Appellees' Motion to Expedite Schedule for Appeal; Plaintiffs' Motion for Attorneys' Fees

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In the 

Supreme Court of the United States 
October Term, 1999 

  

JAMES B. HUNT, JR, in his official capacity as 

Governor of the State of North Carolina, et al, 

Appellants, 

v. 

MARTIN CROMARTIE, et al, 
Appellees. 

  

APPELLEES’ MOTION TO EXPEDITE SCHEDULE FOR APPEAL 

  

To the Honorable William H. Rehnquist, Chief Justice of the United States and Circuit 

Justice for the Fourth Circuit: 

Appellees respectfully move this Honorable Court to enter an Order that will expedite any 

appeal of this case by appellants by prescribing an accellerated schedule for the filing of the 

Jurisdictional Statement by Appellants, any Motion to Affirm or Motion to Dismiss by 

Appellees, and any Reply Brief by Appellants. 

Appellees further move that the Order provide that the Jurisdictional Statement be filed 

with the court no later than April 10, 2000; that any Motion to Affirm or Motion to Dismiss be 

filed by Appellees no later than April 17, 2000; and that any Reply Brief be filed no later than 

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April 24, 2000; and further provide that any party who so chooses may initially file a pleading by 

the required date in ten copies in typewritten form to be replaced forthwith by forty printed 

copies. 

In support of this motion Appellees respectfully show the following: 

1) Appellants filed their Notice of Appeal with respect to an Order and Opinion that were 

entered on March 7, 2000 by the United States District Court for the Eastern District of North 

Carolina. 

2) The Opinion held unconstitutional the Congressional Redistricting Plan that the North 

Carolina General Assembly had enacted on March 31, 1997 and the Order enjoined the use of 

that plan in any subsequent primaries and elections. 

3) After Appellants had filed their Notice of Appeal on March 9, 2000, they moved the 

District Court on Friday, March 10, 2000 to grant a stay; and after the denial of that stay on 

March 13, 2000, Appellants applied to this Court for a stay, which was granted on March 16, 

2000. 

4) Because North Carolina’s primaries and elections are involved, it is important that this 

Court resolve as quickly as possible any constitutional issues that Appellants raise on appeal in 

view of the inevitable uncertainty that accompanies the present stay. 

5) The current appeal by Appellants to this Court is the fourth appeal since 1992 to raise 

the issue of the constitutionality of a North Carolina congressional redistricting plan; and 

therefore, the parties to this litigation are well aware of the legal issues which may arise and are 

also familiar with this Court’s precedents concerning such issues. 

6) Because Appellants are already familiar with any relevant legal issues and have 

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previously briefed these issues in their Application for Emergency Relief, they can readily 

prepare a Jurisdictional Statement and file it in this Court by April 10, 2000. Likewise, 

Appellees, who intend to file a Motion to Affirm or Dismiss, can reasonably do so within seven 

days from the filing of the Jurisdictional Statement. For the appellants to file a Reply Brief, if 

they choose, should also take no more than a week. Meeting these time requirements will be 

simplified if the parties are allowed to file their various pleadings in ten typewritten copies which 

shall be promptly replaced thereafter with forty printed copies. 

7) From the Application for Emergency Stay which Appellants have made, it appears that 

the issues for any appeal of the judgment below have already been set forth by Appellants in 

some detail in that Application; and this circumstance should also facilitate greatly the readiness 

with which Appellants can prepare their Jurisdictional Statement. 

8) If the expedited schedule proposed by Appellees in this matter or a schedule akin 

thereto is followed, the Court will have more opportunity to consider in Conference before the 

end of the 1999 Term what disposition it should make of any Appeal, especially whether the 

judgment below should be summarily affirmed. 

9) Because the “analytically distinct” claim for racial gerrymandering was first 

recognized by this Court in connection with an unconstitutional 1992 North Carolina redistricting 

plan that was used for three elections, it seems especially important that the Court decide as 

rapidly as possible whether the General Assembly has imposed upon the voters of the North 

Carolina another unconstitutional racially gerrymandered redistricting plan, the use of which 

would violate the Fourteenth Amendment. 

10) Pending appeal, this Court has granted a stay of the injunction entered by the District 

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Court upon remand. Therefore in order to prevent the irreparable injury to North Carolina’s 

voters that would result from conducting still another Congressional election under an 

unconstitutional plan, the need exists for the Court to decide this appeal as quickly as possible, 

and the need is especially great to determine during this term whether full briefing and oral 

argument will be necessary. 

