Memorandum of Law in Support of Motion to Intervene with exhibits
Public Court Documents
March 4, 1998
102 pages
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Case Files, Perschall v. Louisiana Hardbacks. Memorandum of Law in Support of Motion to Intervene with exhibits, 1998. 79f2511e-f211-ef11-9f89-002248237c77. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/b2555205-3bfc-4cc6-8c56-3675744c9e16/memorandum-of-law-in-support-of-motion-to-intervene-with-exhibits. Accessed May 22, 2025.
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•
No. 98-30004
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CLEMENT F. PERSCHALL, JR.,
Plaintiff-Appellant,
V.
STATE OF LOUISIANA,
Defendant-Appellee
and
RONALD CHISOM, ET AL.
Proposed Appellee-Intervenors
On Appeal from the
United States District Court
for the Eastern District of Louisiana
MOTION TO INTERVENE AS APPELLEES
Ronald Chisom, Marie Bookman, Walter Willard, Henry Dillon, III, and the Louisiana
Voter Registration/Education Crusade, move this Court to intervene in the present action as
appellees. In support of this motion, proposed appellee-intervenors would show the following:
1. The proposed appellee-intervenors are named plaintiffs in Chisom v. Edwards,
E.D.La. Civil Action No. 86-4075(A). As such, they are signatories to the consent decree that
settled that case, and have an interest in the continued enforcement of that decree. The
consent decree requires that all parties take all steps necessary to effectuate the decree.
2. The present action was filed with the purpose of obtaining a declaratory
judgment that Louisiana Act No. 512 (1992)("Act 512"), the legislation enacted by the State of
Louisiana to facilitate resolution of the dispute underlying the Chisom consent decree, was
unconstitutional.
3. This matter, originally filed in Louisiana state court, was removed to federal
court by defendant-appellee, the State of Louisiana. Ultimately, the action was transferred to
the Eastern District of Louisiana and the Hon. Charles Schwartz, Jr., who had presided over
the original Chisom litigation and entered the Chisom consent decree. Judge Schwartz
remanded the issue of whether Act 512 violated the Louisiana Constitution to the Louisiana
state courts, reserving ruling on whether further action by the United States District Court
would be necessary.
4. The Louisiana Supreme Court held Act 512 violative of the Louisiana
Constitution, but also held that its ruling did not and could not have any effect on the Chisom
consent decree. Subsequently, the Perschall matter was returned to the Eastern District of
Louisiana.
5. Based upon the Louisiana Supreme Court's ruling, defendant-appellee State of
Louisiana moved to dismiss the action, as moot, because plaintiff-appellant Perschall had
obtained all the relief that was possible. The District Court granted this motion to dismiss.
6. Plaintiff-appellant Perschall has filed this appeal from the district court's ruling.
While the basis for this appeal is not yet clear, to the extent that plaintiff-appellant Perschall
contends that he is now entitled to some additional relief above and beyond his pleadings, the
disposition of this action may impair or impede the rights obtained and enjoyed by the
2
proposed appellee- intervenors under the Chisom consent decree.
7. Intervention at this stage of the case is appropriate and necessary to ensure that
the rights of the proposed intervenors are adequately protected, because plaintiff-appellant
Perschall may present arguments to this Court which relate to the Chisom consent decree. The
applicants' interest is not adequately represented by the existing parties. Although the State
of Louisiana, the only named defendant herein, is also a party to the consent decree in Chisom,
it was also the defendant in Chisom.' The State of Louisiana defended against the Chisom
action vigorously. It was not until six years after the case was filed, and after two appeals to
the Fifth Circuit and an appeal to the United States Supreme Court, that the State was finally
willing to settle the Chisom litigation and enter into the consent decree which may now be
affected by plaintiff-appellant's appeal.
8. The present motion to intervene has been filed in a timely fashion. Moreover,
applicants clearly meet all the requirements of intervention under Rule 24 of the Federal Rules
of Civil Procedure.
WHEREFORE, for the foregoing reasons, the applicants pray that they be permitted
to intervene as appellees in the above entitled action.
Respectfully submitte
P. Quigley
niversity
t. Charles Avenue
New Orleans, LA 70118
(504) 861-5590
Elaine R. Jones
Director-Counsel
Chisom, the nominal defendant was the Governor of the State of Louisiana, sued in his
official capacity.
