Motion of Defendant-Intervenors to Intervene as Appellants

    OCT-02-98 FRI 10:02 “eo DC OFC FAX NO. 2026821312 

No. 97-893 

  

IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1997 

  

JAMES B. HUNT, IR, et al, 

Appellants, 

v. 

MARTIN CROMARTIE, et al, 

Appellees. 

  

MOTION OF ALFRED SMALLWOOD, DAVID MOORE, WILLIAM M. HODGES, 
ROBERT L. DAVIS, JR., JAN VALDER, BARNEY OFFERMAN, VIRGINIA NEWELL, 

CHARLES LAMBETH, AND GEORGE SIMKINS 
(CURRENTLY DEFENDANT-INTERVENORS IN THE COURT BELOW) 

TO INTERVENE AS APPELLANTS IN THIS COURT 

Alfred Smallwood, David Moore, William M. Hodges, Robert L. Davis, Jr., Jan Valder, 

Barney Offerman, Virginia Newell, Charles Lambeth and George Simkins (“Applicants”), by their 

undersigned attorneys, respectfully move this Court for leave to intervene as appellants in the 

above-captioned action, so that they may protect their interests (which have been recognized by 

the court below in permitting their intervention as of right as defendant-intervenors below 

. following entry of the order under review on this appeal) in sustaining the constitutionality of the 

. Twelfth Congressional District. As grounds for this motion, Applicants state the following: 

Applicants are white and black registered voters residing in either North Carolina's 

Twelfth Congressional District (as reconfigured in the legislature's 1997 plan) or its First 

Cangressional District. 

OCT 82 ’S8 18:8S 2026821312 PAGE. @2  



   OCT-02-98 FRI 10:02 ne DC OFC FAX NO. 2026821312 P. 03 

2. On July 9, 1996, appellees filed their complaint in this case. Days later, on July 11, 

1996, Applicants sought to intervenc in this suit as defendants. On November 26, 1997, after the 

district court failed to rule, Applicants renewed their motion to intervene. Appellees did not 

respond to either motion. 

3 As of the March 31, 1998 hearing on cross-motions for summary judgment and 

request for preliminary injunction, the district court had not ruled on the motions to intervene, 

then pending for over twenty months and four months respectively; instead the court issued its 

permanent injunction and granted summary judgment without ruling on the unopposed motions or 

holding a hearing on intervention. In fact, the district court rebuffed counsel for ‘Applicants’ 

attempt to bring the motion to intervene to the Court’s attention and expressly denied counsel for 

Applicants an opportunity to speak at the March hearing. 

4, On April 3, 1998, the United States District Court for the Eastern District of North 

Carolina issued an order granting summary judgment to plaintiffs, declaring North Carolina's 

Twelfth Congressional District unconstitutional, permanently enjoining elections under the 1997 

congressional redistricting plan, and ordering the State of North Carolina (“State”) to submit a 

schedule for the General Assembly to adopt a new redistricting plan and to hold elections under 

that plan." The Court issued its judgment on April 6, 1998.2 Following the district court ruling, 

Applicants filed an amicus curiae memorandum in this Court, bringing to the Court's attention 

additional reasons why a stay of the district court’s April order was essential. 

  

‘See Cromartie v. Hunt, No. 4:96CV104-BO(3) (E.D.N.C. April 3, 1998) (order and 
permanent injunction), attached to Jurisdictional Statement at Appendix 45a. 

“See Judgment of United States District Court for the Eastern District of North Carolina, 
April 6, 1998, attached Lo Jurisdictional Statement at Appendix 49a. 

2 

2026821312 PAGE. 83 

 



0CT-02-98 FRI 10:02 “eo DC OFC FAX NO. eo P.O4 +. 5 

  

S. On May 26, 1998, with the two prior terveition motions still pending, Applicants 

filed a third motion to intervene as defendants in the case. On June 20, 1998, after the deadline 

for filing a timely notice of appeal of the district court’s April 3rd order and April 6th judgment, 

the district court ruled that the Applicants were entitled to intervene as of right in this action. 

