Correspondence from Feldman to Judges Politz, Cassibry, Collins; Defendants' Reply Memorandum

    BRONFIN, HELLER, FELDMAN, STEINBERG & BERINS 

ATTORNEYS AND COUNSELORS AT LAW 

WHITNEY BUILDING 

NEW ORLEANS, LOUISIANA 70130 
FRED 8RONFIN 

EDWARD MM. HELLER SAAC S. HELLER (1893-1967) 

MARTIN .-L SOS Daan June 9 ’ ) a na 

SYLVAN J. STEINBERG 

BERNARD HH. BERING TELEPHONE 

ROBLRT A. KUTCHER SC4/568-1a88 

JAN M. HAYDEN 

KAREN 8. SHER 

Honorable Henry A. Pol 

United States Circuit 

Room 2B04 

500 Fannin Street 

Shreveport, Louisiana 

Honorable Fred J 

United States Di 

Eastern District 

500 Camp Str vi 

New Coy 

Barbara Major, et al v. 
David C. Treen, et al 

J. S. District Court 

ern District of Louisiana 

Action No. 82-1192 

cS o + pursuant to the Court's order dated June §6, 

t each of you of defendants' reply memorandum. 

d 
0 1983 

We believe tha! i has been briefed and argued 

extensively, and, if it will accommodate the Court, 

we are willing t ( ional oral argument which is 
currently set 983 at 1:30 p.m. Nevertheless, i 
plaintiffs are unwilling to waive additional oral argument, o 
if the Court prefers to have oral argument, we will be present 

on June 29th. 

COE 

$a iaman 

MLCPF:dlc 

CC: R. James Kellogg, 

(w/encl)  



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, ET AL., CIVIL ACTION NO. 82-1192 

Plaintiffs 

VERSUS SECTION D (C) 

DAVID C. TREEN, ET AL. THREE JUDGE COURT CASE 
CLASS ACTION 
  

  

Defendants 

DEFENDANTS' REPLY MEMORANDUM 
  

MAY IT PLEASE THE COURT: 

The purpose of this memo is to respond to plaintiffs’ 

Post-Trial Memorandum, which is in the form of proposed find- 

ings and conclusions. 

Plaintiffs make extensive use of hearsay testimony in 

an effort to support their case. A substantial portion of 

plaintiffs' findings of fact are based on exhibits which are 

Lranscripts or minutes of proceedings which were neither under 

oath nor subject to cross-examination. When these exhibits 

were offered as evidence, defendants objected, not to their 

authenticity, but as to the clear hearsay nature of their con- 

tents. We specifically stated that there was no way that one 

could determine the truth of the statements contained therein 

nor were the persons who allegedly made the statements listed 

as witnesses for the g inti1ff and, thus, not subject to  



cross-examination. Our objection was well stated and Clearly 

understood. It now appears also to have been well taken in 

anticipation of plaintiffs use of the documents. 

Now, 1n their Post-Trial Memorandum, Plaintiffs, 

apparently realizing the deficiencies in their trial evidence, 

generously use statements allegedly made by various people 

which appear in those exhibits. Such comments are not evi- 

dence; they prove nothing. They are hearsay. 

Federal Rule of Evicence 801 (C) defines hears Y as: 

"A statement, other than one made by the declarant: : 
while testifying at trial or hearing, offered in evi- 
dence to prove the truth of the matter asserted." 

It 1s clear that plaintiffs' references to what vari- 

ous individuals supposedly said during the redistrictin 

process clearly fall within the hearsay rule. For example, 

stoposad finding of fact no. 18 quotes statement 

to Senator Saunders, Re entative Alario, 

Representative Scott and Senator Nunez. Although each of those 

individuals could have been deposed and although both Messrs. 

Alario and Nunez reside within the Eastern District of 

for.trial), plain- 

the Pederal Rules of Civil 

Evidence and cross- 

examination and, i selectively excerpt state- 

ments attribute I elected officials in minutes 

oppcrtunities for  



cross-examination, all in direct.contravention of the hearsay 

rule. 

Plaintiffs proposed finding of fact 18 is not an 

isolated example. Indeed, proposed findings of fact ls, 20, 

21, 24, 32, 35, 36, 44, 47, 49, 51, and 81, all contain the 

same kind of hearsay testimony which, under the Federal Rules 

of Evidence, is inadmissible. Moreover, none of the exceptions 

to the hearsay rule apply. Mr. Scott, Mr. Gee, Mr. Tauzin, and 

Mr. Bartholemey are all liberally quoted .by plaintiffs, but 

none testified for plaintiffs, gave a deposition, or was avail- 

able for cross-examination. We respectfully submit that, if 

plaintiffs wished to offer the comments which they attribute to 

people who did not testify, the proper manner of presentation 

would have been to call those witnesses either at trial or 

through deposition. Plaintiffs did not do so. 

attribut Lo any such individuals should be disregarded. 

