Telephone Slip

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L, 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OP LOUISIANA 

clarnsT P. PERSCIALL, JR. CIVIL ACTION 

VNRSUS NO. 95-1265 

THE STATE OF LOWXSTANA SECTION 011A1 

ORDER—ANP_BEAMia 

Before the Court is the defendant State of Louisiana's 

Motion to Dismiss plaintiff Clement Perschall'a declaratory 

judgment action challenging La. Acts 1992, No. 512 as violative 

of the Louisiana Constitution and the United States Constitution. 

Also before the Court is Jacqueline Carr's motion to intervene in 

this matter pursuant to Fed.R.Civ.P. 24(a) and to lift the stay 

entered by this Court on July 5, 1995. These matters were 

noticed for hearing on November 26, 1997, and opposition was 

filed with respect to both issues. These matters having been 

fully briefed, are deemed submitted on the briefs and documents 

of record. For the reasons set forth herein below, defendant's 

Motion to Dismiss is GRANTED and intervening plaintiff Jacqueline 

DATE OF eirRy DEC 11 1,497 1 

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Carr's motion to intervene and lift stay are DENIED. 

RACKGROUND  

In 1987, Ronald Chisom, four other black plaintiffs, and the 

Louisiana Voter Registration Education Crusade, filed a complaint 

on behalf of a class of black persons registered to vote in 

Orleans Parish challenging the method by which the first supreme 

court districtl elected Supreme Court justices under Section 2 of 

the Voting Rights Act, 42 U.S.C. Section 1973. Pursuant to the 

agreement of all parties, a consent judgment was entered on 

August 21, 1992, in full settlement of the claims raised by 

plaintiffs in this challenge to the multimember Supreme Court 

District in Orleans Parish under the united States Constitution 

and section 2 of the Voting Rights Act ,2 The consent decree 

'The first supreme court district is composed of Orleans 
Parish, Jefferson Parish, St. Bernard Parish, and Plaquemines 
Parish. 

2The thrust of the Chisom plaintiffs' and the United States' 
claim was that the multi-member district system for electing 

justices of the Louisiana Supreme Court in the First Supreme 
Court District [first district) dilutes black voting strength in 
violation of Section 2 of the Voting Rights Act of 1965 as 
amended, 42 U.S.C. 1973 [section 2], because black citizens have 
less opportunity than other members of the electorate to 

participate in the political process and elect justices of their 
choice. The current apportionment of the Louisiana Supreme Court 
is governed by La. Const. Art. V, Section 4 and La. Rev. Stat. 
Section 13:101. Under Section 13:101, Orleans Parish is 

contained within a multimember First Supreme Court district along 

2 

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provides that "ftlhere shall be a Supreme Court district 

comprised solely of Orleans Parish, for the purpose of electing a 

Supreme Court justice from that district when and if a vacancy 

occurs in the present First Supreme Court District prior to 

January 1, 2000." 3 It further provides that: (1) "(llegislation 

will be enacted in the 1998 regular session of the Louisiana 

Legislature which provides for the reapportionment of the seven 

districts of the Louisiana Supreme Court in a manner that 

complies with the applicable federal voting law, taking into 

account the most recent census data;" (2) such reapportionment, 

effective January 1, 2000, "twill provide for a single-member 

district that is majority black in voting age population that 

includes Orleans Parish in its ,entirety;" and (3) "future Supreme 

Court elections after the [aforesaid] effective date shall take 

place in the newly reapportioned districts." 4 Until either of 

these events takes place, the consent judgment provides that the 

occupant of the judgeship created by La. Acts 1992, No. 512 

[i.e., the Chisom seat] sits by designation to the Louisiana 

with Jefferson, Plaquemines, and St. Bernard Parishes. 

3Consent Judgment, at para. C.1. 

qid., at para. C.8. 

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Supreme Court. 

Consistent with the consent decree and La. Acts 1992, No. 