Norman J. Chachkin
Charles Stephen Ralston
Victor A. Bolden
Jacqueline A. Berrien
NAACP Legal Defense & Educational Fund,
Inc.
99 Hudson Street
Suite 1600
New York, New York 10013
(212) 219-1900
Ronald L. Wilson
837 Gravier Street
New Orleans, LA 70113
(504) 586-1241
Counsel for Defendant-Appellee Intervenors
No. 98-30004
IN THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CLEMENT F. PERSCHALL, JR.,
Plaintiff-Appellant,
V.
STATE OF LOUISIANA,
Defendant-Appellee
and
RONALD CHISOM, ET AL.
Proposed Appellee-Intervenors.
On Appeal from the
United States District Court
for the Eastern District of Louisiana
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO INTERVENE
Introduction
Applicants, Ronald Chisom, et aL, are signatories to a consent decree entered into in
the Chisom v. Edwards case (Civil Action No. 86-4075(A)). See 970 F.2d 1408 (5th Cir. 1992).
This decree, entered into by applicants and the State of Louisiana, addressed allegations that
the State of Louisiana's method for electing its Supreme Court Justices violated the Voting
Rights Act of 1965, 42 U.S.C. §1973, and included, inter alia, the terms of Louisiana Acts, No.
512 ("Act 512"), the subject of this present action.
•
The applicants sought to intervene in this action while it was pending before the Hon.
Charles Schwartz, Jr. of the Eastern District of Louisiana. Judge Schwartz ruled that there
were state law issues which should be resolved first, and he stayed consideration of any federal
issues until those state law matters were resolved. The district court therefore remanded to the
Louisiana state court system the issue of intervention as well as the underlying substantive
issues.
While this case was in the Louisiana state court system, the present applicants moved
for intervention there. No formal order regarding intervention was granted because the case
was taken directly up to the Louisiana Supreme Court. Nevertheless, the Louisiana Supreme
Court accorded the Chisom applicants intervenor status, permitting not only the filing of briefs
as parties to the case, but granting oral argument time as well.
When this matter returned to federal court for further disposition of the Perschall action,
the issue before the federal court presented by the State's motion to dismiss the suit as now
moot. Applicants did not press for an immediate ruling on their dormant motion for
intervention in federal court: If the State's motion seeking to have plaintiffs' action deemed
moot was granted, there would be no need to re-file or seek a definitive ruling on intervention.
Had the motion seeking to have plaintiffs' action deemed moot been denied, the applicants
would have renewed their motion to intervene. The district court deemed the action moot, thus
making unnecessary anything more with regard to intervention.
Plaintiff-Appellant Perschall has appealed that order to this Court. Since the issues
under consideration by this Court may affect the rights of the applicants under the Chisom
consent decree, intervention by the Chisom plaintiffs is both appropriate and necessary for the
interests of these parties to be adequately protected. Thus, at this time and in this place,
intervention by the Chisom plaintiffs is necessary.
2
Factual Background and Procedural History
In 1986, African-American voters of the State of Louisiana did not have an equal
opportunity to elect a candidate of their choice to the Louisiana Supreme Court, although
African-Americans constituted nearly one-third of Louisiana's population and a majority in
Louisiana's largest parish, Orleans Parish. See Chisom v. Edwards, 839 F.2d 1056, 1058 (5th
Cir. 1988). The seven Justices of the • Supreme Court of Louisiana were elected from six
geographically defined judicial districts. Id. at 1056. With the exception of the First District
of the State Supreme Court, each of the judicial districts elected one Supreme Court Justice.
Id. The First District of the State Supreme Court ("First Supreme Court District"), consisting
of four parishes (Orleans, St. Bernard, Plaquemines, and Jefferson Parishes), elected two
Justices at-large. Id. In the late 1980's, African-Americans represented approximately 32
percent of the registered voters in the First Supreme Court District and whites represented
approximately 68 percent of the District's population. Id. Over half of the First Supreme
Court District's registered voters lived in Orleans Parish, where African-Americans comprised
52 percent of the registered voters. Id.
Ronald Chisom and several other African-American voters, as well as the Louisiana
Voter Registration Education Crusade (hereinafter "Chisom plaintiffs"), filed a class action
lawsuit in the United States District Court for the Eastern District of Louisiana("United States
District Court") on behalf of all African-Americans registered to vote in Orleans Parish.