Other discrepancies appear in plaintiffs' Post-Trial 

Memorandum. They ask this Court to find in proposed finding of 

fact no. 5 that "under the 1980 census the population of 

Orleans Parish was for the first time equivalent to the popula- 

tion of an ideal congressional district". However, the chart 

following the narrative on proposed findings of fact no. 5 

clearly shows that Orleans Parish was too big for one congres- 

sional district, as we established at trial. In fact, the  



chart shows that, at least since 1930, Orleans Parish has 

always been too large for one congressional district and 

Jefferson Parish has always been too small. 

In proposed finding of fact no. 15 plaintiffs ask this 

Court to find no blacks served as members of either of the two 

Subcommittees regarding reapportionment. They fail to note 

that, as was proven at trial through the testimony of 

Representative Turnley, Mr. Delpit, Senator Braden and Ms. 

Bajoie, all served on the main Committee -and participated in 

the public hearings on redistricting held around the State. 

Likewise, plaintiffs throughout their proposed find- 

ings refer to Lawrence Chehardy, the Assessor of Jefferson 

Parish and the architect of “he Nunez Plan, as "defendants’ 

witness”. It certainly is true that Mr. Chehardy was called by 

the defendants. However, we respectfully remind the Court that 

Mr. Chehardy was listed as a "will call" witness by the plain- 

tiffs and it was only when the plaintiffs rested without 

calling Mr. Chehardy (apparently because they did not believe 

his testimony was sufficiently supportive of their case), that 

it was necessary for defendants to call him. We have already 

's testimony in our Post-Trial Memorandum. touched upon Mr. Baer 

The Federal Rules of Evidence do not require the defense to 

vouch for his credibility simply because he was called as a 

witness.  



There was also considerable expert testimony by 

Professor Henderson and by Mr. Selle regarding alleged fragmen- 

tation of voting strength and that is referred to in plain- 

tiffs' proposed find no. 71 which states that of the Orleans 

Parish precincts which are 95% or nore black, 14 were put in 

the first congressional district and 17 were put in the second. 

We point out to the Court, in response to that statement, that 

Mr. Selle, who has been appointed by the various Courts of 

Louisiana as Special Master in redistricting cases more times 

than plaintiffs' expert has been retained by anyone in redis- 

tricting litigation, specifically pointed out that the use of 

99% or 95% minority precincts, which was the standard employed 

by plaintiffs, is not useful to statistical analysis. It 

doesn't fairly represent true circumstances. See Transcr 

of Proceedings March 10, 1983, page 131. Under a 50% analysis,   

Act 20 does not fragment the black vote. 

includes, within District 2, 66% of the 50% black precincts in 

Orleans Parish and 100% of the 50% black precincts in Jefferson 

2 was designed to enhance minority voting 

strength, not dilute it. See, Transcript of Proceedings March 
  

0, 1983 pages 131 to 132. (Parenthetically, we should add   

that plaintiffs ‘throughout their brief referred to registered 

voters. The standard in reapportionment suits is, and always 

has been, population and not registration. Since the earliest  



one-person one-vote cases the courts have examined population 

to determine if reapportionment is valid. We respectfully sub- 

mit that this Court should follow the dictates of the Supreme 

Court as set forth in Westberry v. Sanders, 376 US 1 (1964) and   

consider population, not registered voters.) 

Not only is plaintiffs' Post-Trial Memorandum fraught 

with hearsay and incorrect conclusions, but plaintiffs' pro- 

posed findings of fact 51 and 67 contain attacks on Governor 

Treen that are without foundation and wholly bnsepportes by the 

evidence in this case. The plaintiffs ask this Court to find 

that considering "the Governor's Political career, the 

Governor's adamant cpposition to a majority black district was 

a vehicle for discrimination against black voters". Plaintiffs 

cite no evidence to support their inferences about the 

Governor's "political career". In fact, the expert retained by 

plaintiffs to discuss Governor Treen's *political career", 

Joseph Logsdon, sat in Court for many days and was never ca 

by the plaintiffs. 

And plaintiffs proposed finding no. 67 asks this Court 

to hold that because Governor Treen was briefly the chairperson 

of the Louisiana States Rights Party over 20 years ago, before 

resigning, he should be held responsible for the actions of the 

States Rights Party. There is absolutely nothing in support of 

plaintiffs in the record to prove any connection between the  



Governor and anything that group did in the 60's. Indeed, 

although the Governor was cross-examined regarding certain 

statements he made after an election loss to Congressman Hale 

Boggs, we do not recall that any questions regarding the States 

Rights Party were asked. Further, plaintiffs have failed to 

take into account Dave Treen's record as Governor. He has 

exhibited greater outreach to blacks in his appointments than 

any other Governor. 

