St. Cyr v Hays Petition for Writ of Certiorari

    N o. 94- 7 S V

In T he

Supreme Court of tf)t Umtcti States:
October Term , 1994

Bernadine St . Cyr, et al.,
Petitioners,

v.

Ray H ays, et a l ,
Respondents.

O n P e t i t io n  fo r  a  W rit o f C e r t io r a r i  to  th e  U n ite d  
S ta te s  C o u rt o f A ppeals  f o r  th e  F if th  C irc u it

PE T IT IO N  FO R  W RIT OF CERTIO RA RI 
BEFO RE JU D G M EN T

Elaine R. J ones 
Director-Counsel

Theodore M. Shaw 
Clyde E. Murphy 
Charles Stephen Ralston 
Eric Schnapper 

* Judith Reed
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

William P. Quigley 
Loyola Law Clinic 
7214 St. Charles Avenue 
New Orleans, Louisiana 70118

Pamela S. Karlan
1525 Massachusetts Avenue
Cambridge, Massachusetts 02138

*(Counsel of Record)
Counsel for Appellants

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208



QUESTIONS PRESENTED

1. Whether Federal Rule of Civil Procedure 24 
entitles African American voters residing in a majority black 
congressional district to intervene for the purpose of 
defending that district when the district is challenged by 
voters who argue that the creation of that majority black 
district was unconstitutional.

2. Where a three-judge court denies a motion to 
intervene and an appeal to this Court is taken from that 
court’s decision issuing an injunction, pursuant to 28 U.S.C. 
§ 1253, does jurisdiction over an appeal from the denial of 
intervention lie with (a) the court of appeals or (b) this 
Court.



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PARTIES TO THE PROCEEDING

Petitioners, Bemadine St. Cyr, Donald Thibodeax, 
Patrick Fontenot, Hazel Freeman, Janice Frazier, and Ralph 
Wilson, are six black voters residing in Congressional 
District 4, who unsuccessfully sought intervention as 
defendants in the district court.

Respondents are Ray Hays, Edward Adams, Susan 
Shaw Singleton, and Gary Stokely.

Defendants below are Edwin Edwards, Governor 
of the State of Louisiana; Samuel B. Nunez, President of 
the Louisiana State Senate; John A. Alario, Speaker of 
the Louisiana House of Representatives; W. Fox 
McKeithen, Secretary of State of Louisiana; and Jerry 
Fowler, the Commissioner of Elections for the State of 
Louisiana.

Defendant-intervenor below is the United States.



TABLE OF CONTENTS

Questions P resented..........................................................  i

Parties to the P roceeding................................................   ii

Opinions Below .................................................................  2

Jurisdiction ........................................................................  2

Constitutional and
Statutory Provisions Involved ..........................................  3

Statement ..........................................................................  4

Reasons for Granting the W r i t ........................................ 9

Conclusion..........................................................................  9



11

TABLE OF AUTHORITIES

Cases: Pages:

Hays v. Louisiana,
839 F. Supp. 1188 (W.D.La. 1993), vacated, 114 
S. Ct. 2731 (1994) ..........................................  2 , 5 , 1

Hays v. State of Louisiana,
18 F.3d 1319 (5th Cir. 1994) ................................  6

Hays v. State of Louisiana,
1994 WL 477159 (W.D. La.) ............................  8

Major v. Treen,
574 F. Supp. 325 (E.D.La. 1983) ........................ 8

Mitchell v. Donovan,
398 U.S. 427 (1970) ............................................  6

NOW v. Idaho,
455 U.S. 918 (1982)   9

Rockefeller v. Catholic Medical Center of 
Brooklyn & Queens, Inc.,
397 U.S. 820 (1970) ............................................  6

Roe v. Wade,
410 U.S. 113 (1973) ............................................  9

Shaw v. Reno,
509 U .S .___ , 125 L. Ed. 2d 511 (1993) .......... 5

Statutes:

28 U.S.C. § 1253 ........................................................  1, 3, 5

28 U.S.C. § 1254(1) ..........................................................  3



Pages:

28 U.S.C. § 2284 ............................................................... 4

42 U.S.C. § 1973 ...............................................................  4

Fed. R. App. P. 4(a)(1) ...................................................  2

Fed. R. Civ. P. 2 4 ..........................................................  1, 3

Fed. R. Civ. P. 24(a) ........................................................ 5

Fed. R. Civ. P. 24(b) ........................................................ 5

Ill



•e



No. 94-

In The

Supreme Court of tfje ®mteb States

October Term, 1994 

Bernadine St. Cyr, et al.,

Petitioners,

V.