Chisom v. Edwards, 659 F. Supp. 183 (E.D. La. 1987). The Chisom plaintiffs alleged that the
system of electing Justices to the Louisiana Supreme Court violated Section 2 of the Voting
Rights Act of 1965, 42 U.S.C. § 1973, as well as the Fourteenth and Fifteenth Amendments to
the United States Constitution.
The United States District Court held that Section 2 of the Voting Rights Act did not
3
apply to state judicial elections because judges are not "representatives" under the Act, thereby
dismissing the Chisom plaintiffs' complaint for failure to state a claim upon which relief could
be granted pursuant to Fed. R. Civ. P. 12(b)(6). See id. at 183-187. The Chisom plaintiffs
appealed that ruling to the United States Court of Appeals for the Fifth Circuit.
A panel of this Court disagreed with the District Court and held:
After consideration of the language of the Act itself; the policies behind the
enactment of Section 2; pertinent legislative history; previous judicial
interpretations of Section 5, a companion section to Section 2 in the Act; and
the position of the United States Attorney General on this issue; we conclude
that Section 2 does apply to the election of state court judges. We therefore
reverse the judgment of the district court.
Chisom v. Edwards, 839 F.2d at 1058. The panel originally remanded the case back to the
United States District Court. Id. at 1065. However, based on the intervening decision from
the Fifth Circuit in League of United Latin Amer. Citizens Council No. 4434 v. Clements, 914
F.2d 620 (5th Cir. 1990) (en banc) ("LULAC I") the Court of Appeals subsequently remanded
the Chisom case to the District Court with instructions to dismiss the complaint.' In LULAC
I, the Fifth Circuit held that Section 2 did not apply to judicial elections. Id. at 390. The
Chisom and LULAC plaintiffs appealed to the United States Supreme Court, which granted
certiorari in both cases. Id. at 390.
On June 20, 1991, the United States Supreme Court held that Section 2 of the Voting
Rights Act applies to state judicial elections in general, and to the election of Supreme Court
Justices in Louisiana in particular. Chisom v. Roemer, 501 V.S. 380, 401-02 (1991). The Court
held that when states, like Louisiana, decide to choose judges by election, rather than by
appointment, then these judges are appropriately "representatives" under the Voting Rights Act.
The Court stated in particular about Louisiana:
'Like Chisom, LULAC involved the election of state court judges, but in Texas.
4
When each of several members of a court must be a resident of a separate district, and
must be elected by the voters of that district, it seems both reasonable and realistic to
characterize the winners as representatives of that district. Indeed, at one time the
Louisiana Bar Association characterized the members of the Louisiana Supreme Courts
representatives for that reason: 'Each justice and judge now in office shall be
considered as a representative of the judicial district within which is situated the parish
of his residence at the time of his election.'
Id. at 401 (quoting Louisiana State Law Institute, Project of a Constitution for the State of
Louisiana with Notes and Studies 10309 (1954)(1921 Report of the Louisiana Bar Association
submitted to the Louisiana Constitutional Convention)). The Supreme Court's decision
reversed this Court's ruling and remanded Chisom "for further proceedings consistent with th[e
Court's] opinion." Id. at 404.
Following the Supreme Court's remand, the parties to the Chisom litigation reached a
settlement. The Louisiana Legislature agreed to use its power under the Louisiana
Constitution to assign- to the Louisiana Supreme Court until the year 2000, a judge to be
elected from the Fourth Circuit Court of Appeals, in order not to provide an opportunity for
minority voters to select a candidate of their choice for a position on the Supreme Court
without disrupting the terms of any incumbent. The temporary assignment process had been
used by the Court on many occasions before and there was precedent from the Louisiana
Supreme Court that such an assignment was wholly consistent with Louisiana constitutional and
statutory law. See State v. Bell, 392 So.2d 442, 442-443 (La. 1981)(permitting Louisiana
Supreme Court to assign a judge to any court under Louisiana Constitution); see also State v.
Petterway, 403 So.2d 1157 (La. 1981).2
The resulting legislation, Acts 1992, No. 512 ("Act 512"), eliminated the four-Parish,
multi-member election district which included Orleans Parish, effective in the year 2000, and
2In exchange, the Chisom plaintiffs agreed to dismiss their claims under Section 2 of
the Voting Rights Act and the Fourteenth and Fifteenth Amendments of the United States
Constitution.