11) The judgment appealed from was entered by the Court below upon remand by this 

Court from its earlier decision, and it is important to the Appellees and other North Carolina 

voters that this Court decide as quickly as possible whether on remand the court below correctly 

followed and obeyed this Court’s mandate in conducting the extensive trial that took place on 

November 29 through December 1, 1999. 

12) In light of the nature of the issues which Appellants’ Application for Emergency 

Relief indicates that they intend to raise on their appeal, it appears probable that those issues can 

be readily resolved on motion by Appellees for Summary Affirmance before the end of the 1999 

Term if the Jurisdictional Statement is presented to the Court on an expedited schedule. 

Wherefore Appellants respectfully pray that an expedited schedule be ordered for this 

appeal on such terms and conditions as this Court may prescribe. 

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Respectfully submitted this the 20" day of March, 2000 

Robinson O. Everett 

Everett & Everett 

N.C. State Bar No.: 1385 

Attorney for the Plaintiffs 
P.O. Box 586 

Durham, NC 27702 

Telephone: (919)-682-5691 

  

Williams, Boger, Grady, Davis & Tuttle, P.A. 

by: 
  

Martin B. McGee 

State Bar No.: 22198 
Attorneys for the Plaintiffs 
P.O.Box 810 

Concord, NC 28026-0810 

Telephone: (704)-782-1173 

  

Douglas E. Markham 
Texas State Bar No. 12986975 
Attorney for the Plaintiffs 
333 Clay Suite 4510 

Post Office Box 130923 
Houston, TX 77219-0923 
Telephone: (713) 655-8700 

Facsimile: (713) 655-8701 

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Seth A. Neyhart a 
Wisconsin State Bar No. 1035049 

N7983 Town Hall Road 

Eldorado, WI 54932 
Telephone: (920) 872-2643 

Robert Popper 
Law Office of Neil Brickman 

630 3™ Ave., 21% Floor 
New York, NY 10017 

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in 

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CERTIFICATE OF SERVICE 

I certify that I have this day served the foregoing Appellees’ Motion to Expedite Schedule 
for Appeal by hand delivery to the following addresses: 

Tiare Smiley 
North Carolina Department of Justice 
P.O. Box 629 

Raleigh, NC 27602 

Mr. Adam Stein 

Ferguson, Stein Wallas, Adkins, Gresham, Sumter, P.A. 
312 W. Franklin St. 
Chapel Hill, NC 27516 

This the 20" day of March, 2000. 

    

ina 
Robinson O. Everett 
Attorney for the Plaintiffs 

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or 3 A ® 
: 

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NORTH CAROLINA 

EASTERN DIVISION 

Civil Action No. 4:96-CV-104-BO(3) — === =r. ~~ mom 

MARTIN CROMARTIE, et al., 

Plaintiffs, 

V. 

JAMES B. HUNT, in his official capacity 
as Governor of the State of North Carolina, 

et al., PLAINTIFFS’ MOTION FOR 

State Defendants, ATTORNEYS’ FEES 

and 

ALFRED SMALLWOOD, et al., 
Defendant-Intervenors. 

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Plaintiffs respectfully move for appropriate attorneys” fees pursuant to 42 U.S.C. 1988 for 

the services of their attorneys in this action and further move that the determination of the 

entitlement to fees and the computation thereof be deferred until a later time after the merits of 

plaintiffs’ claim have been finally adjudicated and after the attorneys for the various parties have 

an adequate opportunity for discussion of the services provided and time expended and for 

seeking a settlement of this claim. 

In support of their motion plaintiffs show: 

1) This litigation was commenced in July, 1996, and after a hearing was stayed until 

October, 1997. 

2) In March, 1998 a hearing took place on motions for summary judgment made by the 

plaintiffs and by the defendants. 

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i $ 4 

3) After summary judgment had been entered which enjoined the use of the 1997 

Redistricting Plan, and after stay of that injunction had been denied, a hearing took place 

concerning a remedial plan. 

4) An appeal was taken by the defendants to the Supreme Court, which noted probable 

jurisdiction, received briefs, heard oral argument on January 21, 1999, and then reversed the 

summary judgment and remanded the case for trial. 

5) Extensive discovery took place during September and October, 1999, which was 

followed by trial on November 29, 1999 through December 1, 1999. 

