Taylor v. Louisiana Petition for Writ of Certiorari

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA
I(ALE1GH DrVlSroN

No. 82-545-CIv-5

JOHN .I . CAVANAGH, ET AL.,
plaintiffs

vs THE

FII-ED
sEP 2 2 Bgg

"f:,,i.i3{iiLf#iT',

JUDGMENT ON DECISION BY COURT

ALEX K. BROCK, ET AL.,
Defendants

This action came on for hearing before the Honorable J. Dickson phillips,

Jr., United states circuit Judge, the Honorable I'. T. Dupree , Jt-, united states

District Judge, and the Honorable W. Earl Britt, United States District Judge

sitting as a three-judge court. Tkre issues having been duly heard and a

decision having been duIly rendered, it is ordered and adjudged that the claim

of plaintiffs that the action of the attcirmey General of the United States in

interposing an objection to the 1968 amendments to the Constitution of North

Carolina under Section 5 of the Votilg Rights Act, 42 V.S.A. S1973c is void and

of no effect, is DISMISSED for lack of suloject matter jurisdiction in this court,

however constituted, to adjudicate the claim; IT IS FURTIIER oRDERED AI.ID ADJUDGED

that sunrnary judgrnent is entered in favor of defend,ants and against the plaintiffs

on the merits of all other claims made by plaintiffs in the action and this action

is hereby DISMISSED.

Costs of this action shall be taxed against the plaintiffs by the Clerk of

this Court.



THE ABOVE JUDGMENT WAS FTLED AI{D

AI{D COPIES !,IAILED TO:

Handlton C. Horton, Jr.
Horton, Hendrick & Ctuuner
Attorneys at Law
450 NCNB P1.rza
Winston-Salem, N.C. 27101

James l{a1lace, Jr.
Asst. Attorney General
N. C. Dept. of Justice
P. O. Box 629
Ra1eigtr, N. C. 27602

Leslie J. Winner
Chambers, Ferguson, Watt, Vlallas,

Adkins & Fuller
Attorneys at Law
Suite 730 E. Independence Plaza
951 S. Independence BIvd.
Charlotte, N.C. 28202

Kathleen Heenan
Jerris Leonard
Jerris Leonard & Associates
Attorneys at Law
900 LTth st. , N.w.
Suite 1020
Washington, D.C. 20006

Dated at: Raleigh, Nor:th Carolina

ENTERED TODAY, TIIURSDAY, SEPTEMBER 22, ],gg3,

Date: Sepfember 22, L983

C1erk of the Court
J. RIC}I LECNARD

Ctrerlyn We , Deputy Clerk



IN THE UNITED STATES DISTRICT
F'OR THE EASTERN DISTRICT OF NORTH

RALEIGH DIVISION

No.82-545-Civ-5

JOHN J. CAVANAGH, €t dl.,

ver sus

ALEX K. BROCK, €t aI.,

Argued JuIy '7 , 1983.

I -,1
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COURT
.., , igg3

CAROL I NARiil:-i ::, i',,. :,t1 J. C I_ERK
U. S. il3Tii:Cf t11g61

f; Pj3-i' iii. C,:fi.

Plaintiffs,

Defendants.

Decided

Judge,* DUPREE, United
States District Judge.

rlfqf-l
lb
L r- I- li.rY

Before PHILLIPS, United
States District Judge and

States Circuit
BRITT, United

Hamirton c. Horton, Jt. (Horton, Hendrick & cummer on brief) ,James warlace, Jr., for plaintiffs; Lesrie J. winner (chambers,Ferguson, watt, wa11as, Adkins & Furler, p.A. on brief) roiDefendant-rntervenors; Kathleen Heenan, Jerris Leonard (jerris
Leonard & Associates on brief) for Defendants.

*sitting. by designation of the chief judge of the circuitalternatively as a member of a three judge district court under28 u.s.c. s 2284 or as a district judge assigned in the publicinterest under 28 u.s.c. S 29r (b) t6 sir by invitariori wirh
Jgdge Dupree and Judge Britt as a paner of judles of the regulardistrict court.



