and Catahoula shall 
compose the second district, from which one 
judge shall be appointed. 

The parishes of DeSoto, Red River, Winn, 
Grant, Natchitoches, Sabine, Vernon, 
Calcasieu, Cameron, Rapides, Avoyelles, 
Concordia, Pointe Coupee, West Baton Rouge, 



- 20 - 

iberville, St. Landry, Lafayette and 
Vermilion shall compose the third district, 
from which one judge shall be appointed. 

And the parishes of St. Martin, Iberia, St. 
Mary, Terrebonne, Lafourche, Assumption, St. 
James, Ascension, East Baton Rouge, East 
Feliciana, West Feliciana, St. Helena, 
Livingston, Tangipahoa, St. Tammany and 
Washington shall compose the fourth district, 
from which one judge shall be appointed." 

1898 Constitution  

Art. 86 Chief Justice and four Associate Justices 
appointed by Governor with advice and consent of 
Senate. Twelve year terms. 

Art. 86 1904 Amendment Elected for twelve years 
terms. 

Art. 87 Describes four geographic districts with two 
justices from one district. 

• • .The parishes of Orleans, St. John the 
Baptist, St. Charles, St. Bernard, 
Plaquemines, and Jefferson shall compose the 
first district, from which two justices shall 
be appointed. 

The parishes of Caddo, Bossier, Webster, 
Bienville, Claiborne, Union, Lincoln, 
Jackson, Caldwell, Ouachita, Morehouse, 
Richland, Franklin, West Carroll, East 
Carroll, Madison, Tensas, Concordia, and 
Catahoula, shall compose the second district, 
from which one justice shall be appointed. 

The parishes of DeSoto, Red River, Winn, 
Grant, Natchitoches, Sabine, Vernon, 
Calcasieu, Cameron, Rapides, Avoyelles, 
Pointe Coupee, West Baton Rouge, iberville, 
St. Landry, Acadia, Lafayette, and Vermilion, 
shall compose the third district, from which 
one justice shall be appointed. 

The parishes of St. Martin, Iberia, St. Mary, 
Terrebonne, Lafourche, Assumption, Ascension, 
St. James, East Baton Rouge, East Feliciana, 
West Feliciana, St. Helena, Livingston, 
Tangipahoa, St. Tammany, and Washington shall 



- 21 - 

compose the fourth district, from which one 
justice shall be appointed." 

1913 Constitution  

Art. 86 Chief Justice and four Associate Justices 
elected for twelve year terms. 

Art. 87 Describes four geographic districts with two 
justices from one district. 

. . .The parishes of Orleans, St. John the 
Baptist, St. Charles, St. Bernard, 
Plaquemines, and Jefferson shall compose the 
first district, from which two justices shall 
be appointed. 

The parishes of Caddo, Bossier, Webster, 
Bienville, Claiborne, Union, Lincoln, 
Jackson, Caldwell, Ouachita, Morehouse, 
Richland, Franklin, West Carroll, East 
Carroll, Madison, Tensas, Concordia, and 
Catahoula, shall compose the second district, 
from which one justice shall be appointed. 

The parishes of DeSoto, Red River, Winn, 
Grant, Natchitoches, Sabine, Vernon, 
Calcasieu, Cameron, Rapides, Avoyelles, 
Pointe Coupee, West Baton Rouge, iberville, 
St. Landry, Acadia, Lafayette, and Vermilion, 
shall compose the third district, from which 
one justice shall be appointed. 

The parishes of St. Martin, Iberia, St. Mary, 
Terrebonne, Lafourche, Assumption, Ascension, 
St. James, East Baton Rouge, East Feliciana, 
West Feliciana, St. Helena, Livingston, 
Tangipahoa, St. Tammany, and Washington shall 
compose the fourth district, from which one 
justice shall be appointed." 

1921 Constitution  

Art. 7, § 4 Chief Justice and six Associate 
Justices. 

Art. 7, § 6 Fourteen year terms. 

Art. 7, § 7 Are elected by geographic districts 
with two justices from one district. 



- 22 - 

Art. 7, .5 9 Describes six geographic districts with 
two justices from one district. 