512 ("Act 512), 5 one new Louisiana Fourth Circuit Court of 

Appeal judicial position [hereinafter referred to as the "Chisom 

seat"] was created and filled with a judge elected from the first 

district of the Fourth Circuit, which district is comprised of 

Orleans Parish. Additionally, the Louisiana Supreme Court 

assigned Judge Ortique, who was elected to fill the new position 

on the Fourth Circuit Court of Appeal, to the Louisiana Supreme 

Court pursuant to its authority under La.Const.Art. V, Section 

5(A). 

Specifically envisioning the circumstance that the Chisom 

seat described in paragraphs C.2 - C.4 of the consent judgment 

might indeed become vacant prior to expiration of the seat in 

accordance with paragraph C.5 of the aforesaid consent judgment, 

a mechanism for filling any such vacancy was specifically 

provided for at paragraph C.6 of the Consent Judgment, to wit: 

gAct 512 of the 1992 Louisiana Legislature, wag signed into 
law on June 22, 1992, and legislatively created the additional 
judgeship position in the Fourth Circuit. Judge Revius 0. 

ortique, Jr. was subsequently elected to the additional seat of 
the Fourth Circuit Court of Appeal and appointed to sit on the 
Louisiana Supreme Court. The Chisam seat is presently occupied 

by Bernette Johnson. 

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G. If the additional judicial position for the 
Fourth Circuit Court of Appeal described in paragraphs 
C.2-C.4 of this Consent Judgment becomes vacant for any 
xgasons prior to the expiration of that seat in 
accordance with paragraph C.5. of this judgment, the 
Governor shall call a special election to fill that 

position so that the special election coincides with 

the next regularly scheduled presidential, 
gubernatorial, congressional, New Orleans mayoral, 
state legislative, New Orleans city counsel, or Orleans 
Parish school board election that occurs within 12 
months following the date on which the vacancy occurs, 
provided that there shall be a minimum of 60 days 
between the call of the election and the election date. 

The Louisiana Supreme Court shall assign the judge 

elected to fill a vacancy in this judicial position 
immediately to the Louisiana Supreme Court pursuant to 
its authority under La.Const.Art. V, Section 5(A), and 
the provisions of paragraphs C.3-C.5 of this Consent 

Judgment shall govern the judge's tenure on the 

Louisiana Supreme Court.' 

Additionally, Article 5, Section 22(13) of the Louisiana 

Constitution of 1974 provides that a vacancy in the office of a 

judge shall be filled by special election called by the governor 

and held within 12 months after the date on which the vacancy 

occurs. Also, Louisiana's Election Code set forth at LSA-R.S. 

18:621 makes specific provisions pertaining to special elections 

called to fill a judicial vacancy. 

On January 2, 1995, plaintiff Clement F. Perschall, Jr. 

("Perschall“) filed a 'Petition for Declaratory Judgment on the 

'Consent Judgment, at para. C.6 (emphasis added). 

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Constitutionality of Louisiana Acts 1992, No. 512" in the 

Nineteenth Judicial District Court for the Parish of East Baton 

Rouge. Essentially, plaintiff's petition sought a ruling 

declaring that Act 512 violated both the Louisiana Constitution 

and the Constitution of the United States. On February 27, 

1995, defendant •the State of Louisiana ("the State") filed a 

Notice of Removal pursuant to 28 U.S.C. 51441 stating that the 

Mated States District Court for the Middle District of Louisiana 

has original jurisdiction under 28 U.S.C. 51331 in that 

plaintiff's claim arises under the Fourteenth Amendment of the 

United States Constitution. On March 28, 1995 the United States 

District Court for the Middle District of Louisiana transferred 

the above-captioned matter from it to the United States District 

Court for the Eastern District of Louisiana in the interests of 

judicial economy. See, Middle District of Louisiana Civil Action 

No. 95-259, (Rec.Doc.No. 8.] The case was then allotted to 

Section "A" on the grounds that it was materially related to the 

matter previously pending in this Court styled Chisom—et—al—M— 

Edwards, eta, Civil Action No. 86-4075 ("ChiSOm"). 7 See, 

7.chisom v. dwards is the aforementioned federal voting 

rights case in which registered minority voters challenged the 

manner in which the first supreme court district elected 

Louisiana Supremo Court justices. 