5
created a Supreme Court District consisting solely of Orleans Parish. La. R.S. 13:101.1. Act
512 provided that, during the 1998 Regular Session, the Louisiana Legislature was to
reapportion the districts of the Louisiana Supreme Court into seven districts, rather than six
districts, for elections beginning in the year 2000. Id. Each of the newly created Supreme
Court districts would elect a single Justice to the Supreme Court. The Act also provided for
the creation of a temporary additional judgeship for the Court of Appeals for the Fourth
Circuit, to be elected by voters from Orleans Parish exclusively, and assigned to the Louisiana
Supreme Court until the year 2000, when elections would be held under the newly drawn
election districts. La. R.S. 13:312.4. Act 512 thus avoided shortening the term of any Louisiana
Supreme Court Justice holding office on June 22, 1992, the time of its enactment. Id.
Act 512 was entirely contingent on the entry of a federal court order:
This legislation shall be null, void, and of no force and effect whatsoever if a
consent decree approving this legislation to be entered into between all parties
in federal litigation involving the at-large election of two justices from the
presently existing first supreme court district, which is pending on the docket of
the United States Court of Appeals for the Fifth Circuit, and which is styled
Chisom v. Edwards, is not entered into by the appropriate federal court.
Acts 1992, No. 512, §2. After Act 512 was signed into law, all parties to the Chisom litigation
filed a Joint Motion to Remand to Effectuate Settlement. Chisom v. Edwards, 970 F.2d 1408, 1409
(5th Cir. 1992)(remanding the case "to the United Stated District Court for the Eastern District
of Louisiana for the limited purpose of effectuating a settlement" . . . "[u]pon notification that
a consent judgment has been entered by the district court. . . ."). On August 21, 1992, the
United States District Court entered a consent decree which incorporated Act 512 into its final
order and judgment. Consent Judgment, August 21, 1992 (E.D. La.) (Exhibit "A"). On October
6, 1992, this Court dismissed the appeals pending in the case. Chisom v. Edwards, 975 F.2d
1092 (5th Cir. 1992).
6
In 1995, nearly three years after the entry of the consent judgment in the Chisom case,
Plaintiff Clement F. Perschall, Jr. ("Perschall"), an attorney proceeding pro se, filed a "Petition
for Declaratory Judgment on the Constitutionality of Acts 1992, No. 512" against the State of
Louisiana in the 19th Judicial District Court for the Parish of East Baton Rouge, State of
Louisiana, Division A. Perschall alleged that Act 512 violates both the Louisiana and United
States Constitutions. The State removed the action to the United States District Court for the
Middle District of Louisiana, which subsequently transferred the action to the United States
District Court for the Eastern District of Louisiana, where ultimately the case was assigned to
Judge Schwartz, who was the presiding judge in the Chisom case. The Chisom plaintiffs moved
to intervene in the Perschall action now before the Eastern District of Louisiana, believing their
interests to be affected by this new action. See Motion To Intervene As Defendants (Exhibit "B").
This motion was never ruled on because the district court remanded back to Louisiana state
court the issue of the constitutionality of Act 512 under state law to the state court as well as
the issue of whether the Chisom applicants should be permitted to intervene. See Order And
Reasons at 7, dated July 5, 1995. (Exhibit "C").
The Chisom plaintiffs again moved to intervene once the matter came before the
Louisiana state court system. See Motion to Intervene, (Exhibit "D"). This motion was never
ruled on because the State of Louisiana filed briefs which requested that the Louisiana
Supreme Court grant certiorari and review the entire case and the Louisiana Supreme Court
agreed to do so. The Louisiana Supreme Court expressly referred to the Chisom plaintiffs as
intervenors, for instance, it provided the Chisom plaintiffs with the opportunity to participate
in oral argument on February 24, 1997. See e.g. Orders (Exhibit "E")(various orders from the
Louisiana Supreme Court).