Similarly, plaintiffs’ proposed -finding no. 81 is 

unsupported by any evidence in the record. The apparent basis 

for plaintiffs finding no. 8l is the affidavit of one of plain- 

tiffs' counsel, Ms. Lani Guinier, and a memorandum prepared by 

a staff member of the Justice Department (the Kwan memorandum). 

Both Ms. Guinier's affidavit and the Kwan memorandum involve 

the most textbook sort of hearsay. They are not evidence of 

anything. 

Plaintiffs' failure to prove a case which comports 

with the Federal Rules of Evidence is also demonstrated in 

their proposed conclusion of law no. 36 wherein they seek all 

costs, expenses, and reasonable attorney's fees. Plaintiffs 

offered no evidence regarding attorney's fees, costs or 

expenses during the trial and we submit that no attorney's fees 

should be granted in this matter. 

I  



Plaintiffs' appendix A deserves some response as 

well. For example, in the category delineated Parish Governing 

Bodies, plaintiffs state that the only exception to the rule 

that black representatives come from single member districts 

where blacks comprise the majority was the election of Ernest 

Johnson in Plaquemine Parish. Plaintiffs failed to recall the 

testimony of Congressman Livingston on pages 291 through 293 

where Congressman Livingston refers not only to Ernest Johnson 

but Morris Alford, Otis Campbell and A. R. Smith, all of whom 

hold elected positions on either the School Board or the City 

Council and all of whom come from majority white districts 

somewhere in his Congressional District (St. Tammany or 

. Plaquemines). 

Similarly, with respect to the data regarding Orleans 

Parish, while it is certainly true that there are ten Criminal 

District Court Judges none of whom are nov black, it is also 

true that Judge Israel Augustine, who served with distinction 

on the Criminal District Court bench for many years, and who is 

black, is now on the Fourth Circuit Court of Appeal. The list 

of black elected officials in Orleans Parish is impressive. 

Two black district councilman, one black councilman-at-large, 

three judges, including Judge Augustine, the Clerk of Criminal 

Court, a Criminal Court Magistrate, a Civil Sheriff, and of 

course, the Mayor of New Orleans.  



EEA WR Are IMIR 0 Dar Li ply WR IR GBS BLA cp 

CONCLUSION 

It simply defies common sense to say that black citi- 

zens are denied equal access to the political process here. 

The testimony elicited at trial clearly establishes that Act 20 

1s constitutional, that it does not result in the dilution of 

minerity voting strength, that it was not passed with an intent 
i 

to discriminate, and that it is fair and reasonable. We ask 

only that this Honorable Court examine the evidence in this 

case and not be distracted by hearsay, by double hearsay and by 

unproven conclusions. The evidence supports the constitution- 

ality of Act 20. 

Respectfully submitted, 

tu (4h 
\ lu fi . FELDMAN 
ROBERT A. TCHER 

of 

BRONFIN, HELLER, FELDMAN 
& STEINBERG 

624 Whitney Building 
New Orleans, Louisiana 70130 
504/568-1888 

  

HONORABLE KENNETH C. DEJEAN 
Chief Counsel 
Office of Attorney General 
P.D. Box 44005 
Baton Rouge, Louisiana 70804 
ATTORNEYS FOR DAVID C. TREEN, ET AL.  



EERTITPICATE 
  

A copy of the foregoing has been served upon counsel 

of record in this proceeding through the mail or by hand 

delivery on May \¥ 1983, 

  
ue ( Ly bp 

   



sh ste ADMIN Ad. bi dn 
  

EXHIBIT "A"   

Editorials   
  
  

Here's why black voters 
gain in political clout 

It comes as no particular surprise that more black 
voters are now showing up at the polls on election days 
than ever before or that the gap between white and 
black election participation keeps narrowing steadily. 
That turnout gap is at its lowest point since blacks in the 
South began registering in large numbers back in the 
1960s. 

This information comes from the U.S. Census Bureau 
which also found that the rate of black voting 
participation is higher than that for whites in eight 
states, one of them being Louisiana. The Bureau's 
comparisons look something like this: Last year 50 * 
percent of all. whites reported going to the polls 
compared’ to 43.percent of the black voters. That 
compared to 1978 figures of 47 percent for white voters 
and 37 percent for blacks. In other words, the increase in 
black turnout qver the past four years just about 
doubled that forwhites. 