PHILLIPS, Circuit Judge:

This action, commenced in state court and then removed to
this court under 28 U.S.C. S t443(2), challenges the failure of
the North carolina General Assembly to adhere to express

provisions of the North Carolina Constitution in adopting its
most recent state legislative apportionment p1an. plaintiffs
contend the North Carolina Constitution prohibits the General

Assembry from splitting counties in apportioning state senate

and House districts, and seek a declaration that the

apportionment plan enacted in L9B2 which does sprit several
counties is therefore violative of state law. we find that
the state constitutional provisions upon which plaintiffs rely
no ronger had binding forcer ES a matter of state Iaw, once the

Attorney General of the United States refused to preclear those

provisions pursuant to the voting Rights Act. Accordingly,
summary judgment sha1l enter against plaintiffs and in favor of
def endant's.

I
Forty of North carorina's 100 counties are subject to the

preclearance requirements of section 5 of the voting Rights Act

of 1965, 42 u.s.c. s 1973c, necessitating that any "standard,
practice, or procedure with respect to voting different from

that in force or effect Iin those counties] on November I, 1964"

be submitted to the Attorney General for approval. pursuant to
this statutory requirement, in 198I the North Carolina Board of

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Elections sought crearance from the Attorney Generar with
respect to 1968 amendments to the North Carolina Constitution.
Those amendments, centrally at issue in this litigation, provide

that " [n] o county shalI be divided in the formation of a senate

. Ior] representative district. " N.C. Const. art. II, SS
L/3(3) & s(3).

I Sections 3 and 5 of Article II of
Constitution provide in toto:

the North Carolina

Sec. 3. Senate districts; apportio ent of
Senator s. tfre
aEricts. The General Assembly, at the f irst regurar
session covening after the return of every decennial
census of population taken by order of congress, shalrrevise the senate districts and the appoitionment ofSenators among those districts, subject to thefollowing requirements :

(1) Each Senator shal1 represent, as nearly as
may be, an equal number of inhabitants, the numbei ofinhabitants that each senator represents being
determined for this purpose by dividing the populatioi
of the district that he represents by the number ofSenators apportioned to that district;(2) Each senate district shall at al1 timesconsist of contiguous territoryi 

.(3) No county shall be divided in the formationof a senate district;
(4) When established, the senate districts andthe apportionment of senators shaI1 remain unaltereduntil the return of another decenniar census ofpopulation taken by order of Congress.

Sec. 5. Rgpresenta!ive districts; apportionmentof Representatives. Th
elected from districts. The General Assembly, at thefirst regular session convening after the ieturn ofevery decennial census of popuration taken by order ofcongress, shall revise the representative districts
?ld tl" apportionment of Representatives among thosedistricts, subject to the following requiremenls:

(Continued on next page)

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Consistent with his authority under section 5, the Attorney
General interposed an objection to the 1968 amendments insofar
as they affected the forty North Carolina counties encompassed

within the Act I s precrearance requirements. As well, he

objected to the 198I state Senate and House reapportionment
p1ans, which also had been submitted for preclearance, because

of their perceived effect upon voting rights in the forty
covered counties. FoI1owing these objections, the General

Assembly deveroped revised state senate and . House

reapportionment plans during a February l-g}2 speciar session;
after those plans were srightly modified to meet further
objections interposed by the Attorney General, they were given
section 5 preclearance on April 30, Lgg2. The objection to the
1958 constitutional amendments has not, however, been lifted;
section 5 precrearance of those amendments is still lacking.

(fn. 1 continued)
(1) Each Representative shalI represent, asnearry as may be, an equar number of inhabitants, thenumber of inhabitants that each Representative

represents being determined for this purpose bydividing the population of rhe distr ic1 ttrat hArepresents by the number of Representatives
apportioned to that district;

(2) Each representative district shaI1 at aI1times consist of contiguous territory;
(3) No county shall be divided in the formationof a representative district;
(4) When established, the representativedistricts and the apportionment of nepiesentatives

shalI remain unaltered untir the return of anotherdecennial census of population taken by order of
Congress.

