Appellees' Brief on the Merits

    Nos. 99-1864 and 99-1865 

  

In the 

Supreme Court of the United States 

  

JAMES B. HUNT, JR. In his official capacity as Governor of 

the State of North Carolina, ef al. 

Appellants, 

and 

ALFRED SMALLWOOD, et al. 

Appellant-Intervenors 

V. 

MARTIN CROMARTIE, ef al. 

Appellees. 

  

ON APPEAL 

  

APPELLEES’ BRIEF ON THE MERITS 

  

ROBINSON O. EVERETT MARTIN B. McGEE 

(Counsel of Record) WILLIAMS, BOGER, 

SETH A. NEYHART GRADY, DAVIS & 

TUTTLE 

EVERETT & EVERETT 708 McClain Rd. 

P.O. Box 586 Kannapolis, NC 28081 

Durham, NC 27702 (704) 932-3157 

(919) 682-5691 
DOUGLAS E. MARKHAM 

P.O. Box 130923 

Houston, TX 77219-0923 

 



PAGE 84    105 F. Supp. 2d 283, *; 2000 oe LEXIS 10240, ** 

asserted claims of race discrimination and retaliation, seeking $ 1,000,000.00 

in compensatory damages, back pay, front pay and punitive damages. Robinson did 

not prevail on her race discrimination claim, did not prevail on her punitive 

damages claim, and was awarded only $ 17,000.00 in back pay and $ 6,000.00 in 

compensatory damages. Considering that the primary claim asserted by plaintiff 

was defeated, and that her ultimate recovery was more than 40 times less than 

the damages sought, the court adjusts the lodestar amount downward to account 

for the limited success([**14] in this action. Therefore, the court reduces 

the initial attorneys fee calculation, $ 65,978.75, by 50%, awarding plaintiff $ 

32,989.38 in attorneys fees. 

C. Paralegal Fees and Costs and Disbursements 

In plaintiff's fee application, plaintiff also seeks reimbursement for 

paralegal time and costs and disbursements. Plaintiff requests fees at an hourly 

rate of $§ 50.00 for 16 hours of paralegal time, in the amount of $ 800.00. As to 

costs, plaintiff seeks $ 3,405.59. The court finds this request to be reasonable 

and grants the request for a [*288] total of $ 4205.59 in paralegal fees and 

costs and disbursements. 

111. Conclusion 

In accordance with the discussion above, the court grants plaintiffs $ 

32,989.38 in attorneys fees and $ 4205.59 in paralegal fees and costs. Thus, 

plaintiff's application for attorneys' fees and costs is granted in the amount 

of -§7-37,194.97. 

Dated: July 18, 2000 

New York, New York 

CONSTANCE BAKER MOTLEY 

United States District Judge 

ORDER 

In accordance with the Memorandum Opinion dated July 18, 2000 filed 

simultaneously herewith, the court hereby grants Plaintiff's Application for 

Attorneys' Fees and Costs in the amount of [**15] $ 37,194.97. 

SO ORDERED. 

Dated: July 18, 2000 

New York, New York 

CONSTANCE BAKER MOTLEY 

United States District Judge 

 



PAGE 83 

105F. Supp. 2d 283, +; 2000, ist. LEXIS 10240, **    
[*287] case awarding hourly rate of $ 175 for counsel admitted in 1996); 

Greenbaum v. Svenska Handelsbanken, 998 F. Supp. 301, 304 ("given [the 

attorney's] relative inexperience with this type of litigation, coupled with the 

lack of necessity for two experienced senior attorneys to have tried this case, 

$ 200/hr is a reasonable rate," Id.). Therefore, the court finds that $ 175 is a 

reasonable hourly rate for Hope Pordy. 

Daniel Clifton 

Plaintiff seeks fees at an hourly rate of $ 300 for Daniel Clifton's three 

hours of work. Daniel Clifton is a 1977 graduate of Northeastern University 

School of Law and was admitted to the New York State Bar in 1978. Since that 

time, Mr. Clifton has litigated primarily in the field[**12] of labor law 

and employee rights. Mr. Clifton is a member of several unions in the New York 

area and has taught labor law at Rutgers University. The requested hourly rate 

of $ 300 is in line with counsel fee awards in the community. See, e.qg., 

Ginsberg v. Valhalla Anesthesia, 1998 U.S. Dist. LEXIS 387, 1998 WL 19997 

(S.D.N.Y.) (finding that "a rate of $ 300 per hour is reasonable for a lead 

attorney of [her] stature and experience." Id. at *2). Therefore, the court 

finds that $ 300 is a reasonable hourly rate for Daniel Clifton. 

3. Initial Lodestar Figure 

Based on the reasonable hours and reasonable rates as determined above, the 

court calculates the initial lodestar figure to be $ 65,978.75, arrived at on 

the following basis: 

(1) Fees for Louie Nikolaidis at an hourly rate of $ 250 for 169.10 hours of 

out-of-court time plus fees at an hourly rate of $§ 300 for 40 hours of trial 

appearances n3, in the amount of $ 54,275.00; 

(2) Fees for Hope Pordy at an hourly rate of 3 175 .for 63.45 hours of work, in 

the amount of $11,103.75; 

{3) Fees for Daniel Clifton at an hourly rate of § 300.00 for 2 hours of work, 

in the amount of $ 600.00. 

aE ho 0 i on oy = POOR NOTE Gre m= wtsier Saf go fem ome, nS tow cs tm Ce we = 

n3 The court finds that 10 hours per day for the trial is reasonable. Thus, 

since the trial took place from January 4, 2000 to January 7, 2000, the court 

calculates total in-court trial time to be 40 hours. 

[**13] 

B. Adjustment for Limited Success 

"Where 'a plaintiff has achieved only partial or limited success,' full 

compensation for attorney's fees would not be reasonable. The district court may 

either 'attempt to identify pecific hours that should be eliminated, or it may 

simply reduce the award to account for the limited success.'" United States 

Football League v. National Football League, 887 F.2d 408, 414 (2d Cir. 1989) 

(citations omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436-437, 76 L. 

Ed. 2d 40, 103. 5. Ct. 1933 (1983)). In the instant case, plaintiff Robinson 

 



(713) 655-8700 
QUESTIONS PRESENTED 

1. Whether the District Court had a basis in circumstantial or 

direct evidence to find that the North Carolina General 

Assembly had subordinated traditional redistricting principles 

and created a Twelfth District that was predominantly motivated 

by race. 

2. Whether the District Court properly concluded that 

Appellants and Appellant-Intervenors had failed to raise any 

valid claim that the Twelfth District was narrowly tailored to 

fulfill a compelling governmental interest. 

3. Whether the District Court properly rejected Appellants’ 

unfounded defense of claim preclusion. 

4. Whether the District Court had discretion to enjoin the 

continuing use of an unconstitutional congressional district that 

perpetuated prior racial gerrymandering. 

 



no uh Cdn r ) HE 5 - Bd - a ih ede CEA «il MV Vievw 

powers.” Congress had available to it clearly sufficient evidence 

of state discrimination against individuals with disabilities, much of 

it unconstitutional even under a rational basis analysis. 

While it is state conduct, not the existence of state laws, 
which 1s relevant to the Cowrt’s congruence and proportionality 
analysis, the Court has on occasion taken note of the existence of 

state remedies to the threat of discrimination.” Congress 
certainly was aware of measures which individual states had taken 
to address the situation of individuals with disabilities prior to its 
enactment of the ADA. As Petitioners pomt out, Congress heard 
testimony on the availability and nature of state disability 

antidiscrimination laws.* Indeed, a report to Congress by a 
Governors’ Committee representing all fifty states indicated that 
state laws were indequate to redress disability-based 
discrimination. [cite]. A closer look of the substance of state 
antidiscrimination laws reveals a patchwork of statutes and 
regulations that, in many instances, fail to address areas of 
documented unconstitutional conduct. 

In many instances, the states have been slow to implement 
measures sufficient to remedy bias. More than half of the states, 
for example, have no state protections against disability-based 
discrimination in public accommodations.” Several, including 
Alabama, do not extend antidiscrimination protections to those 

  

* See Turner Broadcasting System, Inc. v. #DD. 520 U.S. 180, 200, 209 
(1997)(position that Congress is under obligation to develop detailed 
factual record “to accommodate judicial review” is “constitutionally 
unwarranted”). 

¥ See ez. Florida PrePaid Postsecondary Ed Expense Bd. v. 
College Savings Bank, [cite](1999). 

* Petitioners Brief at 

*" [insert state law citations from Lambda chart] 

15. 

ALG B4 0B 17:41 a y — PAGE. 16  



  

Vv 

TABLE OF CONTENTS 

QUESTIONS PRESENTED... .. ... coos vv vival os i 

TABLE OF CONTENTS ©. i chi is vate Ph win 

i 

TABLEOF AUTHORITIES =... i. ins inn ahs wide v 

COUNTERSTATEMENTOFTHECASE ............ 1 

SUMMARY OF THEARGUMENT .......... 0... 4 

ARGUMENT ares 5 Ces uae aires J 9 

L RACE PREDOMINATED OVER TRADITIONAL 

REDISTRICTING PRINCIPLES IN DISTRICT 12 OF 

THE 1997 NORTH CAROLINA CONGRESSIONAL 

REDISTRICTING PLAN. ©... ... ... 00h wii 0 

A. The District Court correctly perceived its 

responsibilityonremand . ...... ... oo. LL 9 

B. Circumstantial evidence supports the District 

Court’s finding that race predominated over 

traditional redistricting principles in the creation 

ofthe TwelRh District . ................, 14 

C. Direct Evidence also supports the District Court’s 

finding that race predominated ......... 33 

 



AUG 84 ’0B 17:41 

pe r r \ . ;o- - nr LRLOUN LLInL LINO LLT0UY UUddJ 

with mental health disabilities,?® despite the plethora of evidence, 
including observations by this Court, that some of the most severe 

forms of discrimination have been perptrated against the mentally 

ill and mentally retarded.” 

The assertions of the State of Alabama on the generous 

scope of its state law protections for the disabled are particularly 
ironic. Prior to enactment of the ADA, while Alabama had a law 

requiring that public facilities be accessible to the disabled, it had 
enacted nothing more than a statement of policy providing that the 

physically disabled have an equal right to make use of public 

facilities, sidewalks, and the like. See Even today, the statute 

makes no provision for damages or even a private right of action. 

Id. [insert add'l] state law data). 

The sobering record of state discrimination against those 
with disabilities is emblematic of the extent to which this prejudice 

had leeched into all of our social institutions. Extensive legislative 
testimony, supplemented by studies and reports by state and 

  

# [sce citations for Alabama, Idaho, Indiana, Mississippi. South 
Carolina 

® City of Cleburne, /cite/ 

Ala? § 21-7-3 (1965). 

*! The creation of social welfare programs for those whose health or 

disability precludes work or complete self-sufficiency may be evidence of 
society's willingness to provide basic suppart services to individuals it 

determines arc unable to care for themselves. These programs, however, 

should not be confused with a willingness to aftard individuals with 
disabilities equal participation in society. “The discriminatory nature of 

policies and practices that exclude and segregate disabled people has 

been obscured by the unchallenged equation of disability with incapacity 
and by the gloss of "good intentions.” Mayerson Testimony at 41. It has 
been the case that “injustices coexist with an atmosphere of charity and 

concern for disabled people.” Mayerson Testimony. supra, reported at 

A&P ADA Com. Print 1990 (28A), at 314. 

-16- 

8 NF. PAGE. 17  



  

II. 

III. 

IV. 

D. The context of this case is relevant to the issues of 

predominantly race based motive and 
Credibility » . 3... 05, aE a 47 

NO COMPELLING GOVERNMENTAL INTEREST 

EXISTS FOR THE 1997 PLAN'S TWELFTH 

DISTRICT... i. vans vada oii, 50 

APPELLANTS’ DEFENSE OF CLAIM 

PRECLUSIONLACKS MERIT ...........~.. 53 

THE DISTRICT COURT ACTED WELL WITHIN 

ITS EQUITABLE DISCRETION ............. 54 

CONCLUSION: 7. . J, ri viata a 56 

 



Aug, 2, LUUU ¢. Lif ~ANDUA LLUnL UTNO LT 0UY ULID 

  

federal government agencies and Presidential commissions, 

indisputably documented the fact that disability-based 

discrimination was everywhere, and, that, as one Congressional 

Report summarized, “individuals with disabilities have been 

isolated and subjected to discrimination and such isolation and 

discrimination is still pervasive in our society.” Senate Labor 

Committee Report, at 2.3 Witnesses testified about the extent to 
which the innate ‘inferiority’ of disabled people is considered “self- 

evident.” 
In the area of employment alone, the U.S. Civil Rights 
Comrrussion estimated that roughly 50 to 75 percent of workers 
with disabilities were unemployed, but only a small percentage of 

them were actually unable to perform a full-time job. 
ACCOMMODATING THE SPECTRUM , supra at 29. (1983).% 

  

32 Ear example, one small slice of the record before Congress was 

provided by the Nationa] Council on the Handicapped, an independent 

federal agency appointed by President Reagan to investigate the status of 

disabled Americans. See A & P ADA Camm. Print 1990 (28B) *941. Over 

a period of five years preceding Congressional hearings on the ADA, the 

Council conducted “innumerable hearings and forums across this country 

and reached the same inescapable conclusions again and again: barriers 

and discrimination, rather than the inherent physical or mental 

characteristics of persons with disabilities themselves, are to blame [or the 

staggering unemployment and isolation of these citizens...” A & P ADA 

Camm Print 1990 (28B), *941 (Sept. 27, 1988)(Statement of Rep. Tany 

Coelho) (emphasis added). 

3 «This ‘self-evident’ proposition has served 10 justify the exclusion 
and segregation of disabled people from all aspects of life.” Testimony of 

Arlene Mayerson of the Disability Rights Education and Defense Fund 

before the House Subcomunittee on Select Iducation and Employment 

Opportunities, Ser. No. 101-51, September 13, 1989, pp. 78-79. cited in, HR. 

Rep. No. 101-485(1T). 41 (1990)[hereinafter “Mayerson Testimony”). 

3 Not surprisingly, while the overwhelming majority of adults with 
disabilitics are unemployed, a similarly overwhelining majority of these 

same individuals want employment. See, e.2., Beyond the Americans With 

17 

‘ ALG 84 ’0B 17:42 We 

  

PAGE. 18 

 



  

il 

TABLE OF AUTHORITIES 

CASES 

Abrams v. Johnson, 

S21 U.S 74C1997). ol a a 5, 16, 42 

Anderson v. City of Bessemer, 

47000.8. 564 (1985) 0. La eae 13 

Arlington Heights v. Metropolitan Housing Dev.Corp., 

0018. 2520197)... +. a ed 

56 

Bush v. Vera, 

S17U.8. 9521906)... ..........n iam passim 

Commissioner v. Duberstein, 

363 U.S. 2781980). v."... abs. iV wl 13 

Cromwell v. County of Sac., 

SAUSSSINIRIO) 5 id hk, 53 

Daubert v. Merrell Dow Pharmaceuticals, 

508 US. S79(1993) -.. ...... 2. dn 32 

FDIC v. Majalis, 

1SE3d1314(5h Cir, 1994)... .. vv i’ vs 51 

Federated Dept. Stores, Inc. v. Moite, 

4001.8. 304I0BLY ........ a aan 53 

 



I A a LANDBLUA LLUAL UINO £1ce—CUY ULDD 53, (071, C —
 

5
 

C
a
 

( 

  

The record compiled in advance of the ADA’s adoption 

reveals two threads which run throughout: a plea not for new 

social programs or special jobs but for the removal of barriers to 

existmg ones; and the inclusion of publicly-operated enterprises in 
the litany of areas in which barriers had proved prohibitive to those 
with disabilities. 

B. The Relevant Constitutional Standards 

Demonstrate that States’ Treatment of 

Persons With Disabilities Frequently Fell 
Below Minimum Fourteenth Amendment 

Requirements. 

Examination of the state conduct which preceded the 

ADA'’s adoption, and the appropriateness of the Congresisonal 

response to this conduct, must be conducted in the context of the 
applicable constitutional standards. A number of programs and 
activities have been implicated in the states’ treatment of their 
disabled citizens, and are subject to the ADA’s requirements. 
Accordingly, the standard for assessing the validity of state 
conduct under the Equal Protection Clause necessarily depends on 
the program and right at issue. 

Under the Equal Protection Clause of the Fourteenth 
Amendment “[e]very person within the State’s jurisdiction [is 
protected] against intentional and arbitrary discrimination, whether 
occasioned by express terms of a statute or by its improper 
execution through duly constituted agents.” Sioux City Bridge 
Co., supra, at 445 (quoting Sunday Lake Iron Co. v. Township 
of Wakefield, 247 U.S. 350, 352 (1918)). Essentially, this is “a 

  

Disabilities Act, 46 Buff. 1. Rev. at ___; Louis Harris Associates, 
N.O.D /Harris /Survey of Americans with Disabilities (1994)(79% of 
surveyed adults who identified as having disabilities and being 
unemployed would prefer to work) 

13. 

ALG B4 'BB 17:42 RS Moss PAGE. 19 

 



iil 

Garza v. County of Los Angeles Bd. of Supervisors, 

918 F.2d 763 (9th Cir. 1990) 

Hays v. Louisiana, 
936 F. Supp. 360 (W.D. La. 1996) (three-judge 

court), appeal dismissed as moot, Louisiana v. Hays, 

518 U.S. 1014 (1996) 19, 20, 42, 43 

Hunt v. Cromartie, 
526 U.S. 541 (1999) passim 

Icicle Seafoods v. Worthington, 

475 U.S. 709 (1986) 

Jeffers v. Clinton, 

756 F.Supp. 1195 (D. Ark. 1990) (three-judge court), 

aff'd, 498 U. S. 1019 (1991) 

Johnson v. Miller, 

929 F.Supp. 1529 (S.D. Ga. 1996) 

(three-judge court) 

Karcher v. Daggett, 

466 U.S. 910 (1984) 

Keyes v. School District No. 1, 

413 U.S. 189 (1973) 

Kelley v. Bennett, 
96 F.Supp.2d 1301 (M.D. Ala. 2000) (three-judge 

court), appeal docketed, No. 00-132 (U.S. July 24, 

Ketchum v. Byrne,  



AUG B4 'BB 17:42 

LANG UR LEAL YEN LTRS 

direction that all persons similarly situated should be treated alike ” 
City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 
439 (1985).% 

At a minimum, equal protection requires that distinctions 

drawn by the government be “rationally related to a legitimate 

governmental interest.” U.S. Dep't of Agriculture v. Moreno, 

413 U.S. 528, 533 (1973); sce also City of Cleburne, 473 U.S. 
at 446. Under this standard of equal protection review, the Court 

engages in a two-part inquiry: first, whether a classification serves 

a legitimate state purpose; and second, whether the classification is 

rationally related to that purpose. City of Cleburne at 446. State 

conduct which does not affect a suspect class, or burden a 

fundamental right, will be analyzed under the rational basis test. 

Claims of disparate treatment in employment, for example, will be 

afforded this level of scrutiny. See, e.g., Massachusetts Bd. of 

Retirement v. Murgia, 427 U.S. 307 (1976) (regarding state 

statute requinng retirement of police officers at age 50). 

While states can distinguish between individuals with 

disabilities and others if the distinction is rationally related to some 

legitimate governmental purpose,’ states may not base distinctions 

  

* Earlier this term, this Court confirmed that this protection extends 
even to a nonsuspect “class of one” where the plaintiff alleges that she 

has been intentionally treated differently fram others similarly situated and 

that there is no rational basis for (he difference in treatment. Village of 

Willowbrook, 145 L. Ed. 2d 1060 (2000). See also Sioux City Bridge Co. v. 

Dakota County, 260 U.S. 44] (1923), Allegheny Pittsburgh Coal Co. v. 

Commission of Webster Cly., 488 U.S. 336 (1989), McFarland v. American 

Sugar Refining. 241 U.S. 79, 86-87 (1916)(invalidating on equal protection 

grounds a statute that “bristlc[d] with “severities that touch the plaintiff 

alone”); Smowden v. Hughes, 321 UU 8. 1 (1944)(upholding an individual’s 
equal protection claim against a public official who had purposely singled 
him ou). 

% Different treatment ol individuals with disabilities, like the subset of 
the mentally retarded represented in Cleburne, is not presumptively 

-19. 

¥ J. PRGE. 20  



\Y 

740 F.2d 1398 (7th Cir. 1984) 

Lawyer v. Department of Justice, 

521 11.8..567 (1997) 

Lemon v. Kurtzman, 

411 U.S. 192 (1973) 

McQueeney v. Wilmington Trust Co., 

770 F.2d 916 (3rd Cir. 1985) 

Miller v. Johnson, 

515 U.S. 900 (1995) 

Perkins v. Matthews, 

400 U.S. 379 (1971) 

Reeves v. Sanderson Plumbing Products, Inc., 

120 S.Ct. 2097 (2000) 

Reynolds v. Sims, 

377 U.S. 533 (1964) 

Rybicki v. State Bd. Of Elections, 

574 F.Supp. 1082 (N.D. Ill. 1982) 

(three-judge court) 

Shaw v. Hunt, 

861 F. Supp. 408 (E.D.N.C. 1994), rev'd, Shaw v. 
Hunt, 517 U.S. 899 (1996) 

Shaw v. Hunt, 

517 U.S. 899 (1996)  



alg, = (UU Rd LANDUA LLunl UMNO (LCT CUY ULDD 

on disability when that classification’s “relationship to an asserted 
goal is so attenuated as to render the distinction arbitrary or 

irrational.” City of Cleburne v. Cleburne Living Center, 437 
U.S. 432, 446 (1985). 

In Cleburne, the Court used rational basis analysis to 

conclude that the City of Cleburme’s refusal to issue a special use 

permit to a residential home for the mentally retarded was an 
unconstitutional manifestation of “an irrational prejudice” against 
them. 437 U.S. at 450. The city’s concern for the “pegative 

attitude” and “fears” of the swrounding property owners and 

senior citizens, or the prospect of conflict between residents of the 
home and the surrounding community, could not support the 

permit denial, as “mere negative attitudes, or fear, unsubstantiated 

by factors which are properly cognizable” in the program or 

subject at issue are not permissible bases for treating the mentally 
retarded differently. Id. At 448; see also Heller v. Doe, 113 

  

irrational. See Cleburne, 473 U.S. at 454 (Stevens, J. and Berger, C.J, 

cancurring). The differences between those with and without disabilities 

can be relevant to a number of state policies and legislation. See id. 

>” In determining whether state policies or practices have violated the 
equal protection rights of persons with lisabililies, it is not necessary that 

the Court [ind that the policies at issue are facially invalid as applied to all 

individuals with disabilities, regardless of the nature of the disability. If 

state policies and practices can constitute an equal protection violation of 

some individuals with disabilities in particular cases, it 1s unnecessary to 

determine whether these practices always violate the rights of anyone or 

everyone with a disability. See City of Cleburne, 437 U.S. at 447. 

* This Court also rejected the city’s objections to the facility's 

proposed location (across from a junior high school, posing the risk that 

students would harass the group home residents; and located on a flood 

plain, although other uses of the same location would be permitted) and 

its asserted concern over “doubts about the legal responsibility for 

actions which the mentally retarded might take.” Cleburne, 473 U.S. at 
449. 

“30. 

AUG B84 ’BB 17:43 % oes PAGE. 21  



  

Shaw v. Reno, 

50001.S: 6301993)... ie vee a passim 

Smith v. Beasley, 

946 F.Supp. 1174 (D.S.C. 1996) 
(reesqudge court) .......... . cou fn fn om, 36 

Terrazas v. Clements, 

581 F.Supp. 1329 (W.D.Tex. 1984) 

(three-judge Court) =... vv. vu vanisid a vinivnon 45 

Thornburg v. Gingles, 

4780 8.306(1936) ". . ... ....... aL 52 

United States v. Hays, 

SISLLS 73741908)... or haar ina 54 

United States v. Yellow Cab Co., 

BRUS. IBA)... Ta 11 

Vera v. Bush,933 F.Supp. 1341 (S.D. Tex. 1996) (three- 

judge court), stay denied sub nom. Bentsen v. Vera, 

SISATS 10481906... hits iii va 9, 55 

Vera v. Richards, 

861 F.Supp. 1304 (S.D. Tex. 1995) (three-judge 

court), aff’d sub nom. Bush v. Vera, 517 U.S. 952 

E00 ER a SR EE St CE RS yo 44 

Wise v. Lipscomb, 

4370.8. 533197) ... i. ian ii 10 

Wygant v. Jackson Bd. of Ld. 

4760.8. 207(1986) . .... .. i. om. 51 

 



AUG 24 2 17:43 

LANDUN LLIARL UTNO CLET0UY UUdd 

S.Ct. 2637, 2643 (1993)(to be rational, a classification “must find 

some footing in the realities of the subject addressed”). State 

action based on prejudice is “rooted in considerations that the 

Constitution will not tolerate.” Id. at 446. In short, 

disadvantaging a politically unpopular group on the basis of fears 

and stereotypes simply is not a legitimate state mterest. Id. at 447. 

It is true that the class of persons protected by the ADA 
are “different” in that “they suffer disability not shared by others.” 

This Court recognized, however, that “[t]he question is whether to 

treat [them] differently.” 473 U.S. at 449-50 (emphasis added). 

The answer here, as in Cleburne, is that “this difference is largely 

irrelevant unless [its presence] would threaten legitimate interests 
of the [government]...” Id. at 448. Reliance on factors irrelevant 

to legitimate state interests can be presumed “to rest on an 

irrational prejudice” agaist the disabled and consequently is 

violative of the Fourteenth Amendment. See id. at 449-50. 

Intentional discrimination manifested through state officials’ 

knowing refusal to take action to remedy or preven a harm 

affecting only those with disabilities could correctly be 

characterized as “deliberate indifference.” The Court has 
confirmed that use of the term “deliberate indifference” is sufficient 
to hold a government entity responsible for its failure to take action 
to prevent a harm if the plaintiff has sufficiently alleged a 
constitutional violation. Collins v. City of Harker Heights, 
Texas, 503 U.S. 115, 124 (1992)(involving widow’s suit against 
city for deliberate indifference in its failure to train or wam 
husband, a city employee killed on the job; plaintiff unable to 
establish alleged Fourteenth Amendment violation); Canton v. 
Harris, 489 U.S. 378, 380 (1989), see Davis v. Monroe County 
Board of Education, 526 U.S. 629 (1999); Gebser v. Lago 
Vista Independent School Dist., 524 U.S. 274 (1989)(school 
district may be liable for damages under Title IX where it is 
deliberately indifferent to known acts of teacher-student sexual 
harassment); see also Powers v. MJB Acquisition Corp., 184 

31s 

1 Mosins PAGE. 22  



  

1v 

52 

STATUTES 

LUSCHIOUIAY.. tr hibition 4,52 

N.C. Gen. Stat. §163-210(b) (1999) .... hn... 20.0.0... 19 

N.C Gen. Stat. $163-11TQ99% i... iv vio 26 

SECONDARY AUTHORITIES 

John Hart Ely, Standing to Challenge Pro-Minority 

Gerrymandering, 111 HARV. L. REV. 576 (1997) . . . . . .. 28 

Richard H. Pildes & Richard G. Niemi, Expressive Harms, 

“Bizarre Districts,” and Voting Rights: Evaluating Election- 

District Appearances After Shaw v. Reno, 92 MICH. L. REV. 