Ray Hays, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI 
BEFORE JUDGMENT

Petitioners Bernadine St. Cyr, Donald Thibodeax, 
Patrick Fontenot, Hazel Freeman, Janice Frazier, and Ralph 
Wilson respectfully pray that a writ of certiorari issue to 
review the order of the three-judge district court denying 
intervention to petitioners, proposed defendant intervenors



2

in the district court, before judgment in the United States 
Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The opinion of the three-judge district court 
invalidating Louisiana’s 1994 districting plan (App., infra, 2a- 
21a) is not yet reported.1 The order of that three-judge 
district court denying appellants’ 1994 motion to intervene 
to defend that districting plan is reproduced at App., infra, 
la. An earlier opinion of the United States Court of 
Appeals for the Fifth Circuit regarding appellants’ 1993 
application to intervene in a prior phase of this litigation 
(App., infra, 38a-42a) is reported at 18 F.3d 1319 (5th Cir. 
1994). The 1993 order of the three-judge district court 
denying that earlier application is reproduced at App., infra, 
37a. The first opinion of the three-judge district court on the 
merits of the 1992 districting plan (App., infra, 43a-107a) is 
reported at 839 F.Supp. 1188 (W.D. La. 1993), vacated, 114 
S.Ct. 2731 (1994).

JURISDICTION

The three-judge district court’s order denying 
intervention was issued July 21, 1994. The judgment of the 
three-judge district court on the merits was entered on July 
26, 1994. J.S. App. 22a-36a. A notice of appeal to the 
United States Court of Appeals for the Fifth Circuit was 
filed on August 23, 1994, fewer than the 60 days provided 
for appeal in cases in which the United States is a party, as 
here. Fed. R. App. P. 4(a)(1). A notice of appeal to this 
Court was filed on the same day. J.S. App. 108a-109a. The 
appeal to the Court of Appeals has been docketed as App.

1 Petitioners have filed a jurisdictional statement in this 
Court as well as this petition for writ of certiorari before 
judgment. The jurisdictional statement contains the 
appendices referred to in this petition as "J.S. App."



3

No. 94-40824. The jurisdiction of this Court is invoked 
under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND 
STATUTORY PROVISIONS INVOLVED

Rule 24, Fed. R. Civ. P., states in pertinent part:

(a) Intervention of Right. Upon timely 
application anyone shall be permitted to 
intervene in an action . .  . when the applicant 
claims an interest relating to the property or 
transaction which is the subject of the action 
and the applicant is so situated that the 
disposition of the action may as a practical 
matter impair or impede the applicant’s 
ability to protect that interest, unless the 
applicant’s interest is adequately represented 
by existing parties.

(b) Permissive Intervention. Upon timely 
application anyone may be permitted to 
intervene in an action: (1) when a statute of 
the United States confers a conditional right 
to intervene; or (2) when an applicant’s claim 
or defense and the main action have a 
question of law or fact in common . . . .  In 
exercising its discretion the court shall 
consider whether the intervention will unduly 
delay or prejudice the adjudication of the 
rights of the original parties.

Section 1253 of 28 U.S.C. provides as follows:

Except as otherwise provided by law, any 
party may appeal to the Supreme Court from 
an order granting or denying, after notice and 
hearing, an interlocutory or permanent 
injunction in any civil action, suit or



4

proceeding required by any Act of Congress 
to be heard and determined by a district court 
of three judges.

STATEMENT

This case involves the validity of Louisiana’s post- 
1990 congressional redistricting. Respondents, plaintiffs in 
the district court, are registered voters who object to the 
creation of Louisiana’s majority black Congressional District 
4. Petitioners in this case, unsuccessful defendant- 
intervenors in the court below, are African American voters 
who live in the majority black district under challenge, which 
was invalidated by the three-judge District Court for the 
Western District of Louisiana. Petitioners have filed timely 
appeals both to the Court of Appeals and to this Court of 
the order by the three-judge district court denying their 
motion to intervene and final judgment on the merits 
entered July 26, 1994. The appeal to the Court of Appeals 
has been docketed, but that court has not rendered 
judgment. Petitioners are filing herewith a jurisdictional 
statement seeking review on direct appeal of the denial of 
intervention. The State of Louisiana was a defendant below; 
the United States was a defendant-intervenor below. Each 
of these parties has taken an appeal to this Court from the 
judgment on the merits. Nos. 94-558 and 94-627.