6. This Court has permitted individuals to intervene in cases on appeal to the 

Supreme Court in order to protect their interests, regardless of whether they were parties or 

intervenors below, so long as their interests are truly at stake. In United States v. Terminal 

Railroad Association, 236 U.S. 194, 199 ( 1915), the Court permitted parties denied intervention 

below to intervene on appeal to this Court so that they could seek modification of a decree “in so 

far as it might operate prejudicially to their rights.” See also Eastern-Central Motor Carriers 

Association v. United States, 321 U.S. 194, 198-99 n.5 (1944) (Court permits intervention to 

organization that did not appear before three-judge district court below); Labor Board v. Acme 

Industrial Co., 384 U.S. 925 (1966), 385 U.S. 432 (1967) (Court grants union’s motion to 

intervene in Supreme Court appeal). 

7 The delay in granting Applicants’ motions to intervene prevented Applicants from 

fully participating as parties in the district court and prevented them from being able to exercise 

their right to appeal. Indeed, the court’s delay in ruling on the motions to intervenc and the 

timing of the subsequent grant of the motions to intervene were de facto denjals, seriously 

prejudicing their rights below. Moreover, by refusing to rule on Applicants’ oats the district 

court placed Applicants in the position of being unable to either appeal the court’s decision on the 

merits or appeal a denial of any of their motions to intervene. 

8. As defendant-intervenors below, Applicants have a continuing interest in the 

OCT 82.7938 18:89 2826821312 PAGE. B4 

 



  

0CT-02-98 FRI 10:03 NAACP LDF DC OFC FAX NO. 2026821312 P. 05 

  

disposition of this litigation and the appeal of this case in this Court. The lower court decision 

and the ultimate disposition of this appeal will vitally affect their interests. This is why numerous 

courts, following Shaw v. Reno, 509 U.S. 630 (1993), have granted intervention to voters 

similarly situated to Applicants to defend challenges to redistricting plans, including in cases 

which have later proceeded to this Court on appeal. See, e.g., Vera v. Richards, 861 F. Supp. 

1304, 1310 (S.D. Texas 1994), aff’d, 577 U.S. 952 (1996); Johnson v. Miller, No. CV 194-008, 

Order dated March 30, 1994 (S.D. Ga.). Indeed, Applicants have had a continuous interest in this 

case. These Applicants sought and were allowed to intervene as of right as party defendants in 

Shaw v. Hunt, No. 92-202-CIV-5 (Order, September 7, 1993), the predecessor to this action. 

Applicants participated fully in every stage of that case in the trial court and in this Court, 

including oral argument and also the remedial proceedings which resulted in the approval of the 

State’s 1997 remedial plan. 

9, Even before Applicants were allowed to participate as parties in this case, they 

filed pleadings throughout the litigation, including the summary judgment and preliminary 

injunction phases of the litigation, and appeared at the hearing on these issues in March 1998. 

10. Asin Shaw v. Hunt, Applicants seek to intervene in this case to protect their 

interest in defending the constitutionality of District 12 and. if necessary, to assert their rights 

under the U.S. Constitution and the Voting Rights Act. As in Shaw, if granted intervention on 

appeal in this Court, Applicants are prepared to follow the briefing schedule already set by the 

Court and coordinate their appeal with the State to avoid duplication of arguments. 

2026821312 PAGE. 85 OCT @2 ’S8 10:10 

 



WHEREFORE, Applicants pray that their motion to intervene be granted. 

  

Respectfully submitted, 

  

ADAM STEIN TODD A. COX* 

Ferguson, Stein, Wallas, Adkins NAACP Legal Defense 

Gresham & Sumter, P.A. & Educational Fund, Inc. 

312 West Franklin Street 1444 1 Street, N.-W., 10th Floor 

Chapel Hill, North Carolina 27516 Washington, D.C. 20005 

(919) 933-5300 (202) 682-1300 

ELAINE R. JONES 

Director-Counsel 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 

NAACP Legal Defense 

& Educational Fund, Inc. 

99 Hudson Street, Suite 1600 

New York, New York 10013 

(212) 219-1900 

*Counsel of Record 

Counsel for Applicants 

 



   ® hy and 

LD] October 2, 1998 

FAX 

TO: Edwin M. Speas, Jr. 