48301993) Las ae BBL 16 

 



Aug, a0 CUUU Te lol li «BND UA LLIRL UTM ¢ 1 LT0UT UUda A Ven, 
[SI Vo 

  

F.3d 1147, 1153 (10® Cir. 1999)(*“[I]nientional discrimination can 

be inferred from a defendant’s deliberate indifference to the strong 
likelihood that pursuit of its questioned pohcies will likely result in a 

violation of federally protected rights.” In the case of individuals 

with disabilities, the brand of discrimination posed by the state’s 
continued imposition of incidental policies, practices and structures 
which fence them out from state facilities and institutions might be 

characterized as indifference. Just as the state may not “fence in” 

the mentally ill “solely to save its citizens from the exposure to 

those whose ways are different,” O'Connor v. Donaldson 422 

U.S. 563, 574-75, (1975), it may not “fence out” those with 

disabilities for the same reasons, or to preserve the discriminatory 
status quo literally built ito the structures which exclude them. 

The construction of state facilities built to accommodate 

only those who are able-bodied is what 1t is—an intent to include 

only the able-bodied. Failure to remedy the exclusionary aspects 

of these facilities, certainly in view of the states’ admitted 

awareness of the disabled mn the years before the ADA’s 

enactment, is intentional discrimination without any clear rational 

connection to legitimate state goals, whether or not characterized 

as “deliberate indifference.” As the Court noted in Watson V. 
Forth Worth, 487 U.S. 977, 987 (1988), involving a claim 

brought under Title VII of the Civil Right Act of 1964, “some 

employment practices, adopted without a deliberately 

discriminatory motive, may in operation be functionally equivalent 

  

¥ Tt simply strains credulity 10 maintain that an invitation to apply for 
state employment 1s extended equally to those with or without mobility- 

related disabilities if the invitation can be accepted only by those who can 

climb stairway entrances, pass through narrow doorways, and make it to 

interviews on a buildings top floors without an elevator. 

33 

AUG B84 *@@ 17:43 $ soos PAGE. 23 

 



COUNTERSTATEMENT OF THE CASE 

After a legal struggle spanning more than four years and 

involving two appeals, the Court finally laid to rest the bizarre 

Twelfth District created by North Carolina’s 1992 redistricting 

plan. See Shaw v. Hunt, 517 U.S. 899 (1996). Three weeks 

later, Martin Cromartie and two other registered voters in the 

First Congressional District filed suit to have that District 

declared unconstitutional." Judge Malcolm J. Howard, to 

whom Cromartie had been assigned, entered a stay order by 

consent to await the outcome of remedial proceedings in the 

Shaw litigation. Thereafter, by further consent, he extended the 

stay from time to time over several months. 

On April 1, 1997, the General Assembly submitted a 

new redistricting plan to the Shaw district court for review. 

Under this plan, none of the Shaw plaintiffs, all of whom lived 

in Durham, had standing to challenge the new Twelfth District 

because it no longer extended to Durham County. On 

September 12, 1997, that court filed a final order approving use 

of the 1997 redistricting plan. 

  

'The same day, July 3, 1996, a separate and unrelated group of 

plaintiffs led by Jack Daly filed a complaint in Daly v. High in order to 

challenge not only North Carolina’s Congressional Redistricting Plan, 

but also its legislative apportionment plan. No. 5: 97-CV-750-BO 

(E.D.N.C)). 

’Emphasizing the restricted nature of its action, the district 

court stated: 

“We close by noting the limited basis of the approval of the 

plan that we are empowered to give in the context of this 

litigation. It is limited by the dimensions of this civil action as 

that is defined by the parties and the claim properly before us. 

Here, that means that we only approve the plan as an adequate  



2 

On October 10, 1997, after the termination of the Shaw 

litigation, the Cromartie plaintiffs filed an “Amended Complaint 

and Motion for Preliminary and Permanent Injunction.” This 

amended complaint included as plaintiffs not only the original 

plaintiffs from the First District, but also other plaintiffs 

registered as voters in the new Twelfth District. On October 

14, 1997, the State moved to have the Shaw panel consolidate 

and consider Cromartie and Daly v. High. The Shaw panel 

denied the State’s motion on October 16, 1997, Jt. App. at 791- 

804, and the State made no appeal. 

On January 15, 1998, the Cromartie case was reassigned 

from Judge Howard to a three-judge panel comprised of Circuit 

Judge Samuel J. Ervin III, Judge Terrence W. Boyle and Judge 

Richard L. Voorhees. This panel already had Daly before it. Jt. 

App. at 511. On January 30, 1998, the Cromartie plaintiffs, 

renewing the prayer for relief contained in their amended 

complaint, moved for a preliminary injunction. On February 5, 

1998, they moved for summary judgment. On March 3, 1998, 

defendants responded with a cross-motion for summary 

judgment. The district court granted plaintiffs’ motions for 

summary judgment and for a preliminary and permanent 

injunction on April 3, 1998, and the Appellants unsuccessfully 

requested a stay from the district court and this Court. 

The 1998 congressional elections proceeded with a less 

racially constructed Twelfth District under the new plan adopted 

by the North Carolina General Assembly. Instead of the 47% 

African-American population in the 1997 Plan, the Twelfth 

  

remedy for the specific violation of the individual equal 

protection rights of those plaintiffs who successfully challenged 

the legislature’s creation of former District 12. Our approval 

thus does not - cannot - run beyond the plan’s remedial 

adequacy with respect to those parties and the equal protection 

violation found as to former District 12.” 

Appellants’ J.S. App. at 320a.  



  

3 

District in the 1998 Plan had a 35% African-American 

population. Moreover, unlike the 1997 Plan in which the 

Twelfth District divided all six of its counties and split all four 

of its major cities as well as various towns, the Twelfth District 

of the 1998 Plan contained five counties - one of which it left 

intact - and split only two major cities, Charlotte and Winston- 

Salem. 

Meanwhile, the State pressed forward with its appeal as 

to the 1997 plan, whose use had been prohibited in any future 

election.’ After the Court noted probable jurisdiction of the 

appeal by Appellants and Appellant-Intervenors, oral argument 

was heard on January 20, 1999. The Court’s opinion, handed 

down on May 17, 1999, discussed the evidence and held that 

the State had raised an issue of fact as to whether a racial 

motive predominated in drawing the Twelfth District. 

Accordingly, the Court reversed the summary judgment 

previously entered for Appellants and remanded the case for 

trial. See Hunt v. Cromartie, 526 U.S. 541, 553-554 (1999). 

In preparation for trial, the parties engaged in extensive 

discovery and entered into a seventy-five-page pretrial order 

containing eighty-two stipulations, presenting more than three 

hundred fifty exhibits (including more than 225 maps), and more 

than 1100 pages of deposition designations to be used in lieu of, 

or to supplement, the testimony in court. After the untimely 

death of Judge Ervin, District Judge Lacy H. Thornburg was 

assigned to the panel as Circuit Judge Designate. He later 

presided at the trial, which took place from November 29, 1999, 

until December 1, 1999, and in which the plaintiffs called eight 

witnesses to testify and the defendants called four. 

  

The legislation enacting the 1998 Plan contained a provision 

that North Carolina would revert to the 1997 Plan if this Court rendered 

a favorable decision on the State’s appeal of the summary judgment. See 

Hunt v. Cromartie, 526 U.S. 541, 545 n.1 (1999). 

 



  

4 

On March 7, 2000, the district court delivered its 

opinion holding that when the General Assembly created the 

1997 Plan’s First and Twelfth Districts, race had predominated 

over traditional redistricting principles. The district court also 

found that “no evidence of a compelling state interest in utilizing 

race to create the new 12" District has been presented.” 

Appellants’ J.S. App. at 29a. On the other hand, the district 

court decided that the First District survived strict scrutiny 

because it fulfilled the State’s compelling interest in avoiding 

possible liability under Section 2 of the Voting Rights Act. See 

42 U.S.C. § 1973. 

Appellants filed notice of appeal on March 10, 2000, and 

also requested a stay from the three-judge panel. The district 

court denied this request on March 13, 2000. Appellants’ 

application to this Court for a stay was granted on March 16, 

2000. The Court noted probable jurisdiction on June 26, 2000, 

and scheduled briefings on the merits. 

SUMMARY OF THE ARGUMENT 

In reversing the summary judgment rendered for 

plaintiffs, the Court concluded that the defendants had raised an 

issue of fact - whether the General Assembly’s predominant 

motive was racial. Therefore, the Court remanded the case 

with the comment that “the District Court is more familiar with 

the evidence than this Court, and is likewise better suited to 

assess the General Assembly’s motivations.” Hunt v. 

Cromartie, 526 U.S. 541, 553-554 (1999). 

Upon remand, the district court performed its assigned 

duty to determine the legislature’s predominant motive in 

drawing the 1997 Plan. While acknowledging that the court 

should not interfere with the legislature’s discretion, 

Appellants’ Jt. App. at 21a, District Judge Boyle’s opinion 

emphasizes that federal courts must enforce the right to equal 

protection and other constitutional guarantees. /d. at 22a n.7. 

 



  

While the district court placed the burden of proof on the 

plaintiffs by a preponderance of the evidence, it correctly 

recognized that this burden could be satisfied by either 

circumstantial evidence or direct evidence. Cf. Miller v. 

Johnson, 515 U.S. 900, 916 (1995). The district court declined 
to create any presumption against defendants, despite the 

unconstitutionality of two districts in the predecessor 1992 

Plan.* 
The district court observed the witnesses and evaluated 

their credibility. For example, it properly deemed “not credible” 

an explanation offered by Senator Roy Cooper, the chairman of 

the Senate Redistricting Committee when the 1997 and 1998 

plans were passed. Appellants” J.S. App. at 27a. 

Contradictions in Cooper’s various statements amply justified 

this evaluation. 

Because the Court usually does not review lower court 

factual determinations, Appellants and Appellant-Intervenors 

have sought unsuccessfully to manufacture issues of law for 

review. Thus, they have minimized the irregularity and 

bizarreness of the “new” Twelfth District and its significant 

differences from other Congressional districts in the 1997 North 

Carolina redistricting plan, as well as its differences from such 

  

‘An unconstitutional district is an “improper departure point” 

to follow when drawing a new district. Abrams v. Johnson, 521 U.S. 

74, 90 (1997). By disregarding the circumstance that the racially 

gerrymandered Twelfth District of the 1992 Plan was the “core” for the 

corresponding district of the 1997 Plan, the district court may have 

granted unwarranted discretion to the General Assembly. Cf. Keyes v. 

School District No. 1, 413 U.S. 189, 208 (1973) (the Court shifting the 

burden of proof to the government to show that its past segregative acts 

did not create or contribute to the current segregated condition of the 

core city schools). 

 



  

6 

districts in other states.” Likewise, Appellants disregard the 

splitting of political subdivisions along racial lines and describe 

the Twelfth District in misleading terms. 

Geographic and demographic data concerning the 

Twelfth District require little analysis to sustain the finding that 

the legislature’s predominant motive was race-based. 

Moreover, the comprehensive analysis of that data by an 

experienced and widely recognized expert on redistricting 

reinforces that finding by the court below. The majority 

properly accepted Dr. Weber’s testimony and gave no weight to 

that of Dr. Peterson, who had never testified before in a 

redistricting case, whose methodology had never been used by 

others, and whose conclusions appear on their face to be 

unsupported and of little relevance. In their criticism of the 

district court’s use of registration data, Appellants ignore the 

relationship of the registration data to the nomination of 

candidates in the primaries. Because of that relationship, there 

is an incentive to “pack” African-Americans into an already safe 

Democratic district in order to assure that the nominee will be 

black. This occurred with the Twelfth District. 

Direct evidence supplements the circumstantial evidence 

presented at trial. The post hoc affidavits by Senator Cooper 

and Representative McMahan, their testimony at trial 

considered in the light of their cross-examination, and their 

statements in the legislative record revealed a predominant race 

based motive.® Likewise, the disparity between certain 

  

For example, unlike other districts in North Carolina the 

Twelfth District splits all of its counties, and its creation required the 

relocation of a much higher percentage of whites than African- 

Americans. Among congressional districts in the United States, North 

Carolina’s Twelfth District ranks in the bottom 1% in compactness. 

6 3 (4 : : 2 << (49 : 

These statements discussed “racial fairness,” “the core," “racial 

balance,” “functional compactness,” and “triggering the test” (of Shaw if 

 



7 

announced goals of the redistricting plan and the Twelfth 

District’s actual features reflects the racial motive. 

The plaintiffs offered sworn testimony by three 

disinterested legislators - Senator Horton, Speaker pro tem. 

Wood, and Representative Weatherly - that the General 

Assembly’s motive had been predominantly racial. Their 

testimony is augmented by contemporaneous statements in the 

legislative record by Representative Michaux and Senator Blust, 

which support an inference as to the racial motive involved. 

Finally, testimony by plaintiffs’ witnesses Neil Williams, R.O. 

Everett, and Jake Froelich also demonstrated how the counties 

of that Twelfth District had been split along racial lines. 

Despite every effort by Appellants to minimize its 

importance, the E-mail sent on February 10, 1997 from Gerry 

Cohen to Senators Roy Cooper and Leslie Winner is a “smoking 

gun” which destroys their claims as to motive. See Jt. App. at 

369. Gerry Cohen was the person who in 1991, 1992, 1997, 

and 1998 served as the primary draftsman at the redistricting 

computer.” Senator Leslie Winner worked closely with Cooper 

and Cohen to create the 1997 Plan. The E-mail reported 

Cohen’s transfer of the “Greensboro Black community” into the 

Twelfth District. Jt. App. at 369. The language used in that E- 

mail makes clear that the predominant legislative motive for this 

transfer was racial and that pursuant to this motive a “significant 

number” of blacks were transferred into the Twelfth District and 

a “significant number” of whites were transferred out of the 

  

the district was more than 50% minority). 

"Surprisingly, Senator Cooper could not remember receiving 

this E-mail, see Jt. App. at 216, although it arrived at a crucial moment 

and involved a major decision on his part.  



District.® 
Although the majority in the district court made no 

reference to the 1998 Plan, the shape of the Twelfth District in 

that plan also confirms the predominant racial motive in the 

1997 Plan. It demonstrates that a more compact, less racially 

gerrymandered Twelfth District could have been formed readily 

in 1997 and that this district would have been very safe for the 

Democratic candidate. However, the General Assembly 

rejected any such alternative and decided to include the 

“Greensboro Black community” in the Twelfth District.’ 
In view of the overwhelming weight of the evidence 

proving their predominant racial motive, Appellants and their 

allies raise some desperate defenses. First, they seek to argue 

claim preclusion even though the decision rendered by the Shaw 

panel in 1997 clearly intended to forestall any such argument, 

and all of the requirements for claim preclusion are lacking. 

Second, although the defendants did not raise the issue of strict 

scrutiny at trial, nor did they argue how the 1997 Plan’s Twelfth 

District satisfied the strict scrutiny test, Appellant-Intervenors 

  

*The E-mail refers to moving 60,000 persons out, and a 

comparison of data from the two plans involved shows that those 

moved out were mostly white. This number is “significant” within the 

meaning of Miller v. Johnson. 515 U.S. 900, 916 (1995). The 
reference to percentages of African-Americans in the E-mail is very 

consistent with many statements in the record which led the district 

court to find that the legislators had a precise racial target for the 

Twelfth District of just under 50% African-American population - a 

target chosen because of their mistaken belief that thereby they could 

escape the restrictions of Shaw v. Reno. 509 U.S. 630 (1993). 

Likewise, when the 1997 Plan was first held unconstitutional 

by the district court and a less gerrymandered replacement plan was 

enacted, the General Assembly provided for reinstatement of the 1997 

Plan. See Hunt v. Cromartie, 526 U.S. 541, 545 n.1 (1999).  



  

9 

now press this claim for the first time. Finally, Appellant- 

Intervenors seem to contend that as early as March 2000, the 

district court was not free to enjoin use of a racially 

gerrymandered district which it found violated the Fourteenth 

Amendment. This contention is inconsistent with rulings in 

other racial gerrymander cases, such as Vera v. Bush, 933 

F.Supp. 1341 (S.D. Tex. 1996)(three-judge court), stay denied 

sub nom. Bentsen v. Vera, 518 U.S. 1048 (1996), and also with 

the precedent established in this litigation. 

ARGUMENT 

I. RACE PREDOMINATED OVER TRADITIONAL 

DISTRICTING PRINCIPLES IN THE TWELFTH 

DISTRICT OF THE 1997 NORTH CAROLINA 

CONGRESSIONAL REDISTRICTING PLAN. 

A. The District Court Correctly Perceived Its 

Responsibility on Remand. 

In 1999, the Court remanded this case for a 

determination of the factual issue of predominant motive as to 

the formation of the Twelfth District of the 1997 North Carolina 

redistricting plan. See Hunt v. Cromartie, 526 U.S. 541 (1999). 

In her opening statement at trial, Appellants’ lead counsel made 

clear their position that “[1]n District 12 we contend that race 

did not predominate." Jt. App. at 23. According to her, the 

State’s defense of the Twelfth District was “purely a factual 

matter.” Id. Appellees’ counsel displayed no reluctance to 

assume the full burden of proof of establishing the 

predominance of race by the preponderance of the evidence." 

  

' He submitted his view that, in light of the ruling in Shaw that 
the previous Twelfth District was unconstitutional, the defendants had 

the burden of showing that the earlier taint had been removed, but 

 



  

10 

After the trial, the district court found that the Twelfth 

District subordinated traditional districting principles to race. 

Appellants’ J.S. App. at 28a-29a. In so finding, the district 

court recognized the principle that “electoral districting is a 

most delicate task,” id. at 20a (quoting Miller v. Johnson, 515 

U.S. 900, 905 (1995)), and stated that it was “cognizant of the 

principle that ‘redistricting and reapportioning legislative bodies 

is a legislative task which the federal courts should make every 

effort not to preempt.” Id. at 21a (quoting Wise v. Lipscomb, 

437 U.S. 535, 539 (1978)). Likewise, the district court 

recognized that its power “is limited except to the extent that 

the plan itself runs afoul of federal law.” Id. at 22a (quoting 

Lawyer v. Department of Justice, 521 U.S. 567, 777 (1997)). 

Accordingly, in its judgment, the district court expressly refused 

to exceed its remedial powers and noted that the General 

Assembly could “consider traditional districting criteria, such as 

incumbency considerations, to the extent consistent with curing 

the constitutional defects.” Appellants’ J.S. App. at 29a-30a. 

Contrary to the representations of Appellant-Intervenors 

in their brief, see Appellant-Intervenors’ Brief at 26, the district 

court also took the view that “[a] comparison of the 

[unconstitutional] 1992 District 12 and the present District is of 

limited value here.”!' Appellants’ J.S. App. at 24a. Thus, at 
every step the district court put the burden on Appellees to 

prove by either circumstantial or direct evidence “that race was 

  

emphasized that plaintiffs did not rely on this argument because of the 

ample evidence they were offering of the predominant racial motive. Tr. 

at 20-21. 

"Such a comparison would seem quite relevant for the purpose 
of determining whether the unconstitutional taint of the 1992 version of 

the Twelfth District had been removed. 

 



  

11 

the predominant factor motivating the legislature’s decision to 

place a significant number of voters within or without a 

particular district.” Id. at 20a (quoting Miller, 515 U.S. at 916). 

The history of the case - including the statements by 

Appellants’ counsel at the beginning of trial - makes clear that 

the issues raised by Appellants were solely of fact and required 

weighing credibility. “Findings as to the design, motive, and 

intent with which men act” are peculiarly factual issues. See 

United States v. Yellow Cab Co., 338 U.S. 338, 341 (1949)." 
Indeed, on the prior appeal, the Court emphasized that the 

district court was charged with determining whether a racial 

motive predominated. “[W]e are fully aware that the District 

  

In an attempt to increase the plaintiffs’ burden of establishing 

predominant motive, Appellants appear to contend that Appellees were 

required to show not merely that a racial motive predominated, but also 

that the proffered motive of incumbency protection was pretextual. (See 

Appellants’ Brief at 14-16. ) Appellees would thus be required to prove 

that race was the only motive and not merely the predominant motive. 

This contention is incorrectly derived from some employment 

discrimination cases and is contrary to the Court’s precedents on racial 

predominance. See Shaw v. Hunt, 517 U.S. 899, 907 n.3 (1996) (stating 

that dissent incorrectly read Miller as requiring that proffered race 

neutral explanations be shown to be pretextual). 

Furthermore, the court below as factfinder found that the 

Appellants’ key witnesses were “not credible” and “not reliable.” This 

circumstance suffices under the employment discrimination cases to 

support the inference in this case that the Appellants had a predominant 

racial motive that they were seeking to conceal. “In appropriate 

circumstances, the trier of fact can reasonably infer from the falsity of 

the explanation that the employer is dissembling to cover up a 

discriminatory purpose.” Reeves v. Sanderson Plumbing Products, Inc., 

US. ,120 S.Ct. 2097, 2108 (2000) (citations omitted). *“ Such 

an inference is consistent with the general principle of evidence law that 

the factfinder is entitled to consider a party’s dishonesty about a material 

fact as “affirmative evidence of guilt.”” Id. See also McQueeney v. 

Wilmington Trust Co.,770 F.2d 916, 921 (3rd Cir. 1985). 

 



  

12 

Court is more familiar with the evidence than this Court, and is 

likewise better suited to assess the General Assembly’s 

motivations.” Hunt v. Cromartie, 526 U.S. 541, 553,554 

(1999). 

Ignoring the district court’s clear statements to the 

contrary, Appellants ask in their first Question Presented 

whether a federal court may strike down a state’s redistricting 

plan “without requiring the challengers to surmount their heavy 

burden of demonstrating that race, not politics, was the 

dominant and controlling rationale in drawing district lines and 

that traditional districting criteria were subordinated.” 

Appellants’ Brief at i. Appellants maintain without foundation 

that the district court failed to follow the law it cited, but 

instead, relied solely on evidence showing the mere awareness 

of race, see, e.g., Appellants’ Brief at 37-38, or alternatively, 

that race was only a motivating factor and not the predominant 

motive for creating District 12. See id. at 18 n.21. 

However, while Appellants ask this Court for a 

“rigorous review of the record and decision below,” Appellants’ 

Brief at 16, their own presentation and review of the evidence 

actually before the district court is far less than “rigorous.” 

Instead, Appellants systematically disregard, mischaracterize, 

and minimize the extensive evidence in the record revealing the 

General Assembly’s predominant racial motive. Similarly, 

Appellant-Intervenors and the Solicitor General take misleading 

approaches to the evidence of racial motivation." 

  

“For example, neither mentions the crucial factual finding as to 

the State’s racial target of just under 50% in the formation of the 1997 

Plan’s Twelfth District. If the United States will not discuss the actual 

findings of fact that were made by the court below, it is hardly in a 

position to criticize that court for being “so sparse and conclusory as to 

give no revelation of what the District Court’s concept of the 

determining facts and legal standard may be.” U.S. Brief at 23 n.9 

(quoting Commissioner v. Duberstein, 363 U.S. 278, 292 (1960)). 

 



13 

Contrary to the confusion professed by Appellants as to 

the standard of review, Appellants’ Brief at 18 n.21, the district 

court’s finding of racial predominance is reviewed under the 

“clearly erroneous” standard. See Miller v. Johnson, 515 U.S. 

900, 917 (1995). In light of the Court’s observation on a far 

less developed record in Hunt v. Cromartie that “[r]easonable 

inferences from the undisputed facts can be drawn in favor of a 

racial motivation finding or in favor of a political motivation 
finding,” 526 U.S. 541, 552 (1999), it is hard to see how the 

district court was “clearly erroneous” in finding the 

predominance of race from the vast amount of evidence before 

it at trial and with the opportunity to observe the witnesses.'* 

  

Moreover, the Solicitor General mischaracterizes the cases it cites as 

standing for the proposition that “the district court’s failure to exercise 

such care is itself grounds for reversal.” Id. In fact, under those cases 

cited such failure is a ground for remand, not reversal. In this case, the 

district court’s discussion of the evidence - in both majority and 

dissenting opinions - supplies the Court an adequate basis for deciding 

that the court below did not commit clear error in its finding of 

predominant racial motive. 

“Under the clearly erroneous standard, “[w]here there are two 
permissible views of the evidence, the factfinder’s choice between them 

cannot be clearly erroneous.” Anderson v. City of Bessemer, 470 U.S. 

564, 574 (1985) (citations omitted). “This is so even when the district 

court’s findings do not rest on credibility determinations, but are based 

instead on physical or documentary evidence or inferences from other 

facts.” Id. Nor can Appellants escape the force of the clear error 

standard by raising the specter of “mixed questions of law and fact.” 

Appellants’ J.S. Reply at 4. In mixed questions of law and fact, the 

actual historical facts necessary to a proper determination of the legal 

question are to be reviewed under the clear error standard. See Icicle 

Seafoods v. Worthington, 475 U.S. 709, 714 (1986). Thus, the district 

court’s key preliminary findings are still subject to the clear error  



AUS. C8 LGU &. UM BDA LLORD URNS CT TOU OOD BG, 704, Tame bls JL 

  

Facilities, 329 N.C, 84, 90, 405 S.E.2d 125, 127 

(1991)(physical plant inadequacies mcluded inaccessibility for 

persons with mobility-limiting physical disabilities). 

Some of the uglier accounts of disability-based 
discrimination involved children. For example, the record inlcudes 
testimony about the refusal to admit a wheelchair-bound child to 
public school because of concerns that he presented a “fire 
hazard, Senate Comm. On Labor and Human Resources, Report 
on the Americans With Disabilities Act, S.Rep. No. 101-116 
(1990) at 7; and a decision to exclude a child with cerebral palsy 
from public school based on the “nauseating effect” of his 
appearance on other students. /d. (quoting 117 Cong. Rec. 
45974 (1971)(statement of Rep. Vanik)). See also Martinez v. 
School Board, Florida, 861 F.2d 1502 (11 Cir. 
1988)(segregation of mentally retarded student with AIDS by 
glass wall separating her from her classmates); Robertson v. 
Granite City Community Unit School District No. 9, 684 
F.Supp. 342 (S.D. IN. 1987)(exclusion of first grade student with 
AIDS from his regular classroom); Ray v. School Dist. Of 
DeSoto County, 666 F.Supp. 1524 (M.D. Fla. 1987)(school 
district refused to allow HIV positive siblings to remain in school); 
Thomas v. Atascadero Unified School District, 662 F. Sepp. 376 
CC.D.Cal. 1986) (exclusion of child with AIDS from 
kindergarten); Doe v. Dolten Elementary School District No. 148, 
694 F. Sepp. 440 (N.D. Ill. 1988) (exclusion of child with AIDS 
from classroom). 

State discrimination against the institutionalized disabled 
has been severe, and ongoing. State-operated facilities have 
“essentially warehous{ed] patients in an inhumane envoironment,”'? 
maintained conditions in which “[i]nfectious diseases were 

  

12 Wyatt ex rel. Rawlins v, Rogers. 985 F. Supp. 1356, 1362 (M.D. Ala 
1997)(describing Alabama state's mental health facilities). 

“}1. 

RUG B4 '00 17:40 8 ees PRGE. 12 

 



  

14 

In the case at bar, the district court correctly determined 

the issue this Court directed it to decide. Every racial 

gerrymandering case has a unique mix of facts and 

circumstances. Accordingly, Appellants’ suggestion that the 

evidence in this case must be the same as that found in previous 

cases, Appellants’ Brief at 18-21, 1s at odds with Miller v. 

Johnson. 515 U.S. 900, 915 (1995) (stating that “[t]he 

plaintiff’s burden is to show, either through circumstantial 

evidence of a district’s shape and demographics or more direct 

evidence going to legislative purpose, that race was the 

predominant factor” and that “parties alleging that a State has 

assigned voters on the basis of race are neither confined in their 

proof'to evidence regarding the district’s geometry and makeup 

nor required to make a threshold showing of bizarreness™). In 

this case, strong circumstantial and direct evidence in the record 

supports - indeed, compels - the district court’s finding of racial 

predominance. 