On July 1, 1997, the Louisiana Supreme Court held that, despite the supremacy of
7
federal law and the existence of the Chisom consent judgment, there was a justiciable
controversy. Upon reaching the merits of this case, the Louisiana Supreme Court found Act
512 to be unconstitutional. Perschall v. State of Louisiana, 697 So. 2d 240 (La. 1997).3 Despite
holding Act 512 unconstitutional, the Court did not recommend a change in the status quo:
We realize that Act 512 does not exist in a vacuum. The State argues, and we
agree, the Act and the Chisom Consent Judgment are separate and independent
methods by which the negotiated remedy was implemented. Although the Act
falls by this judgment, we recognize the status quo remains intact under the
Chisom Consent Judgment. Consequently, this court as it is currently composed
shall continue to function as a de jure court with its actions valid and effectual.
We emphasize that the court-approved settlement in Chisom, which is under the
jurisdiction of the United States District Court for the Eastern District of
Louisiana, is not affected by this judgment.
Id. at 260. The Court also dismissed Perschall's argument that, if Act 512 is unconstitutional,
then all decisions rendered by the Court since the creation of Act 512 are now void. Id. at 260-
61. Both the appellee and the Chisom plaintiffs filed petitions for rehearing with the
Louisiana Supreme Court, with the Chisom applicants raising conflicting arguments about the
terms of the Chisom decree. Exhibit "F" (State of Louisiana's Petition for Rehearing); Exhibit
3Two different provisions under the Louisiana Constitution were considered
probative of this issue: Article V, § 3 and Article V, § 5(A). The former provision placed a
limit on the number of justices who can serve on the Louisiana Supreme Court. La. Const. art.
V, § 3 ("The supreme court shall be composed of a chief justice and six associate justices, four
of whom must concur to render judgment"). The latter provision vested the Court with the
authority to "assign a sitting or retired judge to any court. . ." LA. Const. art. V, § 5(A). To
the Court, Article V, §3 and Article V, § 5(A) constitute "conflicting constitutional provisions
regarding supreme court composition." Perschall, 697 So.2d at 255. The Court gave more
weight to the specific provision (Art. V, § 3) than the general one (Art. V, § 5(A)). Id. at 256.
Under the Court's analysis, harmonizing these "conflicting" constitutional provisions meant that:
We must hold the Act unconstitutional under article V, section 3, insofar as it
effectively imposes an eighth justice on the supreme court by the provisions of
La. R.S. 13:312.4.
Id. at 259. The Court also found that the unconstitutional
portions of Act 512 could not be severed from those provisions which are constitutional. Id.
at 259-260. Thus, the Louisiana Supreme Court struck down Act 512 in its entirety.
8
"G" (Chisom plaintiffs' Brief in Support of Application For Rehearing). These petitions for
rehearing were denied. See Exhibit "E".
Upon return of the Perschall action to federal court, the State of Louisiana moved to
have the action declared moot. The Chisom plaintiffs filed a supplemental memorandum of
law in support of this position. Exhibit "H." On December 11, 1997, the District Court ruled
that the Perschall action was now moot and dismissed the remainder of the action. Plaintiff-
appellant Perschall has now appealed this action. The Chisom plaintiffs, who have sought to
intervene in this action, now move at the appellate stage to protect their interest in preserving
the terms of the Chisom consent decree.
Summary of Argument
Similar to the standard at the district court level -- although not commonly sought nor
routinely granted -- the standard for seeking intervention at the appellate level depends on the
factual circumstances of the case and the factors of timeliness, the interest of the applicant, the
potential impairment of that interest, and the ability of the parties in the litigation to represent
that interest. The facts of this case suggest that intervention is appropriate.
This motion presents the uncommon instance where intervention should be permitted
on appeal. There is no prejudice to Plaintiff-Appellant Perschall as a result of permitting
intervention on this appeal; applicants participated below and the issues they will address have
been timely raised. The Chisom intervenors have demonstrated vigilance in seeking to protect
their rights since the inception of the Perschall action. Intervention was requested below and
Plaintiff-Appellant Perschall has been aware of the presence of the proposed intervenors and
is not jeopardized by the addition of the applicants as parties. On the other hand, the issues
raised by this appeal clearly implicate the interests of the applicants, and movants for
intervention, plaintiffs and parties to the Chisom v. Edwards consent decree, have a direct
9
interest in the outcome of this litigation. The outcome of this case threatens the benefits now
conferred upon the Chisom intervenors by virtue of the Chisom decree and the interest that the
applicants have in this decree cannot be adequately represented by appellee, the State of
Louisiana. Under these exceptional circumstances, the Chisom intervenors should be granted
leave to intervene as appellee-intervenors.