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The instant action seeking declaratory and injunctive
relief restraining the state of North Carolina from implementing
the reapportionment plans as precleared on April 30, Lgg2, by

the Attorney General was instituted less than a week later in
the superior court of wake county, North carorina. plaintiffs,
who are registered voters residing in Forsyth county, North
carorina (one of the sixty counties not subject to section 5

preclearance), alleged that the reapportionment plans violated
the 1968 amendments to the state constitution, N.c. const.. Art.
II, SS 3(3) & 5(3), because Forsyth County was divided between
two districts in both the senate and House plans. The state,
asserting that its noncompliance with the commands of the 19Og

amendments was mandated by its need to compry with the
requirements of federal raw, removed the case to this court
pursuant to 28 u.s.c. s 1443(2). A motion to remand was Later
denied- Following removal, the case was consolidated with two
other pending cases charrenging the reapportionment prans. Ar1
have been designated for determination by a three-judge district
court pursuant to 2g U.S.C. S 2294.

The parties have fired cross-motions for summary judgment.

Plaintiffs contend that, dt most, the effect of the Attorney
General's objection to the 1958 amendments was to suspend their
force only in the forty counties encompassed by the section 5

preclearance requirement, and that those amendments therefore
remained in full force and effect and were binding upon the

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General Assembly with respect to the sixty non-covered
?/counties. Defendants, in support of their cross-motion for

summary judgment, press two distinct defenses. They contend

first that, once the Attorney General objected to the 196g

amendments with respect to the forty counties covered by section
5 of the voting Rights Act, the amendments had no force in the

sixty non-covered counties becauser ds a matter of state Iaw,

the amendments ferl as a whore once a portion was stricken. rn

the arternative, defendants urge that compriance with the

dictates of the 1968 amendments was foreclosed by the Supremacy

clause, because any reapportionment plan faithfur to those

amendments ultimately would have been violative of the voting
Rights Act and equal protection principles

II
The parties are in accord that because there are no genuine

issues of material fact in dispute the case is ripe for decision

2 pluintiffs also advanced in their motion for summaryjudgment an argument, not presented in their initial pleadingsl
that the 1958 amendments did not constitute a change in a voting
"standard, practice, or procedure" different fiom those i;effect on November l, L964 and hence were not subject to section
5 preclearance. Their argument ran that, because the amendmentswere not subject to preclearance, the Attorney General'sobjection had no effect.

subsequent to the filing of the summary judgment motion,
counsel for plaintiffs properly conceded that this court lacksjurisdiction to entertain their claim that the 1968 amendments
were not subject to .preclearance. A challenge to the Attorney
General's implicit determination that the 1968 amendments
constituted voting changes may be brought only in the DistrictCourt for the District of Columbia. See 42 U.S.C. S 19731. In
consequence, this court lacks jurisdicEn, however composed, toentertain this claim, and it must be dismissed.

6-



on their cross-motions for summary judgment, and we agree. But

we must first address whether this court has subject matter

jurisdiction over the controversy. original federal question

jurisdiction under 28 u.s.c. s 1331 does not Iie here, because

praintiffs advance solely a state constitutional craimi any

federal questions put in issue are raised as elements of the

defense. But federal courts of course have jurisdiction over

cases properly removed pursuant to 28 u.s.c. S 1443 even though

original jurisdiction is lacking. see Georqia v. Rachel , 3g4

U.S. 780 11966); Citv of Greenwood v. Peacock, 384 U.S. 808

(1966) ; OrKeefe v. BoArd of Elections , 246 F. Supp. 97I

(s.o.N.Y. 1965).

Confirming our earlier orders granting defendants'

petition for removal and refusing remand, we hold that this case

is one proper.ly removed under S 14 43 (2) | which provides that
state officers can remove to federal court if sued or prosecuted

"for refusing to do any act on the ground that it would be

inconsistent with Iany 1aw providing for equal rights].', City
qf Qreenwood, 384 U.S. at 824 n.22. Defendants, in their
petition for removal, asserted as a defense to the state
constitutional claim that the action challenged was compelled by

the Voting Rights Act and the equar protection clause. This

colorable federal defense in the removal papers suffices to make

removal and therefore jurisdiction proper pursuant to S

L443(2), see White v. Wellinqton, 627 F.2d 582, 586 (2d Cir.