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[Rec.Doc.No. 2.] 

After evaluating the complaint filed by Perschall, and the 

various submissions of the parties, it_became clear to the court 

that this matter was dominated by state law issues. [Rec.Doc.No. 

27, p.5.] Noting that an adjudication of the state law issues in 

Perschall's petition may obviate the need for a federal 

constitutional ruling, this Court determined that Pullman  

abstention was warranted under the cirCUmstances. 8 Accordingly, 

this Court remanded the state law issues set forth in plaintiff's 

petition to the Nineteenth Judicial District for the Parish of 

East Baton Rouge, and ordered a stay of further proceedings 

pending resolution of the state law issues by the Louisiana 

judicial system. See, id... p.7. 

Plaintiff's state law claims were resolved on July 1, 1997 

when the Louisiana Supreme Court issued an opinion declaring Act 

512 unconstitutional in its entirety under the Louisiana 

Constitution. Perschaal V. Louisiana, 697 So.2d 240, 262 (La. 

'The Court further explained that: 

submitting the plaintiff's novel state law claims to .the 
expertise of a Louisiana court would respect the values of 

federalism highlighted in Pullman, by avoiding premature 

constitutional adjudication, needless friction with state 

policies, and decision on unsettled questions of state law 
better resolved by state courts. (Rec.Doc.No. 27, p.5.) 

7 

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1997). However, the Louisiana Supreme Court further concluded 

and specifically held that all actions undertaken by the 

Louisiana Supreme court during the Chisom seat's assignment "are 

Valid and effectual under well-settled law."' Perschall v.  

Lauisiaua, 697 So.2d 240, 261 (La. 1997). Furthermore, the 

Louisiana Supreme Court recognized that Act 512 and the Chisom 

consent judgment entered by this Court impose separate and 

independent obligations on the State, and thus the status quo 

remains intact under the =gam Consent Judgment." Id„ at 260. 

After the Louisiana Supreme Court denied rehearing of this 

matter," the State filed a motion to dismiss Perschall's 

complaint with this Court alleging that as a result of the 

Louisiana Supreme Court's ruling, Perschall has received all of 

the relief requested and therefore the remainder of this case is 

'In paragraph XXX. of the January 1995 complaint filed in 

the Nineteenth Judicial District for the Parish of East Baton 

Rouge, Perschall contends: 

[A]s a practicing attorney, [petitioner] is unable to 
provide predictable legal advice to his clientele because of 

the constitutional status of Acts 1992, No. 512 in that the 
Act's unconstitutionality renders void all decisions by the 
Louisiana Supreme Court decided during the time this Act was 

in effect.... 

aarachall V. State of Louisiana, Nineteenth Judicial District 
for the Parish of East Baton Rouge, No. 413714, Rec.Doc.No. 1) 

1°The Louisiana Supreme Court denied rehearing of the case 

on September 5, 1997. 

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moot. Perschall formally opposed the state's motion to dismiss 

and argued that the• Louisiana Supreme Court ruling' was limited in 

its scope and that this court reserved the right to determine the 

remedy due plaintiff including his prayer for general and 

equitable relief. Plaintiff specifically sought a ruling from 

this Court as follows: "that the motion to dismiss be denied and 

that a ruling be issued finding that as ... [Act 512) has been 

declared unconstitutional in all respects, that it is void ab 

[and] that plaintiff be entitled to . . such general and 

equitable relief as this Court deems appropriate...." 