B. Circumstantial evidence supports the District Court’s 

finding that race predominated over traditional 

redistricting principles in the creation of the Twelfth 

District. 

1. Traditional redistricting principles were subordinated to 

race. 
  

In Miller, the Court stated that to show race 

predominated in the construction of a district, “plaintiff[s] must 

prove that the legislature subordinated traditional race-neutral 

districting principles, including, but not limited to, compactness, 

contiguity, and respect for political subdivisions or communities 

defined by actual shared interests, to racial considerations.” 515 

U.S. at 916. The indisputable circumstantial evidence presented 

  

standard. 

 



be FUE A ERR a. LU LhlMDUA LLVdAL DINGS CLETQ0UY ULDY BGI r vy tp 

  

common(,]... minimally adequate health care was unavailable ... 
[a]ssaults on residents by staff members, including sexual assaults, 
were frequent ... [d]angerous psychotropic drugs were 

indiscriminately used ...,”** and “[c]lients lay half-naked and 
unattended in their own urine and feces on cold floors in dismal 

surroundings while untrained attendants watched television.” 

Institutionalized people have also had to counter the presumptions 

of Incompetence manifested in denial of voter registration or use of 

absentee ballots. ** 
As the U.S. Commussion on Civil Rights documented, 

state discrimmation has been evident even in a sad spectrum of 
core activities, from the rights afforded other citizens to vote, hold 

public office or serve on juries,’ to basic personal decision- 

  

1 Pennhurst Stare School & Hospital v. Halderman, 465 U.S. 89, 128 n. 
1 (1984)(J. Stevens, dissenting). 

" Society for Good Will 10 Retarded Children v. Cuomo, 745 F. Supp. 
879 (E.D.N.Y. 1990). 

‘* E.g., Boyd v. Board of Registration of Voters of Belchertown. 368 
Mass. 631, 636, 334 NE. 2d 629, 632 (1975)(rcfusal to allow institutionalized 

individuals to register 10 vote), see also I/M/O Absentee Ballots Cast By 

five Residents of Trenton Psychiatric Hopital, 331 N.J. Super. 31. 34, 750 

A. 2d 790, 791-92 (2000)(rcfusal to accept absentee ballots of Trenton 

Psychiatric Hospital on the presumption of their incampetence). 

' Some state courts have been sued because of policies barring 
disabled individuals from participating in judicial proceedings. See 

Galloway v. Superior Ct, 816 [. Supp. 12 (D.D.C. 1993). See also Srate of 

Missouri v. Spivey. 700 S.W.2d 812, 813 )(1985)(affirming exclusion of 

“deaf, mutc, deaf-mute and blind persons” from jury pool because “[w)e 

doubt that deaf persons have a cammunity of atitudes or ideas”), DeLong 
v. Brumbaugh, 703 F Supp. 399, 406 (W.D. Pa. 1989)(State superior court 
judge testifying that he “would disqualify a deaf person under all 

circumstances’). 

  

is. r+ 

  

ALG G4 00 17:40 1 , A scos= PAGE. 13 

 



  

15 

at trial shows that District 12 is one of the least compact 

congressional districts in the nation and that it is only one 

precinct wide in numerous parts of the district as it snakes 

between the predominately African-American areas. Appellees 

also proved at trial that District 12 utterly disregards political 

subdivisions and communities of interest as it aggregates 

African-American voters. In addition to racially dividing all six 

of its counties, the district also divides nine of its thirteen cities 

and towns, including the four largest, by race. It also combines 

dispersed African-American sections from different metropolitan 

areas that had not been together in a single congressional district 

in the two hundred years prior to the 1992 plan held 

unconstitutional in Shaw v. Hunt. 

The African-American population in North Carolina is 

approximately 22% of the total population and is “relatively 

dispersed.” Shaw v. Reno, 509 U.S. 630, 634 (1993). For 

example, the percentage of the African-Americans in the six 

counties split by the Twelfth District is 23.6%. Of these six 

counties, Guilford County has the highest percentage of 

African-Americans at 26.4%. See Jt. App. at 485. On the other 

hand, the Twelfth District’s total African-American population 

is 46.67%. Because of the scattered residence of black persons 

across the Piedmont, this percentage can only be achieved by 

disregarding traditional North Carolina redistricting principles 

of compactness, and of keeping cities and counties whole. 

Thus, the “new” Twelfth District is “in many respects . . . almost 

the geographical monstrosity” that was its unconstitutional 

predecessor. Abrams v. Johnson, 521 U.S. 74, 88 (1997) 

(rejecting the use of a district with features like those of a 

district previously adjudicated to be unconstitutional).” Tt 

  

'> Appellants originally contended that they had cured the 

constitutional defects in the former plan by emphasizing the following 

factors in locating and shaping the new districts: (1) avoidance of the 

 



a Tal eRe . Luli LANMOYAT LENALTUINY (ITO UL) 80. 0; EI Th Td 

  

making” and from entering contracts, to choosing to marry** and 
raise children.’” SPBCTRUM OF ABILITIES, supra, at 40. 

In short, “[t]he record before Congress... evidenced that 
discrimination against disabled people persisted in government 
programs,” and that “Congress was aware” that state and local 
officials, consciously and intentionally, out of animus and 
ignorance, segregated persons with disabilities” and treated them 
“as not only inferior, but also as dangerous.” Petitioners offer 
no theoretically legitimate state justification for these kinds of 
incursions into the rights of the disabled; rather, they simply ignore 
and deny their existence in the data which Congress considered. 

The Petitioner’s recitation of the short list of record 
references to positive state action on behalf of the disabled offered 

  

7 See Poe v. Lynchburg Training School and Hospital, 518 F.Supp. 
789 (W.D. Va. 1981)(class actian lawsuit by former Virginia state 
institutions who were involuntarily sterilized). 

* S2¢ Utah Code Ann. §30-1-2(1)(1987), providing that marriage with “a 
persons afflicted with acquired immune deficiency syndrome” is 
“prohibited and ...void”). Only after the ADA went into affect was the Jaw 
successfully challenged. 7.E.P. v. Leavis, 340 F.Supp. 110 (D.Utah 1993). 

** Even in the years shortly preceding, and immediately following, the 
ADA’s adoption, state courts repeatedly found that having a parent with 
a disability was not in a child's best interests. Eg. Stewart v. Stewart, 
521 N.E. 2d 956 (Ind. Ct. App. 1988)(dcnial of custody to parent with HIV); 
HJB. v. PW. 628 So. 2d 753 (Ala. Civ. App. 1993)(termination of father’s 
parental rights based on his infection with HIV), Bednarski v. Bednarski, 
366 N.W. 2d 69 (Mich. Ct. App. 1985)( reversing termination of deaf 
woman’s custody of her “two narmal children’) 

* See also Stephen L. Mikochik, The Constitution and the Americans 
With Disabilities Act: Some First Impressions, 64 TEMP. L. REV. 61 8,623 
and n. 33 (1991). 

# Timothy M. Cook, The Americans With Disabilities Act: the Move to 
Integration, 64 Temp. L Rev. 393, 397-98 (1991). 

“13: 

AUG B84 '@8 17:41 Ad e..... PAGE. 14 

 



16 

subordinates traditional, race-neutral districting principles, and 

it subordinates them primarily to race. 

a. The Twelfth District of the 1997 Plan ranks nationally 

in the bottom 1% of the nation’s districts for compactness. 

The Twelfth District of the 1997 plan is extremely 

noncompact - whether the test used is visual inspection or a 

mathematical formula. It remains in the bottom five 

congressional districts in the nation, ranking either 432 or 433 

out of 435 in “perimeter compactness” and 430 or 431 in 

“dispersion compactness.” Jt. App. at 107-08. The district 

court found that the Twelfth District’s dispersion score of .109 

and its perimeter score of .041 were both below the “low” 

compactness measures articulated in Richard H. Pildes & 

Richard G. Niemi, Expressive Harms, “Bizarre Districts,” and 

Voting Rights: Evaluating Election-District Appearances After 

Shaw v. Reno, 92 MICH. L. REV. 483, 571-573, tbl.6 (1993). 

  

  

Appellants’ J.S. App. at 16a. Cf. Bush v. Vera, 517 U.S. 952, 

960 (1996) (O’ Connor, J., plurality opinion) (finding this article 

to be “an instructive study”). The Twelfth District is 

dramatically less compact than the other districts in the North 

  

division of counties and precincts; (2) avoidance of long narrow 

corridors connecting concentrations of minority citizens; (3) geographic 

compactness; (4) functional compactness (grouping together citizens of 

like interests and needs); and (5) ease of communication among voters 

and their representatives. Jt. App. at 382; Appellants’ J.S. App. at 83a. 

As 1s next discussed, the 1997 Twelfth District does not conform to any 

of these factors. The departure from Appellants’ own stated criteria 

implies that they were spurious and justifies an inference of a 

predominantly race-based motive. Now, however, to fit better to their 

current litigation posture, Appellants have changed their list of factors 

allegedly employed by the General Assembly. See Appellants’ Brief at 

4. Appellant-Intervenors, however, are still citing the original list. 

Appellant-Intervenors’ Brief at 9-10.  



LAND UA LIAL DENS ¢ | coud UU 

in support of its assertion does not eclipse the weight of the 
record: volumes of testimony about the breadth of discrimination 
that infected all institutions, both public and private. What 
matters in this case is that there is sufficient evidence of 
unconstitutional state conduct to warrant the ADA’s enactment as 
legitimate remedial legislation.” None of this Court’s prior 
decisions suggests that a foundation of unanimous record 
testimony or complete consensus of the Congress on the existence 
of unconstitutional state conduct is required to justify 
Congressional action affecting the states; nor do they require that 
Congress identify every unconstitutional state harm that could 
serve as a predicate to a legitimate exercise of its Section 5 

  

# Testimony conceming positive state action in the treatment of those 
with disabilities is countered in the evidence by a mare than equivalent 
account to the contrary. In the area of employment, for example, some of 
the testimony Cangress heard included accounts of the denial of teacher 
certification to a woman with paralysis of the legs. Senate Comm. On 
Labor and Human Resources, Report on the Americans With Disabilities 
Act, S.Rep. No. 101-116 (1950) at 7, New York State's refusal to hire blind 
rehabilitation counselors, HOUSE CoMM, ON IIDUCATION AND LABOR, 
AMERICANS WITH DISABILITIES ACT, HEARING BEFORF. THE SUBCOMMITTEE 
ON SELECT EDUCATION ON H.R. 4498, at 1184; a state mental retardation 
facility's refusal to hire a job applicant with a mobility impairment, id. Al 
1225; the routine refusal of California state agencies to hire cancer 
survivars, Hous CoMM. ON EDUCATION AND [ABOR, AMERICANS WITH 
DISABILITIES ACT, HEARING BEFORE THE SUBCOMMITTEE O SELECT 
EDUCATION ON H.R. 2273, AT 1619-1620 (Sep’t 13, 1989)(statement of Arlene 
Mayerson); and a state university's firing of a professar of veterinary 
medicine because he had AIDS. AMERICANS WITH DISABILITIES ACT: 
HEARING ON S. 933 BEFORE TIIE SENATE COMM. ON LABOR AND HUMAN 
RESOURCES, 1017 CONG. 404 (May 9, 1989)(statement of National 
Organizations Responding to AIDS). 

“For the purposed of determining whether a statute represents a valid 
exercise of a delegated power, the relevant inquiry is whether Congress 
‘could have’ enacted the stature pursuant to the power.” Kilcullen v. N. 
Y. State Department of Labor, 205 1¥.3d 77 (2000). 

“14 

AUG 4 "08 17:41 A 8 9... PAGE. 15  



  

17 

Carolina 1997 Plan. Furthermore, as the district court found, 

the Twelfth District was less compact than districts in other 

states that had previously been held unconstitutional. 

Appellants’ J.S. App. at 26a." 
When the district’s bizarre shape is combined with its 

demographics, the State’s race-based purpose is revealed in the 

district’s twists and turns as it narrows to the width of a single 

precinct at several points to avoid including white voters as it 

  

16 Comparisons to other judicially invalidated districts, in states 

with different histories, population densities, local government units, and 

geographical features are necessarily limited in value. Cf. Appellants’ 

Brief at 18-21. Comparisons to districts never challenged under Shaw 

theories are even less valuable. Cf. ACLU Brief at 16-17 (citing districts 

which are more compact and more regionally-based, most of which are 

located in a single metropolitan area, and composed of whole counties). 

Appellants err in suggesting that District 11 in the court- 

ordered remedial plan for Georgia bears similarity to the 1997 version of 

District 12. (Appellants’ Brief at 36 n.45; See also ACLU Brief at 15.) 

First, the Georgia district is comprised not of “parts of 13 counties” but 

of 12 entire, intact counties and only one split county. Second, it does 

not split small cities or large ones, either by race or by partisanship. 

Instead, it is a much more compact and rational district. See App. at la. 

In contrast, the North Carolina district not only fractures all of its cities 

and counties along racial lines, it does not even consistently follow I-85, 

which is the supposed similarity between the districts. 

As for Lawyer v. Department of Justice, 521 U.S. 567 (1997), 

that case addressed a low income district included in a single 

metropolitan area, rather than a district which linked the African- 

American sections of a string of different cities. Furthermore, that state 

senatorial district was not constructed so that only an African-American 
would be elected, and it did not stand out as significantly more distorted 

than others in Florida, especially in view of Florida’s irregular coastline. 

The Twelfth District of the 1997 Plan is significantly less compact than 

the other districts and is not in a single metropolitan area. Also, Lawyer 

did not involve a full trial, but rather a fairness hearing which “produced 

but two dissenters,” who “neither presented relevant legal evidence nor 

offered germane legal argument.” /d. at 575 (citations omitted). 

 



  

decision rejecting the antitrust counterclaim. Id. at 65 (quoting 
Fed. R. Civ. P. 11). See also Liberty Lake Invs., Inc. v. 

Magnuson, 12 F.3d 155, 157-58 (9th Cir. 1993). We do not 

lightly conclude in any Noerr-Pennington case that the litiga- 

tion in question is objectively baseless, as doing so would 

leave that action without the ordinary protections afforded by 

  

12448 
the First Amendment, a result we would reach only with great 

reluctance. 15 

Applying these principles to the present case, it fol- 

lows that the plaintiffs’ state-court lawsuit could have 
amounted to a discriminatory housing practice only in the 

event that (1) no reasonable litigant could have realistically 
expected success on the merits, and (2) the plaintiffs filed the 

suit for the purpose of coercing, intimidating, threatening, or 
interfering with a person's exercise of rights protected by the 

FHA. Because, in the present case, the first requirement can- 

not be sustained, we need not even consider the second. 

Objective baselessness is the sine qua non of any claim that 

a particular lawsuit is not deserving of First Amendment protec- 

tion.16 The lawsuit filed by the plaintiffs was unquestionably 
not objectively baseless. Far from it: it challenged a rather 
egregious conflict of interest by a person who was simulta- 

neously a member of both the Zoning Adjustment Board and 

the board for the developer seeking the Bel Air use permit. As 
the director of HUD's Office of Investigations ultimately con- 
cluded, the plaintiffs' action "would have constituted a suc- 
cessful legal claim" but for the court's application of the 

"good faith" exception under California law. 

The HUD officials protest that they could not ascertain 
from the face of HRI's administrative complaint whether the 
plaintiffs' lawsuit in fact had an objective basis. The com- 
plaint did not mention the conflict of interest that lay at the 
heart of the litigation. Instead, the complaint simply stated 
that (1) the plaintiffs had filed a lawsuit seeking to stop RCD 

  

15 Nor do we decide whether lawsuits that challenge government conduct 
may ever be treated as "sham," even if objectively baseless. See Note, A 

Petition Clause Analysis of Suits Against the Government: Implications 

for Rule 11 Sanctions, 106 Harv. L. Rev. 1111, 1118 (1993). Cf. City of 

Long Beach v. Bozek, 645 P.2d 137, 31 Cal.3d 527 (1982), vacated, 459 

  

  

  

  

U.S. 1095, reiterated, 661 P.2d 1072, 33 Cal.3d 727 (1983). 

 



  

18 

connects the dispersed African-American populations of 

Charlotte, Winston-Salem, Greensboro and the smaller towns in 

between. As the district court found, almost 75% of the total 

population in the Twelfth District came from mostly African- 

American portions of the three urban counties at the ends of the 
district. The parts of the three rural counties have “narrow 

corridors which pick up as many African-Americans as needed 

for the district to reach its ideal size.” Appellants’ J.S. App. at 

12a; see also Jt. App. at 483. As the district court also found, 

“It]he only clear thread woven throughout the districting 

process is that the border of the Twelfth District meanders to 

include nearly all the precincts with African-American 

population proportions of over forty percent which lie between 

Charlotte and Greensboro, inclusive.” Appellants’ J.S. App. at 

25a. This is starkly depicted in a map of the region. Jt. App. at 

483. As discussed below in connection with the division of 

cities and towns, the shape of the district more precisely 

correlates with the race of the district’s voters than with their 

politics. 
Finally, the 1997 Plan’s Twelfth District can not be 

described as “functionally compact” unless the term is 

understood to mean that it links together concentrations of 

African-Americans. Significantly, in recent years the term has 

been used in just that way to seek to evade criticism that various 

racially gerrymandered districts lacked compactness. In fact, a 

witness proffered by Appellant-Intervenors in this case testified 

that the 1992 Twelfth District is more compact in the sense of 

“functional compactness” than the 1997 Twelfth District, and 

the 1997 Twelfth District in turn is more compact than the 1998 

Twelfth District. Jt. App. at 580. Cf. Jt. App. at 500-502. 

Similarly, Gerry Cohen, the draftsman of the 1992 and the 1997 

Plans, testified in the Shaw trial that the racially gerrymandered 

First and Twelfth Districts were among the most compact in the 

1992 Plan. Jt. App. at 812. Obviously, “functional 

 



  

16 There is an exception to this rule that we discuss in Section .B.3.b., 
infra. It is, however, not pertinent here. 

12449 

from receiving a use permit for the Bel Air project, (2) they 
had failed in their efforts to obtain a preliminary injunction, 
and (3) HRI believed that the plaintiffs were "blocking" the 

Bel Air project "because they perceive the primary residents 
of the facility will be the mentally disabled or the disabled 
through substance abuse." The officials argue that while it did 

not say so explicitly, HRI's complaint at least raised the pos- 
sibility that the plaintiffs’ lawsuit was objectively baseless, 

that its sole purpose was to cripple the Bel Air project by 

causing undue delay and the imposition of substantial legal 
costs on its supporters, and therefore that the state-court 

action constituted a discriminatory housing practice under the 

FHA.17 The officials contend that on that basis they were enti- 
tled, and indeed required by § 3610(a)(1)(B) of the FHA, to 
investigate this matter. 

We agree that the San Francisco Office was justified in 
accepting HRI's complaint. Furthermore, the mere fact that 

the officials provided the plaintiffs with a copy of HRI's com- 

plaint and informed them of their rights and duties under the 
FHA, pursuant to § 3610(a)(1)(B)(ii), did not in itself violate 
the plaintiffs’ rights under the First Amendment. As we have 
explained earlier, however, the critical issue is not whether 

the HUD officials were justified in accepting HRI's complaint 
and initiating some form of limited investigation, but whether 

the manner in which they actually conducted their eight- 
month investigation violated the plaintiffs' First Amendment 
rights. 

This court has held that when an action involves "the 

right to petition governmental bodies under Noerr- 

  

17 Even though HRI's complaint was actually drafted by a HUD intake 

analyst, administrative complaints are normally interpreted generously to 
the complainant in statutory schemes "in which laymen, unassisted by 
trained lawyers, initiate the process." Zipes v. Trans World Airlines, Inc., 
455 U.S. 385, 397 (1982) (quoting Love v. Pullman Co., 404 U.S. 522, 

527 (1972)). 

  

  

12450 
Pennington," it is necessary to apply a "heightened level of 

 



  

19 

compactness” is equated here with race. Appellees submit that 

the term “functional compactness” should be unequivocally 

rejected by the Court as a substitute for geographic 

compactness in Shaw cases." 

b. The Twelfth District of the 1997 Plan severely 

disrespects political subdivisions. 
The Twelfth District is the only district in the 1997 plan 

which splits all of its counties, and it does so along racial lines." 

This alone is a sharp contrast to past redistricting traditions. 

See Jt. App. at 97-99; Ex. 288A and 289. As the District Court 

  

  

  

17 Another example of reversing the meaning of terms is 

provided in the Amicus Brief of the ACLU which claims that the 

Twelfth District is now the most “integrated” in the United States 

because its percentage of blacks and whites is now nearly equal. ACLU 

Brief at 2, 23. Following this logic, an eight room school would be 

“integrated” if it had four all-white classrooms and four African- 

American classrooms. 

'8Contrary to Appellants’ assertion that only two precincts 
(existing in 1990) are split by the 1997 plan, Jt. App. at 382, the 1997 

Twelfth District actually splits many (present day) precincts, see Tr. at 

191, because of changes which occurred after the computer was loaded 

with its data in 1991. See N. C. Gen. Stat. § 163-210(b) (1999) at Ex. 

219. However, even the use of whole precincts in the official computer 

database does not insulate a racially-constructed district from challenge. 

See Shaw v. Hunt, 517 U. S. 899, 932 n.7 (1996) (observing that the 

State in Miller had claimed to use whole precincts, “but the Court found 

that precinct lines had been relied on only because they happened to 

facilitate the State’s effort to achieve a particular racial makeup”). See 

also Hays v. Louisiana, 936 F. Supp. 360, 368 (W.D. La. 1996) (three- 

judge court) (assignment of whole precincts by race violates Equal 

Protection), appeal dismissed as moot, Louisiana v. Hays, 518 U.S. 1014 

(1996). Similarly, in North Carolina, the precincts have been drawn in a 

more racially segregated manner as a by-product of Voting Rights Act 

lawsuits in the state. See Jt. App. at 127-28. 

 



  

protection . . . to avoid "a chilling effect on the exercise of this 
fundamental First Amendment right." " ONRC v. Mohla, 944 
F.2d at 533 (quoting Franchise Realty Interstate Corp. v. San 

Francisco Local Joint Executive Bd., 542 F.2d 1076, 1082 

(9th Cir. 1976)). Because the plaintiffs’ lawsuit could have 
been actionable under the FHA if and only if it were a sham, 
the officials were obligated to first determine that the suit was 

objectively baseless before proceeding with any potentially 
chilling investigation into the plaintiffs' protected speech and 

other petitioning activity -- even for the stated purpose of 
determining whether the plaintiffs had filed the suit with an 
unlawful discriminatory intent. As with the methodology 

mandated by the Supreme Court for judicial review of law- 

suits, see Professional Real Estate Investors , 508 U.S. at 60- 

61, a determination of objective baselessness of the litigation 
is a constitutionally required precondition to any investigation 
into the nature of the plaintiffs' advocacy. 

  

  

  

  

The HUD officials completely failed to satisfy this 
threshold requirement. From the time they initiated their 

investigation until the time they submitted their final report to 

the Washington office, the officials made little or no effort to 
investigate the basis for the plaintiffs' suit. Instead, their 

investigation focused almost exclusively on what the officials 
considered to be the plaintiffs’ discriminatory speech. Direc- 

tor Gillespie's two-page, single-spaced letter of July 1994 
broadly asserted HUD's purported jurisdiction to investigate 
"speech advocating illegal acts" and cited reprovingly the 
plaintiffs’ "news articles which referenced the mental disabili- 
ty" of the Bel Air project's intended residents; it did not, how- 
ever, mention the plaintiffs’ lawsuit once. Likewise, 
investigator Smith did not ask the plaintiffs any questions 

about the lawsuit during his interviews. Most striking, the 
officials completed and submitted to HUD headquarters a 

final investigative report that failed to include any information 
about the plaintiffs’ lawsuit more substantial than what was 
set forth in HRI's complaint. After receiving the San Fran- 

12451 
cisco Office's investigative materials, and analysis, and its 
finding of "reasonable cause" to believe that the plaintiffs had 
violated the FHA, Director Pratt in the Office of Investiga- 

tions felt compelled to direct the San Francisco Office to sup- 

plement the report with information and documents on the 

lawsuit. This is in spite of the fact that on February 8, 1994, 

 



20 

also noted, in further disregard of political subdivisions, the 

Twelfth District split its four cities and many towns along racial 

lines. Appellants’ J.S. App. at 25a." 
In Bush v. Vera, even though there was some correlation 

between the Appellants’ proffered race neutral explanations and 

the district lines, the plurality opinion found “no basis in the 

record for displacing the District Court’s conclusion that race 

predominated over them, particularly in light of the court’s 

findings that . . . they do not differentiate the district from 

surrounding areas . . . with the same degree of correlation to 

district lines that racial data exhibit.” 517 U.S. 952, 966 (1996) 

(O’Connor, J., plurality opinion) (citations omitted). 

Furthermore, “[r]ace may predominate in the drawing of district 

lines because those lines are finely drawn to maximize the 

minority composition of the district, notwithstanding that in an 

overwhelmingly Democratic area, the total of Democrats in the 

district far exceeds its total minority population.” /d. at 972 n.1. 

The district court found that “where cities and counties 

are split between the Twelfth District and neighboring districts, 

the splits invariably occur along racial, rather than political 

lines.” Appellants’ J.S. App. at 25a. This 1s true whichever of 

the four measures of “party affiliation” - registration or the 

voting results in three elections - is used.” While some 

  

"That this was no accident can be seen in the last minute fine 
tuning of District 12 described by legislative employee Linwood Jones to 

Rep. McMahan’s House Redistricting Committee on March 25, 1997. 

“In Iredell we have gone into Statesville, which I believe picked up the 

minority percentage of District 12 - we came a little bit more out of 

Southern Rowan when we did that.” Jt. App. at 460. 

“In an effort to discredit the conclusions of the district court, 
the Solicitor General misrepresents the meaning of the term “party 

affiliation” and attempts to equate it with voter registration. U.S. Brief 

at 21. The term, as used regularly throughout the trial phase, refers to  



  

the plaintiffs’ attorney had sent investigator Lee a memoran- 
dum from the Berkeley City Manager acknowledging the con- 
flict of interest that was the subject of the plaintiffs’ action. 

These undisputed facts show that the San Francisco HUD 
officials conducted their eight-month investigation, primarily 
if not exclusively, into and in response to the plaintiffs' pur- 

portedly unlawful speech and not in connection with their 
state-court lawsuit. Having ignored the factual and legal basis 
for that litigation throughout, and instead having taken a 

course certain to chill the exercise of the plaintiffs’ First 

Amendment rights, the officials may not now argue that their 
investigation was justified as a means of determining whether 

the plaintiffs had violated the FHA by filing a sham lawsuit. 

b. Bill Johnson's 

The HUD officials strongly argue, however, that most of 
the investigatory period occurred after the state court entered 

judgment against the plaintiffs, and because of that adverse 
judgment there was no need for the officials to inquire into 
the lawsuit's objective basis. This argument is based on the 
theory that the Noerr-Pennington "sham" rule that protects all 
but frivolous suits applies in antitrust cases only and therefore 
does not apply to the plaintiffs’ lawsuit. The officials assert 
that a decision from the realm of labor law, Bill Johnson's 

Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), rather than 

Noerr-Pennington, sets forth the appropriate rule for the case 

before us. Under Bill Johnson's, according to the HUD offi- 

cials, if a plaintiff loses its lawsuit, all that it is necessary to 
show is that the suit was filed with a discriminatory motive; 

  

  

  

12452 

whether or not there was an objective basis for the legal 
action is immaterial. 