7-



1980); Rachel v. Georqia, 342 F.2d 336, 340 (5th cir. 1g55),
aff'd, 384 u.s. 780 (1956), even should we urtimatery rest
decision exclusively on a state law defense, see siler v.
Louisville a {ggh-Vill-e Railroad , ZL3 U.S. t7s, 190-91 (1909 ) .1/

III
With jurisdiction establishedr w€ turn

Iook first to defendants' contention that,

l/to the merits, and

as a matter of state

3 e=id" from the question of subject matter jurisdietion,
there is a substantiar possibility tnat this iJ not a caseembraced within. the provisions of the three-judge court statute,28 u.s.c. s 2284. A three-judge court is maiaaiea pursuant to s.2284 when an action challengeJ the apportionment oi a statewideIegislative body on substaniial fedqiil constitutional grounds.See Sullivan -y. Crowel1, 444 F. Supp. 606 , 612 (W.O. Tenn.

Yglil oir cor.p. v. Lefkovritz , 454 F. supp. 59, 65-66 (s.D.N.y.1977). rn the insEant case, however, plaintiffs raise only astate constitutional. challenge to the apportionment scheme. rtrS- not clear to us that the invocati6n of a f ederal def enseimplicating the. voting Rights Act also generates- trrreFJrrtficourt jurisdiction.

Due to the substantial likelihood that this matter isbeyond the purview of S 2294, circuit Judge phirlips, originallydesignated as a member of the statutory three-iudge couit, haialso been designated pursuant to zg u.s-.c. s zgitoi (west supp.1983) to sit in the alternative as a district lriagl with tireother members of this court, with the court constituiing in that
Tgde a regular district court consisting of a panel of threedistrict judges. see striqkleng v. eurn;,256 F-. supp. g24,
825 n.I (M.D. .Tenn. f g . lIiller & E. Cooper,Fgdera.l .P_ractice a procedure s 4234, at. 390 & n. 2 (Lg7g) . - 

seealso Swift & co. v. wickham,3g2 u.s. 111, 114 n.4 (1965)
lenEor 'in .rt"inutive ihree-judge, one-judge modes); euerv v. uniIed states, 3r6 u.s. 4g6 (tg42)(same); Oavis v G, 1000 (D. DeI. l,967)(same) .

4 1r'ootnote 4 on next page)

B-



Iaw, the constitutional amendments forbidding county splitting
upon which plaintiffs rely are of no effect.

Under North Carolina law, as generally, when one portion of

a statute is declared unconstitutional or is otherwise stricken,
the surviving portion will be given effect only if it is
severable. See Flippin v. Jarrel1, 301 N.C. 108, 117-18, 270

S.E.2d 482, 488-89 (1980); Constantian v. Anson Co., 244 N.C.

22L, 227-28 , 93 S. E.2d 163, 169 (1956) . In State ex rel.
Andrews v. Chateau X, Inc., 296 N.C. 25L, 259-60, 250 S.E.2d

603, 508 (1979) | the North Carolina Supreme Court identified two

4 ," have, sua sponte, considered the possibility of
abstention to aIlow resolution of the state constitutional
question in the state courts, but have concluded that abstention
would be inappropriate. If we were to abstain, it would be on
the basis that resolution of defendants' state law defense
their contention that the 1958 amendments feII as a whole once
the Attorney General interposed an objection to those amendments
with regard to the forty counties subject to section 5
preclearance could obviate the need to address their complex
federal law defense. See Railroad Comm'n v. Pullman Co., 3L2
U.S. 496 (1941). abst6I[io danrs
rather than plaintiffs have raised a state law issue upon which
decision could turn, would be most suitably effectuated by
allowing defendants to seek a declaratory judgment in state
court on that narrow issue. cf. England v. Louisiana state
Board of Medical Examiners, 375 U.S.

urpose, it woulii inevitably result in
substantial delay in pressing the matter through state trial and
appellate court proceedings and possibly through further federal
proceedings to final resolution. In view of the substantial
public interest in early resolution of challenges affecting the
fundamental electoral processes involved we think that
abstention would be improvident. Eee Gr if f in v. CouLly Sglrcal
Board , 37 7 U. S. 2L8 , 228-29 (19-62-l .
bolstered by our perception that the state constitutional issue
is not sufficiently uncertain to warrant staying our hand on
that account alone. See i.Iisconsin v. Constantineau, 400 U.S.
433, 138-39 (1971) .