Chief Deputy Attorney General 

Tiare B. Smiley 

Special Deputy Attorney General 

State of North Carolina 

919-716-6763 

FROM: Norman Chachkin 

RE: Cromartie v. Hunt 

We filed the enclosed motion with the Supreme Court today. 

 



  

No. 97-893 

  

IN THE SUPREME COURT OF THE UNITED STATES 

October Term, 1997 

  

JAMES B. HUNT, JR, et al., 

Appellants, 

V. 

MARTIN CROMARTIE, et al., 

Appellees. 

  

MOTION OF ALFRED SMALLWOOD, DAVID MOORE, WILLIAM M. HODGES, 

ROBERT L. DAVIS, JR., JAN VALDER, BARNEY OFFERMAN, VIRGINIA NEWELL, 

CHARLES LAMBETH, AND GEORGE SIMKINS 

(CURRENTLY DEFENDANT-INTERVENORS IN THE COURT BELOW) 

TO INTERVENE AS APPELLANTS IN THIS COURT 

Alfred Smallwood, David Moore, William M. Hodges, Robert L. Davis, Jr., Jan Valder, 

Barney Offerman, Virginia Newell, Charles Lambeth and George Simkins (“Applicants”), by their 

undersigned attorneys, respectfully move this Court for leave to intervene as appellants in the 

above-captioned action, so that they may protect their interests (which have been recognized by 

the court below in permitting their intervention as of right as defendant-intervenors below 

following entry of the order under review on this appeal) in sustaining the constitutionality of the 

Twelfth Congressional District. As grounds for this motion, Applicants state the following: 

1. Applicants are white and black registered voters residing in either North Carolina's 

Twelfth Congressional District (as reconfigured in the legislature's 1997 plan) or its First 

Congressional District. 

 



  

2. On July 9, 1996, appellees filed their complaint in this case -- days later, on July 

11, 1996, Applicants sought to intervene in this suit as defendants. On November 26, 1997, after 

the district court failed to rule, Applicants renewed their motion to intervene. Appellees did not 

respond to either motion. 

3 As of the March 31, 1998 hearing on cross-motions for summary judgment and 

request for preliminary injunction, the district court had not ruled on the motions to intervene, 

then pending for over twenty months and four months respectively; instead the court issued its 

permanent injunction and granted summary judgment without ruling on the unopposed motions or 

holding a hearing on intervention. In fact, the district court rebuffed counsel for Applicants’ 

attempt to bring the motion to intervene to the Court’s attention and expressly denied counsel for 

Applicants an opportunity to speak at the March hearing. 

4. On April 3, 1998, the United States District Court for the Eastern District of North 

Carolina issued an order granting summary judgment to plaintiffs, declaring North Carolina's 

Twelfth Congressional District unconstitutional, permanently enjoining elections under the 1997 

congressional redistricting plan, and ordering the State of North Carolina (“State”) to submit a 

schedule for the General Assembly to adopt a new redistricting plan and to hold elections under 

that plan." The Court issued its judgment on April 6, 1998.> Following the district court ruling, 

Applicants filed an amicus curiae memorandum in this Court, bringing to the Court's attention 

additional reasons why a stay of the district court’s April order was essential. 

  

'See Cromartie v. Hunt, No. 4:96CV104-BO(3) (E.D.N.C. April 3, 1998) (order and 

permanent injunction), attached to Jurisdictional Statement at Appendix 45a. 

See Judgment of United States District Court for the Eastern District of North Carolina, 

April 6, 1998, attached to Jurisdictional Statement at Appendix 49a. 

2 

 



  

5. On May 26, 1998, with the two prior intervention motions still pending, Applicants 

filed a third motion to intervene as defendants in the case. On June 20, 1998, after the deadline 

for filing a timely notice of appeal of the district court’s April 3rd order and April 6th judgment, 

the district court ruled that the Applicants’ were entitled to intervene as of right in this action. 