ARGUMENT
THE CHISOM PLAINTIFFS, WHO ARE PARTIES TO A CONSENT DECREE
AFFECTED BY THIS APPEAL, SHOULD BE GRANTED LEAVE TO
INTERVENE AS APPELLEE-INTERVENORS
This Court has adopted a four-part test for intervention in district court proceedings:
(1) the application must be timely, (2) the applicant must have a direct and protectable interest
in the subject matter, (3)this interest must be impaired by the ongoing litigation, and (4) the
interest of the applicant cannot be adequately represented by any of the current parties to the
litigation. Sierra Club v. City of San Antonio, 115 F.3d 311 (5th Cir. 1997); Sierra Club v.
Glickman, 82 F.3d 106, 108 (5th Cir. 1996); Edwards v. City of Houston, 78 F.3d 984, 999 (5th
Cir. 1996); Sierra Club v. Espy, 18 F.3d 1202, 1204-05 (5th Cir. 1994); Ceres Gulf v. Cooper, 957
F.2d 1199, 1202-03 (5th Cir. 1992). This Court has also recognized that there are circumstances
when intervention on appeal is appropriate and, on these occasions, have applied a standard
analogous to the test under Rule 24. See Baker v. Wade, 769 F.2d 289, 291-92 (5th Cir.
1985)(intervention permitted on appeal when applicant satisfied the standards of timeliness,
significant interest, impairment of that interest and inadequate representation by the State due
to failure to pursue appeal); United States v. Bursey, 515 F.2d 1228, 1238, n.24 (5th Cir.
1975)(finding that exceptional circumstances existed for intervention on appeal where there was
"a significant stake in the matter on appeal, where it is evident that [movant's] interest cannot
adequately be represented by [another party]," and where there is no issue of timeliness
10
precluding intervention); United States v. Texas Educ. Agency, 467 F.2d 848, 853 n.5 (5th Cir.
1972) (describing how Court had earlier allowed black parents and children, who alleged that
government no longer represented their interests, to intervene in school desegregation case on
appeal); United States v. 22,680 Acres Of Land In Kleberg Co., Tex., 438 F.2d 75, 76-77 (5th Cir.
1971)(holding that timeliness was an important consideration when determining appropriateness
of intervention on appeal); McKenna v. Pan American Petroleum Corp., 303 F.2d 778, 779 (5th
Cir. 1962)(where lack of timeliness of motion for intervention on appeal was outcome-
determinative); see also Automobile Workers, Local 283 v. Scofield, 382 U.S. 205, 217 n.10
(1965)(recognizing that "the policies underlying intervention [in the district courts] may be
applicable in appellate courts"). Applying this standard, applicants' motion for intervention at
the appellate stage should be granted.
Applicants' motion is timely. At the district court level, the issue of "timeliness is to be
determined from all the circumstances." Corley v. Jackson Police Dep't., 755 F.2d 1207, 1209 (5th
Cir. 1985) (quoting NAACP v New York, 413 U.S. 345 (1973)); Ozee v. American Council on Gift
Annuities, 110 F.3d 1082, 1095(5th Cir. 1997); Edwards v. City of Houston, 78 F.3d 984, 1000
(5th Cir. 1996); see also Sierra Club v. Espy, 18 F.3d 1202, 1205 (511 Cir. 1994)("The analysis
is contextual; absolute measures of timeliness should be ignored"). At the appellate level, this
Court recognizes that the same basis principle applies, requiring that an applicant for
intervention at this point must demonstrate that an effort was made to intervene in the action
prior to the issue reaching appeal, e.g. McKenna, 303 F.2d at 779 (where applicant "was not a
party to the action in the district court and, although he was fully aware that the cause was
pending and of his interest, he made no effort to intervene"); see 22680 Acres Of Land In
Iaeberg, Tex, 438 F.2d at 77 ("Even the United States does not have the right to participate in
a case after 'standing by' and doing nothing until the litigation is concluded"), or proof that
11
there is a good reason for not having done so. United States v. Bursey, 515 F.2d at 1238 n. 24
("lack of timely intervention below may be justified by the district court's action without
notice"). The proposed intervention motion here satisfies this standard for timeliness.