In Bill Johnson's a waitress filed unfair labor practice 
charges with the National Labor Relations Board (NLRB), 
alleging that she had been fired for her efforts to organize a 

union. 461 U.S. at 733. The restaurant sued her in state court, 

alleging that while picketing she had harassed customers, 
blocked access to the restaurant, threatened public safety, and 

libeled the restaurant in her leaflets. Id. at 734. The waitress 

then filed a second charge with the NLRB, alleging that the 
restaurant had violated 29 U.S.C. § 158(a)(1) of the National 

  

 



21 

correlation exists between party and the boundaries of the 

Twelfth District, this correlation does not achieve the same 

precise match that exists between the boundaries of the Twelfth 

District and the predominately African-American precincts. This 

can be seen by comparing the district-wide racial percentage 

map of the Twelfth District with the voting results maps of the 

Twelfth District for the 1988 Court of Appeals race and the 

1990 Senate race, and with similar maps for individual 

counties.” 

  

any of the “four different measures of party affiliation” contained within 

the database of the State’s redistricting computers. Peterson Dep. at 19. 

In their first appeal, Appellants, exaggerating the difference 
between the registration data and voting performance data, alleged that 

“the disparity between party registration and voting behavior in North 

Carolina explains the shape and racial demographics of District 12.” 

Brief on the Merits for Appellants at 31, Hunt v. Cromartie, 526 U.S. 

541 (1999). Accord, Appellants’ Brief at 23 ("undisputed", 

"uncontroverted"). In fact, as Dr. Weber later testified at trial and as the 

voluminous maps and data in the record show, an analysis of voting 

performance - especially in the urban Piedmont - is “very consistent” 

with a registration analysis. Jt. App. at 126. White Democrats in the 

Piedmont cities largely vote the way they register. See Stips. 54-61, Jt. 
App. at 17-20. Cf. Jt. App. at 483-484, 489-496. Also the State 

considered registration data in constructing this very plan. See 

McMahan Dep. at 88; Jones Dep. at 44, 80, 149; Ex. 31; see also 

Peterson Dep. at 82-83 (Dr. Peterson arguing against discounting "those 

analyses which include registration as a component"). 

Also on their first appeal, Appellants attached to their reply 

brief new maps which showed the Republican victories in only the 

precincts immediately outside the Twelfth District. See Appellants’ J.S. 

App. at 213a, 217a, 221a. A more complete version of these maps is 

attached to Appellees’ present brief. App. 2a-4a. On this appeal, 

subsequent to trial Appellants have once again prepared new maps 

which were not previously made available for evidentiary review by the 

district court. Appellants’ Brief at 1a-3a. Appellees’ objections to the 
authenticity of these new maps are detailed in the appendix to this brief.  



Labor Relations Act (NLRA), which makes it an unfair labor 

practice for an employer "to interfere with, restrain, or coerce 

employees in the exercise of the rights" guaranteed under that 

act. See 461 U.S. at 734-35. The NLRB found that the restau- 

rant's lawsuit lacked a reasonable basis in fact and was filed 
to penalize the waitress for engaging in protected activity, and 
it ordered the restaurant to withdraw its state-court complaint 

and undertake a number of additional remedial measures. Id. 

at 737. 

The Supreme Court vacated and remanded. It observed that 

§ 158(a)(1) was a broad, remedial provision intended to guar- 

antee employees the ability to enjoy their rights under the 

NLRA, and that "[a] lawsuit no doubt may be used by an 
employer as a powerful instrument of coercion or retaliation." 
Id. at 740. On the other hand, the Court wrote, "the right of 
access to the courts is an aspect of the First Amendment right 
to petition the Government for redress of grievances." Id. at 
741 (citing California Motor Transp., 404 U.S. at 510). It 
cited its construction of the antitrust laws "as not prohibiting 
the filing of a lawsuit, regardless of the plaintiff's anticompe- 

titive intent or purpose in doing so, unless the suit was a 
‘mere sham' filed for harassment purposes." Id. (citing Cali- 

fornia Motor Transp., 404 U.S. at 511). The NLRA had to be 
construed with a similar sensitivity to "these First Amend- 
ment values," the Court said. Id. It therefore concluded that 

  

  

12453 
the California Motor Transport rule for"sham litigation" 
applied to the NLRA as well. The NLRB could enjoin a state- 

court lawsuit as an unfair labor practice only if the employer 

was "prosecut[ing] a baseless lawsuit with the intent of retali- 
ating against an employee for the exercise of rights protected 
by [§ 158]." Id. at 744. An injunction would be improper if 

there was "any realistic chance that the plaintiff's legal theory 
might be adopted." Id. at 747. 

  

Notwithstanding the foregoing analysis and its affirmance 
of the principles set forth in California Motor Transport, the 
Court in Bill Johnson's then went on to draw a distinction 

with respect to the NLRB's right to impose remedies for the 

filing of state-court lawsuits that were pending and those that 
had concluded in a judgment adverse to the plaintiffs. The lat- 
ter lawsuits, the Court stated, did not receive the same broad 

immunity from NLRB action as the former. Once the plaintiff 

  

   



22 

In mixed motive cases, a boundary which corresponds 

more precisely to racial demographic data than partisan voting 

behavior is important evidence of a predominantly race-based 

district. See Bush v. Vera, 517 U.S. 952, 970-975 (1996) 

(O’Connor, J., plurality opinion). The voter performance data 

as well as the party registration figures establish that the 

boundary of the Twelfth District corresponds more precisely to 

racial demographic data than to partisan voting behavior data. 

Thus, the district court’s finding that splits occur along 

racial and not political lines is amply supported. Dr. Weber 

explained that when the data showing the political character of 

the split portions of the cities and counties, J.S. App. at 189a, 

191a-92a, is compared with the data showing the racial 

character, Jt. App. at 323-25, 333-337, “[t]he racial differences 

are always greater than the partisan differences.” Jt. App. at 34; 

See also Tr. at 265-69. A similar analysis of precinct 

assignment to District 12 for every precinct within the six 

affected counties showed a startling contrast between 

assignment correlated to race and correlated to the four 

measures of party affiliation. See Jt. App. 515. Cf. Appellants’ 

Brief at 29, n.36 ("selected precincts"). A complete review of 

every precinct in each of the six counties, the racial character of 

each, and the assignment of each to a district revealed patterns 

showing racial assignment. See Jt. App. at 86-87, 111, 339- 

356. Even when the comparison is restricted to all precincts 

supporting a Democrat for office with, for example, 60 to 

69.9% of the vote, the precincts in this set most likely to be 

assigned to the 12" District were the more heavily black ones. 

Id. at 87-88, 357-60. This “clear pattern” was constant for 

similar comparisons. /d. at 88, 101-03. 

The closer adherence to racial populations than to 

political voting behavior is also shown by comparison of the 

  

App. at 5a.  



lost its lawsuit, the NLRB could "consider the matter further 

and, if it 1s found that the lawsuit was filed with retaliatory 
intent, . . . find a violation and order appropriate relief." Id. 

at 749. Such NLRB action was permissible because at that 
point "the employer has had its day in court,[and] the interest 
of the state in providing a forum for its citizens has been vin- 
dicated." Id. at 747. We would ordinarily be tempted to treat 

these statements in Bill Johnson's as dicta, because they were 

not pertinent to the case before the Court and because in Pro- 

fessional Real Estate Investors, decided ten years later, the 

Court did not even mention the Bill Johnson's statements 
when holding that unsuccessful lawsuits receive the tradi- 
tional protection described in California Motor Transport, 

specifically including the requirement of objective baseless- 

ness.18 Whatever we might otherwise make of the apparently 

  

  

  

  

  

  

18 Particularly notable is the fact that in Professional Real Estate Inves- 

tors, the Court cited the holding in Bill Johnson's that "by analogy to 
Noerr's sham exception, . . . even an improperly motivated' lawsuit may 

not be enjoined under the National Labor Relations Act as an unfair labor 
practice unless such litigation is ‘baseless.’ " 508 U.S. at 59. However, 

  

12454 
contradictory positions announced by the Court, however, this 

circuit is not free to ignore the Bill Johnson's statements. On 
the basis of those statements, we have rejected an employer's 

argument that the NLRB erred in failing to determine whether 

a libel suit, which did not survive a demurrer in state court, 

was baseless. See Diamond Walnut Growers, Inc. v. NLRB, 53 

F.3d 1085, 1088 (9th Cir. 1995). In that case we held that 
"bringing an action that proves unmeritorious may constitute 

an unfair labor practice, even though the suit did not lack a 

reasonable basis in law or fact at the time it was filed." Id. We 

are bound by Diamond Walnut and therefore by the Bill John- 
son's statements. 

  

  

  

Citing Bill Johnson's and Diamond Walnut , the HUD offi- 

cials argue that a person would violate the FHA if he brought 
"an unsuccessful state court action to deter another person, or 
group of persons, from exercising their federally protected 

rights -- e.g. to keep them from moving into the neighbor- 

hood." Because the plaintiffs ultimately lost their state-court 
lawsuit, the officials argue that they acted properly in investi- 

gating the plaintiffs’ opposition to the Bel Air project to deter- 
mine whether they had filed that action with a discriminatory 

  

 



  

23 

maps of the racial demographics - both for the district and for 

the three major counties - with the mapped election results for 

the 1988 Court of Appeals contest and the 1990 U.S. Senate 

contest. See id. at 94-95. It can also be seen by a contrast of 

the maps at Jt. App. 483 to 489 and 493 (districtwide); 484 to 

490 and 494 (Forsyth); Ex. 107 to Jt. App. 491 and 495 

(Guilford); Ex. 109 to Ex. 257 and 267 (Mecklenburg); Ex. 240 

to JA. 492 and 496 (Iredell); Ex. 237 to Ex. 254 and 264 

(Davidson); and Ex. 242 to Ex. 254 and 264 (Rowan). See also 

Jt. App. at 2a-4a (summarizing the above maps and the 

additional data on the 1988 Lt. Governor contest results 

reflected in the state’s redistricting data set, e.g., Ex. 21, 22, and 

132.) 

c. The Twelfth District of the 1997 Plan does not 

respect communities of interest or ease of communication. 

The Twelfth District stretches from the metropolitan 

area of Charlotte to that of Winston-Salem and Greensboro. 

Thus it includes portions of two Standard Metropolitan Areas 

(SMAs) as well as parts of two television markets, several radio 

markets, and three newspaper circulation areas. See Jt. App. 

100-01; Tr. at 193-96; Ex. 302, 303. The map of population 

density for North Carolina illustrates how District 12 

consistently divides population centers. Jt. App. at 497. While 

the State has sometimes claimed the district unites “urban” 

populations, a casual review of the maps establishes that it only 

unites “urban black” populations, and uses “rural white” 

connectors to do so. Significantly, while “urban” blacks are 

linked into one district, neighboring “urban” whites in the same 

six counties are placed in other congressional districts. 

  

  

  

“For example, Mecklenburg County is the state’s most 
populous county but is smaller in population than a congressional 

district. It is divided by the District into three concentrations of voters - 

 



  

motive.19 

The HUD officials do not adequately explain why the Bill 

  

rather than applying or even citing the subsequent Bill Johnson's state- 

ments regarding unsuccessful lawsuits, the Court emphasized that a liti- 

gant's failure to prevail did not establish the objective baselessness of his 

suit, and it proceeded to apply Noerr-Pennington immunity to an action 
that had in fact been defeated on summary judgment. Had the Court 
believed that the statements in Bill Johnson's had any effect, we would 

expect that it would have explained why it did not apply them in the case 
before it. The fact that the Court did not do so indicates that it considered 
the statements dicta. 

19 The officials’ investigation started in November 1993 and the state 

court did not enter judgment against the plaintiffs’ coalition until February 

3, 1994. Most of the investigation, however, occurred after that date. 

  

  

12455 
Johnson's and Diamond Walnut rule which is applicable in 

NLRA cases should apply with respect to the FHA or to other 
statutes generally. They contend that the holding in Profes- 

sional Real Estate Investors is limited to the antitrust context, 

whereas the statements in Bill Johnson's establish the rule 

"for meritless state court suits in other contexts." The officials 
get the point exactly backwards. As we have discussed, this 

court has applied "the First Amendment rationale of the 
Noerr-Pennington doctrine" broadly to claims not involving 
antitrust law. See Manistee Town Ctr., F.3d. at ; Boul- 

ware, 960 F.2d at 800; ONRC v. Mohla, 944 F.2d at 533-34. 

Indeed, in Evans v. County of Custer we cited Noerr in hold- 

ing that "the first amendment's protection of the right to peti- 

tion the government for redress of grievances" encompasses 
the right of homeowners to challenge such property-related 
decisions by local government as road access rules. 745 F.2d 
at 1204. Adopting the theory advanced by the HUD officials 
would thus conflict with our prior case law which protects the 
First Amendment right of citizens to engage in petitioning 

activity, including the filing of lawsuits with an objective 
basis in fact or law, even if they ultimately prove unsuccess- 

ful. Restricting the basic Noerr-Pennington principles to anti- 
trust cases, as the HUD officials urge, would contravene our 

cases applying the Noerr-Pennington sham rule in all but the 
NLRA context.20 

  

  

  

    

  

  

  

20 We note, incidentally, that in the few published decisions in which 

 



  

24 

In this respect, the linking of supposed communities of 

interest does not differ from that accomplished by the Twelfth 

District of the 1992 Plan. Indeed, the very testimony relied on 

by Judge Thornburg in his dissent, Appellants’ J.S. App. at 53a- 

54a, and then cited by the Appellant-Intervenors, Appellant- 

Intervenors’ Brief at 24, was testimony which had been 

originally presented to the Shaw court as a justification for the 
unconstitutional 1992 Twelfth District. See Ex. 100, North 

Carolina Section 5 Submission, 1997 Congressional 

Redistricting Plan, 97C-28F-3B. On cross-examination in the 

Shaw trial, Gerry Cohen, the draftsman of the 1992 and 1997 

plans, admitted that when he spoke then of creating a “rural” 

Congressional District 1 and an “urban” Congressional District 

12, he “meant a rural black and urban black” district. Jt. App. 

at 814. 

Furthermore, the suggestion that all the connected 

Twelfth District voters (but apparently not their neighbors) 

share a link to Interstate 85 is also misleading. The district’s 

actual path meanders from Charlotte up 1-77, then leaves 1-77 

at Statesville and goes over to Salisbury where it follows 

generally the I-85 corridor until part of the district branches off 

to Winston-Salem. See Ex. 66. Black voters in Winston-Salem 

are not connected by I-85, and many white voters not in the 

Twelfth District have as least as much link to 1-85 as many 

blacks in the Twelfth District. Therefore, I-85 provides no basis 

  

one in the east which is predominantly white, one in the center which is 

predominantly black, and one in the west which is predominantly white. 

Mecklenburg Precinct 77 is then split to connect the two white urban 

areas into Congressional District 9. District 9 also contains some 

adjacent whole counties with predominantly white rural, suburban and 

urban sections. The black urban area of Mecklenburg County is linked 

by white “corridor” precincts to the black urban areas of Greensboro, 

Winston-Salem, and High Point. 

 



  

lawsuits were claimed to constitute discriminatory housing practices, dis- 
trict courts have generally applied the Noerr-Pennington "objectively 
baseless" standard in evaluating First Amendment defenses. See, e.g., 

United States v. Wagner, 940 F. Supp. 972, 981-82 (N.D. Tex. 1996) 

(holding that suit to enforce restrictive covenant against group home for 
mentally retarded children "had no reasonable basis in law or fact," had 

been filed with discriminatory aims, and therefore violated FHA); United 

States v. Robinson, 3 Fair Hous.-Fair Lend. (P-H) 4 15,979, at 15979.9 to 

15979.12 (D. Conn. Jan. 26, 1995) (holding that neighbors' zoning action 
challenging proposed use of home for handicapped children was not base- 

less as matter of state law and was therefore protected by First Amend- 

ment). 

  

  

12456 
Indeed, it is the NLRA cases that we treat differently from 

all others with respect to the Noerr-Pennington"sham" excep- 

tion. The reason is simple. The First Amendment rights of 
employers "in the context of [the] labor relations setting" are 

limited to an extent that would rarely, if ever, be tolerated in 

other contexts. See NLRB v. Gissel Packing Co. , 395 U.S. 
575, 617 (1969). In Gissel Packing the Supreme Court held 

that employer speech that constitutes an unfair labor practice 
under the NLRA does not receive full First Amendment protec- 

tion.21 The employer's right of expression has to be balanced 
against "the equal rights of the employees to associate freely," 

giving special consideration to "the economic dependence of 
the employees on their employers." Id. at 617. See also NLRB 

v. Associated Gen. Contractors, Inc., 633 F.2d 766, 772 n.9 

(9th Cir. 1980) ("Any attempt to reconcile an asserted govern- 

mental interest in disclosure with First Amendment rights 

must be made in the context of the labor relations setting. 

Association that would otherwise be protected may be regu- 
lated if necessary to protect substantial rights of employees or 
to preserve harmonious labor relations in the public interest.") 

(citation omitted). The NLRB is an agency charged with the 

regulation of union elections, the debate between employers 
and employees, and other related speech and conduct. Regula- 
tions controlling such expressive activity would almost cer- 

tainly be invalid outside the labor relations setting. 

  

  

  

  

In sum, the HUD officials would transform an exception 
that applies only to NLRB regulation of unfair labor practices 

into a rule of general applicability. They cite no cases that 

have so extended the Bill Johnson's "rule," and we have   

found none through our own research. Moreover, despite the 

 



23 

to distinguish black voters included in District 12 from nearby 

white voters who are excluded. Cf. Bush v. Vera, 517 U.S. 

952, 966 (1996) (O’Connor, J., plurality opinion) (finding no 
basis for displacing finding of predominance when purported 

race-neutral explanations do not differentiate the district from 

surrounding areas with the same degree of correlation as does 

racial data). 

Thus, unless community of interest is defined in racial 

terms the Twelfth District lacks “community,” and even then the 

connecting white corridors would fall outside the “community.” 

Defining community of interest on the basis of race would 

violate Shaw because it justifies a plan that “includes in one 

district individuals who belong to the same race, but who are 

otherwise widely separated by geographical and political 

boundaries” on the very grounds that Shaw condemns. Shaw v. 

Reno, 509 U.S. 630, 647 (1993). 

2. The racial explanation for the Twelfth District is better 

supported than the alternative political explanation advanced by 

Appellants. 

  

  

  

a. The Twelfth District is too safe to be understood as 

an attempt to protect a generic Democrat rather than as an 

attempt to ensure that a black Democrat wins the primary and 

then the general election. 

Appellants criticize the district court for giving weight 

to Dr. Weber’s statement that the Twelfth District of the 1997 

Plan is “too safe” to be explained merely as part of an effort to 

maintain a 6-6 partisan balance. Appellants’ Brief at 27. 

Appellants misapprehend the thrust of his analysis. Dr. Weber’s 

point is not merely that he prefers competitive districts, but that 

an explanation that the district was constructed for a Democrat 

of any race to win is probably inaccurate if the district is “safer” 

than necessary for any Democrat to win. Contrary to the State's 

  

  

  

  

 



  

  

21 In Gissel Packing the employer had conveyed, through speeches, leaf- 

lets, and letters, the message that it was in a precarious financial condition, 

that a strike would probably result in a plant shutdown, and that in such 
case the employees would have difficulty finding employment elsewhere. 

395 U.S. at 619. The Court affirmed the NLRB's finding that these com- 
munications constituted a threat of retaliatory action unprotected by the 

First Amendment. Id. at 619-20. 

  

12457 
present argument of the officials made for purposes of litiga- 
tion, the director of HUD's Office of Investigations in Wash- 

ington acknowledged, in finding no reasonable cause to 

proceed, that when a lawsuit is "premised on a reasonable 

basis in fact or in law," it 1s "protected by the First Amend- 

ment." We therefore conclude, as we have concluded in other 

contexts (including in the context of the petitioning activity of 

homeowners), that the principles embodied in the Noerr- 
Pennington doctrine apply to this case. That doctrine protects 

losing as well as winning lawsuits, so long as they are not 

objectively baseless. Thus, for the reasons explained earlier, 
the HUD officials’ failure to investigate the objective basis 
for the plaintiffs’ lawsuit rendered its investigation into the 
plaintiffs’ advocacy unconstitutional. 

4. Excessive Breadth of the Defendants’ Investigation 

As we have previously stated, there is a further reason 
why the investigation into the plaintiffs’ First Amendment 

activity was violative of the plaintiffs' rights. Regardless of 

whether Noerr-Pennington or Bill Johnson's applies, the 

investigation far exceeded what was reasonable for the pur- 
pose of ascertaining the plaintiffs' motives for filing the state- 
court suit and thus intruded unnecessarily on their First 

Amendment rights. 

  

[t is axiomatic that when the actions of government 

officials so directly affect citizens' First Amendment rights, 
the officials have a duty to take the least intrusive measures 
necessary to perform their assigned functions. See Lamont v. 
Postmaster Gen. of United States, 381 U.S. 301, 310 (1965) 

(Brennan, J., concurring) (citing Butler v. Michigan, 352 U.S. 

380 (1957)); cf. Scott v. Rosenberg, 702 F.2d 1263, 1275 (9th 

  

  

  

  

Cir. 1983) (observing that although "[c]ertainly, governmental 

agencies must be wary of complaints which cannot be investi- 

 



26 

view, Appellants’ Brief at 11, 30, the record contains a number 

of "viable alternatives” to the 1997 Plan. These Twelfth 

Districts “safe” for any Democrat include the 1998 plan and 

draft plans dated as far back as 1995. See, e.g., Ex. 126-129. 

Dr. Weber’s analysis regarding competitiveness reveals 

the true purpose of the legislature. The Twelfth District is 

gerrymandered so that African-Americans make up about 60% 

of the persons eligible to vote in a Democratic primary. As Dr. 

Weber noted, in this district “black voters have the ability to 

control the Democratic nomination” and can then “count on 

some crossover voting in the general election to win.” Jt. App. 

754. Accord, Cohen Dep. at 199-200. Or, as plaintiff Jake 

Froelich put it, for “a white candidate in a primary”, it “would 

be very, very difficult for that person to be nominated.” Jt. App. 

at 67. See also Ex. 52, pp. E-1, E-2, E-4, and E-8 (analysis of 

reconstituted Democratic primary election results). 

North Carolina has party primaries which are only open 

to registered voters of the party and to independents, and in 

which a candidate with a plurality can win a primary with just 

40% ofthe vote. N.C. Gen. Stat. § 163 - 111 (1999). Thus the 

relative numbers of the black and white registered voters in a 

district can have a major influence on who is most likely to win 
the primary. If the number of registered white Democrats in a 

district is less than a majority, but more than 40%, a risk 

remains that a single candidate with united white support might 

prevail over a fractured field of other candidates whose support 

comes overwhelmingly from black voters.” In the context of 

  

ZIn the 1992 Democratic primary this almost came to pass in 
the First District. State Representative Walter Jones, Jr., son of the 

retiring First District Congressman Walter Jones, Sr., competed as a 
Democrat and received 38% of the vote, while another white and several 

black candidates divided the remaining vote. With 40% of the vote 

Jones would have become the party nominee and in that event  



gated without interfering with first amendment rights," inves- 
tigation "in this case was narrow and avoided any 

unnecessary interference with the free exercise of religion"). 

12458 

The plaintiffs' reasons for opposing the Bel Air project were 
matters of public record and evident from the flyers in the San 

Francisco Office's possession before HRI even filed its com- 

plaint. There was simply no justification for the officials to 

take the extraordinarily intrusive and chilling measures they 

did during the subsequent eight-month investigation. There 
was no cause, for example, for defendant Zurowski to advise 

the plaintiffs during the conciliation process to"cease publi- 

cation of discriminatory statements (including articles in the 
CNA Newsletter) and fliers about the potential residents of 

the Bel Air project"; even if the plaintiffs’ suit had been 
objectively baseless, their non-threatening statements, "dis- 

criminatory" or not, would still have been fully protected by 
the First Amendment. There was no cause for defendants 

Smith and Lee to demand that the plaintiffs produce a list of 
the names, addresses, and telephone numbers of all involved 

parties and all witnesses to the expressive activity complained 

of, as well as copies of all files in their control concerning the 
Bel Air project. There was no cause for defendant Gillespie 

to assume the authority to investigate speech because it advo- 

cated discrimination against persons afforded benefits by the 

Fair Housing Act. There was also no cause for defendant Phil- 
lips to tell the San Francisco Examiner (if he did) that the 

plaintiffs "had broken the law." 

The HUD officials’ conduct cannot be squared with the 

First Amendment, no matter what rule is applied in evaluating 
the filing of the state-court lawsuit. The breadth of the investi- 
gation and the measures the officials took during its course 

bore no relation to the narrow purpose on which they now 
rely. The scope and manner of the investigation violated the 
plaintiffs' First Amendment rights. 

C. Was the Law Clearly Established? 

Having concluded that the plaintiffs have stated a 

proper First Amendment claim, we next consider whether the 
HUD officials are entitled to qualified immunity. Under this 

12459  



27 

the Democratic primary, racial registration data is especially 

important in discerning predominant racial motive. 

Because of the addition of the “Greensboro Black 

community” in the Cooper 3.0 plan, the percentage of 

Democrats who were black increased from 52.5% to 60.2%. 
Appellants’ J.S. App. 241; Ex. 130D. Later, a number of minor 

changes were made to the Twelfth District in its final form, and 

this percentage was increased to 60.5%. Appellants’ J.S. App. 

79a. On the other hand, under the 1998 Plan, Jt. App. at 502, - 

which was used in the 1998 primaries and elections - the 

percentage of Democrats who were black was 47.9%. Ex. 

103B. These percentages - when considered in conjunction 

with the 40% rule - help explain the predominant racial purpose 

of the General Assembly (a) in shaping the 1997 plan’s Twelfth 

  

undoubtedly would have been elected. However, in the runoff, Eva 

Clayton, who was preferred by black voters, received a majority and the 

nomination, and then she won easily in the general election. 

The calculation of the black portion of Democratic primary 

voters is made possible by the fact that North Carolina maintains its 

voter registration records both by party and by race. Appellants’ J.S. 

App. at 79a; Ex. 206. The numerator is the number of black registered 

voters in the 12" District times the rate of black registration as 

Democrats. Mr. Cohen previously studied that rate, and determined the 

figure to be 95% in urban areas. Jt. App. at 589. The denominator is 

the group of voters permitted under North Carolina law to vote in 

Democratic primaries, which is Democrats plus registered independents 

(only 773 in this district), who may choose to vote in one of either 

party’s primary. Stip. 53, Jt. App. at 17. 

For example, using the numbers from Appellants’ J. S. App. 

79a, the 1997 Twelfth District Democratic primary black percentage of 

60.5% is calculated by multiplying the number of registered black voters 

in the District, 126,488, by 0.95, the rate of black registration as 

Democrats. The product, 120,164, is divided by the sum of the number 

of registered Democrats and the number of registered independents 

(197,783 + 773 = 198,556). The resulting quotient is 60.5%.  



doctrine, government officials sued for damages for injuries 

arising out the performance of their discretionary functions 
must be "shown to have violated "clearly established statutory 
or constitutional rights of which a reasonable person would 
have known." " Conn v. Gabbert, 526 U.S. at 290 (quoting 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Closely 
analogous preexisting case law is not required to show that a 
right was clearly established. Schwenk, 204 F.3d at 1198; 
Mendoza v. Block, 27 F.3d 1357, 1361 (9th Cir. 1994); Alex- 

ander v. Perrill, 916 F.2d 1392, 1398 (9th Cir. 1990). As the 

Supreme Court has explained, "qualified immunity seeks to 
ensure that defendants "reasonably can anticipate when their 

conduct may give rise to liability,’ by attaching liability only 
if [t]he contours of the right [violated are] sufficiently clear 

that a reasonable official would understand that what he is 
doing violates that right.' " United States v. Lanier, 520 U.S. 