9-



factors to be considered in assessing severability: (I) whether

the remaining portions of the statute are capable of being

enforced on their own; and (2) whether there is legislative
intent to enforce the remainder, "particularly . whether

that body would have enacted the valid provisions if the invalid
ones were omitted." An earlier decision of the state's highest

court emphasized the second factor, that when a portion of a

statute is stricken, the whole must faII absent a clear

legislative intent to the contrary: "Iw]hen the statuLer oE

ordinance, could be given effect had the invalid portion never

been included, it wilI be given such effect if it is apparent

that the legislative body, had it known of the invalidity of the

one portion, would have enacted the remainder aIone." Jackson

v. Guilford Countv Board of Ad'iustment, 275 N.C. 155, 168-59,

t65 S.E.2d 78, 87 (1959).

The same principles control where portions of the state

constitution are for any reason invalidated because violative of
paramount federal law. See Constantian v. Anson Countv, 244

N.C. 221, 227-28, 93 S.E.2d I53, 158 (1956) (interpretive
principle recognized as applicable to partial invalidation of

state constitution; provision in issue found severablb from

invalidated portion).

Applying those state law principlesr w€ hold that the 1968

amendments had no force or effect, statewide, once the Attorney

General had interposed an objection with respect to those forty

10



counties subject to section 5 preclearance. without their
preclearance pursuant to section 5, the 1968 amendments were not

s/"effective as law" in the forty covered counLies.- with the
amendmentsr effect thus territorially circumscribed by federal
authority, under North carorina law they would be effective in
the sixty non-covered counties only if there were manifest a

legislative, and popular, intent that the amendments shourd be

applied differentially across the state if for any reason
including a failure of section 5 preclearance they shotild be

herd of no effect in respect of some portions of the state. we

find no evidence of such an intent in any legislative source.
The irlogic, indeed the questionabre regarity, of such a

consequence is manifest. We therefore conclude that the 196g

amendments were necessarily intended by the legislature and the
popurace voting by referendum upon the legisratively proposed

amendments to rise or falr as a .whoIe. This accords with the
assessment that was made, following partial invalidation of the
amendments by federal authority, by the legisrative body that

5 pl"intiffs have attempted to avoid the force of theseverability argument by urging that the 196g amendments weremerely suspended, not voided, in the forty covered counties -andtherefore that the canons of construction aiscussed in the textsimply do not _appIy. This attempt to distinguish between
"suspension" and -"voiding', of the am-endments simpiy misses themark. No matter how characterized, the problem of ton=tructionremains: if the amendments were "sus-pended" or rendered"void" - in the forty counties suuject to iection 5preclearance, were they "suspended" or 'ivoid" - in the othersixty counties as well?

11



had originarry submitted the amendment for adoption by popular

referendum. Accordingly, because the amendments then lacked the

force of law statewide, plaintiffs' contention that the most

recently enacted legislative reapportionment plan was violative
of those amendments must faiI.

Our resolution of this state Iaw question makes unnecessary

any inquiry into defendantsr alternative defense that compliance

with the mandates of the 1958 amendments wouId, in any event,

have been viorative of federar Iaw. we therefore expre-ss no

opinion on

implicit in

the difficult federal constitutional questions

that defense. See Alvorado v. Schmidt, 3L7 F. Supp.