The instant action arose out of a challenge to the 
1992 Louisiana congressional redistricting plan (Act 42), 
under the Constitution and the Voting Rights Act of 1965, 
as amended, 42 U.S.C. § 1973. Respondents, four registered 
voters residing in Lincoln Parish, originally brought this 
action against various Louisiana state officials and agencies, 
challenging Act 42 under the Constitution and the Voting 
Rights Act. J.S. App. 42a.

A three-judge court, convened pursuant to 28 U.S.C. 
§ 2284, held a trial in August 1992. On August 27, 1992, the



5

court issued a memorandum ruling and order denying 
respondents’ request for an injunction and allowed the 1992 
congressional elections to go forward. The court also denied 
the state and federal constitutional claims and took the 
Voting Rights Act issues under advisement. J.S. App. 45- 
46a.

On June 28, 1993, this Court decided Shaw v. Reno,
509 U .S.___ , 125 L.Ed. 2d 511 (1993). One day later, the
district court indicated its intent to reconsider the dismissal 
of the federal constitutional claims. J.S. App. 46a. Within 
a month, petitioners moved to intervene as defendants in the 
Louisiana litigation. They sought to represent themselves 
and other African American voters in Congressional District 
4 and in the State of Louisiana. The motion sought 
intervention both as of right pursuant to Rule 24(a), and 
permissively, pursuant to Rule 24(b), Fed. R. Civ. P. 
Respondents opposed intervention, while the State took no 
position on the intervention. In an order signed by Judge 
Walter of the three-judge panel on July 29, 1993, the district 
court denied the motion to intervene. Petitioners 
immediately, and prior to the issuance of final judgment on 
the merits, appealed from that order to United States Court 
of Appeals for the Fifth Circuit. Petitioners’ motion to 
expedite the appeal was granted.

During the pendency of that appeal, the three-judge 
court, after an evidentiary hearing in August 1993, 
invalidated Act 42 and enjoined the holding of further 
elections pursuant to that plan. Hays v. Louisiana, 839 F. 
Supp. 1188 (W.D.La. 1993), vacated, 114 S.Ct. 2731 (1994) 
('Hays F) J.S. App. 87-88a. The State appealed that 
December 1993 decision to this Court, pursuant to 28 U.S.C. 
§ 1253.

It was not until oral argument in the Court of 
Appeals on the first denial of intervention, in early February 
of 1994, that a question was raised as to whether jurisdiction 
to decide the intervention appeal belonged in the Court of



6

Appeals or in this Court. The Fifth Circuit requested 
briefing on the issue. Petitioners took the position that by 
virtue of the limitations of section 1253, and because the 
appeal had been perfected long before the district court 
issued its decision on the merits, the Court of Appeals had 
jurisdiction to decide the collateral issue of intervention. 
Respondents asserted that because of the state’s appeal to 
this Court, only this Court had jurisdiction to review the 
district court’s denial of intervention.

The Court of Appeals dismissed the intervention 
appeal, holding that it lacked jurisdiction to decide such an 
appeal once a final judgment had been issued and a proper 
appeal taken to the Supreme Court. Hays v. State o f 
Louisiana, 18 F.3d 1319 (5th Cir. 1994); J.S. App. 38a. The 
Court of Appeals recognized that the intervention appeal 
"when noticed, very likely was properly before" it. The 
Court of Appeals concluded, however, that with the" lodging 
of [the merits appeal in the Supreme Court] [its] appellate 
jurisdiction was impacted." J.S. App. 42a. The Court of 
Appeals read this Court’s decisions in Mitchell v. Donovan, 
398 U.S. 427 (1970) and Rockefeller v. Catholic Medical 
Center o f Brooklyn & Queens, Inc., 397 U.S. 820 (1970) as 
"indicating that when presented as a part of the appeal of 
the judgment on the merits by the three-judge court [, the 
Supreme Court] will consider other rulings and orders of the 
trial court." J.S. App. 41a, n. 9.

While the first appeal on the merits to this Court was 
pending, and only two days after the dismissal of the 
intervention appeal by the Court of Appeals, the Louisiana 
Legislature passed a new redistricting plan (Act 1) on April



7

22, 1994. The Governor signed the bill into law on April 29, 
and Act 1 was precleared by the Department of Justice on 
June 3, 1994. The State then moved in this Court to vacate 
and remand the 1993 district court judgment.2

While this case was still pending in this Court, on 
June 20,1994, respondents moved to amend their complaint 
and for preliminary and permanent injunctive relief against 
the newly enacted Act 1. J.S. App. 3a. The district court 
declined to act on the motions, stating that it was without 
jurisdiction. J.S. App. 3a. On June 27, 1994, this Court 
vacated the district court’s judgment and remanded the case 
for further proceedings, thereby investing the district court 
with jurisdiction. Within ten days of this Court’s order and 
only two days after the district court accepted the amended 
complaint, St. Cyr and the other petitioners again moved to 
intervene. At the time of this motion to intervene, no 
answer had been filed to the amended pleading; indeed, the 
time for doing so had not yet passed. No discovery had 
been taken. The only action taken had been the district 
court’s setting of trial for July 21, 1994.