259, 270 (1997) (citations omitted). "This is not to say that an 
official action is protected by qualified immunity unless the 
very action in question has previously been held unlawful; but 
it is to say that in the light of preexisting law the unlawfulness 
must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 
(1987) (citations omitted). In analyzing a claim of qualified 

immunity, this court asks two related questions: (1) Was the 
law governing the officials’ conduct clearly established? and 
(2) Under that law, could a reasonable official have believed 

the conduct lawful? See, e.g., Ortega v. O'Connor, 146 F.3d 
1149, 1154 (9th Cir. 1998); Act Up!/Portland v. Bagley, 988 

F.2d 868, 871 (9th Cir. 1993).22 

  

  

  

  

  

  

  

  

We hold that in this case the unconstitutionality of 
each of the HUD officials’ actions was apparent at the time 

  

22 Qualified immunity, we note, involves a purely objective inquiry. See 

Crawford-El v. Britton, 523 U.S. 574, 588 (1998); Harlow, 457 U.S. at 

817-19. We therefore decline to consider either the plaintiffs’ contention 

that the HUD officials "actually knew" that they were violating the First 
Amendment but were "testing" to see how far they could proceed against 
neighborhood protest groups under the FHA, or the officials’ protestations 

they are "dedicated" public servants who acted"in good faith." 

  

12460 

they acted. The plaintiffs’ claim is founded on bedrock First 
Amendment principles and legal rules that this court and the 
Supreme Court have applied for decades, if not centuries. In 

1993 and 1994, reasonable government officials would have  



28 

District, and (b) later in inserting the provision whereunder the 

State would revert from the less racially gerrymandered 1998 

plan to the 1997 plan if the State successfully appealed the 

summary judgment against that plan. 

The same consideration may explain the reluctance to 

include some white Democratic precincts adjacent to the 

district, and the failure to exclude some white Republican areas 

in return. Adding white Democratic precincts would weaken 
the control of the primary by the otherwise dominant racial 

group in the district. On the other hand, retaining the white 

Republican precincts would not change the results of the general 

election in November; and so the white Republican voters can 

be used as mere “filler.” John Hart Ely, Standing to Challenge 

Pro-Minority Gerrymandering, 111 HARV. L. REV. 576, 584 

(1997). 

The overwhelming partisan safety of the 1997 district is 

illustrated by the results of statewide elections calculated for the 

precincts in the 1997 version of the District. Jt. App. 90-91; Ex. 

52, pp. E-3, E-5, E-6, E-7, and E-9; Jt. App. 92-93; Ex. 206 

(NCEC data used by Sen. Cooper showing an average 

Democratic performance of 62.7%, and President Clinton in 

1996 polling 64.4% within the 1997 District 12). The 

overwhelming safety is confirmed by the 1998 general election 

results, when the District had been reduced to a 33% black 

voter registration (Ex. 103B), but provided Congressman Watt 

56% of the vote. See Stip. 74, Jt. App. at 20. In other words, 

the General Assembly did much more than just avoid pairing 

incumbents. Cf. U.S. Brief at 14. It considered the political 

interests of each incumbent as an individual and then 

gerrymandered the Twelfth District predominantly with the 

purpose to assure a racially determined result in the primary. As 

a result, contrary to the suggestion by the Solicitor General, 

U.S. Brief at 17, this district is fundamentally different from the 

district in Lawyer v. Department of Justice, 521 U.S. 567  



known that they could not conduct an eight-month investiga- 
tion into the vocal but entirely peaceful opposition of resi- 
dents to a housing project proposed for their neighborhood, or 
into their efforts to persuade the appropriate government 

agencies of their point of view. They would also have known 

that accusations of law-breaking, threatened subpoenas, 
improper broad demands for documents and information, and 
admonishments to cease nonfrivolous litigation and the publi- 
cation of "discriminatory" statements would chill "uninhib- 
ited, robust, and wide-open" debate on public issues. See New 

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The 

HUD officials could not have reasonably believed their 

actions (as described at p. 12459 supra and in the Statement 

of Facts) to be consistent with the First Amendment. 23 See 

cases cited in Section [.B.1., supra. 

  

The officials argue that they were required by statutes and 
regulations to serve HRI's complaint on the plaintiffs, con- 

duct an investigation, and attempt to resolve it through concil- 
iation. The fact that an investigation may have been initiated 

pursuant to statutory and regulatory authority does not, how- 
ever, entitle the defendants to qualified immunity regarding 

the extent of the investigation and the manner in which it was 
conducted. See, e.g., Calabretta, 189 F.3d at 817 (stating that 

it was "not clear" why authorization under state regulations 
would excuse officials "from compliance with the Fourth 
Amendment"). It is the scope and manner of the investigation 

that the HUD officials should have known to be violative of 
the plaintiffs’ First Amendment rights. 

  

  

23 As to Phillips, our conclusion is based on the assumption that any dis- 
puted material facts are resolved in the plaintiffs' favor. See note 10, 
supra. 

12461 
It was also clearly established that the Noerr-Pennington 

doctrine sharply limited the officials' ability to treat the plain- 
tiffs' state-court lawsuit as a possible violation of law. Con- 

trolling case law had made clear that the doctrine was not 

limited to the antitrust context, and that the officials had a 

duty to first determine that the plaintiffs’ suit -- the only con- 
ceivable FHA violation alleged in HRI's administrative com- 
plaint -- was objectively baseless before proceeding with a 
potentially chilling investigation into the plaintiffs’ indisputa- 

bly protected speech and other petitioning activity. See cases  



  

29 

(1997). It does not offer any candidate without regard to race 

the opportunity to seek office and be elected. Cf. id. at 581. 

Rather, it is specifically designed to ensure that only a candidate 

of one preordained race will be elected. 

b. The Twelfth District of the 1997 Plan essentially 

maximized its African-American population, but not its 

Democratic voters. 

As the district court noted, Appellants’ J.S. App. at 7a, 

Dr. Weber looked at maps and data and found divisions along 

racial lines. See also Jt. App. at 97. Although Appellants seek 

to fracture the evidence in order to discount it, Dr. Weber’s 

finding of a greater correlation is fully supported by the 

evidence when taken as a whole. 

In an effort to avoid the Miller test, the Solicitor 

General suggests that in order to prevail the Shaw plaintiffs 

must show how to construct a more politically gerrymandered 

district. However, in no other Shaw case has any court 

suggested that plaintiffs must illustrate how a more Democratic 

or incumbent-friendly district may be formed in order to prove 

racial gerrymandering. Moreover, such a requirement - which 

the plaintiffs in Shaw itself might not have been able to fulfill - 

ignores the role of race in determining who will be the party 

nominee and disregards many other factors which should be 

considered by the fact-finder in light of all the evidence. 

The maps appended show precincts outside the district 

which voted for the Democratic candidate in all three elections 

(confirming Dr. Weber’s testimony that precincts with 

Democratic voting behavior also adjoin District 12, Jt. App. 

103-05) and some precincts inside the district which vote 

Republican in the same group of elections. Thus, they make 

clear that a swap could occur. App. at 2a-4a. The Democratic 

voting performance of the district would be boosted by 

removing all precincts which voted Republican in all three 

  

  

  

 



  

cited in Section 1.B.3., supra. 

The HUD officials--or, to be more specific, their counsel 

from the U.S. Department of Justice--contend that they will 

face the specter of "personal financial ruin" in the event that 
they are denied qualified immunity. The appropriate amount 
of damages to be awarded for the injuries sustained by the 
plaintiffs will be an issue for the jury or judge on remand; we 
express no opinion on that subject now. We observe only that 

Bivens suits against individual officials are often the only 

available means by which citizens may obtain remedies when 

the federal government violates their constitutional rights. To 
the extent that HUD is genuinely concerned about the inhibit- 

ing effect that the threat of personal liability will have on its 
future operations, it may indemnify its employees as permit- 

ted by law. We would, in fact, be most surprised if the agency 

did not do so in this case. When government officials violate 
citizens' clearly established First Amendment rights, how- 

ever, we will not apply the doctrine of qualified immunity to 

defeat a remedy of damages to which the citizens are entitled 
under Bivens. 

II. PARTIAL SUMMARY JUDGMENT ON 

LIABILITY 

The HUD officials ask us to review the district court's deci- 
sion granting the plaintiffs summary judgment on the issue of 
liability. Under Federal Rule of Civil Procedure 56(c), a court 

12462 
may award a partial summary judgment that decides only that 

issue. The district court did so here. The court cited the fol- 
lowing conduct as establishing liability: 1) defendant Smith's 
supervision of Lee and Zurowski and his specific direction 

that Lee ask the plaintiffs questions about their opposition to 
the Bel Air project, questions which Lee considered irregular 

and beyond the scope of a routine FHA investigation; 2) 

defendant Lee's work as the investigator on the case; 3) the 
offer made by defendant Zurowski "to terminate the investi- 

gation if the plaintiffs agreed to relinquish their constitution- 
ally protected expressive activities"; and 4) defendant 

Gillespie's review and approval of the final investigative 
report. "In participating and contributing to the HUD investi- 

gation," the court stated, "each of these defendants engaged 
in conduct which impermissibly chilled the plaintiffs' First 

 



  

30 

elections, and substituting precincts with similar population 

which voted Democratic in all three elections.” Extending the 
district to Burlington or Gastonia in a manner not unlike the 

1992 Twelfth District would also have a similar effect of 

increasing the Democrat performance of the district. Finally, the 

Democratic strength as measured by the 1988 Court of Appeals 

race would increase from 61.5% to 68.3% by re-adopting the 

1992 plan as a “max-Democrat plan.” Cf. Ex 101B; Appellants’ 

J.S. App. at 80a. 

Thus, Judge Thornburg errs, Appellants’ J.S. App. at 

50a, as do Appellants, Appellants’ Brief at 28 - 29, and App. la 

-3a, and the Solicitor General, U.S. Brief at 7, 20 n.6, and 24-25 

n.10, in suggesting that the only way to include Democratic 

performing, mostly white precincts in Guilford or Forsyth or 

Mecklenburg counties in the district is to displace the 

immediately adjacent precinct, which may be more black and 

more Democratic in performance. This is a false choice. These 

reliable, but white Democrats could be substituted for any one 

of the other 154 precincts in the entire district with lower 

Democratic voting performance, equivalent population, and a 

  

»For example, by exchanging Greensboro 11 and 14 with High 
Point 1, 13, 15, and 19, the loyal white Democrats in central 

Greensboro’s university community could be traded for an equivalent 

number of white, suburban, Republican voters in High Point. Similar 

trades of equivalent white populations with different politics could 

replace Thomasville 1 and Lexington 3 with Greensboro 17 and 

Charlotte 81 and LC1-South in Mecklenburg with Charlotte 10 and 21. 

By reworking other districts, and by using a computer instead of 

identifying these precincts by hand from population data from Table 5, 
Jt. App. at 339-356, maps of Republican victories, App. at 2a-4a, 

precinct maps at Jt. App. at 487, 488 and Ex. 145, and the raw data from 

the state computer system (using Exs. 21, 22, and 132), this list could no 

doubt be expanded. Each substitution affects compactness and 

appearance, but the legislature has already ignored both to such a degree 

that any further distortion appears immaterial. 

 



  

Amendment activities." 

The plaintiffs argue that we do not have jurisdiction to 

review this ruling. In general, orders granting partial summary 

judgment are not appealable final orders under 28 U.S.C. 

§ 1291 "because partial summary judgment orders do not dis- 
pose of all claims and do not end the litigation on the merits." 
Williamson v. UNUM Life Ins. Co. of America, 160 F.3d 
1247, 1250 (9th Cir. 1998) (citations omitted). We conclude, 

however, that special circumstances exist in this case that per- 

mit us to review the award of partial summary judgment, and 
to leave for trial, with respect to these four defendants, only 
the issue of damages. 

  

As explained earlier, we have jurisdiction to review on 
interlocutory appeal the district court's decision denying the 

officials summary judgment on the defense of qualified 
immunity. We also have jurisdiction to review at the same 
time other issues that are "inextricably intertwined" with the 

question of qualified immunity. See Swint v. Chambers 
County Comm'n, 514 U.S. 42, 51 (1995); Mendocino Envi- 
ronmental Ctr., 192 F.3d at 1296. In Marks v. Clarke, 102 
F.3d 1012 (9th Cir. 1996), we concluded that we had jurisdic- 

  

    

    

12463 

tion to review the district court's rulings granting partial sum- 

mary judgment on liability which, we found, were 
"unquestionably inextricably intertwined" with the district 

court's decision to deny the defendants qualified immunity. 

Id. at 1018. 

In reviewing the plaintiffs’ qualified immunity appeal 
under the methodology mandated by the Supreme Court, we 
have already found that the plaintiffs stated a valid claim for 

a violation of their First Amendment rights. We recognize, 
however, that an interlocutory appeal of a denial of summary 
judgment as to the defense of qualified immunity necessarily 

involves only issues of law, see Johnson, 515 U.S. at 319, 
while an appeal from a grant of partial summary judgment on 
the merits may well involve disputed factual issues or even 
additional or different questions of law. 

  

In the case before us the material facts as to defendants 

Smith, Lee, Zurowski, and Gillespie are undisputed, as a 

result primarily of the parties' commendable submission to 

 



  

31 

geographic location permitting the exchange. 

c. The “segment analysis” advanced by Dr. Peterson was 

properly found by the District Court to be unreliable. 

The finder of fact in this case recognized that Dr. Weber 

had “presented a convincing critique of the methodology” used 

by Dr. Peterson and showed it to be “unreliable.” Appellants’ 

J.S. App. at 27a. See also Jt. App. 112-23. Contrary to 

Appellants’ contention that “Weber and the district court 

majority, however, inexplicably dismissed Peterson’s segment 

analysis,” (Appellants’ Brief at 29 n.36), the district court had 

ample basis for finding that his analysis was “non-traditional,” 

“ha[d] ‘not been appropriately done,” and was therefore 

‘unreliable.’” Appellants’ J.S. App. at 27a (quoting Dr. Weber 

at Jt. App. at 119). 

Dr. Peterson’s rejected analysis - the so-called “segment 

analysis” - was unprecedented in any voting rights or Shaw 

cases. Not only had this analysis not been applied to any other 

district, but it had also not been presented at any academic 

institution or published in any scholarly journal for peer review. 

Jt. App. at 257. 

Contrary to the State Appellants’ implication that the 

only major concern of the court with Dr. Peterson’s “segment 

analysis” was that it ignored the core of the Twelfth District, it 

contains many fundamental defects which render it unreliable 

and irrelevant to the question it purports to address. See, e.g, 

Pet. Dep. at 14-20, 33, 41-44, 48-51, 56, 62, 64-72, 78, 87- 

88.%° The chief defect is that Dr. Peterson’s analysis is not a 

  

  

  

The analysis was so unreliable and therefore irrelevant to the 

task at hand that Appellees even moved to exclude Dr. Peterson’s 

opinion pusuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 

U.S. 579 (1993). That motion, although not granted, outlines in detail 

reasons for giving no weight to Peterson’s analysis. 

 



  

the district judge of a comprehensive joint statement of undis- 
puted facts. Moreover, the principal issues of law involved in 
the partial summary judgment appeal have necessarily all 
been resolved by our qualified immunity determination. It is 
clear from that determination, moreover, that the conduct of 

each of these defendants violated the plaintiffs' constitutional 
rights. Accordingly, we conclude that here the two issues on 

appeal are sufficiently "inextricably intertwined " to justify 
our exercise of jurisdiction over them both. Cf. Huskey v. City 
of San Jose, 204 F.3d 893, 904-05 (9th Cir. 2000) (exercising 

interlocutory appellate jurisdiction to find city not liable 
where its liability was based solely on liability of individual 

officials and qualified immunity analysis showed that plaintiff 

had not stated proper constitutional claim). 

  

The four HUD officials argue that the partial summary 

judgment ruling was erroneous because there are"factual 

issues that remain despite the joint statement of undisputed 

12464 
facts." They make two specific points. First, they argue that 
"whether the plaintiffs were in fact chilled in the exercise of 

the speech is a disputed question for the jury." The dispute, 
if there were one, would not be material. In making their First 

Amendment claim, the plaintiffs were obligated to prove only 

that the officials’ actions would have chilled or silenced "a 
person of ordinary firmness from future First Amendment 
activities," not that their speech and petitioning were "actually 

inhibited or suppressed." Mendocino Environmental Ctr., 192 
F.3d at 1300 (citation omitted). In any event, the officials 

point to no evidence in the record that disputes the assertions 
in the plaintiffs’ declarations that their rights were in fact 
chilled. The officials did not submit excerpts of any deposi- 

tions of the plaintiffs, or any other evidence tending to under- 
mine the plaintiffs’ credibility on this point. While, on 
remand, the officials will certainly be entitled to challenge the 

extent of the injury suffered by the plaintiffs for purposes of 
determining damages, the fact that the plaintiffs incurred First 
Amendment injury is not a matter in genuine dispute. 

  

Second, the officials contend that the district court "plainly 

erred" in entering a finding of liability against defendant 
Zurowski. The joint statement of undisputed facts states only 

that Zurowski conveyed to the plaintiffs HRI's conciliation 

proposal demanding that the plaintiffs cease all litigation and 

 



  

32 

decisional analysis. Jt. App. at 732. In other words, it does not 

try to take into account the “real world” macro level decisions 

of whether or not to split another county, choose a different 

core for a district or add “the Greensboro Black community.” 

Jt. App. at 112-13, 716, 732. Cf. Bush v. Vera, 317 U.S. 932, 

972 n.1 (1996) (O’Connor, J., plurality opinion) (criticizing 

dissent for ignoring “the necessity of determining whether race 

predominated in the redistricters’ actions in light of what they 

had to work with”) (emphasis in original). Moreover, Dr. 

Peterson relied on obviously faulty data. See, e.g., Jt. App. at 

721-726. Also, Dr. Peterson did not measure people, but 

instead analyzed arbitrarily chosen segments along the 

boundaries of the Twelfth District without weighing the size or 

relative degrees of differences in the segments.”’ This failure to 

give weight to the segments renders Dr. Peterson’s analysis a 

meaningless mathematical exercise with no relevance to the 

demographic realities on the border of the Twelfth District. 

Even if the factfinder had accepted at face value Dr. Peterson’s 

testimony, the ultimate conclusion of Dr. Peterson was that he 

was unable to determine whether race or party predominated 

over the other.”® Accordingly, his testimony had little evidentiary 

  

"For example, with respect to one boundary segment, between 
High Point Precincts 1 and 4, Dr. Peterson observed that seven African- 

Americans out of a total registered voter population of 2,114 in the 

outside precinct was a higher proportion than four out of 1,212 on the 

inside. Jt. App. at 729-731. This trivial difference, less than .01%, was 

used as evidence that the legislature did not always prefer and include the 

more heavily black precinct inside the district, thus counting against the 
“racial hypothesis.” In some manner, weight should have been given to 

the number of persons - black, white, Democrat, or Republican - on each 

side of the boundary 

In contrast to the report of his views at the summary judgment 
stage, Dr. Peterson at trial retreated from his conclusion that politics 

better explains the boundary of the district, and instead stated that race 

 



  

"publication of discriminatory statements (including articles 
in the CNA Newsletter) and fliers about the potential resi- 

dents of the Bel Air Project." The officials argue that a gov- 

ernment official's mere conveyance of a settlement offer, 
even one containing patently unconstitutional terms, does not 

violate the First Amendment. We need not decide this ques- 

tion because it is also undisputed that Zurowski advised 
David Bryden, the attorney then representing the plaintiffs, to 
accept the unconstitutional conciliation proposal because, 
Zurowski said, HUD had already collected evidence that the 

plaintiffs had violated the FHA. Such official action, we have 

already held, was sufficiently chilling to establish liability 
under the First Amendment. 

12465 
The HUD officials repeatedly contend in their briefs that 

the assertion, set forth in a declaration by attorney Bryden, 
that Zurowski endorsed the conciliation proposal, is"disput- 
ed" and therefore an improper basis for an award of summary 

judgment. At oral argument, however, counsel conceded that 
the record contains no evidence that disputes Bryden's asser- 
tion -- not even a declaration from Zurowski denying that the 

conversation as reported by Bryden took place. In civil rights 
cases, as in all others, summary judgment can work both for 
and against the government. Rule 56(e) provides that"[w]hen 

a motion for summary judgment is made and supported as 
provided in this rule, an adverse party may not rest upon the 

mere allegations or denials of the adverse party's pleading, 
but the adverse party's response, by affidavits or as otherwise 

provided in this rule, must set forth specific facts showing that 
there 1s a genuine issue for trial." We may not reverse an 

award of partial summary judgment simply because the gov- 
ernment asserts, without evidence in the record, that a critical 

fact is disputed. 

Resolving all inferences from the evidence in the four offi- 
cials' favor, we conclude that it was not error for the district 

court to award the plaintiffs partial summary judgment on the 
issue of liability.24 

III. DISMISSAL OF CLAIM FOR PROSPECTIVE 

RELIEF 

Lastly, we consider the plaintiffs’ cross-appeal of the dis- 
trict court's dismissal of their claim for declaratory and 

 



  

33 

value. 

C. Direct evidence also supports the District Court’s 

finding that race predominated. 
Appellants claim that the North Carolina General 

Assembly was merely “conscious” of race. Appellants’ Brief at 

12. The direct evidence in this case reveals a different story. 

The General Assembly had racial goals which had to be met and 

which could not be compromised. Cf. Shaw v. Hunt, 517 U.S. 

899, 907 (1996). 

1. E-mail establishes that the State used a racial approach 

to redistricting, and that a significant number of voters were 

placed into the district based on race. 

The discovery process revealed an E-mail from Gerry 

Cohen, the draftsman of the 1992 and 1997 plans, to Senator 

Cooper and Senator Leslie Winner.” This E-mail memorialized 

the decision to add the “Greensboro Black community” to the 

Twelfth District and the corresponding need to remove 

approximately 60,000 persons, who turned out to be mostly 

white. Jt. App at 369. The E-mail was sent February 10, 1997, 

  

  

  

  

and politics were “statistically indistinguishable.” Jt. App. at 248. He 

certainly no longer concludes that Democratic performing precincts are 

included “much more often” than black ones. Hunt v. Cromartie, 526 

U.S. 541, 550 (1999). 

»Cohen was the draftsman of the 1992 Plan and Senator 
Winner had been a private voting rights attorney practicing in Charlotte 

in the same law firm as Rep. Mel Watt. She was hired as a consultant by 

the North Carolina House of Representatives for the 1992 Plan, and had 

a very large role in the drawing of that plan. Later elected as a state 

senator, Leslie Winner played a very significant role in the 1997 

Redistricting Plan, working closely with Senator Cooper and even 

personally working the redistricting computer. Winner Dep. at 50. 

 



injunctive relief. The HUD officials moved for dismissal on 

the alternative grounds of standing and mootness. Because 
standing and mootness both pertain to a federal court's 
subject-matter jurisdiction under Article III, they are properly 

raised in a motion to dismiss under Federal Rule of Civil Pro- 

  

24 For the foregoing reasons, we also affirm the district court's denial of 

defendant Lee's motion for summary judgment on liability. 

12466 

cedure 12(b)(1), not Rule 12(b)(6). See, e.g. , Bland v. Fessler, 

88 F.3d 729, 732 n.4 (9th Cir. 1996) (citing Gemtel Corp. v. 

Community Redevelopment Agency, 23 F.3d 1542, 1544 n.1 

(9th Cir. 1994)). We review a Rule 12(b)(1) order of dismissal 
de novo. Virgin v. County of San Luis Obispo, 201 F.3d 1141, 

1142 (9th Cir. 2000) (citing Crist v. Leippe, 138 F.3d 801, 

803 (9th Cir.1998)). 

  

  

  

  

  

Rule 12(b)(1) jurisdictional attacks can be either facial or 

factual. See 2 James Wm. Moore et al., Moore's Federal 

Practice § 12.30[4], at 12-38 to 12-41 (3d ed. 1999). Here, the 

officials’ facial attack on the plaintiffs’ amended complaint 

fails. The plaintiffs alleged their desire "to continue to be 
vocal opponents of government housing projects"; the plan- 
ning of other housing projects involving groups protected 
under the FHA against which the plaintiffs wished to advo- 
cate; and the continued efforts of HUD officials"to pursue 
and regulate protected speech" in the manner that occurred 

with respect to the Bel Air project. These allegations estab- 
lished "a likelihood of future injury" sufficient to give the 
plaintiffs standing to seek declaratory and injunctive relief. 

See Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1044 (9th 
Cir. 1999). 

  

  

With a factual Rule 12(b)(1) attack, however, a court may 

look beyond the complaint to matters of public record without 
having to convert the motion into one for summary judgment. 
Gemtel Corp., 23 F.3d at 1544 n.1 (citing Mack v. South Bay 

Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986)). It 
also need not presume the truthfulness of the plaintiffs’ alle- 

gations. Moore's Federal Practice, supra , 9 12.30[4], at 12- 

38. 

    

  

  

In evaluating the officials’ factual attack here, the district 

court considered the following items: (1) a memorandum  



34 

and reflects the change which gave the 1997 Plan Twelfth 

District its ultimate form. 
As the district court correctly found, this E-mail “clearly 

demonstrates that the chief architects of the 1997 Plan had 

evolved a methodology for segregating voters by race, and that 

they had applied this method to the 12" District.” Appellants’ 

J.S. App. at 27a. Also, as the District Court observed, “[t]he 

computer system used by the state has the capacity to identify 

and apportion voters based on race, and to determine the exact 

racial make-up of each district. The Cohen-Cooper e-mail 

reveals that exact percentages were used when constructing 

districts.” Id. at 28a. 
Appellants deride the significance of this “hastily drafted 

E-mail.” Appellants’ Brief at 39. They claim that the phrase 

“Greensboro Black community” “was merely a shorthand 

description for those sections of Greensboro that were added to 

the district - areas that were predominantly African-American 

and solidly Democratic.” Id. Therefore, they protest that “an 

equal protection violation cannot turn on Cohen’s failure to 

stick the word ‘Democratic’ between ‘Greensboro’ and 

‘Black.”” Id. 

However, it is in part the very haste and informal nature 

of this E-mail that give it its relevance. This E-mail was not 

meant for public and judicial consumption and was not filtered 

through a carefully drawn formal affidavit. Instead, it provides 

a view behind the scenes into what those who drew up the 

redistricting plans were really thinking and talking about. As 

that E-mail reveals, behind the scenes the principal authors of 

the plan had a single-minded obsession with the racial 

composition of the First and Twelfth Districts, rather than the 

political. The fact that the entire E-mail is primarily a discussion 

of race and racial percentages for the First as well as the Twelfth 

District belies the State’s attempt to explain away the reference 

to the “Greensboro Black community” as a shorthand reference  



issued by Roberta Achtenberg, Assistant Secretary for FHEO, 
dated April 3, 1995, and titled "Substantive and Procedural 

Limitations on Filing and Investigating Fair Housing Act 

12467 
Complaints That May Implicate the First Amendment" 

("Achtenberg memorandum"); (2) a press release and state- 

ment dated September 2, 1994, announcing HUD's distribu- 
tion to employees of "specific guidelines on speech and 

activities protected by the First Amendment"; and (3) a field 
handbook for FHEO staff dated September 1995 incorporat- 
ing the substance of the Achtenberg memorandum. The press 
release stated that HUD had "moved to develop " its guide- 
lines in response to its investigation of plaintiffs White, Der- 

inger, and Graham. This investigation, the release stated, had 

resulted in a finding "that the trio's activities in opposition to 
the project had not violated the Fair Housing Act because they 
were protected free speech under the Constitution's First 

Amendment." 