"First district. The parishes of Orleans, 
St. Bernard, Plaquemines and Jefferson shall 
compose the First District, from which two 
justices shall be elected. 

Second district. The parishes of Caddo, 
Bossier, Webster, Claiborne, Bienville, 
Natchitoches, Red River, DeSoto, Winn, Vernon 
and Sabine shall compose the Second District, 
from which one justice shall be elected. 

Third district. The parishes of Rapides, 
Grant, Avoyelles, Lafayette, Evangeline, 
Allen, Beauregard, Jefferson Davis, 
Calcasieu, Cameron, and Acadia shall compose 
the Third District, from which one justice 
shall be elected. 

Fourth district. The parishes of Union, 
Lincoln, Jackson, Caldwell, Ouachita, 
Morehouse, Richard, Franklin, West Carroll, 
East Carroll, Madison, Tensas, Concordia, La 
Salle, and Catahoula shall compose the Fourth 
District, from which one justice shall be 
elected. 

Fifth district. The parishes of East Baton 
Rouge, West Baton Rouge, West Feliciana, East 
Feliciana, - St. Helena, Livingston, 
Tangipahoa, St. Tammany, Washington, 
Iberville, Pointe Coupee and St. Landry shall 
compose the Fifth District, from which one 
justice shall be elected. 

Sixth district. The parishes of St. Martin, 
St. Mary, Iberia, Terrebonne, Lafourche, 
Assumption, Ascension, St. John the Baptist, 
St. James, St. Charles and Vermilion shall 
compose the Sixth District, from which one 
justice shall be elected. 

1974 Constitution  

Art. 5, § 3 Chief justice and six Associate 
Justices. Ten year terms. 

Art. 5, § 4 Retains existing districts subject to 
change by 2/3rds of each house of the Legislature. 



- 23 - 

As may be readily seen six of Louisiana's 

constitutions have provided for a judicially appointed 

system while an 

elective system. 

Appointive System 

equal number have provided 

1812 Constitution 
1845 Constitution 
1864 Constitution 
1868 Constitution 
1879 Constitution 
1898 Constitution 
[after 1904 Amendment] 

Elective System 

for 

1852 Constitution 
1861 Constitution 
1898 Constitution 
[after 1904 Amendment] 
1913 Constitution 
1921 Constitution 
1974 Constitution 

an 

In their Motion, Affidavits, and Memorandum, 

Plaintiffs-Appellants presuppose they would prevail and 

their success will result in the creation of two 

districts out of the First District where Orleans 

Parish would be one district and the remaining 

parishes, now constituting the First District, would be 

in the Second District. These are: St. Bernard, 

Plaquemines and Jefferson; however, as can be seen in 

the 1852 Constitution, it is certainly possible to 

*divide Orleans Parish as between two (or more) 

districts. There is currently pending in the 1988 

Legislative Session for Louisiana a Bill which would do 

precisely that, see attached copy of HLS 88-1924 

Regular Session, 1988, House Bill No. 1630, 

Representative Bruneau. As seen, under the 1974 

Constitution, the judiciary district lines may be 

altered by a two-thirds vote of each House. 



- 24 - 

Additionally, it is certainly conceivable that 

Louisiana might decide to change from an elected 

judiciary system to an appointive system, or some other 

system in whole or by combination as adopted by other 

states. Of course, to effectuate this change a 

constitutional amendment. would be required. 

Louisiana's constitutional amendment scheme is not a 

simple one. 

Article XIII. Constitutional Revision 

Section 1 Amendments. 

Section 1. (A) Procedure. An amendment to 
this constitution may be proposed by joint 
resolution at any regular session of the 
legislature, but the resolution shall be 
prefiled, at least ten days before the 
beginning of the session, in accordance with 
the rules of the house in which introduced. 
An amendment to this constitution may be 
proposed at any extraordinary session of the 
legislature if it is within the objects of 
the call of the session and is introduced in 
the first five calendar days thereof. If 
two-thirds of the elected members of each 
house concur in the resolution, pursuant to 
all of the procedures and formalities 
required for passage of a bill except 
submission to the governor, the secretary of 
state shall have the proposed amendment 
published once in the official journal of 
each parish within not less than thirty nor 
more than sixty days preceding the election 
at which the proposed amendment is to be 
submitted to the electors. Each joint 
resolution shall specify the statewide 
election at which the proposed amendment 
shall be submitted. Special elections for 
submitting proposed amendments may be 
authorized by law. 

