Plaintiffs' Memorandum in Opposition to Defendants' Motion to Stay

    .,-{&

IN

FOR THE

RALPH GINGLES, et

v.

RUFUS EDMTSTEN, in
as the Attorney Ge
Carolina, et aI.,

PLAINTI
TO

E UNITED STATES DISTRICT COURT
" l""ti. I

EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

t t -:.',- 
-'. .i _.i,. --*f ,..-.r :_,

'i 1.,: l;"i:i.iiril

1.,
Plaintiffs,

his capacit,y

CIVIL ACTION

NO.81-803-Crv-5

On October 21,

action moved the C

( 1 ) until the Gene

apportionment plan

and Senate and (21

States objects to

plans for the stat,

and Congress and

5(3) of the North

This action $,

the apportionment

and Senate and Con

Act of 1965, 42 U.

clause of the Four

to the United Stat

alleged that the p
Article II, SS3 ( 3 )

reasons, plaintiff
denied.

FACTS

filed on September 16, 1981, alleging that
f the North Carolina House of Representatives

ssional districts adopted by the North

Carolina General embly in July, 1981 violate the Voting Rights

ra1 of North

Defendants.

ESI MEMORANDUII,I IN OPPOSITION
EFENDANTSI MOTION TO STAY

1981, defendants in the above-captioned

rt to stay all proceedings in the action
1 Assembly reconvenes and redraws its
for the North Carolina House of Representatives

ntil the Attorney General of the United

r approves North Carolinars apportionment

House of Representatives and the state Senate

ects to or approves Article II, SS3(3) and

rolina Constitution. For the following
oppose this motion and request that it be

.C. SS1973 and 1973c, and the equal protection
enth Amendment and the Fifteenth Amendments

Constitution. In addition, plaintiffs
visions of the North Carolina Constitution,
nd 5(3), which prohibit the division of

counties in the a tionment of the North Carolina General



'u

Assembly, had not

United States or t
Columbia as requir

those provisions v

Fourteenth and Fif
Constitution.
' On September

consent, moved for
5 , 1981, and that

On September

Carolina submitted

Carolina Constitut

States for pre-cIe

October 7, 198I.

that submission, o

AIso after th

Assembly reconvene

new apportionment

Representatives

Resolution 1427, a

A new apportionmen

buL not for the Se

October 30, 198I,

L982. See Stipula

The JuIy, 198

and the Congressi

General of the Uni

with the requests

See Stipulation of

act on the JuIy, I
State supplied the

1981.

The new appor

Representatives wa

United States for

en submitted to the Attorney General

the District Court fcr the District
d by 55 of the Voting Rights Act, and

olate 52 of the Voting Rights Act and

eenth Amendments to the United States

of the

of

that

the

5, 1981, defendants, with plaintiffs'
an extension of time to answer until November

otion was granted.

8, 1981, after this action was filed, North

the contested provisions of the North

on to the Attorney General of the United

rance. See Affidavit of Alex Brock fited
e Attorney General must act within 60 days fo
by November 27, 1981.

s action was filed, the North Carolina General

on October 29, 19BI for the purpose of enacting

lans for both the North Carolina House of
the North Carolina Senate. See House Joint

tached to defendants' motion to stay proceedings.

was enacted for the House of Representatives

ate. See Stipulation of pact Nos. 2 and 4. On

e General Assembly adjourned until June 2,

ion of Fact No. 3 .'

apportionment of the North Carolina Senate

aI districts was submitted to the Attorney

ed Stat,es on JuIy 13, 1981. The State complied

or more information on September 30, tg8l.
Fact Nos. 5 and 6. The Attorney General must

81, apportionment within 60 days after the

requested information, or by November 29,

ionment of the North Carolina House of
submitted to the Attorney General of the

re-clearance on or about November 4, 19Bl.

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See Stipulation
that submission

information, in
delayed.