The Achtenberg memorandum prohibits HUD officials 
from accepting for filing or investigating any complaint 

involving public activities that "are directed toward achieving 

action by a governmental entity or officials" and"do not 
involve force, physical harm, or a clear threat of force or 

physical harm to one or more individuals." It lists examples 

of protected speech activity and provides that "any investiga- 
tion which may be necessary to obtain information about the 

extent to which the First Amendment may be applicable 

should be prompt, narrowly tailored to gather sufficient pre- 
liminary data to allow such a decision to be made, and con- 

ducted in close consultation with counsel." It prohibits 
document requests that seek "membership lists, fundraising 
information or financial data of an organization that is or may 

be engaging in protected speech activities," and the prepara- 
tion or transmission of conciliation proposals "that would cir- 
cumscribe the First Amendment rights of any party to the 
complaint." The Achtenberg memorandum also states that a 
"lawsuit which is frivolous can be a violation of the Act." 
While it does not define this standard or discuss the First 
Amendment concerns involved with respect to the filing of 

nonfrivolous suits, the memorandum provides that"given the 
sensitivity and complexity of the issues relating to such litiga- 

12468  



  

35 

to the “Greensboro Democratic community.” Cf. Shaw v. Hunt, 

517 U.S. 899, 907 (“Race was the criterion that, in the State’s 

view, could not be compromised; respecting communities of 

interest and protecting Democratic incumbents came into play 

only after the race-based decision had been made.”). This E- 

mail is a snapshot view of a Miller violation in process, as Gerry 

Cohen, the plan’s draftsman, memorialized a precise moment in 

which he “place[d] a significant number of voters within or 

without a particular district” on the basis of their race. Miller 

v. Johnson, 515 U.S. 900, 916 (1995). As a result of this 

decision, the Twelfth District added a net of 40,000 African- 

American persons and increased from 40% to 47% black. See 

Appellants’ J.S. App. at 241a; Ex. 130D. Cf. Appellants’ Brief 

at 39-40, n48. Also, the black percentage of the total 

Democratic primary voters was boosted to 60%. 

2. The District Court correctly found that the General 

Assembly achieved its racial target for the Twelfth District of 

just under 50%. 

Looking at the direct evidence in this case, the District 

Court found that “the clear inference here is that a motive 

existed to compose a new 12" District with just under a majority 

minority in order for it not to present a prima facie racial 

gerrymander.” Appellants’ J.S. App. at 28a. This crucial 

finding confirms an explicit racial target for the district, and a 

purpose to avoid judicial review of racial gerrymandering by 

staying below a supposed threshold for such review. This 

finding is the predicate for the district court’s subsequent ruling 

that “using a computer to achieve a district that is just under 

50% minority is no less a predominant use of race than using it 

to achieve a district that is just over 50% minority.” Id.* 

  

  

  

  

Contrary to the opposing position expressed by Senator 
Cooper at the time the 1997 Plan was passed, achieving a racial target 

 



  

a permanent change in the way HUD conducts FHA investi- 
gations, not a temporary policy that the agency will refute 
once this litigation has concluded. The memorandum is broad 
in scope and unequivocal in tone. It is fully supportive of First 

Amendment rights. Further, it addresses all of the objection- 

able measures that HUD officials took against the plaintiffs in 

this case, and even confesses that this case was the catalyst for 

the agency's adoption of the new policy. HUD has renewed 

the Achtenberg memorandum on a yearly basis,25 and since its 

implementation the agency's officials have not engaged in 

conduct similar to that challenged by the plaintiffs here.26 

Because HUD has met its heavy burden of proving that the 

challenged conduct cannot reasonably be expected to recur, 

we agree that the plaintiffs’ claim for prospective relief is moot.27 

  

25 The HUD officials have submitted notices showing that the agency 
has extended the effective date of the Achtenberg memorandum five times 
since its implementation, most recently to April 30, 2001. 

26 The declarations and newspaper articles that the plaintiffs presented in 

the district court in response to the defendants' motion to dismiss do not 
show that HUD has acted in a manner inconsistent with the Achtenberg 

memorandum's terms, and no contention is made that HUD has done so 

since that time. 

27 On August 8, 1996, when the district court granted the officials’ 
motion to dismiss the claim for prospective relief, the Achtenberg memo- 
randum had been in effect for sixteen months. Whether or not the claim 

for prospective relief was moot as of that time, it is clearly moot now. See 
Arizonans for Official English v. Arizona, 520 U.S. 43, 66 (1997) (observ- 

ing that "[t]o qualify as a case fit for federal-court adjudication, "an actual 

controversy must be extant at all stages of review,' " and holding that 

plaintiff's resignation from state job during appeal rendered her claim for 
prospective relief moot) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 

(1975)). 

  

  

12470 

CONCLUSION 

For the reasons stated, we affirm all the rulings of the dis- 
trict court challenged on the appeals and cross-appeal. 

AFFIRMED 

12471 

 



  

tion, all situations involving claims that litigation amounts to 
a violation of [§ 3617 of the FHA] must be cleared with 

Headquarters before the complaint is filed." More broadly, the 
memorandum states that where FHA concerns "intersect with 

First Amendment protections," HUD officials must defer to 

the latter: "the Department chooses to err on the side of the 

First Amendment." 

The HUD officials argue that in light of these materials, the 
district court erred in declining to dismiss the plaintiffs’ 

request for injunctive relief on the ground of standing. We 
disagree. Standing is examined at "the commencement of the 
litigation." See Friends of the Earth, Inc. v. Laidlaw Environ- 

mental Servs., Inc., L.S. . , 120 S. Ct. 693, 698-99 

(2000). At the time the plaintiffs' filed their complaint, the 

Achtenberg memorandum had been in effect for only a month 

and was scheduled to expire in less than a year. The recent 
implementation of such a temporary policy was insufficient to 
eliminate the plaintiffs’ standing to seek prospective relief. As 

this case has progressed, however, the policy has become 
entrenched. It was therefore appropriate for the district court 
to analyze the officials’ factual Rule 12(b)(1) challenge as a 
question of mootness, not standing. 

  

    

The Supreme Court has made clear that the standard for 

proving that a case has been mooted by a defendant's volun- 

tary conduct is "stringent": 

"A case might become moot if subsequent events 
made it absolutely clear that the allegedly wrongful 
behavior could not reasonably be expected to recur." 
United States v. Concentrated Phosphate Export 
Ass'n, 393 U.S. 199, 203 (1968). The "heavy burden 

of persua[ding]" the court that the challenged con- 

duct cannot reasonably be expected to start up again 

lies with the party asserting mootness. Id. 

  

12469 
Friends of the Earth, 120 S. Ct. at 708 (citations modified). 

See also United States v. W.T. Grant Co., 345 U.S. 629, 632- 

33 (1953). The Court specifically observed that a government 
agency's moratorium that "by its terms was not permanent" 

would not moot "an otherwise valid claim for injunctive 

relief." Friends of the Earth, 120 S. Ct. at 709. Here, how- 

  

  

  

ever, it is clear that the Achtenberg memorandum represents 

 



  

36 

Neither Appellants nor any of their allies mentioned this 

critical finding in their “rigorous review of the record and 
decision below.” Appellants’ Brief at 16. Appellants do 

obliquely refer to “the court’s reliance on a second statement by 

Cooper during the Senate floor debate that strict scrutiny 

analysis may not be triggered because District 12 is not 

  

of just under 50% by substantially disregarding traditional redistricting 

principles is violative of “the essence of the equal protection claim 

recognized in Shaw [which] is that the State has used race as a basis for 

separating voters into districts.” Miller, 515 U.S. at 911. Clearly, 

splitting numerous cities along racial lines in order to achieve a racial 

target of just under 50% is placing “a significant number of voters within 

or without a particular district” on the basis of race. /d. at 916. And, 

when any racial percentage is targeted, it is fair to say that “the 

decisionmaker . . . selected or reaffirmed a particular course of action (as 

to that district) at least in part ‘because of,” not merely ‘in spite of,’ its 

adverse effects.” Id. (citations omitted). 

In Lawyer v. Department of Justice, decided after enactment of 

this 1997 plan, the Court addressed a district of 36.2% black voting age 

population which was found to have been open to election of a candidate 

of any race. 521 U.S. 567, 581 (1997). In Lawyer, this finding was 

approvingly cited as supporting the District Court’s ultimate finding that 

race did not predominate in that district - a finding which the Court 

found was not clearly erroneous. See id. at 582. On the other hand, the 

1997 Twelfth District is excessively safe for an African-American 

candidate of choice, including the present incumbent. More important, 

however, the Court has never held that the Equal Protection Clause does 

not apply to districts with less than 50% minority population. 

Accordingly, federal courts have applied the Shaw/Miller doctrines to 

invalidate several majority white districts in other instances. Kelley v. 

Bennett, 96 F.Supp.2d 1301, 1302 (M.D. Ala. 2000) (three-judge court), 

appeal docketed, No. 00-132 (U.S. July 24, 2000); Smith v. Beasley, 946 

F.Supp. 1174, 1176 (D.S.C. 1996) (three-judge court); Johnson v. 

Miller, 929 F.Supp. 1529, 1550 (S.D.Ga. 1996) (three-judge court) 

(House District 120). 

 



  

own way the meaning of freedom and their determined resistance to blacks’ 

efforts to establish their autonomy, whether in matters of family, church, 

labor, or personal demeanor.”); Kennedy, supra, at 39 (“In an effort to 

reassert control, whites beat or killed African-Americans for such 

“infractions” as failing to step off sidewalks, objecting to beatings of their 

children, and addressing whites without deference.”). {2} [Lynchings] and 

mob violence were motivated in large part by paranoia about the sexuality of 

African-American men, and the desire to enforce a strict separation of the 

races. See Kennedy, supra, at 45. 

Such accounts make clear that after emancipation and the 

invalidation of laws explicitly using racial classifications, Southern whites 

used private violence to enforce the “dishonored” social status of the former 

slaves. For example, records of the Freedmen’s bureau reveal that “behavior 

that departed from the etiquette of antebellum race relations frequently 

: provoked violence.” Foner, supra, at 120. Thus, an overseer in Alabama 

shot a worker who “gave him sarse,” a white minister in South Carolina shot 

a freedman who objected to the expulsion of another African-American from 

services, and murders in Texas were inspired by the fact that one victim did 

not take off his hat, and another did not give up his whisky flask. See id. 

The efforts of emancipated slaves to sell their labor for fair 

P-:398-,513 21 

 



  

37 

majority-minority.” Appellants’ Brief at 39." However, 
contrary to Appellants’ assertion, Senator Cooper was not 

“merely reciting his understanding of the current state of equal 

protection law.” Id. Moreover, the legislative record itself 

belies Senator Cooper’s claim that he had not even thought of 

this argument “until this final plan had been prepared.” Jt. App. 

at 228. 

The final plan referred to by Senator Cooper, was 

prepared and agreed to on March 24, 1997. Jt. App. at 507. 

However, on February 20, 1997, when Senator Cooper 

presented his first plan publicly to his Senate Committee - more 

than a month before the final plan was developed - Senator 

Cooper advised his committee that one of the reasons this 

earlier plan was constitutional was that its Twelfth District was 

not a majority-minority district. /d. at 395-396. 

  

Senator Cooper said: 

I believe that this new 12" District is constitutional for several 

reasons. First, and maybe most importantly, when the Court 

struck down the 12% District it was because the 12" District was 
majority-minority and it said that you cannot use race as the 

predominant factor in drawing the districts. Well guess what! 

The 12" District, under this plan, is not majority-minority. 

Therefore, it is my opinion and the opinion of many lawyers 

that the test outlined in Shaw v. Hunt will not even be triggered 

because it is not a majority-minority district and you won’t even 

look at the shape of the district in considering whether or not it 

is constitutional. That makes an eminent amount of sense 

because what is the cutoff point for when you have the trigger of 

when a district looks ugly? I think that the court will not even 

use the shape test, if you will, on the 12" District because it is 

not majority minority. It is strong minority influence, and I 

believe that a minority would have an excellent chance of being 

elected under the 12™ District. 
Jt. App. at 475-476. 

 



  

prices and control their working conditions were often met with private 

violence. See Angela P. Harris, Foreword: Beyond Equality: Power And 

The Possibility Of Freedom In The Republic Of Choice, 85 Cornell L. Rev. 

1181, 1183 (2000) (noting that during the reconstruction era, “[t]he civil 

rights to own property, to make and enforce contracts, to inent in court, 

and even the natural right to make a living were being endangered by private 

violence and terror”). Foner notes that freedmen “were assaulted and 

murdered for attempting to leave plantations, disputing contact settlements, 

and not laboring in the manner desired wi their employers, attempting to buy 

and rent lend, and resisting whippings.” Foner, supra, at 121. In early 1867, 

a Nashville newspaper reported that in parts of Tennessee “regulators” were 

“riding about whipping, maiming, and killing all negroes who [did] not obey 

the orders of their former masters, just as if slavery still existed.” Id. 

Before passing the Civil Rights Act of 1866, Congress heard 

testimony that the former masters of Freedmen often coerced them to work 

by using violence: “[F]reedmen [who] have gone from one county to 

another and made contracts . . . were brought back by men with their faces 

blackened, who whipped them and ordered them not to leave again . . . even 

when they were under no contract with their former masters.” H.R. Rep. 

No. 30, 39th Cong., 1st Sess., (1866) pt. iii at 143; see also id. pt. iil at 8 

DC L3Y¥ 513 30) 

 



38 

A month later, on March 19, 1997, Senator Cooper once 

again defended his first public plan, Senate Plan A, at the next 

official meeting of his Senate committee. There also, after 

mentioning that its Twelfth District was not majority-minority, 

Senator Cooper said “I don’t believe, certainly we can argue and 

don’t believe that the test for the constitutionality as laid out in 

Shaw v. Hunt would even be considered because it is not 

majority/minority.” Jt. App. at 406. Additionally, during that 

meeting Senator Cooper criticized a rival plan offered by 

Senator Betsy Cochrane for “triggering the test” of Shaw. 
Likewise, Rep. McMahan informed the members of the 

House of Representatives on the floor that one of the reasons 

the 1997 District 12 would be constitutional was because it was 

“[n]ot a Majority/Minority District now so shape does not create 

that - that was the basis the Court used to say this was 

unconstitutional - not an argument now.” Jt. App. at 465. Even 

more tellingly, when Rep. McMahan informed his committee 

that he had decided to acquiesce to the Senate version of 

District 1 and 12, he said, “The Plan you see does maintain 

racial fairness in District 1 and 12. We've actually agreed to 

increase the percent of minorities in District 12 to 46% and are 

now basically following the Senate Plan on District I and 12.” 

Jt. App. at 455 (emphasis added). 

Similarly, when asked about the racial fairness of his plan 

on the floor of the House, Rep. McMahan responded by saying 

that “we have done our best - our dead level best - to draw two 

  

In regards to her 12" District, he said, “I believe it’s a little 
over 41% African-American and a little over 8% Native-American, so 

you add those together, you make it majority/minority. That in turn 

would trigger the test under Shaw v. Hunt and 1 don’t think our 12% 

District . . . under Plan A has triggered the test.” Jt. App. at 415. 

Similarly, he criticized another district. “In the 1* District, I think you 

have some of the same problems. You do trigger the test because it is 

majority/minority . . . .” Id. at 416.  



(testimony concerning violence by private parties); pt. iv at 77, 83 (same). 

After touring the South in 1865 at the request of the President, Carl Schurz 

reported that former slaveowners were seeking effectively to enslave 

African-Americans by means of violence and intimidation. See Report of 

Carl Schurz on the States of South Carolina, Georgia, Alabama, Mississippi, 

and Louisiana, S. Exec. Doc. No. 2, 39th Cong., 1st Sess. 17-20 (1865). 

White Southerners also used violence to restrict the movements 

of African-Americans. See Foner, supra, at 121 (“Freedmen were assaulted 

and murdered for attempting to leave plantations”). In addition, private 

violence was an essential way of enforcing segregation in housing. See 

Douglas S. Massey & Nancy A. Denton, American Apartheid 34-35 (1994) 

(noting that “generalized violence” was initially used to keep blacks in all- 

black areas of cities, but gave way to more targeted acts of personal and 

property destruction after 1920). 

{2+ [Perhaps most significant, private] violence was {2} the 

principal tool that Southern whites used to maintain the exclusion of freed 

slaves from the political process. Immediately after the war, many black 

delegates to the 1865 black conventions returned home to find their homes 

destroyed. Foner, supra, at 120. African-Americans holding public office 

lived in constant fear of violence, and one out of every ten African- 

XL La : 23  



  

39 

Districts that are fair racially and do have one of them the 

majority of the population and the other one over 46%, and 

that’s the very best we could do on both sides, and we looked at 

this very, very closely.” Jt. App. at 471 (emphasis added). 

These statements made by Senator Cooper and 

Representative McMahan about avoiding the test of Shaw 

demonstrate their clear racial motive - a motive to be free of any 

Shaw restrictions on their racial gerrymandering. If there were 

no racial motive driving the formation of the Twelfth District, 

there would be no need to be concerned about “triggering the 

test of Shaw.” Finally, even if the court had credited Senator 

Cooper’s statement, > the ultimate question is still the legislative 
intent, and not the subjective intent of Senator Cooper. The fact 

that this rationale was advocated to the General Assembly by 

the chairmen of the redistricting committees in both Houses in 

and of itself is enough to support the district court’s finding of 

a specific racial target.** 

  

BLegislative witnesses’ “inconsistent statements must be viewed 

in light of their adversarial context. But such questions of credibility are 

matters for the District Court.” Bush v. Vera, 517 U.S. 952, 970 (1996) 

(O'Connor, J., plurality opinion). The fact finder’s determination of the 

lack of credibility of Appellant’s witnesses was both impeaching 

evidence and substantive evidence against Appellant’s position. See, 

e.g. Reeves v. Sanderson Plumbing Products, Inc., U.S. 120 

S.Ct. 2097, 2108 (2000). See also McQueeney v. Wilmington Trust 

Co.,770 F.2d 916, (3rd Cir. 1985). Contrary to the Solicitor General’s 

assertion, U.S. Brief at 27, the district court’s finding of Senator 

Cooper’s lack of credibility was not based on its reading of statistical 

evidence, but on its evaluation of Senator Cooper, his demeanor, 

consistency, and the plausibility of his testimony. 

¥Senator Cooper admitted that there was a racial target of 
creating the First District to be a majority-minority district and this 

could not be compromised. Jt. App. at 224. This admission makes more 

plausible the court’s finding of a racial target in the Twelfth, because 

 



American delegates to the constitutional conventions experienced violence 

thereafter. Id. at 426; see also id. at 426-27 (describing incidents of violence 

against elected officials). Many individuals experienced violent attacks 

merely because they had voted, and there were many large scale attacks on 

Republican party meetings and rallies. See id. This violence had an 

enormous impact on elections across the South, see id. at 440-43, and 

appears in many places effectively to have negated the political rights 

obtained through the Civil War Amendments. 

The Ku Klux Klan (“KKK”)and similar organizations played a 

central role in all of these forms of violence{2} By 1870, they had 

embarked on campaigns of private violence designed to “reverse the 

interlocking changes sweeping over the South during Reconstruction” and to 

“destroy the Republican party’s infrastructure, undermine the 

Reconstruction state, reestablish control over the black labor force, and 

restore racial subordination in every aspect of Southern life.” Foner, supra, 

at 426. The KKK’s violence played a central role in obstructing political 

participation by former slaves, in enforcing the social codes of the 

antebellum South, and in restoring “discipline on white-owned farms and 

plantation.” Id. at 428; see generally id. at 425-44 (describing purpose and 

effects of KKK violence during Reconstruction). 

DC L3YY 51 3 4  



  

40 

3. The General Assembly deliberately and successfully 

preserved the racial balance of two African-American 

congressmen and ten white congressmen. 

Not only did the district court find the existence of a 

targeted racial percentage, it also found that the General 

Assembly had a goal of preserving the racial balance of North 

Carolina’s congressional delegation. See Appellants’ J.S. App. 

at 27a. This finding goes to the ultimate and overriding racial 

goal of the General Assembly for the Twelfth District: 

preserving the racial quota or balance of two African-American 

congressmen and ten white congressmen. The target of just 

under 50% African-American for the 12" District could be fairly 
characterized as the means to this end. 

This is the essence of the frequent allusions of members 

of the General Assembly to the crucial necessity for “racial 
fairness.” See Jt. App. at 393, 443, 444, 447, 453, 455, 459. 

464, 470, 471, 475. In the legislative record, the discussion 

about the Twelfth and First Districts was not so much their 

contributions to “partisan balance,” but rather to racial fairness. 

See id. Moreover, while the actual partisan balance shifted 

frequently in the 1990s, the racial balance was kept constant.> 

  

  

  

  

these two districts were linked in the legislative discussions about racial 

fairness and balance. See id. at 391-481. 

¥ Appellants have raised the attempt to preserve a partisan 
balance as a defense for the 1992, 1997 and 1998 plans. Actually, the 

“partisan balance” of the Congressional delegation shifted in each of the 

1992, 1994, 1996, and 1998 elections, going from 8-4, 4-8, 6-6, and 5-7 

Democrats versus Republicans. The racial balance, however, has 

remained constant at two blacks and ten whites, as it was intended to do 

under the 1992, 1997, and 1998 plans. 

Appellants argue that the presence of the term geographical 

balance in the same phrase as political and racial balance means that 

“there was no reason to assume . . . that Senator Cooper’s reference to 

race had a numerical connotation.” Appellants’ Brief at 39. This 

 



  

Through the efforts of the KKK and others, private, racially 

motivated violence remained endemic throughout the South well into the 

twentieth century. Lynchings and mob violence directed at African- 

Americans remained common. See, e.g., Kennedy, supra, at 42 (“Between 

1882 (when reliable data were first collected), and 1968, at least 4,743 

people were lynched in the United States” and 72.7% of the victims were 

African-Americans {2}. As the legislative history of the Civil Rights Act 

of 1966 makes clear, even in the 1960s, white Southerners still used threats 

and violence in efforts to deprive African-Americans of their rights and 

effectively to place them in the “dishonored” status of slaves. See, e.g., 

H.R. Rep. No. 1678, pt. 2, 89™ Cong. (“The brutal crimes committed in 

recent years against Negroes exercising Federal rights and white persons 

who have aided Negroes seeking equality needs no recital. Violence and 

threats of violence have been resorted to in order to punish or discourage 

Negroes from voting, from using public accommodation and public 

facilities, from attending designated schools, and from engaging in other 

activities protected by Federal law.”). 

% % > 

As the foregoing discussion demonstrates, violence is an 

essential, defining element of the relationship between master and slave in 

P3453 25 

 



  

41 

4. The General Assembly preserved the racial cores of the 

prior unconstitutional district. 

Likewise, the General Assembly’s attempt to retain and 

re-label the racial core of a prior unconstitutional district is itself 

evidence of racial intent.*® See Jt. App. at 486. In the 1997 
Twelfth District, 90.2% of the African-Americans had also been 

residents of the 1992 Twelfth District, while only 48.8% of the 

white population in the 1997 Twelfth District had also been in 

the 1992 Twelfth District. Jt. App. at 78. Thus, it seems clear 

that in this context, “maintaining the core” was maintaining the 

racial core. See Jt. App. 128-29. 

  

  

  

argument does not logically follow. The very term “balance” itself 

implies a quantifiable distribution. Moreover, geographic balance in the 

context of the 1997 plan could have several plausible meanings. It could 

refer to the stated goal of not dividing any county into more than two 

districts. It could also refer to the basic distribution of the Congressional 

districts across the three geographic divisions of North Carolina - the 

coastal plain, the Piedmont, and the mountains. 

3% According to Senator Cooper, “[w]hat we tried to do was to 
make each district more geographically compact, leaving the core area 

for each of the present districts. That means that each of the incumbents 

are there in their core area and the districts have not changed radically to 

the point of affecting the past political outcome.” Jt. App. at 398. 

The deposition testimony of Senator Leslie Winner, who played 

a key role formulating the 1992 Plan and in assisting Senator Cooper in 

the 1997 Plan, illustrates the racial character of the term “core.” “[F]or 

any incumbent you would have a constituent base that you considered to 

be your core constituent base and that - that you would like to keep if the 

district was modified.” Jt. App. at 779. “For example, Eva Clayton may 

have thought that the black communities of Fayetteville and Wilmington 

were part of her core constituent base and she didn’t keep them. Mel 

Watt may have thought that the black community of Durham was one of 

his core constituent bases and he didn’t keep that.” 7d. 

 



  

any society. In the United States, slavery was based upon race, and 

violence both permeated and sustained slave culture. As a result, racially 

motivated violence was an inescapable badge and incident of American 

slavery. In addition, American slave culture reinforced the inferior, 

“dishonored” status of slaves through laws that denied African-American 

slaves basic civil and political rights, education, the right to travel, the ability 

to raise their families, and access to benefits that were available to whites. 

Such legal disabilities were also fundamental badges and incidents of 

slavery. After the abolition of slavery and the invalidation of laws that 

authorized these disabilities, whites used racially motivated, private violence 

to perpetuate the former system in fact, if not in law. 

For these reasons, one can only conclude that private, racially 

motivated violence designed to deprive its victims of civil rights protected 

by law is a “badge” and “incident” of slavery. As a result, Congress has 

ample power under the Thirteenth Amendment to outlaw such violence. 

Section 245(b)(2)(B) is a modest effort to do so, and this Court should reject 

the defendants’ constitutional challenge. 

II. THE THIRTEENTH AMENDMENT AUTHORIZES 
LEGISLATION TO ELIMINATE RACIALLY-MOTIVATED 
VIOLENCE AGAINST JEWS AND OTHER GROUPS 
PERCEIVED AS SEPARATE RACES. 

Pltl-348%/013 26 

 



  

42 

In Abrams v. Johnson, the Court stated that when 

several districts in a redistricting plan were predominantly race 

based and therefore unconstitutional, they were “improper 

departure points” for the drawing up of a new remedial plan. 

521 U.S. 74, 90 (1997). Instead, the courts are called on to 

“correct - not follow - constitutional defects in districting 

plans.” Id. at 85. “Using (an unconstitutional) precleared plan 

as the basis for a remedy would validate the very maneuvers that 

were a major cause of the unconstitutional districting.” Id. 

(upholding the District Court’s decision to use the 1972 and 

1982 plans as a basis for the remedial redrawing of Georgia’s 

Congressional districts following Miller v. Johnson, 515 U.S. 
900 (1995)). 

For the Court to approve use of the racial core of a 

district that has been held to be unconstitutionally race-based in 

order to preserve the “racial balance” or racial quota of the prior 

plan would likewise “validate the very maneuvers that were a 

major cause of the unconstitutional districting.” Abrams, 521 

U.S. at 86. This is especially true in this case, where the “core” 

of District 12 is the racial archipelago of African-American areas 

in all the major Piedmont cities strung together by white 

corridors. By attempting to preserve the core of the 

unconstitutional district in this way, Appellants have not cured 

the constitutional defects of the prior plan. Instead they have 

merely adopted a plan with a “physically modified but 

conceptually indistinguishable ‘new’ [district], again violating 

historical political subdivisions and ignoring other traditional 

redistricting criteria.” Hays v. Louisiana, 936 F.Supp. 360, 372 
(W.D. La. 1996) (three-judge court), appeals dismissed as 

moot, Louisiana v. Hays, 518 U.S. 1014 (1996). Cf. Jt. App. 

at 469 (African-American legislator observing that “all you have 

done with the Twelfth District in this bill is knock sixty miles off 

of it”). 

