Plaintiffs' Memorandum in Opposition to Defendants' Motion to Stay
Public Court Documents
November 13, 1981

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Case Files, Thornburg v. Gingles Hardbacks, Briefs, and Trial Transcript. Plaintiffs' Memorandum in Opposition to Defendants' Motion to Stay, 1981. d6836cee-d892-ee11-be37-6045bddb811f. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/79642b36-ece8-4505-96a9-02c6cdb4eb90/plaintiffs-memorandum-in-opposition-to-defendants-motion-to-stay. Accessed April 29, 2025.
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.,-{& 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. -2- 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 -3- 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 -4- 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 -5- 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 -6- ,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 -7-