(Rec.Doc.No. 45) 

ANALYSIS 

Plaintiff filed the complaint in the instant matter in state 

court seeking to have Act 512 declared unconstitutional under 

both the Louisiana Constitution and the United States 

Constitution. His petition prays for relief that "... there be 

judgment ... declaring Acts 1992, No. 512 unconstitutional on all 

counts and void ab initio, and for all general and equitable 

relief, and all cost of these proceedings." [Rec.Doc.No. 1]. 

Previously, this Court has construed plaintiff's complaint as a 

petition seeking a declaration as to the validity of Act 512, 

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noting that plaintiff's complaint does not assail this Court's 

Chisom consent judgment." 

In a minute entry dated July 31, 1995, this Court stated 

that "after the Louisiana Judiciary determined the state law 

constitutionality of Act 512 it will be for this Court to decide 

the impact of that state court decision on the Chicom consent 

judgment." [Rec.Doc.No. 37]. On July 1, 1997, the Louisiana 

Supreme Court determined that Act 512 was unconstitutional under 

the Louisiana Constitution. Despite this ruling, the Louisiana 

Supreme Court recognized that the olifigga Consent Judgment is 

separate and independent from Act 512, and provides the State 

with its own obligations. 12 Thus, even though Act 512 has been 

declared unconstitutional under the Louisiana Constitution, the 

Chisom Consent Judgment requires that the status quo remain in 

place with respect to the Chisom Seat. 

VEN11•11. 

u In a minute entry dated July 312, 1995 this Court 
recognized that plaintiff's petition does not "assail this 

Court's Chisom decree. Rather, he seeks a declaration as to the 
validity of Act 512." [Rec.Doc.No. 37.) 

nThe Voting Rights Act as well as the supremacy clause of 

the United States Constitution put to rest the State's concern 
that a declaration by the Louisiana state courts of Act 512's 
invalidity under Louisiana law will somehow in and of itself 

override the aliam consent judgment. [Rec.Doc.No. 37] 

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As this Court previously recognized, "(the Louisiana Supreme 

Court's] determination that Act 512 violates Louisiana law would 

in all likelihood moot or substantially alter the plaintiff's 

single federal constitutional claim." (Rec.Doc.No. 27, p.5] 

Accordingly, the Court retained jurisdiction to decide the 

federal question, "when and if necessary." 13 Id, at 6 (emphasis 

added). Therefore, the issue before this Court is whether the 

decision of the Louisiana Supreme Court obviates consideration of 

the plaintiff's solo federal constitutional claim. 

In determining whether an issue is moot, courts look to 

whether a decision on the disputed issue is justified by a 

sufficient prospect that said decision will have an impact on the 

parties before it. See, 13A Charles Alan Wright, Arthur R. 

Miller, & Edward E. Cooper, reclex, 5 3553 

(1984). In the instant matter, it is clear that plaintiff's 

petition sought declaratory judgment that Act 512 be declared 

unconstitutional on all counts. Pursuant to the Order of Remand 

issued by this Court, the Louisiana Supreme Court has ruled that 

Act 512 in its entirety, is violative of the Louisiana 

”In a minute entry dated July 31,1995 this Court made clear 

that it retained jurisdiction over the remainder of this case, 

including the plaintiff's prayer for general and equitable 

relief. [lec.Doc.No. 37] 

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Constitution. Thus, the Louisiana Supreme Court has granted 

petitioner all of the relief that he requested in his petition. 

Perschall V. State_gl_ligpisiana, 697 So.2d 240. Any opinion 

expressed by this Court with respect to the remaining federal 

constitutional issue would amount to nothing more than an 

advisory opinion, is wholly unnecessary to the merits of this 

case as the declaratory judgment action was resolved on state law 

grounds, and would also constitute a colossal waste of judicial 

resources. Suffice it to say, any further proceeding has no 

possibility of creating any impact on the parties. 