6. This Court has permitted individuals to intervene in cases on appeal to the 

Supreme Court in order to protect their interests, regardless of whether they were parties or 

intervenors below, so long as their interests are truly at stake. In United States v. Terminal 

Railroad Association, 236 U.S. 194, 199 (1915), the Court permitted parties denied intervention 

below to intervene on appeal to this Court so that they could seek modification of a decree “in so 

far as it might operate prejudicially to their rights.” See also Eastern-Central Motor Carriers 

Association v. United States, 321 U.S. 194, 198-99 n.5 (1944) (Court permits intervention to 

organization that did not appear before three-judge district court below); Labor Board v. Acme 

Industrial Co., 384 U.S. 925 (1966), 385 U.S. 432 (1967) (Court grants union’s motion to 

intervene in Supreme Court appeal). 

7 The delay in granting Applicants’ motions to intervene prevented Applicants from 

fully participating as parties in the district court and prevented them from being able to exercise 

their right to appeal. Indeed, the court’s delay in ruling on the motions to intervene and the 

timing of the subsequent grant of the motions to intervene were de facto denials, seriously 

prejudicing their rights below. Moreover, by refusing to rule on Applicants’ motions, the district 

court placed Applicants in the position of being unable to either appeal the court’s decision on the 

merits or appeal a denial of any of their motions to intervene. 

 



8. As defendant-intervenors below, Applicants have a continuing interest in the 

disposition of this litigation and the appeal of this case in this Court. The lower court decision 

and the ultimate disposition of this appeal will vitally affect their interests. This is why numerous 

courts, following Shaw v. Reno, 509 U.S. 630 (1993), have granted intervention to voters 

similarly situated to Applicants to defend challenges to redistricting plans, including cases which 

have later proceeded to this Court on appeal. See, e.g., Vera v. Richards, 861 F. Supp. 1304, 

1310 (S.D. Texas 1994), aff'd, 577 U.S. 952 (1996), Johnson v. Miller, No. CV 194-008, Order 

dated March 30, 1994 (S.D. Ga.). Indeed, Applicants have had a continuous interest in this case. 

All Applicants sought and were allowed to intervene as of right as party defendants in Shaw v. 

Hunt, No. 92-202-CIV-5 (Order, September 7, 1993), the predecessor to this action. Applicants 

participated fully in every stage of that case in the trial court and in this Court, including oral 

argument, and also the remedial proceedings which resulted in the approval of the State’s 1997 

remedial plan. 

9. Even before applicants were allowed to participate as parties in this case, they filed 

pleadings throughout the litigation, including the summary judgment and preliminary injunction 

phases of the litigation, and appeared at the hearing on these issues in March 1998. 

10. As in Shaw v. Hunt, Applicants seek to intervene in this case to protect their 

interest in defending the constitutionality of District 12 and, if necessary, to assert their rights 

under the U.S. Constitution and the Voting Rights Act. As in Shaw, if granted intervention on 

appeal in this Court, Applicants are prepared to follow the briefing schedule already set by the 

Court and coordinate their appeal with the State to avoid duplication of arguments.  



    

OCT-02-98 FRI 10:03 NAACP LDF DC OFC FAX NO. 2026821312 

WHEREFORE, Applicants pray that their motion to intervenc be granted. 

ADAM STEIN 

Ferguson, Stein, Wallas, Adkins 

Gresham & Sumter, P.A. 
312 West Franklin Street 
Chapel Hill, North Carolina 27516 
(919) 933-5300 

OCT B82 ’S8 10:18 

Respectfully submitted, 

\_ LL 
TODD A. COX* ~~ 

NAACP Legal Defense 

& Educational Fund, Inc. 
1444 ] Street, N'W., 10th Floor 
Washington, D.C. 20005 

(202) 682-1300 

  

ELAINE R. JONES 
Director-Counsel 

NORMAN J. CHACHKIN 

JACQUELINE A. BERRIEN 
NAACP Legal Defense 

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

*Counsel of Record 

Counsel for Applicants 

2826821312 

P. 06 

PRGE. 86 

 



    

OCT-02-98 FRI 10:03 NAACP_LDF DC OFC FAX NO. WE P. 07 

No. 97-893 

  

IN THE SUPREME COURT OF THE UNITED STATES 
October Term, 1997 

  

JAMES B. HUNT, JR, ef al, 
Appellants, 

MARTIN CROMARTIE, ef al, 
Appellees. 