(B) Form of Proposal. A proposed amendment 
shall be a title containing a brief summary 



- 25 - 

of the changes proposed; shall be confined 
to one object; and shall set forth the 
entire article, or the sections or other 
subdivisions thereof, as proposed to be 
revised or only the article, sections, or 
other subdivisions proposed to be added. 
However, the legislature may propose, as one 
amendment, a revision of an entire article of 
this constitution which may contain multiple 
objects or changes. A section or other 
subdivision may be repealed by reference. 
When more than one amendment is submitted at 
the same election, each shall be submitted so 
as to enable the electors to vote on them 
separately. 

(C). Ratification. If a majority of the 
electors voting on the proposed amendment 
approve it, the governor shall proclaim its 
adoption, and it shall become part of this 
constitution, effective twenty days after the 
proclamation, unless the amendment provides 
otherwise. A proposed amendment directly 
affecting not more than five parishes or 
areas within not more than five parishes 
shall become part of this constitution only 
when approved by a majority of the electors 
voting thereon in the state and also a 
majority of the electors voting thereon in 
each affected parish. However, a proposed 
amendment directly affecting not more than 
five municipalities, and only such 
municipalities, shall become part of this 
constitution only when approved by a majority 
of the electors voting thereon in the state 
and also a majority of the electors voting 
thereon in each such municipality. 

To restructure the election selection system 

in all the states is a vast undertaking. This would 

encompass thirty-eight states for, as of March 4th, 

1.986, the judiciary selection method in the states was 

as follows: 



11111 11111 11111 NM MB 

Judicial Selection Methods in the States* 

EN EN 11111 NE 11111 MIN NS El 11111 an 

Partisan 
Election  

ALABAMA 

Arizona (J) 

ARKANSAS 

Connecticut (P) 

Georgia (j *P) 

ILLINOIS (R) 

Indiana 

Kansas (D)1 

Maine(P) 

Maryland (P) 

MISSISSIPPI 

2 
Missouri 

NEW MEXICO 

New York 

North Carolina 

PENN. (R) 

South Carolina (P) 

Tennessee 

TEXAS 

WEST VIRGINIA 

Nonpartisan 
Election 

Arizona (S)3 

(S) 
California 

Florida 

Georgia 

IDAHO4 

Indiana (R) 

KENTUCKY 

LOUISIANA 

MICHIGAN 

MINNESOTA 

MONTANA (R)4 

NEVADA 

NORTH DAKOTA 

OHIO 

1 
Oklahoma 

OREGON 

South Dakota 

Utah (J)8 

WASHINGTON 

WISCONSIN 

(J) Wyoming 

' Missouri 
Plan** 

ALASKA 

Arizona (A.S.) 

COLORADO 

Florida (A) 

Indiana 

IOWA 

Kansas 

Maryland (A) 

Missouri 

NEBRASKA 

Oklahoma10 

South Dakota (A) 

Tennessee 11 

Utah 

Wyoming 

Gubernatorial 
Appointment***  

California 

DELAWARE (N) 

HAWAII (N)12 

Indiana (N)12 

Maine 

Maryland (N.R)14 

MASS. (N) 

NEW HAMP. 

NEW JERSEY 

New York (A.N)15 

North Carolinal6 

Rhode Island (N) 

South Carolina l7 

VERMONT (N) 

Legislative 
Election 

Connecticut 

Rhode Island18 

South Carolina 

VIRGINIA 



- 27 - 

Key to Symbols: 

(A) appellate courts; (D) district courts; (J) justice 
of peace courts; (P) probate courts; (S) superior 
courts; (R) judges face periodical noncompetitive 
retention election; (N) NOMINATING COMMISSION USED. 

States in CAPITAL LETTERS appear in only one 
column. 

** 

by 

* * * 

Nomination by nonpartisan commission, appointment 

governor and retention through nonpartisan, 
noncompetitive election. 