Appellants now rely on the protection of incumbents as 

 



  

{A} [The defendants] have argued that the Thirteenth 

Amendment cannot justify § 245(b)(2)(B) in this case, because the victim 

was attacked because he was Jewish. The Court should reject this argument. 

Although the primary impetus for the Thirteenth Amendment was the 

abolition of slavery in the United States, {2+ [which] primarily involved the 

subjugation of African-Americans, Supreme Court precedent makes clear 

that Congress’s authority to abolish the badges and incidents of slavery 

extends “to legislation] in regard to ‘every race and individual.” 

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 288 n.18 (1976) 

(quoting Hodges, 203 U.S. at 16-17, and citing Jones, 392 U.S. at 441 

n.78). 

In MeDivald, the Court held that § 1981, a Reconstruction-era 

statute enacted pursuant to, and contemporaneously with, the Thirteenth 

Amendment, prohibits racial discrimination in the making and enforcement 

of contracts against all persons, including whites. 427 U.S. at 286-96. This 

view has a lengthy pedigree dating back to the Slaughterhouse Cases, 83 

U.S. 36, 66-67 (1873), where the Court noted that although “Negro slavery 

alone was in the mind of the Congress which passed the thirteenth article, it 

forbids any other kind of slavery, now or hereafter” and that it would apply 

 



  

43 

their chief defense for this plan. See Appellants Briefat21. But 

when the plan was under consideration, Senator Cooper 

emphasized to his colleagues that “this is not an incumbent 

protection plan.” Jt. App. at 477. “I don’t want this to be 

called an incumbent protection plan because it is not.” Jt. App. 

at 398. Moreover, the racial character of this district was 

deliberately designed to transcend its incumbent. According to 

Rep. McMahan speaking on the House floor, this particular 

district “[a]bsolutely without any question” was designed so that 

not only Mel Watt but also “anyone else that might choose as a 

minority to run in that District should feel very, very 

comfortable . . . that they could win.” Jt. App. at 470. 

If incumbency protection can be a defense to racial 

gerrymandering even when the incumbent won election in a 

district adjudicated to be unconstitutionally race-based, 

Appellants would have been able to reenact the 1992 Twelfth 

District under the guise of “incumbency protection” or 

“retaining the partisan balance.” To allow this would make a 

mockery of Shaw v. Reno and its observation that “appearances 

do matter.” 509 U.S. 630, 647 (1993). The Court should not 

permit constitutional violations to be perpetuated in the name of 

incumbency protection. 

Because of the method and motive involved in the 

protection of the incumbent of the Twelfth and surrounding 

districts in the 1997 Plan, the use of incumbency protection in 

this case is no longer race-neutral, and thus is not entitled to 

deference.’ Incumbency protection cannot be used to 

  

In Appellants’ own Section 5 Submission, the racial nature of 
Appellants’ incumbency protection efforts is made clear in the discussion 

of the House's rejection of three alternative redistricting plans proposed 

by two African-American legislators. It noted that “all three plans 

would seriously weaken the ability of the African-American incumbent 

in District 12 (Congressman Watt) to win re-election.” Ex. 100, 97C- 

 



  

equally to “Mexican peonage or the Chinese coolie labor system.” Thus, 

even when otherwise construing the reconstruction amendments most 

narrowly, the Court has made clear that they apply to all races. See Hodges, 

203 U.S. at 16-17 (“[The Thirteenth Amendment] reaches every race and 

individual, and if in any respect it commits one race to the Nation, it 

commits every race and every individual thereof. Slavery or involuntary 

servitude of the Chinese, of the Italian, of the Anglo-Saxon are as much 

within its compass as slavery or involuntary servitude of the African”). 

Indeed, Supreme Court precedent already establishes that 

legislation enacted to eliminate the badges and incidents of slavery may 

constitutionally be applied to discrimination against Jews. In Shaare Tefila 

Congregation v. Cobb, 481 U.S. 615, 617 (1987), the Supreme Court held 

that Jews can state a claim under 42 U.S.C. § 1982, rejecting the argument 

that “because Jews today are not thought to be members of a separate race, 

they cannot make out a claim of racial discrimination.” This holding turned 

on the Court’s view that the Reconstruction-era anti-discrimination statutes 

enacted pursuant to, and contemporaneously with, the Thirteenth 

Amendment, were “intended to protect from discrimination identifiable 

classes of persons who are subjected to intentional discrimination solely 

because of their ancestry or ethnic characteristics.” Id. In construing the 

P38 LS) 238 

 



44 

circumvent the Fourteenth Amendment, as was noted in Vera v. 

Richards. “Incumbency protection is a valid state interest only 

to the extent that it is not a pretext for unconstitutional racial 

gerrymandering.” Vera v. Richards, 861 F.Supp. 1304, 1336 

(S.D. Tx. 1994) (three-judge court) (criticizing the “talismanic 

status of incumbent protection in the State’s argument”), aff’d 

sub nom. Bush v. Vera, 517 U.S. 952 (1996).>* Accordingly, 

  

27R. Specifically, “[t]he African-American percentage in District 12 is 

only 37.66 percent in Plans B and C and 37.44 percent in Plan A - 

approximately nine percent lower than the African-American percentage 

of District 12 in the enacted plan.” /d. 

The assumption of Appellants and their allies that any 

redistricting action is cleansed of its racial nature simply because it is 

adopted to protect an incumbent is not supported by the Court’s 

precedents. Appellants especially overreach by implying that Appellees 

bear the burden of disproving the presence of incumbency protection in 

the drawing of this plan in order to establish racial predominance. 

Appellants’ Brief at 9, 21. Appellants overlook the fact that racial 
predominance and incumbency protection are not mutually exclusive. 

See Shaw v. Hunt, 517 U.S. 899, 907 (1996) (stating that the 

circumstance that the legislature protected incumbents “does not in any 

way refute the fact that race was the legislature’s predominant 

consideration”); Bush v. Vera. 517 U.S. 952, 965 (1996) (O'Connor, J., 

plurality) (finding it “clear that race was not the only factor that 
motivated the legislature to draw irregular district lines” in view of 

incumbency protection evidence); Vera v. Richards, 851 F.Supp. 1304, 

1339 (S.D. Tex. 1994) (three-judge court) (finding that incumbent 

protection was “not a countervailing force against racial 

gerrymandering,” but rather that “racial gerrymandering was an 

essential part of incumbency protection”), aff’d sub nom. Bush v. Vera, 

517 U.S. 952 (1996). 

3¥Likewise, in the Voting Rights Act context, incumbency 
protection can not be used as a bar to providing a full remedy for a 

Section 2 violation. Jeffers v. Clinton, 756 F.Supp. 1195, 1203 (D. Ark.  



reach of these statutes, the Court found that Congress intended them to 

extend to groups like “Arabs” and “Jews” because those groups “were 

among the peoples, at the time [the statutes were] adopted, considered to be 

distinct races.” Id.; see also Saint Francis College v. Al-Khazraii, 481 U.S. 

604, 610-13 (1987). 

Such precedent makes clear that the Thirteenth Amendment 

confers the power to prohibit private violence and discrimination against 

Jews. Defendants nevertheless argue that § 245(b)(2)(B) does not cover 

discrimination against Jews because they were not considered a separate 

race at the time of its enactment. But the relevant inquiry is not whether 

right-minded people, or even a majority of the country, believe that a 

particular group constitutes a “race.” Rather, as Shaare Tefila makes clear, 

the question is whether a group is subjected to “intentional discrimination 

solely because of their ancestry or ethnic characteristics.” [At the time of] 

{2+ the enactment of § 245(b)(2)(B), bigots {2} discriminated against Jews 

for precisely these reasons, and continue to do so today. {2+ [Absent some 

indication that the Congress that enacted § 245 wished] to exclude Jews 

from {2} [its protection, there is no reason to construe the statute in the 

manner that defendants suggest].  



45 

the district court noted that the General Assembly was free to 

consider incumbency protection “to the extent consistent with 

curing constitutional defects.” Appellants’ J.S. App. at29a-30a. 

Appellees submit that in the context of attempting to satisfy a 

racial quota through racial means, the General Assembly’s goal 

of protecting the incumbent of the unconstitutionally race based 

1992 Twelfth District in order to preserve the “racial balance” 

of the 1997 Plan is an admission of racial motive, not a defense 

against it. At the least, it 1s additional evidence of the General 

Assembly’s racial intent. 

5. North Carolina legislators who had no motive to conceal 

the use of race testified that race predominated in the formation 

of the 1997 Plan’s Twelfth District. 

In their “rigorous review of the record and decision 

below,” Appellants’ Brief at 16, Appellants and their allies also 

do not mention that the district court had the benefit of the 

  

  

  

direct testimony of several witnesses who were members of the 

General Assembly and who testified that race predominated in 

the formation of the Twelfth District of the 1997 Plan. See id. 

These legislators had no motive to conceal the use of race in the 

Twelfth and First District obvious to any objective observer of 

  

1990) (three-judge court), aff’d 498 U. S. 1019 (1991); Terrazas v. 

Clements, 581 F.Supp. 1329, 1356 (W.D.Tex. 1984) (three-judge court). 

Also, where “racial or ethnic communities were split to assure a safe seat 

for an incumbent, there is a strong inference - indeed a presumption - 

that this was the result of intentional discrimination.” Garza v. County 

of Los Angeles, 918 F.2d 763, 779 (9th Cir. 1990) (Kozinski, J., 

concurring in part and dissenting in part). See also Rybicki v. State Bd. 

Of Elections, 574 F.Supp. 1082, 1109 (N.D. Ill. 1982) (three-judge 
court) (“to maintain a safe, primarily white district” for incumbent 

indicates a purpose to practice racial discrimination), Ketchum v. Byrne, 

740 F.2d 1398, 1408 (7th Cir. 1984).  



  

Section 245(b)(2)(B) is a valid exercise of Congress’s 

authority under the Thirteenth Amendment, and the district court properly 

applied it in this prosecution based on violence motivated by the fact that the 

victim was Jewish. The Court should therefore uphold the defendants’ 

convictions. 

CONCLUSION 
  

For the reasons {2} [stated, this] Court should {2} reject 

appellants’ invitation to strike down § 245(b)(2)(B) and should sustain their 

conviction. 

 



  

46 

the North Carolina political scene.” As Senator Blust stated in 

the Senate Chamber, “there were just two factors that went into 

developing this plan - one was protecting incumbents, the other 

was race.” Jt. App. at 478. 
Appellants assert that North Carolina’s 1997 

redistricting plan does not “convey the message that ‘political 

identity is, or should be, predominantly racial.” Appellants’ 

Brief at 13, citing Bush v. Vera, 517 U.S. 952, 980 (1996) 

(O'Connor, J., plurality opinion). However, the racial message 

emanating from District 12, even later in its more compact 1998 

version, was clearly received by that District’s own 

representative and his campaign committee and staff as they 

communicated with and campaigned to voters whom they 

defined on the basis of race. Those whose livelihoods depended 

on getting their candidate elected targeted African-American 

voters through direct mail, African-American newspapers, and 

radio stations chosen because of their predominantly African- 

American audience. See Jt. App. at 578-583. See also Shaw v. 

Hunt, 861 F. Supp. 408, 478 n.5 (E.D.N.C. 1994) (Voorhees, 

J. dissenting), rev'd, Shaw v. Hunt, 517 U.S. 899 (1996). 

Thus, someone who pays attention to politics in North 

Carolina still receives the same racial message today from the 

1997 District as he or she did from the 1992 District. As 

  

¥Senator Hamilton Horton, who represented Forsyth County, 
testified that the Twelfth District was created predominately with a racial 

motive. Appellants’ J.S. App. at Sa. He further testified that the 

Twelfth District’s boundaries reflected its racial predominance in 

Forsyth County by splitting Winston-Salem along racial lines. Jt. App. 

at 25-32. Representative Steve Wood, who was the Speaker pro tem. of 

the House, testified that “the 1997 Plan divided High Point and Guilford 
County along racial lines for a predominantly racial motive.” 

Appellants’ J.S. App. at 6a. Finally, Representative John Weatherly also 

testified that the Twelfth District was drawn for predominantly racial 

reasons. 

 



  

Dated: September 27, 2000 

Respectfully submitted, 

Of Counsel. 

{2+ [Theodore Shaw] 
{2+ Norman {2} Chachkin 

[NAACP LEGAL DEFENSE AND 
EDUCATION FUND] 

{2+[[Address]] 

{2+ [New York, NY 18940] 
{2+[(212) ABC-DEFG] 

ge   
{2+ [Tom Henderson] 

Dellinger 
+ LAWYERS’ COMMITTEE FOR 

CIVIL RIGHTS 

{2+[[Street Address]] 

Washington, D.C. {£4 [20004] 

(202) {2+ [ABC-DEFG 

31 

Walter E. Dellinger 

O’MELVENY & MYERS LLP 
555 13th Street, N.W. 
Washington, D.C. 20004 

(202) 383-5300 

By: Walter E. 

 



  

47 

plaintiff Jake Froelich put it, “[i]t is still doing the same - much 

the same thing . . . trying to interconnect areas that are not 

interconnected any other way, trying to do it solely to 

accomplish a racial purpose.” Jt. App. at 680. Or in the words 

of Rep. Michaux, an African-American legislator quoted 

previously in Shaw v. Reno, 509 U.S. 630, 636 (1993), “[a]ll 

you have done with the 12" District in this bill is knock sixty 

miles off it.” Jt. App. at 469. 

D. The context of this case is relevant to the issues of 

predominantly race based motive and credibility. 

The district court specifically declined to consider the 

similarity of the 1992 and 1997 plans in evaluating the legality 

of the latter plan. However, in this instance where the plan is 

purported to remedy a prior unconstitutional racial 

gerrymander, the Court may consider the 1992 plan. In that 

event, the strength of Appellees’ showing of racial 

predominance is enhanced. 

1. The shape of the 1997 Twelfth District stems from the 

unconstitutional maximization policy of the Department of 

Justice. 
Although the Department of Justice did not deny 

preclearance for the 1997 plan, its refusal to preclear an earlier 

plan in 1991, Ex. 222, set in motion the chain of events leading 

to the present 1997 racial gerrymander of the Twelfth District. 

Moreover, its heavy hand was still very much on the minds of 

the legislators as they drew up the 1997 Plan. See Jt. App. at 

392, 405, 407, 407-408, 443, 464, 470-471, 475. Cf, ACLU 

Briefat 7n.7. The Department of Justice’s illegal maximization 

policy helps explain why the General Assembly enacted a 1992 

and 1997 plan which linked Mecklenburg County to Forsyth 

County and Guilford County, which had not been done for 

almost 200 years. To claim now that a district following this 

  

  

 



  

] 
NY: {2} [769266.1] 

 



48 

pattern and maximizing the African-American population in 

these cities was not primarily drawn for racial purposes strains 

credulity. 

2. The credibility of Appellants’ defense suffers further 

from its prior application to the unconstitutional 1992 Twelfth 

District, for Appellants have recycled almost every argument in 

defense of that district point by point. 

In defending the 1997 Twelfth District, Appellants have 

recycled virtually every argument used in defense of its 

unconstitutional predecessor, the 1992 Twelfth District. 

First, Appellants have severely criticized the district 

court in this case for failing to accord proper deference to the 

General Assembly, ignoring the presumption of good faith it is 

entitled to, and substituting its political judgment for the 

legislature. Similarly, in 1995 Appellants criticized the Shaw 

District Court’s finding of a racial motivation because it 

“inappropriately restricted the broad ‘discretion’ and 

‘presumption of good faith’ federalism accords legislatures in 

creating electoral districts and in resolving the ‘complex 

interplay of forces that enter a legislature’s redistricting 

calculus.” Brief on the Merits for Appellees at 32, Shaw v. 

Hunt, 517 U.S. 899 (1996) (citing Miller v. Johnson, 115 S.Ct. 

at 2488.) 

Second, Appellants now claim that politics is the primary 

factor causing the location and shape of the 1997 Twelfth 

District. In 1995 the Court was similarly informed that “politics 

was a primary factor causing the location and shapes of Districts 

1 and 12.” Brief on the Merits for Appellees at 35, Shaw v. 

Hunt, 517 U.S. 899 (1996). 

Third, Appellants now claim that there was a mix of 

factors other than race which was the true predominating 

motivation of the formation of the 1997 Twelfth District. 

Similarly, Appellants argued to the Court in 1995 that race was 

  

  

  

  

 



  

congressional legislation that may properly reach not just state actors, but 

also purely private conduct: “Under the Thirteenth Amendment, the 

legislation, so far as necessary or proper to eradicate all forms and incidents 

of slavery and involuntary servitude, may be direct and primary, operating 

upon the acts of individuals, whether sanctioned by State legislation or not.” 

Civil Ri 

DC1:398731.3 6 

 



  

49 

not the predominant factor in the formation of the 1992 Twelfth 

District, but “[i]nstead, the evidence unequivocally establishes 

that the line drawing process was motivated by six factors 

operating in tandem.” Id. at 34. 

Fourth, Appellants now claim that one of the major 

factors in the formation of the 1997 Twelfth District is 

incumbency protection. In 1995, the Court was similarly 

informed that one of the major factors in the formation of the 

1992 Twelfth District was “the protection of incumbents of both 

parties.” Id. at 34. 

Fifth, Appellants now claim that the formation of the 

1997 Twelfth District was a part of a greater scheme to retain 

the partisan balance of the previous plan. Similarly, Gerry 

Cohen, the draftsman of the 1992 plan, testified at the Shaw trial 

that it, too, was constructed to retain the partisan balance of the 

1980s. See Jt. App. at 809. 

Sixth, Appellants now claim that the Twelfth District 

was formed to be a “Democratic island in a Republican sea.” 

Similarly, the Court was informed in 1995 that the location of 

the unconstitutional 1992 District 12 1s “directly attributable to 

the decisions of the leadership of the redistricting committees 
(1) to construct a Democratic district from the Republican 

leaning counties of the Piedmont . . . .” Brief on the Merits for 

Appellees at 17, Shaw v. Hunt, 517 U.S. 899 (1996). 

Seventh, Appellants now claim that even though the 

1997 Twelfth District splits all of its counties and cities, great 

care was taken to avoid splitting precincts. Similarly, in 1995 

this Court was told that “neither district [1 or 12] adheres 

strictly to county, city or town boundaries, but both districts 

closely adhere to precinct and census block lines.” Id. at 18. 

Likewise in the course of this case, Appellants have 

recycled their arguments about the communities of interest of 

the Twelfth District, its “functional” rather than geographic 

compactness, its racial fairness, its urban, as opposed to rural 

 



    Caroline Mitchell Law Offices 

         
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B® 412-456-2355 

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FAX Rane: 
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Monday, September 25, 2000 

confirm receipt. thanks, Caroline 

  
  

TO: Steve Ralston, NAACP Legal Defense 
and Education Fund 

FAX: 212 226-7592 

  

PAGES (INCLUDING COVER): 10 

  
FROM: Caroline Mitchell Law Offices 

Copy of Alexander vs. Riga Complaint for Norm Chachkin per his request. please call 412-232-3131 to 

SEP 25:88 11:11 

  

4124562355 PAGE. B1 

 



  

50 

character, its ease of communication and transportation, and its 

historic underpinnings in the North Carolina Railroad. See id. 

at 18-24, 34-36. 

This remarkable similarity of argument raises the 

question: If these same defenses did not prevent the 1992 

Twelfth District from being found unconstitutional, why should 

they prevent the 1997 Twelfth District from being found 

unconstitutional? Furthermore, not only have these defenses 

covered both the 1992 and 1997 Twelfth Districts, many of 

them were further recycled to support the 1998 Twelfth District. 

See Ex. 146 (1998 Section 5 Submission). Thus, these 

boilerplate defenses have been used to defend three different 

plans. See Jt. App. at 500-502. They should fail now as to the 

1997 Plan for the same reasons they failed in Shaw: the 

existence of explicit racial targets and the subordination of 

traditional districting principles to race. 

II. NO COMPELLING GOVERNMENTAL INTEREST 

EXISTS FOR THE 1997 PLAN’S TWELFTH DISTRICT. 

Contrary to the position taken by Appellant-Intervenors, 

Appellant-Intervenors’ Brief at 28-31, compelling government 

interest is not an issue in this case. Neither Appellants nor 

Appellant-Intervenors ever presented at trial any factual or legal 

contention that a compelling government interest supported the 

creation of the Twelfth District in the 1997 Plan. (Cf. Pleading 

160, Final Pretrial Order at 25-27 (claiming a compelling 

government interest for the First Congressional District). To 

the contrary, Appellants made quite clear at trial that they were 

not claiming that the Twelfth District was supported by a 

compelling interest. There, the Appellants’ lead counsel - with 

no dissent from Appellant-Intervenors’ attorneys who were 

seated at her side - stated “we’re not arguing compelling state 

interest” with regard to the Twelfth District. Jt. App. at 23-24. 
Furthermore, counsel for Appellant-Intervenors in his closing 

 



NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

  

National Office 

99 Hudson Street, Suite 1600 

New York, NY 10013-2897 

212.965.2200 Fax 212.226.7592 

Regional Offices 

1444 Eye Street, N.W., 10th Floor 315 West Sth Street, Suite 208 

Washington, DC 20005 Los Angeles, CA 90015 

202.682.1300 Fax 202.682.1312 213.624.2405 Fax 213.624.0075 | Contributions are deductible for U.S. income tax purposes. 

The NAACP Legal Defense and Educational Fund, Inc. (LDF) is not a part of the National Association for the 
Advancement of Colored People (NAACP) although LDF was founded by the NAACP and shares its com- 
mitment to equal rights. LDF has had, since 1957, a separate board, program, staff, office and budget. 

 



  

51 

argument stated that “[ Appellants’ lead counsel] covered our 

position,” Jt. App. at 269, and remarked that “once we 

understood the law after Shaw v. Hunt, that there couldn’t be - 

there was no basis for a majority-minority district in the 12%.” 

Jt. App. at 269. See also Tr. at 562. Thus, the district court 

was correct to find that “no evidence of a compelling state 

interest in utilizing race to create the new 12" District has been 

presented and even if such interest did exist, the 12™ District is 
not narrowly tailored and therefore cannot survive the 

prescribed ‘strict scrutiny.” Appellants’ J.S. App. at 29a. 

Because this issue was not raised, and in fact was disavowed by 

the Appellant-Intervenors at trial, it is not properly before the 

Court. See Jt. App. at 269. "[T]o preserve an argument for 

appeal the litigant must press and not merely intimate the 

argument during the proceedings before the district court." 

FDIC v. Majalis, 15 F.3d 1314 (5th Cir. 1994).% 
Appellant-Intervenors refer to North Carolina’s past 

history of official discrimination against African-Americans and 
their exclusion from the political process due to state and 

private action. Appellant-Intervenors’ Brief at 30. There is no 

suggestion in the record that the Legislature in 1997, any more 

than in 1992, adopted this plan to further “an interest in 

remedying the effects of past or present discrimination.” Shaw 

v. Hunt, 517 U.S. 899, 909-10 (1996). In any event, “to 

alleviate the effects of societal discrimination is not a compelling 

interest.” Id. at 909-910 (citing Wygant v. Jackson Bd. of Ed., 

476 U.S. 267, 274-275, 276, 288 (1986)). Nowhere does the 

State or any other party specifically identify the continuing 

effects of past discrimination which might constitute a 

compelling interest or how the Twelfth District of the 1997 Plan 

  

“Nonetheless, Appellees offered substantial evidence at trial of 
an absence of narrow tailoring. Jt. App. 314-15; Weber dep. 329-30; Tr. 

157-68 (Jt. App. 89-94). 

 



  
Co-Chairs LG 

Daniel L. Rabinowitz 

Roger W. Wilkins 
Co-Vice Chairs 

James M. Nabrit, Hi 

Secretary 

c aan Eleanor S. Applewnatie 
reqsurer 

Elaine R. Jones 
» 4 P ™~ 3 p= / 

President and irector-Counse! 

Associcte Director-Counsel 

Norman J. Chachkin 

Director of Litigation 

Edward H. Gordon 

Director of Finance and Administration 

Patricia A.M. Grayson 
director of Development 

Herschel L. Johnson 

Senior Communications Manager 

BOARD OF DIRECTORS 
Billye Suber Aaron 
Gerald S. Adolph 
Clarence Avant 

Mario L. Baeza 

Mary Frances Berry 
Kenneth C. Edelin 

Toni G. Fay 

Willie E. Gary 
Gordon G. Greiner 

Quincy Jones 

Vernon E. Jordan, Jr. 

David E. Kendall 

Caroline B. Kennedy 
Tonya Lewis Lee 

William M. Lewis, Jr. 

David S. Lindau 

John D. Maguire 
Cecilia S. Marshall 

C. Carl Randolph 
Judith T. Sapers 
William H. Scheide 

Dean E. Smith 
John W. Walker 

George Wallerstein 

Karen Hastie Williams 

Andrew Young 

SENIOR DIRECTORS 
Anthony G. Amsterclam 

Yvonne Brathwaite Burke 

William K. Coblentz 

William T. Coleman, Jr. 

Theodore L. Cross 

Charles T. Duncan 

Nannette B. Gibson 

Jack Greenberg 

Louis Harris 

Eliot Hubbard, Hi! 

Anna Faith Jones 

Jetta N. Jones 

Robert H. Preiskel 

Robert O. Preyer 

Norman Redlich 

Charles B. Renfrew 

Frederick A.O. Schwarz, Jr. 

Jay Topkis 
James Vorenberg 

M. Moran Weston 

DIRECTORS EMERITUS 

Alice M. Beasley 
Anita Lyons Bond 
Patricia S. Bransford 

William H. Brown, lil 

Talbot D’ Alemberte 

Allison S. Davis 

Ossie Davis 

Peter J. Deluca 

Adrian W. DeWind 

Anthony Downs 

Robert F. Drinan 

Marian Wright Edelman 

Christopher F. Edley 
Clarence Finley 
Norman C. Francis 

Marvin E. Frankel 

Ronald T. Gault 

Lucy Durr Hackney 
Patricia L. Irvin 

Herman Johnsen 

Nicholas DeB. Katzenbach 

George E. Marshall, Jr. 

Paul Moore, Jr. 

Glendora Mcllwain Putnam 

Henry T. Reath 

Jacob Sheinkman 

George C. Simkins 
Wayman F. Smith {ii 
Michael |. Sovern 

Bonnie Kayatta Steingart 

Chuck Stone 

Cyrus Vance 

Paula Weinstein 

E. Thomas Williams, Jr. 

   



  

52 

is narrowly tailored to achieve it. Cf. Bush v. Vera, 517 U.S. 

952, 981-82 (1996) (O’Connor, J., plurality opinion). 

Moreover, there was no bona fide claim at trial - nor is there 

now - that Section 2 or Section 5 of the Voting Rights Act, 42 

U.S.C. §1973 (1994), could have supported a new black district 

in the Piedmont, either in 1992 or 1997. # 

In fact, Appellant-Intervenors’ mistaken suggestion that 

North Carolina was required to create a race-based Twelfth 

District amounts to an admission by them that the district had to 

be - and was - race-based. 

III. APPELLANTS’ DEFENSE OF CLAIM PRECLUSION 

LACKS MERIT. 

  

“Tn addition Appellant-Intervenors have distorted the 
stipulation as to the relevant Gingles factors. See Thornburg v. Gingles, 

478 U.S. 306 (1986). They have represented to the Court that 

“plaintiffs stipulated for purposes of trial that . . . 2) the white majority 

votes sufficiently as a bloc to enable it often to defeat the minority’s 

preferred candidate.” Appellant-Intervenors’ Brief at 11. However, this 

stipulation was only for the First District in rural, Eastern North 

Carolina, not the Twelfth in the more urban, Piedmont area. “For 

purposes of this trial, the parties stipulate and agree that should it 

become material during the trial with respect to the drawing of the First 

Congressional District whether these Gingles preconditions exist . . . .” 