Obviously, this Court is concerned with the limitations that 

federal jurisdiction prescribes in this matter at this juncture 

of the case. The only controversy in this matter (i.e. the 

constitutionality of Act 512) has been resolved. The Louisiana 

Supreme Court's resolution of Perschall's declaratory judgment 

action on state law grounds pretermits this Court's consideration 

of the federal question. It was the federal question which 

provided the basis for jurisdiction in the federal court. The 

Louisiana Supreme Court's judgment in the case of Perschall v.  

State of Louisiana, 697 So.2d 240 provided an adequate and 

independent state ground on which the validity of Act 512 was 

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decided." Thus, any opinion rendered by this Court with respect 

to whether Act 512 is constitutional under the United States - 

Constitution would amount to nothing more than an advisory 

opinion, which federal courts are prohibited from issuing. See, 

Michigan v, Lime, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 3477 

(1983). 

Finally, in his motion in opposition, plaintiff prays that 

this Court grant all general and equitable relief as this Court 

deems appropriate. (Rec.Doc.No. 45] This Court has previously 

made clear that plaintiff's complaint does not assail the 

validity of the Chisom consent decree. Moreover, the Louisiana 

Supreme Court necessarily addressed plaintiff's allegation to the 

effect that a declaration that Act 512 is unconstitutional 

renders void all decisions of the Louisiana Supreme Court issued 

during the time the Act was effective. It held: 

Like in P:mley the judge elected to occupy the Chisom 
seat under La.R.S. 13312.4 is not a usurper of an office 
who acted without color of right. Rather, the judge's 

actions have been and will be given de jure effect under the 

' The district court's position in this case is analogous 
to the situation where the United States Supreme Court sits in 
review of state court decisions based on mixed issues of federal 
and state law. In those situations, in order to prevent issuing 

advisory opinions, the Supreme Court will not review judgments of 
state courts that rest on adequate and independent state grounds. 
See, MjctigAn_z„...ligag, 103 S.Ct. 3469, 3477 (1983). 

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aiam Consent Judgment. At a minimum the actions of the 
judge assigned pursuant to La.R.S. 13:312.4 have been in the 

nature of a de facto officer with a judicial appointment 
made in conformity with a statute passed by the Louisiana 
Legislature. Therefore, all action of this court undertaken 

while that judge has been and continues to be assigned 
pursuant to the Consent Judgment shall be valid and 

effectual and not subject to attack." 

Simply stated, the Louisiana Supreme Court rejected 

plaintiff's argument under Louisiana law that actions taken by it 

during the Chisom seat's assignment were defective. To the 

contrary, the Louisiana Supreme Court held its actions "are valid 

and effectual under well settled law."" As the State aptly 

points out, this Erie court is required to apply Louisiana 

substantive law and rule upon the issue accordingly. The 

holdings of this state's highest court reiterated above 

eliminates any "guesswork." 

Accordingly, and for all of the above and foregoing reasons, 

IT Is ORDERED that the state of Louisiana's Motion to 

Dismiss is GRANTED. 

IT IS FURTHER ORDERED that Jacqueline Carr's Motion to 

152=aball_v. Slate, 697 So.2d at 261. 

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Intervene is DENIED as UNTIMELY" and MOOT 1' 

Considering that this matter has been resolved in ita 

entirety in favor of the plaintiff on state law grounds by the 

Louisiana supreme Court, the Clerk of Court is now directed to 

enter judgment dismissing the remainder of the caee as moot, 

defendant to bear all costs of these proceedings. 

gni(' 
New Orleans, Louisiana this  r ki  day of Dec mber, 1997. 

4, 

UNITED STATES DISTRICT JUDGE 

"FRCP 24(a) and (b) predicates the right of intervention 

upon "timely application." 

"Moreover, the history of the proceedings more than 
adequately demonstrates that plaintiff effectively and adequately 

challenged the conatitutionality of Act 512 as it has been 

declared unconstitutional by the Louisiana Supreme Court. 

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