Initial selection only: governors in 19 other 
states appoint judges only to interim vacancies 
occurring between regular elections. 

1. In districts not adopting the Missouri Plan. 

2. The Missouri Plan has been adopted in only five of 
the 44 judicial circuits. 

3. In counties with a population of less than 150,000 
which do not adopt the Missouri Plan. 

4. Magistrates of the Magistrates Division of the 
District Court are appointed to an 18-month term 
by district magistrates commissions and thereafter 
run for four-year terms in noncompetitive 
retention elections. magistrates can be removed 
any time during the 18-month term by vote of a 
commission. 

5. 

6. 

7. 

8. 

Vanderburgh County Circuit Court only. 

Retention election only if unopposed for office. 

Court of Appeals and District Courts. 

County justices only; municipal 
mayorally appointed with confirmation of 

justices 
council. 

9. Superior Court only in Allen, Lake, St. Joseph and 
Venderburgh Counties. 

10. Supreme Court and Court of Criminal Appeals. 

11. Court of Appeals and Court of Criminal Appeals. 



- 28 - 

12. Chief Justice makes appointments to district 
courts. 

13. Marion County Municipal Court. 

14. Governor makes appointments to district courts and 
generally to the Circuit Court and Supreme Bench 
of Baltimore City. Judges on the latter two 
courts must run for retention, can also be opposed 
and succeeded by other candidates. 

15. Also Court of Claims. 

16. Special judges of Superior Court. 

17. Magistrate Courts. 

18. Supreme Court. 

House No. 5492, The Commonwealth of Massachusetts,  

Legislative Research Council Report Relative to  

Judicial Selection in the United States, Page 28, Key 

to Symbols, Footnotes, Pages 28 and 29. 

Regardless of what system of judiciary 

selection Louisiana has, or will have, one can only 

hope that the judiciary standards should be no less 

than those set forth by Judge Hunter in Hunter, A 

Missouri Judge Views Judicial Selection and Tenure, 48 

J. Am. Jud. Soc'y, 126, 127 (1964) 

(1) The judicial, as contrasted with the 
legislative and executive branches of government, 
has no political purpose or political function to 
serve. Hence, politics has no proper place in the 
courts, and, if present, serves only to district 
from justice. 

(2) The judges of the courts should come 
from the ranks of our most able and most talented 
lawyers--from men chosen on the basis of personal 
integrity, impartiality, judicial temperament, 



- 29 - 

ability, legal training, and physical and mental 
vigor for the arduous work of the position. 

(3) These judges, after their selection, 
must be assured freedom from political influence 
and threat, and provided with reasonable security 
of tenure so long as they perform properly. 

(4) The system of seleation and tenure must 
be such as to free them from having to conduct 
campaigns or engage in time-consuming activities 
for their retention, and leave them free to do the 
one thing they are supposed to do--devote their 
full time to doing the work of a judge. 

If Louisiana, and the other states which 

select their judges by election are compelled to adopt 

a system of neighborhood judges, it will be the dawn of 

a new day for heretofore in its 200 year history this 

country has traditionally been blessed with judges who 

had no constituency except the unfranchised lady with 

the blindfold and scales. 

CONCLUSION  

Out of the Complaint, Motions, Briefs, and 

Decision on file in this proceeding emerges one overall 

conclusion: As presently structured this case is in a 

factual vacuum and is not an appropriate subject for 

the exercise of this Court's granting of "An Injunction 

Pending Appeal." 

Fortunately, there is one dominant reason for 

dismissing the pending motion, growing out 

that there is an available and adequate 

forum in which similar relief may be, and 

of the fact 

alternative 

should have 



- 30 - 

been initially, sought. The teachings of this Court 

tell us the reasons why, 

As an appellate court, we cannot take 
evidence or hear matters initially. We are 
dependent entirely on the record made in a 
trial court. None has been made. 

In Re Montes, 677 F.2d 415, 416 (5th Cir. 1982). 

Nor should an instantaneous mandate be 

issued, for this will ultimately be a case of first 

impression. On information and belief, 

Defendants-Appellees understand that the Ohio case 

Mallory V. Eyrich, 839 F.2d 275 (6th Cir. 1988) will 

not be taken to the Supreme Court of the United States 

- this one will. 