L027, 1032 (w.D. wis. I970)

IV

For the foregoing reasons, summary judgment will be entered

dismissing the plaintiffs' claims for lack of jurisdiction and

on the merits, respectively.

t2



!...rll-r+l{ ' I l- I

Ll-L-aLtt

,.,,)tigiiJ
rN THE UNTTED STATES DISTRICT COURT

FoR THE EASTERN DrsTRrcr oF N.RTH cARoLrNrA,i';, rl .-: 'i'.'',i'r ,;i[riK
RALEIGH DMSION U' S' i'":'i::rl-l CUUBf

E "0-1..r" .i,J. !'i,ii-

No.82-545-Civ-5

JOHN J. CAVANAGH, €t aI.,

Plaintif f s;

VET SUS

ALEX K. BROCK, €t a1.,

Defendants.

ORDER

For the reasons set forth in the opinion of the court filed
today i

with the concurrence of Judge Dupree and Judge Britt, rr rs
ADJUDGED AND ORDERED:

1. The claim of plaintiffs that the action of the Attorney
General of the United States in interposing an objection to the
1968 amendments to the Constiution of North Carolina under

section 5 of the voting Rights Act, 42v.s.c. S 1973c is void and

of no effect, is DrsMrssED for lack of subject matter
jurisdiction in this court, however constituted, to adjudicate
the claim.



2. Summary judgment is entered in favor of defendants and

against the plaintiffs on the merits of aII other claims made by

plaintiffs in the action.

3. Costs shall be assessed against the plaintiffs.

,J. D
United

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2-



IN THE UNITED STATES DISTRICT
FOR THE EASTERN DISTRICT OF NORTH

RALEIGH DIVISION

. ".r . 'lii..i:j

COURT l.h,,,i' ; i-:;,.r. i--ftj'i
CAROLINd)-!. ui.i..:)i -_ ji..I

1--. j'1::' I . ., -., i',1.;i.

ii

No.82-545-Civ-5

JOHN J. CAVANAGH, €t dI.,

PIaint i ffs ,

ver s us

ALEX K. BROCK, €t dI.,

Defendants.

ORDER

rt appearing to the undersigned chief Judge of the Fourth
Judicial Circuit of the United States that by earlier order of
the undersigned dated June L4, 1983, a three judge district
court, consisting of Honorable J. Dickson phi11ips, Jr., united
states circuit Judge, Fourth circuit and Honorable F.T. Dupree

and Honorable w. EarI Britt, united states District Judges for
the Eastern District of North Carolina has been designated to
hear and determine the above-entitled civil action pursuant to
28 U.S.C. S 2284i and

It further appearing that a substantial question has arisen
as to whether the action is properly one for determination by a



statutory three judge district court, or instead is
lying within the federal question jurisdiction of
court regularly constituted; that if the

one properly

the district
resulting

jurisdictionar question is not now appropriatery resorved its
continued existence might impede orderry resolution of the

merits of the action; that an appropriate resorution of the

question can be accomplished by constituting the judges

previously designated as members of the three judge district
court to sit alternativery as district judges constituting a

panel of the United States District Court for the Eastern

District of North carolina regurarly constituted; and that to

this end, Honorable F.T. Dupree, Chief Judge of said court, has

invited Honorabre J. Dickson philrips, Jr., united states

Circuit Judge, to sit by assignment under 28 V.S.C. S 29I(b) as

a judge of that court and as a member of a panel composed of the

same judges previousry designated to constitute a three judge

district Court pursuant to 28 U.S.C. S 2284i and

rt further appearing to the undersigned that to proceed in
this manner is in the public interest;

Now therefore, it is ORDERED that pursuant to 2g U.S.C S

291 (b) , Honorable J. Dickson PhiItips, Jr. , United "States

Circuit Judge, Fourth Circuit, is hereby DESIGNATED and ASSIGNED

temporarily to sit with Honorabre F.T. Dupree and Honorable w.

Earr Britt as a member of a paner of judges of the united states

District Court for the Eastern District of North Carolina to

2-



,

hear and

entitled
This

determine in

civil action.

'2 A day of

that alternative capacity the above-

and correct coPY of the original.

J. Rich l-eonar:!, Clerk . t .',
United States District Court '

Eastern District of North Carolina

Deputy Chrh.

September, 1983.

t.

=,1,J 4t-u-* f u, /*L<*
Chief Judge, Fourth .fuffi

3-