Pleading 125, Proposed Discovery Plan of July 14, 1999 at § 8. Thus, 

the suggestion by the Appellant-Intervenors that these stipulations 

related to the Twelfth District or the Piedmont area in general is simply 

not true. Indeed, white crossover voting for black-preferred candidates 

in general elections for the area of District 12 ranges from a low of 

35.1% to a high of 41.8%. Jt. App. 90, 365. See also Tr. at 169-70. 

Also, African-Americans make up a larger share of the District’s 

registered voters than their proportion in the voting age population. 

Appellants’ J.S. App. at 78a-79a. 

 



UC proposal stirs wi intent (9/22/2... - Microsoft a, Page 1 of 5 

  
9/25/00 12:50:33 PM 

 



  

53 

For preclusion, Appellants rely on an order entered on 

September 12, 1997 in the Shaw litigation which allowed use of 

the 1997 Plan as a remedy for the violation of the rights of those 

Shaw plaintiffs who were registered voters in the 1992 Plan’s 

Twelfth District. However, the terms of the order itself make 

clear that the Shaw court did not intend to adjudicate challenges 

of the constitutionality of the 1997 Plan made by persons who 

had not been held to be entitled to relief in the Shaw litigation. 

See Appellants’ J.S. App. at 320a. 

In an effort to evade that order and to forum shop, 

Appellants then moved the Shaw court to consolidate and 

dispose of challenges to the 1997 Plan that were being made in 

the Cromartie litigation and in Daly v. High, which also 

challenged North Carolina’s Congressional redistricting as well 

as its legislative reapportionment. The Shaw court summarily 

denied the State’s motion, see Jt. App. at 803, and no appeal 
was taken. That ruling is another bar to Appellants’ effort to 

assert that challenges to the 1997 Plan had to be asserted before 

the Shaw panel in the district court. 

In any event, Appellants’ defense of claim preclusion is 

meritless because that defense requires: (1) a final judgment on 

the merits, (2) the same claim or claims, and (3) the same 

parties. Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 

398 (1981); Cromwell v. County of Sac. 94 U.S. 351 (1876). 

Appellants can not establish any of these three elements. The 

language of the Memorandum Opinion entered by the Shaw 

court on September 12, 1997, makes clear that it is not a “final 

judgment” as to the constitutionality of the 1997 Plan’s Twelfth 

District. Instead, its language is carefully confined to deciding 

that the Twelfth District was an adequate remedy for violating 

the Equal Protection rights of those Shaw plaintiffs who resided 

in the 1992 Plan’s Twelfth District. Because the 1997 Plan 

removed these persons and their entire county from the Twelfth 

District, they have no standing and their claim as to the current 

 



PAGE 77 
1ST CASE of Level 1 rine lly FULL format.    

ANGELA M. ROBINSON, Plaintiff, -against- INSTRUCTIONAL 

SYSTEMS, INC., Defendant. 

96. Civ. 8356. (CEM) 

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF 

NEW YORK 

105 F. Supp. 2d 283; 2000: U.S. Dist. LEX1S"10240 

July 18, 2000, Decided 

July 21,2000, Filed 

DISPOSITION: [**1) Plaintiffs $$ 32,989.38 in attorneys fees and" S$ 4205.59 in 

paralegal fees and costs granted. Plaintiff's application for attorneys' fees 

and costs granted in the amount of $ 37,194.97. 

CASE SUMMARY 

PROCEDURAL POSTURE: Plaintiff moved for an award of attorney's fees as a 

prevailing party in her action against her former employer alleging 

discrimination on the basis of race and/or national origin, in the terms of her 

employment and termination, in violation of Title VII of the Civil Rights Act of 

1964, 42''0.5.C.8. & 2000e et'seq., and N.Y. Exec. Law 8 296. 

OVERVIEW: The court granted summary judgment in favor of defendants as to all 

claims except plaintiff's retaliatory termination claim. A jury trial was held 

and the jury found for the plaintiff, awarding her $ 23,000 in damages, 

rendering her a prevailing plaintiff under 42 U.S.C.S. 2000e-5(k). Plaintiff 

claimed she was entitled to $ 131,393 in attorneys' fees, and defendant argued 

that plaintiff was entitled to $ 10,202 in attorneys' fees and costs, one-third 

of the damages award. The court noted that many of plaintiff's proposed charges 

were vague and duplicative, and that she was awarded one fortieth of the amount 

she sought. The court determined a lodestar figure of hours, adjusted for the 

lack of complexity and the overall lack of success, multiplied by reasonable 

hourly figures for the attorneys or paralegals involved, to arrive at a 

reasonable fee figure. 

OUTCOME: Plaintiff was awarded reasonable attorney's fees and costs in the 

amount of $ 37,194, significantly less than plaintiff moved for and more than 

defendant argued should be awarded, based on the court's lodestar calculation 

and hourly rate normally charged for similar work by attorneys of like skill in 

the area. 

CORE CONCEPTS ~- 

 



  

54 

Twelfth District is non-existent. At least, it is quite different 

from the claim presented by registered voters from cities and 

counties cut apart by that District. Cf. United States v. Hays, 

515 U.S. 737 (1995) (discussing standing rules for Shaw 

plaintiffs). The parties are also not the same. Appellees J.H. 

Froelich, R.O. Everett, and Ronald Linville were not parties to 

the Shaw litigation; and therefore were not precluded by the 

Shaw panel’s order. 

Because identity of parties is lacking, Appellants seek to 

invoke a theory of “virtual representation,” contending that the 

plaintiffs had been “virtually represented” by attorney Robinson 

O. Everett, who is counsel of record in the Cromartie case and 

had been a plaintiff and counsel in the Shaw litigation. 

However, this contention ignores the circumstance that, under 

the holding in Shaw v. Hunt, 517 U.S. 899, 904 (1996), 

Robinson Everett lacked standing to be a plaintiff in that case 

because he did not reside within the 1992 Plan’s Twelfth 

District. Thus, he could not have “represented” the interests of 

the Cromartie Twelfth District plaintiffs, even had he sought to 

do so. Even if “virtual representation” had existed in this case, 

the bottom line is that the other two elements of claim 

preclusion are still lacking. Thus, the Court should reject this 

defense as has every judge who has ever considered it. 

IV. THE DISTRICT COURT ACTED WELL WITHIN 

ITS EQUITABLE DISCRETION. 

Appellant-Intervenors complain that the district court 

was too slow to schedule discovery, too quick to hold the trial, 

too slow to issue its opinion, too late to order a remedy, and too 

intrusive in granting relief. See Appellant Intervenors’ Brief at 

31. However, these are matters well within the equitable 

discretion of the district court. Moreover, although they cite a 

number of cases where district courts, in their equitable 

discretion, made certain decisions as to the relief granted and 

 



PAGE 78    105 F. Supp. 2d 283, *; 2000 gq = LEXIS 10240, ** 

Civil Procedure: Costs & Attorney Fees: Attorney Fees 

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1991 

Once an entitlement to an attorney's fee award is established, the court must 

calculate a "reasonable fee" amount to award the prevailing party. Although the 

amount of attorneys' fees awarded is a factual issue whose resolution is 

committed to the discretion of the district court the United States Court of 

Appeals for the Second Circuit has established a two-step approach for 

calculating such awards. First, the court must calculate the lodestar figure by 

multiplying the number of hours expended by each attorney involved in each type 

of work on the case by the hourly rate normally charged for similar work by 

attorneys of like skill in the area. 

Civil Procedure: Costs & Attorney Fees: Attorney Fees 

In calculating a lodestar figure for determining attorney's fees, a different 

rate of compensation may well be set for different types of litigation tasks. 

Civil Procedure: Costs & Attorney Fees: Attorney Fees 

A court may adjust the lodestar figure for determining attorney's fees upward or 

downward to take account of such subjective factors as the risk and complexity 

of the litigation and the quality of the representation. 

Civil Procedure: Costs & Attorney Fees: Attorney Fees 

Counsel for the prevailing party should make a good faith effort to exclude from 

an attorney's fee request hours that are excessive, redundant, or otherwise 

unnecessary, just as a lawyer in private practice ethically is obligated to 

exclude such hours from his fee submission. 

Civil Procedure: Costs & Attorney Fees: Attorney Fees 

A district court should exclude from this initial attorney's fee calculation 

hours that were not reasonably expended. 

Civil Procedure: Costs & Attorney Fees: Attorney Fees 

In calculating attorney's fees, the burden is on counsel to keep and present 

records from which the court may determine the nature of the work done, the need 

for it, and the amount of time reasonably required; where adequate 

contemporaneous records have not been kept, the court should not award the full 

amount requested. 

Civil Procedure: Costs & Attorney Fees: Attorney Fees 

In determining a reasonable hourly rate in an attorneys fee application, a 

district court must first determine the prevailing market rates in the relevant 

community. 

Civil Procedure: Costs & Attorney Fees: Attorney Fees 

Where a plaintiff has achieved only partial or limited success, full 

compensation for attorney's fees is not reasonable. A district court may either 

attempt to identify specific hours that should be eliminated, or it may simply 

reduce the award to account for the limited success. 

COUNSEL: For NELSON A. FARIAS, ANGELA M. ROBINSON, plaintiffs: Louie Nikolaidis, 

Lewis, Greenwald, Clifton & Lewis, P.C., New York, NY. 

For INSTRUCTIONAL SYSTEMS, INC., defendant: John A. Ridley, Gibbons, Del Deo, 

Dolan, Griffinger & Vecchione, Newark, NJ. 

 



  

55 

the timing involved, they still have not cited any case, nor are 

Appellees aware of any, where a district court’s exercise of its 

equitable discretion was held to have been abused for enjoining 

the use of an unconstitutional redistricting or reapportionment 

plan. 

Indeed, “once a State’s legislative apportionment 

scheme had 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.” Reynolds v. Sims, 377 U.S. 

533, 585 (1964). Appellees doubt that in this context “unusual” 

includes cases in which a state has unduly protracted litigation 

and has refused to acknowledge the unconstitutionality of its 

actions. 

In 1996, in Texas a primary election was set aside and 

a special election held in thirteen redrawn districts in 

conjunction with the high-turnout Presidential election, and a 

run-off in those few districts which required it. See Vera v. 

Bush, 933 F.Supp. 1341, 1351 (S.D. Tex. 1996), stay denied 

sub nom. Bentsen v. Vera, 518 U.S. 1048 (1996). In North 

Carolina an injunction prohibiting use of the 1997 Plan took 

effect in April 1998, closer to the primaries than the injunction 

entered by the court below after the trial. Moreover, the 1998 

plan was enacted later in May 1998; but nonetheless in the 

districts affected primaries were conducted in September and 

general elections were held at the regular time in November. In 

this case, had a stay order not been entered, a primary in the 

districts affected by the invalidation of District 12 could have 

been accomplished in conjunction with the statewide second 

primary which was scheduled and held on May 30, 2000. 

Neither Appellants nor Appellant-Intervenors have any 

legal basis for their extraordinary contention that this Court 

should preempt the exercise of the district court’s equitable 

discretion. See Lemon v. Kurtzman, 411 U.S. 192, 200 (1973). 

 



PAGE 79    105 F. Supp. 2d 283,-*; 2000 gz = LEXIS 10240, ** 

JUDGES: CONSTANCE BAKER MOTLEY, United States District Judge. 

OPINIONBY: CONSTANCE BAKER MOTLEY 

OPINION: [*283] 

MEMORANDUM OPINION 

Motley, J: 

I. Background 

Plaintiff, Angela Robinson, filed this action against her former employer, 

Instructional [*284] Systems, Inc., alleging discrimination on the basis of 

race and/or national origin, in the terms of her employment and termination, in 

violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. @ 

2000e et seqg., the New York State Human Rights Law, Executive Law @ 296, and the 

Administrative Code of the City of New York @ 8-107(a). In a decision dated 

March 19, 1999, Judge Wood granted summary judgment in favor of defendants as to 

all claims except Ms. Robinson's retaliatory termination claim. A jury trial was 

held on the retaliatory termination claim from January 4, 2000 until January 7, 

2000. The jury found for the plaintiff, awarding her $ 23,000.00 in damages. In 

a January 25, 2000 ruling, the court awarded prejudgment [**2] interest, 

denied plaintiff's request for punitive damages and determined that plaintiff is 

entitled to attorneys' fees and costs for work related to the retaliatory 

termination claim. An amended judgment in the amount of $ 30,607.47 was filed in 

the Clerk's Office on February 14, 2000. 

On May 2, 2000, a hearing on attorneys' fees and costs was held before this 

court. Plaintiff claims that she 1s entitled to $8 131,393.75 in attorneys’ fees 

and paralegal fees, plus $ 3,406.59 in costs. Defendant argues that plaintiff is 

entitled to $ 10,202.46 in attorneys' fees and costs, one-third of the $ 

30,607.37 awarded to plaintiff in this action. 

II. Findings of Fact and Conclusions of Law 

The court, in its January 25, 2000 Memorandum Opinion, has held that 

plaintiff is the prevailing party and is therefore entitled to attorneys fees 

under 42 U.S.C. 2000e5(k). Once the entitlement to an attorneys' fee award is 

established, the court must calculate a "reasonable fee" amount to award the 

prevailing party. Although the amount of attorneys' fees awarded "is a factual 

issue whose resolution is committed to the discretion of the district court" 

Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 145 (2d'Cir.. 1993), [(**3] 

the Second Circuit has established a two-step approach for calculating such 

awards. First, the court must calculate the lodestar figure by "'multiplying the 

number of hours expended by each attorney involved in each type of work on the 

case by the hourly rate normally charged for similar work by attorneys of like 

skill in the area.'" Cohen v. W. Haven Bd. of Police Comm'rs, 638 F.2d 496, 505 

{2d Cir. 1980) (quoting Detroit v. Grinnell Corp., 360°F.2d 1093, 1093 (2d Cir. 

1977)). In calculating the lodestar figure, "a different rate of compensation 

may well be set for different types of litigation tasks." Id. As for the second 

step, the court may adjust the lodestar figure "upward or downward to take 

account of such subjective factors as the risk and complexity of the litigation 

and the quality of the representation." Id. 

 



  

56 

Generally, “[o]nce a constitutional violation has been found, a 

district court has broad discretion to fashion an appropriate 

remedy.” Karcher v. Daggett, 466 U.S. 910, 910 (1984) 

(Stevens, J. concurring). This discretion is usually entrusted to 

the district court in the first instance. See Perkins v. Matthews, 

400 U.S. 379, 396-97 (1971). In light of all the circumstances 

here, including Appellants’ unwillingness to remedy their racial 

gerrymandering, no basis exists to overturn the district court’s 

decision. ** 

CONCLUSION 
Appellants and their allies seek to overturn Shaw v. 

Reno, 509 U.S. 620 (1993), or failing that, to introduce such 

limitations on its application as to make it a dead letter. 

However, the values protected by Shaw are fundamental and 

should not be ignored. Nor should the tactics of Appellants in 

seeking to avoid the teachings of Shaw be endorsed. While the 

authority of a state legislature should not be minimized, neither 

should the role and responsibility of the federal courts be 

disregarded in protecting the right to vote - the most 

fundamental right of citizenship in our republic.¥ Appellants’ 
  

“Appellants and Appellant-Intervenors seek to raise an issue as 
to the exercise of discretion of the lower court if the Court upholds its 

judgment that the Twelfth District is unconstitutional. That issue is 

premature and should instead be considered by the lower court. 

“Because of the importance of voting rights in a democracy, 

Appellees submit that those rights deserve the protection afforded by the 

approach used in Arlington Heights v. Metropolitan Housing Dev. 

Corp., 429 U.S. 252 (1977), where racial motive need not be shown to 

be the predominant motive but only a cause. 429 U.S. 252 (1977). 

Likewise, the State should bear the burden of proving that the “taint” of 

a racial gerrymander has been removed. However, in this case, the 

evidence of racial intent is so strong that the burden of proof is 

immaterial to the correct outcome. 

 



PAGE 80    105 F. ‘Supp. 2d 283, *; 2000 gz LEX 1S 10240, :** 

A. The Lodestar Figure 

1. Reasonable Hours 

"Counsel for the prevailing party should make a good faith effort to exclude 

from a fee request hours that are excessive, redundant, or otherwise 

unnecessary, just as a lawyer in private practice ethically is obligated to 

exclude such hours from his fee submission." Hensley v. Eckerhart, 461 U.S. 424, 

433, 76°L. BEd. 2d 40, 103.8. Ct. 21933 (12983). [**4]) Hence, "the district 

court...should exclude from this initial fee calculation hours that were not 

'reasonably expended.'" Id. (citations omitted). Additionally, time records 

should enable the court to determine whether or not the amount of time spent on 

particular tasks was reasonable. "The burden is on counsel to keep and present 

records from which the court may determine the nature of the work done, the need 

for it, and the amount of time reasonably required; where adequate 

contemporaneous records have not been kept, the court should not award the full 

amount requested." F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 

1265 (2d Cir. 1987) .[*285] 

Louie Nikolaidis 

Plaintiffs' attorneys claim that 418.20 hours of Louie Nikolaidis' time was 

spent working on the retaliatiory termination claim. The court finds that this 

request is excessive and is based on vague time records. 

Of the 418.20 hours requested, 250.75 hours include time spent on the 

following: (1) drafting the complaint, (2) client conferences (3) drafting 

trial-related documents, (4) discovery, (5) in-court appearances, (6) 

depositions and (7) drafting summary judgment papers. Much of the[**5] time 

spent on discovery, client conferences, drafting the complaint, in-court 

appearances, depositions and summary judgment papers was indubitably spent on 

the unsuccessful claims, as these originally comprised the majority of issues 

involved in the lawsuit. Although the court acknowledges that to some degree, 

the work on unsuccessful claims is related to the retaliatory termination claim, 

this does not justify reimbursing plaintiff for all of the time spent on the 

unsuccessful claims. 

Furthermore, Mr. Nikolaidis is an experienced attorney, with 15 years 

experience in employment discrimination litigation. This case involved a typical 

Title VII claim. The trial took only four days and involved the examination of 

one witness. Thus, 250.75 hours would be an excessive amount of time for an 

attorney of Mr. Nikolaidis' experience to spend in preparation for the trial. 

Therefore, the court -finds that only 50% of these hours, 125.375 hours: could 

have been reasonably related to the retaliation claim. 

As for the remaining 167.45 hours, the time entries are too vague for this 

court to determine whether the amount of time spent on particular tasks was 

reasonable. Many of these entries involve[**6] descriptions such as 

"preparation for trial" and "telephone call with..." or "correspondence 

with..." Such entries are simply insufficient to allow the court to determine 

the nature of the tasks performed and the amount of time reasonably required to 

perform those tasks. Thus, to account for these vague time entries, the court 

finds that only 50% of the remaining 167.45 hours recorded, 83.725 hours, could 

have been reasonably related to the retaliation claim. 

 



57 

massive resistance to the teachings of Shaw should not be 

rewarded or tolerated. Instead, the judgment of the district 

court should be affirmed. 

Respectfully submitted, 

MARTIN B. MCGEE ROBINSON O. 

EVERETT* 

WILLIAMS, BOGER SETH A. NEYHART 

GRADY, DAVIS & TUTTLE EVERETT & EVERETT 

708 McLain Rd. P.O. Box 586 

Kannapolis, NC 28081 Durham, NC 27702 

(704) 932-3157 (919) 682-5691 

DOUGLAS E. MARKHAM 
P.O. BOX 130923 
Houston, TX 77219-0923 
(713) 655 - 8700 

*Counsel of Record 

October 6, 2000 Attorneys for Appellees 

 



PAGE 81 
105 F. Supp. 2d 283, >; 20000 dar LEXIS 10240, '** 

Accordingly, as to the application for fees related to Louie Nikolaidis' 

work, the court finds that Mr. Nikolaidis is entitled to fees for 209.10 nl 

hours of work. 

nl. The sum of 125.375 hours and 83.725 hours. is 209.100 hours. 

End Footnotes- - - ~- 

Hope Pordy 

As to Hope Pordy, plaintiff's application seeks fees for 142.25 hours of work 

by Ms. Pordy. The court finds that this claim is excessive and is based on vague 

and duplicative time entries. 

Of the 142.25 hours recorded, 69.25 hours were devoted to the following: (1) 

reviewing trial-related documents, (2) researching[**7] New York human 

rights laws and jury charges, (3) drafting summary judgment documents and (4) 

editing or drafting trial-related documents. Just as with Mr. Nikolaidis, some 

of this time was likely devoted to the unsuccessful claims, although to a lesser 

degree for Ms. Pordy, who did not become involved in the case until June 25, 

1998, almost two years after Mr. Nikolaidis began work on the case, on September 

26, 1996. Additionally, although Ms. Pordy is a less experienced attorney than 

Mr. Nikolaidis, with only four years of litigation experience, several of the 

Ms. Pordy's time entries were excessive. For instance, Ms. Pordy's claim of 11 

hours researching jury charges and 16 hours reviewing documents. Therefore, the 

court finds that 60% of these hours, 41.55 hours, could have been reasonably 

related to the retaliation claim. 

With respect to the remaining 73 hours, the time entries are too vague for 

the court to determine whether the amount of time spent on particular tasks was 

reasonable. In many instances, Ms. Pordy's time entries attribute multiple tasks 

to the same time segment. In addition, many of the entries include vague 

descriptions, [*286] such as "preparation for trial," "research," [**3] 

or "correspondence with..." Some of these vague time entries also include 

unnecessary and duplicative work. For instance, Ms. Pordy includes entries for 

at least 44 hours of trial appearances and meetings with Mr. Nikolaidis. In a 

simple case such as this, it was unnecessary to have both an experienced partner 

and a less-experienced associate present at trial. See, e.g., Dailey v. Societe 

Generale, 915 F. Supp. 1315,:1327-28 (3.D.N.¥. 1996), Luciano v. Olsten, 925 F. 

Supp. 956, 965 (E.D.N.Y. 1996). Furthermore, it would be duplicative and 

excessive to reimburse plaintiff for hours spent in conferences between two 

attorneys in the same firm. See Luciano, 925 F. Supp. at 966. Therefore, between 

the vague and duplicative entries, the court finds that 30% of the remaining 73 

hours, 21.90 hours, reflect a reasonable amount of time spent on the retaliation 
claim, 

Accordingly, the court finds that Ms. Pordy is entitled to fees for 63.45 n2 
hours of work. 

 



 



PAGE 82 
105 F. Supp. 2d 283, *; 2000 gE Ee LEXIS 10240, **    

n2 The sum of 41.55 hours and 21.90 hours 15.63.45 hours. 

Daniel Clifton 

Plaintiffs seek compensation for three hours of time spent by Daniel Clifton 

for editing a Memorandum of Law on July 2, 1998. Some of this time was certainly 

related to the unsuccessful claims. Therefore, the court finds that 66.7% of 

this time was reasonably related to the retaliation claim, leaving Clifton with 

two hours of compensable time. 

2. Reasonable Hourly Rate 

In determining the reasonable hourly rate in an attorneys fee application, 

the District Court must first determine "the prevailing market rates in the 

relevant community." Chambless v. Masters, Mates and Pilots Pension Plan, 885 

Pr.2d°1053, 1058 (2d Cir. 19389), citing Blum wv. Stensen, 465 U.S, 836, 395, :70 1. 

Ed. 2d 8921, 104 S. Ct. 1541 (1984). An hourly rate is reasonable if "the 

requested rates are in line with those prevailing in the community for similar 

services by lawyers of reasonably comparable skill, experience and reputation." 

Blum v. Stetson, 465 U.S. at 896 n.11. 

Louie Nikolaidis 

Plaintiff seeks an hourly rate of $ 250 for Louie Nikolaidis. Mr. Nikolaidis 

is a January 1985 graduate of Rutgers-Newark School of Law who was[**10] 

admitted to practice law in New York and New Jersey in 1985. Mr. Nikolaidis has 

been an employment law and employment discrimination litigator since 1986. The 

requested hourly rate of $ 250 is reasonable and in line with counsel fee awards 

in the community. See, e.g., Losciale v. Port Authority of New York and New 

Jersey, 1999 U.5., Dist, LEX1S:11990, 1999 Wl. 587928, *8 (S.D.N.Y. 1999) 

(awarding hourly rate of $ 250 for employment discrimination attorney admitted 

in 1984); Gavin-Mouklas v. Information Builders, Inc., 1999 U.S. Dist. LEXIS 

14448, *19, 1999 WL 728636 (S.D.N.Y.) ("the acceptable range seems to be between 

S 200 and $§ 300," Id. at *5). Therefore, the court will calculate Louie 

Nikolaidis' fee at a rate of $ 250.00 per hour, with the exception of trial 

appearances, which will be compensated at a rate of $ 300.00 per hour. 

Hope Pordy 

Plaintiffs seek an hourly rate of $ 175 for Hope Pordy. Ms. Pordy is a 1994 

graduate of Fordham University School of Law who was admitted to the bars of New 

York and New Jersey in 1995. Ms. Pordy worked for two and one-half years as a 

staff attorney for a union and one year as a staff attorney for a public 

interest research group prior to becoming an associate at[**11] Lewis, 

Greenwald, Clifton & Nikolaidis, where she has been an associate since January 

1998. Altogether, Ms. Pordy only had between four and five years of experience 

while she was working on the instant case, the requested hourly rate of $ 175 is 

reasonable and in line with counsel fee awards in the community. See, e.g., 

Losciale v. Port Authority of New York and New Jersey, 1999 U.S. Dist. LEXIS 

11990, 1999 WL. 587928, *8 (3.D.N.Y. 1999) (employment discrimination 

 



  

5 

APPELLEES’ OBJECTION AS TO AUTHENTICITY 

AND ADMISSIBILITY OF MAPS ORIGINALLY 

APPEARING IN APPELLANTS’ BRIEF ON THE 

MERITS AT 1a-3a. 

Appellees hereby object to the authenticity of three maps 

appearing in the appendix to Appellants’ Brief on the Merits at 

la-3a. These appeared for the first time in this lawsuit in 

Appellants’ Brief on the Merits and were never placed into 

evidence or subjected to the evidentiary review of the district 

court. 

These maps purport to be drawn on the basis of Joint 

Exhibits 107-109, which Appellants have lodged with the Court. 

Joint Exhibits 107-109, infer alia, depict the Democratic Party 

registration percentages by precinct for Forsyth, Guilford, and 

Mecklenburg Counties, with the boundary of the Twelfth 

District overlaid. The legend for the Appellants’ new maps 

indicate that the precincts are to be marked red and not blue if 

they are “District 12 Precincts With Lower Democratic 

Registration Than One or More Adjacent Non-District 12 

Precincts.” Appellants’ Brief on the Merits at 1a-3a. 

Appellees’ counsel, upon examination of Exhibits 107- 

109, determined that at least five precincts in these maps are 

colored in error. Moreover, the errors consistently support the 

Appellants’ position, i.e. precincts are marked blue which 

according to the legend should be red. 

In Guilford County, Ex. 107, Greensboro 33 has a 

Democratic registration number of 66.162% and is adjacent to 

a precinct outside of District 12 with a Democratic registration 

number of 66.22%. Greensboro 36 has a Democratic 

registration number of 52.279% and is adjacent to a precinct 

outside of District 12 with a Democratic registration number of 

59.679%. Jamestown 2 has a Democratic registration number 

of 47.21% and 1s adjacent to a precinct outside of District 12 

with a Democratic registration number of 47.989%. Finally,