If neither the Rehearing Application nor the 

Suggestion for Rehearing En Banc produces a fruitful 

result, Defendants-Appellees should not be punished for 

having sought the same by being deprived of their right 

to at least seek a FRAP 41(b) stay. 

The Motion for an Injunction Pending Appeal 

or, in the Alternative, for Issuance of the Mandate as 

filed by the Plaintiffs-Appellants should be denied. 



- 31 - 

All of the above 

respectfully submitted. 

Dated: May 23rd, 1988. 

and foregoing is thus 

WILLIAM J. GUSTE, JR. 
ATTORNEY GENERAL 

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

(504) 568-5575 

M. TRUMAN WOODWARD, JR. 
209 Poydras Street 
New Orleans, LA 70130 
(504) 569-7100 

BLAKE G. ARATA 
201 St. Charles Avenue 
New Orleans, LA 70130 
(504) 582-1111 A /7 

By: 

Justice 
Floor 
70112 

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

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

BERT G. PUGH 
Lead Counsel 

330 Marshall Street, Suite 1200 
Shreveport, LA 71101 

(318) 227-2270 - 

SPECIAL ASSISTANT ATTORNEYS GENERAL 



HLS 88-1924 

Regular Session, 1988 

HOUSE BILL NO. 

REPRESENTATIVE BRUNEAU 

ORIGINAL 

COURTS/SUPREME COURT: Creates seven single-member districts for the 

supreme court 

1 AN ACT 

2 To enact R.S. 13:101.1 and to 'repeal R.S. 13:101, relative to the 

3 ' districts of the supreme court, to provide for seven districts, to 

4 provide that one justice be elected from each district, to provide 

for the terms of justices presently serving, to provide for filling 

6 of vacancies, to provide for the effective date of repeal, and to 

7 provide for related matters. 

8 Be it enacted by the Legislature of Louisiana: 

9 Section 1. R.S. 13:101.1 is hereby enacted to read as follows: 

10 §101.1. Supreme court district; justices  

11 A. The state shall be divided into seven supreme court  

12 districts, and the supreme court shall be composed of one  

13 justice from each of the said districts as set forth below:  

14 (1) First district. The first district is composed of  

15 that portion of Orleans. Parish designated as Wards 1, 2, 9, 10,  

16 11, 12, 13, 14, 15 and 16; Precincts 1, 3, 3A, 4, 5, 6, 7, 8, 9,  

A 17 10, 12, 13, 14, 15, and 16 of Ward 3; Precincts 2, 3, and 4 of  

18 Ward 4; Precincts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 of Ward 

19 5; Precincts 1, 2, 4, 5, 6, and 7 of Ward 6; Precincts 1, 2, 4,  

20 4A, 5, 6, 7, 8, 9, 9A, 10, 11, 12, 13, 14, 15, 16, 17, 17A, 18,  

21 19, 20, 20A, 21, 22, 23, 24, 25, 26, 26A, 27, 27A, 27B, 28, 28A,  

22 29, 30, 31, 33, 34, and 35 of Ward 7; Precincts 1, 2, 4, 5, 6,  

Page 1 of 7 

ORIGINAL 

CODING: Words in 94~4 44.remtil type are deletions from existing law; 

words underlined are additions. 



HLS 88-1924 

1 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23,  

2 24, 25, 25A, 26A, 27A, and 30 of Ward 8; Precincts 1, 2, 3, 4,  

3 5, 6, 7, 8, 9, 10, 11, 12, 13, 13A, 14, 15, and 16 of Ward 17;  

4 Plaquemines Parish; and St. Bernard Parish.  

5 (2) Second district. The second district is composed of  

6 that portion of Orleans Parish designated as Precincts 17, 18,  

7 19, and 20 of Ward 3; Precincts 5, 6, 7, 8, 9, 10, 10A , 11, 12,  

8 13, 13A, 14, 14A, 15, 16, 16A, 17, 17A, 18, 18A, 19, 20, 20A,  

9 21, 21A, 22, and 23 of Ward 4; Precincts 12, 13, 14, 15, 16, 17,  

10 18, and 19 of Ward 5; Precincts 8 and 9 of Ward 6; Precincts  

11 32, 33A, 36, 36A, 37, 38, 38A, 39, 40, 41, and 42 of Ward 7;  

12 Precincts 26, 27, 28, and 29 of Ward 8; Precincts 17, 18,18A,  

13 19, 19A, 20, and 21 of Ward 17; Jefferson Parish; and St.  