The district court took no action on the motion to 
intervene until the beginning of the two-day hearing on the 
merits on July 21, 1994. The district court denied the 
motion in open court. J.S. App. la. At the conclusion of 
the hearing, the court found the new plan unconstitutional. 
In its opinion, filed on July 29, 1994, the court adopted by 
reference its December 28,1993, opinion. J.S. App. 3a. On

2 Appellants correctly foresaw that this Court would 
vacate Hays I  in light of the passage of Act 1. Accordingly, 
appellants filed a petition in the Court of Appeals seeking 
rehearing of that court’s dismissal of the appeal of the denial 
of intervention. Appellants argued that once this Court 
vacated the judgment in Hays I, the Court of Appeals would 
have jurisdiction over the appeal of the denial of 
intervention. The petition for rehearing was denied on May 
17, 1994. App. 38a.



8

July 26,1994, the court entered judgment invalidating Act 1, 
enjoining further use of the new plan, and directing that 
1994 elections be held under a plan drawn by the court. 
Hays v. State o f Louisiana, 1994 WL 477159 (W.D. La.) 
('Hays IF) (J.S. App. 24-24a). On August 11, 1994, this 
Court stayed the district court order.

The district court’s seven-district plan resulted in six 
predominantly white districts and one majority black 
district.3 J.S. App. 33a. District 4, which under Act 42 had 
been 63 percent black registered voter population and 55 
percent black registered voter population under Act 1, was 
now 28 black percent registered voter population. J.S. App. 
5a, 31a, 89a.

Both the state defendants and the federal defendant- 
intervenor in Hays II  have appealed the three-judge district 
court’s order granting the injunction to this Court. 
Accordingly, based on its earlier holding in this case, the 
Court of Appeals will not hear the appeal of the denial of 
intervention.4

Because the outcome of petitioners’ appeal to the 
Court of Appeals is thus preordained by that court’s April 
1994 opinion, we seek certiorari before judgment. We have 
also filed a direct appeal to this Court. A jurisdictional

3 The single majority black district in the court-ordered 
plan, District 1, was originally created as a result of litigation 
following the 1980 census. Major v. Treen, 574 F. Supp. 325 
(E.D.La. 1983) (three-judge court).

4 After a discussion with the clerk of the Court of 
Appeals regarding the near impossibility that the Court of 
Appeals would resolve the intervention question on the 
merits, petitioners filed a motion there to hold that appeal 
in abeyance pending decision in this Court. There has been 
no ruling on that motion.



9

statement regarding that direct appeal is being filed 
simultaneously with the instant petition.

REASONS FOR GRANTING THE WRIT

The considerations warranting review by this Court 
of the issues presented by this petition are set out in the 
jurisdictional statement which we have filed in our direct 
appeal to this Court. Because, under its prior decision the 
Court of Appeals will refuse to hear the instant appeal, this 
Court provides the only forum in which appellate review is 
available.

Although the filing of a petition for writ of certiorari 
before judgment is an unusual step, this Court has expressly 
endorsed it as the appropriate procedure for obtaining 
appellate review of the non-injunction orders issued by 
three-judge courts. Roe v. Wade, 410 U.S. 113 (1973) 
("preferable . . .  [procedure is] petition for certiorari before 
judgment" with respect to non-injunction matters). 410 U.S. 
at 123. See also NOW  v. Idaho, 455 U.S. 918 (1982) 
(granting certiorari before judgment to review aspects of 
three-judge court decision not involving grant or denial of 
injunction).

CONCLUSION

We urge the Court to grant certiorari before 
judgment in order to avoid any question as to jurisdiction of 
the denial of intervention in this case. The Court should



10

also note probable jurisdiction of the separate appeal taken 
directly to this Court.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Associate Director-Counsel

Clyde E. Murphy 
Eric Schnapper 
Judith Reed 
(Counsel o f Record)
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

William P. Quigley 
Loyola Law Conic 
7214 St. Charles Avenue 
New Orleans, LA 70118 
(504) 861-5550

Attorneys for Petitioners

October 1994