6) On March 7, 2000, the District Court entered an Order and Opinion holding the 

Twelfth District unconstitutional and enjoining its use for the year 2000 primaries and elections. 

7) After defendants had applied for a stay and plaintiffs had responded thereto, the 

District Court denied a stay but the Supreme Court then granted a stay pending completion of an 

appeal by defendants and defendant-intervenors. 

8) In providing 10 plaintiffs the legal services necessary to achieve a favorable result, their 

attorneys have expended great amounts of time and effort. Robinson O. Everett has been the 

lead attorney since the action was commenced in July 1996. Martin B. McGee has performed 

extensive legal services for plaintiffs after the dissolution of the stay occurred in October 1997 

and the filing of an amended complaint through the summary judgment and its appeal to the 

Supreme Court in 1998 and 1999, and thereafter through the discovery and trial in 1999. 

Douglas Markham participated in the discovery period and trial from August through December, 

1999. Seth Neyhart participated in the preparation for discovery, discovery and trial from June, 

1999 through December, 1999. In addition to these four attorneys, plaintiffs also have had the 

2. 

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benefit of the legal services of Robert Popper, Esquire, two student paralegals--Julie Niemeyer 

and Jamie Davenport--and technical and secretarial assistants. 

9) In the Shaw litigation when Robinson O. Everett was lead counsel for the plaintiffs, he 

and Deputy Attorney General Speas discussed and settled the issue of plaintiffs’ attorneys’ fees, 

which did not have to be adjudicated by the District Court; and they have already informally 

discussed delaying the matter of plaintiffs’ attorneys fees by consent until a later time after the 

Supreme Court of the United States has disposed of the appeal pending before it. 

10) From the discussion between plaintiffs’ attomey Everett and Deputy Attorney 

General Speas, it appears that, subject to reservation of defendants’ rights to dispute the 

entitlement to and amount of attorneys fees for plaintiffs, defendants will consent to this motion 

which seeks to allow plaintiffs to preserve whatever rights they might otherwise have to receive 

attorneys’ fees without requiring further documentation by plaintiffs at this time. 

Wherefore, plaintiffs respectfully pray that they be allowed to preserve any right they 

would otherwise have to receive attorneys’ fees without filing any further specification or 

documentation of attorneys’ fees at this time and that, if after discussion between the attorneys 

for the parties no agreement can be reached, this court shall enter into such Order as it deems 

appropriate with respect to establishing attorneys’ fees. 

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Respectfully submitted this 20" day of March, 

at A 
Robinson O. Everett 
Everett & Everett 
N.C. State Bar No.: 1385 

Attorney for the Plaintiffs 

P.O. Box 586 
Durham, NC 27702 
Telephone: (919)-682-5691 

  

Williams, Boger, Grady, Davis & Tuttle, P.A. 

by: 
  

Martin B. McGee 

State Bar No.: 22198 

Attomeys for the Plaintiffs 
P.O. Box 810 

Concord, NC 28026-0810 

Telephone: (704)-782-1173 

  

Douglas E. Markham 

Texas State Bar No. 12986975 
Attorney for the Plaintiffs 
333 Clay Suite 4510 
Post Office Box 130923 

Houston, TX 77219-0923 

Telephone: (713) 655-8700 
Facsimile: (713) 655-8701 

MAR 28 88 15:32 9199674953 PAGE. 12 

 



  

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a ® ® 

Ve CL. VIZ ox 
Seth A. Neyhart 

Wisconsin State Bar No. 1035049 
N7983 Town Hall Road 

Eldorado, WI 54932 
Telephone: (920) 872-2643 

  

  

Robert Popper 
Law Office of Neil Brickman 

630 3" Ave., 21* Floor 
New York, NY 10017 

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-— p ~ 

  

CERTIFICATE OF SERVICE 

I certify that I have this day served the foregoing Plaintiffs’ Motion for Attorneys’ Fees by 

hand delivery to the following addresses: 

Tiare Smiley 

North Carolina Department of Justice 

P.O. Box 629 
Raleigh, NC 27602 

Mr. Adam Stein 
Ferguson, Stein Wallas, Adkins, Gresham, Sumter, P.A. 

312 W. Franklin St. 

Chapel Hill, NC 27516 

This the 20" day of March, 2000. 

he 
Robinson O. Everett 

Attorney for the Plaintiffs 

  

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