14 Tammany Parish.  

15 (3) Third district. The third district is composed of  

16 Acadia Parish; Allen Farish; . Beauregard Parish; Calcasieu  

17 Parish; Cameron Parish; Evangeline Parish; Jefferson Davis  

18 Parish; Lafayette Parish; and St. Landry Parish.  

19 (4) Fourth district. The fourth distric: is composed of  

20 Avoyelles Parish; Caldwell Parish;'Catahoula Parish; Concordia  

21 Parish; East Carroll Parish; Franklin Parish; Grant Parish;  

22 Jackson Parish; LaSalle Parish; Lincoln Parish; Madison Parish;  

23 Morehouse Parish; Ouachita Parish; Rapides Parish; Richland  

24 Parish; Tenses Parish; Union Parish; and West Carroll Parish.  

25 (5) Fifth district. The fifth district is composed of East  

26 Baton Rouge Parish; East Feliciana Parish; Livingston Parish;  

27 St. Helena Parish; Tangipahoa Parish; Washington Parish; West  

28 Baton Rouge Parish; and West Feliciana Parish.  

29 (6) Sixth district. The sixth district is composed of  

30 Ascension Parish; Assumption Parish; Iberia Parish; Iberville  

31 Parish; Lafourche Parish; Pointe Coupee Parish; St. Charles  

32 Parish; St. James Parish; St. John the Baptist Parish; St.  

Page 2 of 7 

ORIGINAL 

CODING: Words in et-rtieit t.hvemith type are deletions from existing 

law; words underlined are additions. 



HLS 88-1924 

1 Martin Parish; St. Mary Parish; Terrebonne Parish; and Vermilion 

2 Parish.  

3 ' (7) Seventh district. The seventh district is composed of  

4 Bienville Parish; Bossier Parish; Caddo Parish; Claiborne  

5 Parish; DeSoto Parish; Natchitoches Parish; Red River Parish;  

6 Sabine Parish; Vernon Parish; Webster Parish; and Winn Parish.  

7 • B. Each justice in office on the. effective date of this  

8 Section shall be the justice for the district described herein 

9 in which he resides and shall complete the term for which he was  

10 elected.  

11 C. The successors of the justices in office on the  

12 effective date of this Section shall be elected from the  

13 following districts in the year designated:  

14 (1) The first district in 1990.  

15 (2) The second district in 1988.  

16 (3) The third district in 1996.  

17 (4) The fourth district in 1996.  

18 (5) The fifth district in 1988.  

19 (6) The sixth district in 1992.  

20 (7) The seventh district in 1994.  

21 D. A vacancy in the office of justice of the supreme court  

22 which is filled after the effective date of this Section shall  

23 be filled for the remainder of the term, as provided by law,  

24 from the district described herein which, by reason of such  

25 vacancy, is without a justice.  

26 E. The supreme court districts established in R.S. 13:101  

27 shall remain effective for the limited purpose of the completion  

28 of the terms of the justices elected therefrom who are in office  

29 on the effective date of this Section until a successor to each  

30 justice in office on the effective date of this Section has been 

31 elected from the districts described herein, either by reason of 

Page 3 of 7 

ORIGINAL 

CODING: Words in e-s*.tie4 .s4~11.4 type are deletions from existing 

law; words underlined are additions. 



HLS 88-1924 

1 a vacancy in office or as specified in Subsection C of this  

2 Section.  

3 Section 2. With respect to any precinct enumerated in this Act 

4 which has been subdivided by action of any parish governing authority 

5 or registrar of voters on a nongeographic basis, the enumeration 

6 herein of the general precinct designation shall be construed to 

7 include all polling subdivisions thereof irrespective of the 

8 designation of such subdivisions by a parish governing authority or 

9 registrar of voters. 