Political observers say that the Census Bureau 
figures on voter participation are considered accurate 
for comparison purposes even though it is believed they 
over-report actual voting rates. The reason for that is a 
tendency on the part of some voters who did not gotothe 
polls — black and.white alike ~ to report that they did 
vote, 

White voter participation was at a lower rate than 
black in Louisiana, California, Illinois, Indiana, 
Kentucky, Missouri, South Carolina and Tennessee. 
Black and white vyter turnout rates were about equal in 
Texas, Mississippi, Michigan, Ohio, Oklahoma, 
Pennsylvama and Virginia. And as evidenced by 
Chicago's mayoralty eiections, black participation 
rates are rising higher in Northern states than here in 
the South, a reversal of an earlier trend. 

Why this suddef surge in black voting? Contributing 
areregistration.and get-out-the vote drives in black 
neighborhoods, more black candidates running for more 
important offices and black opposition generally to 
policies of the Reagan administration. 

It does not take a great deal of crystal gazing to 
conclude that ballots cast by black voters will 
undoubtedly have an even greater effect on the outcome 
of 1984's elections~ A major 1982 registration drive in 
Chicago to boost the candidacy of Adlai Stevenson, for 
example, resulted a year later in a pair of primary 
victories for Harold Washington, originally not given 
much of a chance. During 1982, 64 percent of the blacks 
cast ballots in Illinois while the white voters’ percentage 
was ten points lawer. 

And in Texas, a get-out-the-vote campaign in 
minority communities is credited with helping Mark 
White upset GOP Gov. William Clements. The 1982 
turnout figures for that state were 41 percent for whites 
versus 38 percent for blacks. In two years, the 
percentage gap between those two groups dropped from 
10 to 3 points. . 

Is it any wonder then that people like the head of a 
Washington think tank which surveys black voting and 
political participation comments, “There is no question 
that blacks will have more political clout in 1984"? Or, 
that the gap between black turnout and white turnout 
will narrow even more 1n the clections stretching 
ahead? 

  

    

   



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E
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H
I
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By RONNI PATRRIQUIN 
Journal Capital Burcau 

Southern University Assistant 
Professor of English June Phillips, . 
who challenged District 2 Rep. 
Alphonse Jackson In 1979, Is In a quan- 
dary these days (rying to declde 
whether to enter that race this year. 

Phillips, recently appolnted lo the 
state Board of Trustees for Colleges 
and Universities, wants to run again, 
bul she said this week she Is worried 
about having to give up that position if 
‘she should win the House District 2 
scat.’ he 

: “Phillips, according lo state legal 
‘authorities, would not have to resign 
Irom the higher education manage- 

lips trying 
SOUANRX., 32 -I7-$3 F706 

—— en ee en. 

. ment board In order to catnpalgn for 
* the Legislature. Bul if she won, she 
would have to resign It before she 

could assume the legislative post.* 

“If I ran, I would plan to win. But, 1 
would hate to have taken the Board of 

Trustees position and serve no more 
than a year before moving up,” Phil- 

lips sald, noting she has asked for an 
‘official opinion from state Attorne 
General William Guste. - = . 

Phillips, who made’a respectable 
showing in the 1979 rack against Jack- 
son, said she built a good organization 
then and would like to repay her sup- 
porters by running again and winning. 

Jackson is beatable, she said, noting 
his recent declsion to back a white in- 
cumbent senator over two opponents 

    

— one black — In a district where a 
black has a chance to win for the first 
time since reconstruction. 

That declslon to back District 39 
Sen. Bill Keith over Shreveport City 
Counciltnan Greg Tarver has hurt 
Jacksen In the black community, Phil- 
lips said. 

“Blacks In general feel this Is the 
worst thing he (Jackson) could have 
done. It’s political sulcide,” she said. 

But she noted Jackson usually is a 
brilliant politician who may be able to 

" repale much of the political damage 
before the Oct. 22 primary election, 
“He Is very sophisticated politically. I 
certainly would not scll him short,” 
Phillips said. 

If she decides to run against Jack- 

to'decide if she will run 
r son, Phill!ps said she ls polar to run ¢ a 

theidea of doing everything Recency - 
} 

for the people of ker district, ker Cty 
and her state 

“Lam going to be a peaple-oricnte ! 
representative,” che san, : 

Phillips sald che believes black pli- 
ticians must break the tradition of 1 
ing with labor on cvery issue reeand- 
less of the question at stake. Pach; 
will be able to obtain a lot more Lp. 
port for things important to them if 
they do not allow themselves to to 
taken for granted by any onc rou), 
cshesaid. ~~ * 

“Itis almost idiotic and blind for ore 
to commit him:=cl to always voting 
with labor on any issue,” she sald, rot 
ing that labor is not always Tight ane 
business Is not alway: Won. 

  

 



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