During the

t,he candidate f il
under the challe

February 15, l9B2

Stipulations of F

1982. N.C.G.S. s

The Court ha

action and that t
conference by Feb

The reasons

not outweigh the

the intention of

apportionment of

The General Assemb

There is no provis

Fact No. 7. The Attorney General must acton
January 3, L982, unless he requests more

ich case his objection or approval could be

tober 29, 1981 Session of the General Assembly,

ng time for the first elections to be hel_d

ed apportionment plans rvas extended Lo begin

and goes until I'tarch I, LggZ. See Exhibit A t,o
ct. The primary election will be held May 4,
63-1(b).

ordered that discovery be completed in this
e parties_ be prepared for a final pre-trial
uary 19, 1982.

ARGUMENT

DEFENDA SI MOTION TO STAY THE PROCEEDINGS IN
THIS A IOI{ SHOULD BE DENIED

to stay proceedings is incidental to the" It] he power

inherent in every rt to control the disposition of the
on its docket wi

counsel, and for
economy of time and effort for itself,

itigants. " Landis v. North American Co.

ear case of hardship or inequity in being
ard, if there is ever a fair possibility
rays will work damage to someone else.,,
serted by defendants for granting a stay
ejudice to plaintiffs of the delay.

The State ass

POwer

causes

for

, 299

u.s. 249, 254 (19

Inc., 204 F.2d 58 , 586 (4th Cir. 1953).

However, in Iing on a motion to stay, the Court must

"weigh competing i terests and maintain an even balance.,'
Landis v. North A rican Co., 299 U.S. at 255. The moving party
"must make out a

required to go fo
the stay which he

that

rd.

do

rts two reasons for the stay. The first is
e General Assembly to reconvene to change the
e State House and Senate in October, I9Bl.
y has, however, already reconvened and adjourned.
on for it to convene again until June 2, Lgg2,

lections have been held under the challenged

); International Nicke1 Co. v. Martin J.

after the primary

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apport ionment.

priat,e.

submiss ion.

determination of

Th

Defendants se

ments and North Ca

submitted to the A

clearance and that
claims under the U

ruled under 55.

I01 s. ct. 2224 (1

court should not a

has been submitted

howeverr sEly that

clearance. The Co

not determine the

s a stay on these grounds is no longer appro-

ond contention is that the challenged apportion-
Iina Constitutional provisions have been

torney General of the United States for pre-

this Court should not consider plaintiffs'
S. Constitution until the Attorney General has

In McDaniel v Sanchez, u. s. , 68 L.Ed.2d 724t 7421

81), the Supreme Court heLd that a district
t on a proposed apportionment plan before it,
for preclearance under 55. The Court did not,
n action should not move forward pending pre-

rt merely said that a district court should

nstitutionality of a plan prior to the plan,s

In this acti
has ordered counse

ference by Februa

respond by the end

Court will determi

action before the

55. The only exce

North Carolina Hou

Carolina Houser un

GeneraL must act b

requested, it is I
before February I9

at that time wheth

that portion of th

House.

In addition,

move for a determi

action, this Court

laintiffs have not sought

e merits of Lhis action.

tion of the merits of all
can decide then whether or

any preliminary

If plaintiffs Iater
or part of the

not it is an appro-

, the Court has set the end of discovery and

to be prepared for a final pre-trial con-

19, 1982. Since the attorney general must

of November, 198I, there is no danger that the

e the Constitutional issues raised in this
ttorney General must announce a decision under

tion to this is the latest submission for the

e of Representatives. As to t,he North

ess more information is reguested, the Attorney
January 3, L982. Even if more information is

kely that the Attorney General will decide

1982. If he has not, this Court can decide

or not to set a final trial on the merits of
action which relates to the North Carolina

t

s

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priate time for a

Since there i
deterine t,he Const

dants of proceedi

defendants have no

On the other

tiffs and to the

The Congressi

challenging the ap

the action should

s2284(b) (2).

In addition,

the apportionment

important that the

apportionments be

motion would stay

General rules on t
would be January 3

be in a posture wh

at least prelimina

as pleadings, disc

to proceed. Other

apportionment that
tional.

When the pote

action is weighed

the action proceed

granting the stay.

B. IF DEFEN

The Courtrs d

whaL is necessary

Landis v. North

has a duty to mini

resulting from the

u1 ing.

no danger that the Court

tutional questions, there

with preliminary mat,ters

need for a stay.