10 Section 3. The wards and, precincts referred to in this Act are 

11 those existing as of January 1, 1980. 

12 Section 4. The effectiveness of this Act shall not reduce the 

13 term of office of any justice of the supreme court holding office on 

14 the effective date of this Act. 

15 Section 5. R.S. 13:101 is repealed, effective at noon on 

16 January 1, 1997. 

DIGEST 

The digest printed below was prepared by House Legislative Services. 
It constitutes no part of the bill. 

Bruneau Act HB No. 

Present law divides the state into six supreme court districts. 
Provides that two justices are elected from the metropolitan district 
including Orleans, Jefferson, Plaquemines, and St. Bernard Parishes; 
and one justice is elected from each of the other five districts. 

Proposed law redraws the six state supreme court districts into seven 
districts, each electing one justice. 

District changes are as follows: 

Orleans/Jefferson area 

Present district 1. elects two justices. District includes the 
parishes of Orleans, St. Bernard, Plaquemines, and Jefferson. 

Proposed district 1 elects 1 justice. District includes: 
Plaquemines 
St. Bernard 
Orleans, Wards 1, 2, 9, 10, 11, 12, 13, 14, 15 and 16 

Page 4 of 7 

ORIGINAL 

CODING: Words in eveae4 *.hvetrei type are deletions from existing 

law; words underlined are additions. 

. • • 



HLS 88-1924 
DIGEST 

Ward 3, pcts. 1, 3, 3A, 4, 5, 6, 7, 8, 9, 10, 12, 13, 
14, 15, and 16 

Ward 4, pets. 2, 3, 4 
Ward 5, pets. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 
Ward 6, pcts. 1, 2, 4, 5, 6, 7 
Ward 7, pets. 1, 2, 4, 4A, 5, 6, 7, 8, 9, 9A, 

10, 11, 12, 13, 14, 15, 16, 17, 17A, 18, 19, 20, 20A 
21, 22, 23, 24, 25, 26, 26A, 27, 27A, 278, 28, 28A, 29, 

30, 31, 33, 34, 35 
Ward 8, pets. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 

13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 
25, 25A, 26A, 27A, 30 

Ward 17, pets. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 
11, 12, 13, 13A, 14, 15, and 16, 

Proposed District 1 population: 596,658 

Proposed district 2 elects one justice. District includes: 

Jefferson 
St. Tammany 
Orleans, Ward 3, pcts. 17, 18, 19, 20 

Ward 4, pcts. 5, 6, 7, 8, 9, 10, 10A, 11, 12, 13, 
13A, 14, 14A, 15, 16, 16A, 17, 17A, 18, 
18A, 19, 20, 20A, 21, 21A, 22, 23 

Ward 5, pcts. 12, 13, 14, 15, 16, 17, 
18, 19 

Ward 6, pcts. 8, 9 
Ward 7, pets. 32, 33A, 36, 36A, 37, 38, 38A, 

39, 40, 41, 42 
Ward 8, pcts. 26, 27, 28, 29, 
Ward 17, pcts. 17, 18, 18A, 19, 19A, 20, 21 

Proposed District 2 population: 616,116 

District 3 

Present district 3 includes the parishes of Rapides, Grant, 
Avoyelles, Lafayette, Evangeline, Allen, Beauregard, Jefferson Davis, 

Calcasieu, Cameron, and Acadia. 

Proposed district 3 includes the parishes of Lafayette, Evangeline, 
Allen, Beauregard, Jefferson Davis, Calcasieu, Cameron, Acadia, and 

St. Landry. 

Proposed District 3 population: 583,549 

District 4 

Present district 4 includes the parishes of Union, Lincoln, Jackson, 
Caldwell, Ouachita, Morehouse, Richland, Franklin, West Carroll, East 
Carroll, Madison, Tensas, Concordia, LaSalle, and'Catahoula. 