  

CERTIFICATE OF SERVICE 

I, Todd A. Cox, a member of the Bar of this Court, hereby certify that on this 2nd day of 

October, 1998, served by first-class mail, postage prepaid, a true and correct copy of the Motion 

of Alfred Smallwood, David Moore, William M. Hodges, Robert L. Davis, Jr., Jan Valder, Barney 

Offerman, Virginia Newell, Charles Lambeth, and George Simkins (Currently Defendant- 

Intervenors in the Court Below) to Intervene as Appellants in this Court to Robinson O. Everett, 

Suite 300 First Union National Bank Building, Post Office Box 586, Durham, North Carolina 

27702 and Edwin M. Speas, Jr, Chief Deputy Attorney General and Tiare B. Smiley, Special 

Deputy Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, 

North Carolina 27602-0629, counsel for all of the appellants and appellees herein. I further 

certify that all parties required to be CG 

OCT 82 ’S8 10:18 

   

  

Todd A. Cox 

al Fund, Inc. 
1444 T Street, N.-W._, 10th Floor 
Washington, D.C. 20005 

(202) 682-1300 

Counsel for Applicants 

2826821312 PRGE. 87 

 



    SEP-28-38 TUE 12:38 NAACP _LDF DC OFC FAX NO. a Bb P. 02/02 

08/20/08 09:30 PAX 
  NAYL. ATI. GEN.CNCL, oo  @ooz 

(ORDER LIST: 524 U.S.) 

TUESDAY, SEPTEMBER 29, 1998 

APPEAL -- JURISDICYION NOTED 

98-85 HUNT, GOV. OF NC, ET AL. V. CROMARTIE, MARTIN. ET AL. 

In this case probable jurisdiction is noted. The 

brief” of sppellants is to be filed with the Clerk and 

scived upon opposing counsel on or before 3 p.m.. Tuesday, 

November 10, 1998. The brief of appellees is to be filed 

be filed with the Clerk and served upom opposing coumscl 

on or before 3 p.m., Tuesday, December 8, 1998. A Yeply 

brief, if any, is to be filed with the Clerk and served 

upon opposing counsel on or before 3 p.m., Tuesday. 

December 29, 1998. Rule ¢9.¢ does not apply. 

CERTIORARI GRANTED 

97-843 DAVIS, AURELIA V. MONROE C1Y. BD. OF ED. 

The petition for a wrir of certiorari is granted 

limited to Question 1 prcseated by the petition. The 

brief of petitioner is to be filed with the Clerk and 

served upon opposing counsel on or before 3 p.m., 

Tuesday, November 10, 1998. Thc brief of respondent is 

to be filed with the Clerk and served upon opposing 

counsel on or before 3 p.m., Tuesday, December 8. 1998. 

A reply brief. if any, is to be filed with the Clerk and 

served upon opposing counsel on or before 3 p.m. , 

¢0'd 0S:TT 86. 6C dss $9/931/616: Xe 4 117 WIJ3d4S OY ON 
SEP 29 88 12:4] 2826821312 PRAGE.BAZ 

 



JUL-27-98 MON 10:01 NAACP LDF DC OFC FAX NO. 2026821312 

Regional Office 

A A Suite 301 
NAACP LEGAL DEFENSE 1275 K Street, NW 
AND EDUCATIONAL FUND, INC. Washington, DC 20005 (202) 682-1300 Fax: (202) 682-1312 

FAX TRANSMISSION 

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ToDD A. Cox 
ASSISTANT COUNSEL 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

1275 K STREET, N.W. 
WASHINGTON, D.C. 20005 

(202) 682-1300 

DATE: JULY 27. 1998 

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JUL-22-98 WED 11:46 NAACP LDF DC OFC FAX NO, 2026821312 P, 01/23 

  

  

EDF 
FACSIMILE TRANSMISSION 

PLEASE COPY AND DELIVER TO EACH ADDRESSEE: 

TO: NORMAN CHACHKIN 
JAQUELINE BERRIEN 

FROM: TODD COX 
NAACP Legal Defense and Educational Fund, Inc. 
1275 K Street, N.W. 

Suite 301 
Washington, D.C. 20005 

(202) 682-1300 

DATE: July 22, 1998 

You will receive 23 pages -- including this cover sheet. If you do not, please call 202/682-1300 to notify us. 

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ep26821312 PAGE .28! JUL 22 '88 11:43