, the scale

will prematurely

is no harm to defen-

in the action, and

and, there is great potential harm to plain-
blic of not granting the stay.

al policy is that when an action is filed
rtionment of a statewide legislative body,

heard as soon as practicable. See 2g U.S.C.

ince the filing time for the elections under

s set to begin on February 15, 1982, it is
legality and constitutionality of the enacted

termined prior to that date. Defendants'

he action until the United States Attorney
e North Carolina House Apportionment which

I9B2r or later. In order for the action to
ch will enable the Court to decide the issues,
iIy, by mid-rebruary, preliminary matters such

very, and class certification should be allowed

ise the elecLion process will begin under an

plaintiffs contend is illegal and unconstitu-

tial harm

gainst the

to plaintiffs of delaying this
lack of any harm to defendants if
tips decidedly against the Courtrs

TSI MOTION TO STAY IS GRANTED, PLEADING
AND DIS ERY SHOULD PROCEED.

scretion to enter a

n order to protect

rican Co,, 299 U.S.

Lze the procedural

entry of the stay.

stay is limited to ordering

the court and the litigants.
at 257. Thus, the Court

disadvantage to plaintiffs'
Boggess v. Columbian

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Rope Co. , 167 F.Su

extensive discreti

courtrs goal and t
judicial effects t
Millerr 5 Federal

In this acti
prejudice of delay,

proceed. Although

dants have not an

cont,ested and whi

to file a responsi

resolution, plaint
assert. In additi
burden of proof by

mination by the Co

elections, plainti
d iscovery.

Thus, even if
pleading and disco

Defendants I o

avoiding a determi

issues raised in t
the United States

under 55 of the Vo

not needed to prot

the required hards

have a strong inte
action determined

under the challeng

be in a posture t.o
appropriate time,

maLters of the lit
therefore, be deni

. 854, 856 (S.D.N.Y. 1958). ',IT] he judge has

in the framing of an order to achieve the

protect the parties from any possible pre-

t might result from a stay.,, Wright and

actice and Procedure 51360 at 639.

, in order to protect plaintiffs from the

at least pleading and discovery should

he action was filed two months d9o, defen-

red. Plaintiffs cannot know which issues are

are conceded if defendants are not required
pleading. In order to prepare for prompt

ffs must know whaL defenses defendants wiII
, in order to gather the facts to carry their

Ehe discovery deadline and to obtain a deter-
t in time to be able to affect the L9g2

s must be able to continue with appropriate

stay is entered, the order should a1low

ry to continue.

CONCLUSION

y asserted interest in favor of a stay is in
tion of the merits of the constitutional

[s action until after the Attorney General of
jects to or approves the staters submissions

ing Rights Act. A stay of all proceedings is
t t,his interest. Defendants have not shown

ip or inequity. On the other hand, plaintiffs
st in having t,he issues raised in this
ior to the beginning of the election process

apportionment. In order for this action to
llow the Court to determine the issues at, an

e parties must procede with the preliminary

atio. Defendantsr Ivlotion to Stay should,

of November, 198L.rhis i3 d

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,t- 4

I certify tha

l'lemorandum in Op

other parties by

prepaid properly

depository under

States Posta1 Serv

This the

LESLIE J. I{INN

P

lr

Chambers, Ferguson, Watt, Wallas,
Adkins & Fuller, p.A.

951 South Independence Boulevard
Charlotte, North Carolina 28202
704/37s-846I

JACK GREENBERG
JAMES M. NABRIT, III
NAPOLEON B. WILLIAMS, iIR.
I0 Columbus Circle
New York, New york 10019
202/s8 6-8 39 7

Attorneys for plaintiffs

CERTIFICATE OF SERVICE

I have served the foregoing plaintiffsl

ition to Defendantsr Motion to Stay on aII
acing a copy thereof enclosed in a postage

dressed wrapper in a post office or official
e exclusive care and custody of the United

c€r addressed to:

ames WaIIace
Office Box 529

igh, NC 27602

erris Leonard
Ronald Goodbread
17th Street, N.W.
agut Building, Suite 1020
ington, D.C. 20006

day of November, 198I.

Mr.
Pos
RaL

Mr.
Mr.
900
Far
Was

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