Proposed district 4 includes the parishes of Union, Lincoln, Jackson, 
Caldwell, Ouachita, Morehouse, Richland, Franklin, West Carroll, East 
Carroll, Madison, Tensas, Concordia, LaSalle, Catahoula, Rapides, 

Avoyelles, and Grant. 
• 

Proposed District 4 population: 602,986 

District 5 

Present district 5 includes the parishes of East Baton Rouge, West 
Baton Rouge, West Feliciana, East Feliciana, St. Helena, Livingston, 
Tangipahoa, St. Tammany, Washington, Iberville, Pointe Coupee, and' 

St. Landry. 

7age 5 of 7 

ORIGINAL 



HLS 88-1924 
DIGEST 

Proposed district 5 includes the parishes of East Baton Rouge, West 
Feliciana, East Feliciana, St. Helena, Livingston, Tangipahoa, 

Washington, and West Baton Rouge. 

Proposed District 5 population: 609,838 

District 6 

Present district 6 includes the parishes of St. Martin, St. Mary, 
Iberia, Terrebonne, Lafourche, Assumption, Ascension, St. John the 
Baptist, St. James, St. Charles, and Vermilion. 

Proposed district 6 includes St. Martin, St. Mary, Iberia, 
Terrebonne, Lafourche, Assumption, Ascension, St. John the Baptist, 
St. James, St. Charles, Vermilion, Iberville, and Pointe Coupee. 

Proposed District 6 population: 612,729 

Northwest Louisiana 

Present district 2 includes the parishes of Caddo, Bossier, Webster, 
Claiborne, Bienville, Natchitoches, Red River, DeSoto, Winn, Vernon, 

and Sabine. 

Proposed district 7 includes all of present district 2. 

Proposed District 7 population: 582,096 

Proposed law provides that each justice in office on the effective 
date of the Act shall be the justice for the district described in 
proposed law .in which he resides. Provides that each such justice 
shall complete the term for which he was elected. Further provides 
that the successors to such justices shall be elected from the 
following proposed law districts in the following years: 

District 1 in 1990 
District 2 in 1988 
District 3 in 1996 
District 4 in 1996 
District 5 in 1988 
District 6 in 1992 
District 7 in 1994 

Proposed law provides that any vacancy in office occurring before the 
regular election dates specified above shall be filled from the 
district in proposed law which is without a justice by reason of such 

vacancy. 

Proposed law provides that present law districts remain effective for 
the purpose of the completion of the terms of the justices elected 
from them or until a vacancy in office occurs. Proposed law repeals 
present law which creates present districts effective noon, January 

1, 1997. 

Proposed law specifies that, if precincts listed in ,district 
descriptions have been subdivided for purposes of polling, the 
listing of the general precinct designation includes all such polling 
subdivisions of such precincts. Also specifies that all wards and 
precincts referenced in proposed law are those existing on January 1, 

1980. 

Proposed law district populations as shown on this digest are all 
within plus or minus five percent of the "ideal" district population. 
The "ideal" district population, determined by dividing the state 

Page 6 of 7 

ORIGINAL 

1 



HLS 88-1924 
DIGEST 

population of 4,203,972 by seven (the number of districts), is 
600,567. 

Population counts in this digest are derived from Census of 
Population and Housing, 1980; P.L. 94-171 Population Counts/Prepared 
by the Bureau of the Census, Washington, D.C.: 1981, as validated and 
adjusted by Louisiana House of Representatives staff; Louisiana 
Senate staff, and Division of Research Services, Louisiana State 
University, 1981. Population data and statistical information are 
supplied herein for purposes of information and analysis and form no 
part of the actual text of the bill. 

(Adds R.S. 13:101.1; Repeals R.S. 13:101) 

Page 7 of 7 

ORIGINAL 



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CERTIFICATE  

I HEREBY CERTIFY that a copy of the above and 

foregoing Opposition to Plaintiffs-Appellants' Motion 

for an Injunction Pending Appeal or, in the 

Alternative, for Issuance of the Mandate, and 

Memorandum in Support thereof, has this day been served 

upon the plaintiffs through their counsel of record: 

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

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

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

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

by depositing the same in the United States Mail, 

postage prepaid, properly addressed. All parties 

required to be served have been served. 

Shreveport, Caddo Parish, Louisiana, this the 

23rd day of May, 1988. 

ert G. Pugh, 
Lead Counsel