Here, the Chisom plaintiffs-applicants did not "stand by" and "do nothing" while this case
was litigated both in the United District Court for the Eastern District of Louisiana and the
Louisiana state court system. Applicants filed motions for intervention at both the Eastern
District of Louisiana, Exhibit "B", and the 19th Judicial District of East Baton Rouge,
Louisiana, Exhibit "D". Because of the unusual procedural history of this case, where this case
was removed from state court to federal court, then remanded from federal court back to state
court and finally, sent back to federal court for final disposition, the issue of intervention was
never expressly resolved. Thus, the applicants have diligently made efforts to participate in
this case at every significant stage. Moreover, while no formal order was issued in either court,
the Louisiana Supreme Court made applicants de facto intervenors by virtue of its actions. See
Exhibit "E" (orders from the Louisiana Supreme Court listing the Chisom applicants as
intervenors). Indeed, the federal district court permitted the Chisom applicants to make filings.
See Exhibit "H" (filing by proposed intervenors in support of the State's motion to dismiss this
act ion).4
The Chisom applicants have a clear and direct interest in the subject matter of this
litigation. This Court has described the "interest" test as "primarily a practical guide to
4Intervention by the Chisom plaintiffs would not prejudice Plaintiff-Appellant Perschall in
any way. He has been aware of the Chisom plaintiffs and their interest in this litigation. While
he apparently does not agree that this interest is affected by his lawsuit, he is not unaware of
the presence of the Chisom intervenors or the arguments that they will present. Even if any
additional arguments are raised by the Chisom intervenors, there will be no prejudice to the
Plaintiff-Appellant. Plaintiff-Appellant Perschall will have an opportunity to file a reply brief
to the submissions of both the appellees and the intervenors, if intervention is permitted.
12
disposing of lawsuits by involving as many apparently concerned persons as is compatible with
efficiency and due process." Espy, 18 F.3d at 1207. Under this standard, any interest which is
direct, substantial and legally protectable is sufficient. See id.; Valley Ranch Development Co.,
LTD. V FDIC, 960 F.2d 550, 556 (citing New Orleans Pub. Serv., Inc. V United Gas Pipe Line,
732 F.2d 452, 463 (5th Cir.)(en banc),cert. denied, 469 U.S. 1019 (1984); see also Sierra Club v.
Glickman, 82 F.3d at 109-110 ("adverse judgment constitutes a sufficient impairment to compel
intervention"); Banco De Credit° Indus. v. Tesoreria General, 990 F.2d 827, 832 (5th Cir.
1993)(applicants denied intervention where any claim to be made had been "usurped" by a prior
agreement). The same standard applies when intervention is sought on appeal. See Baker v.
Wade, 789 F.2d at 292 (the granting of intervention on appeal turned on, in part, the fact that
applicants' issues were to be affected by a judgment in the case); Bursey, 515 F.2d at 1238 n.24
(applicant had "a significant stake in the matter on appeal"). Under this standard, the interest
of the movants in this case are substantial and are directly affected by this appeal.
The subject matter of this present appeal is a ruling dismissing Plaintiff-Appellant's
action challenging the constitutionality of Act 512. The District Court held that Plaintiff-
Appellant Perschall's action was no longer viable and should be dismissed. This ruling was
based on the fact that this action sought nothing more than a declaratory judgment on the
constitutionality of Louisiana Acts, No. 512 ("Act 512"). Such an action need not affect the
Chisom consent judgment, although Act 512 is a part of the settlement. See Perschall v.
Louisiana, 697 So. 2d 240, 260 (La. 1997). Now, however, Plaintiff-Appellant Perschall
contends that this action should not be dismissed and that he is entitled to some relief beyond
what was pled and interpreted as the basis for the relief granted to Plaintiff-Appellant by both
the Louisiana Supreme Court and the Eastern District of Louisiana. It is the decision by
Plaintiff-Appellant to seek additional relief -- relief not previously requested -- which provides
13
the Chisom applicants with a direct, identifiable and legally protectable interest in the Perschall
action.
The Chisom applicants not only have an interest in this matter, but this interest may be
impaired by this action. To demonstrate impairment, applicants for intervention may -- but
need not -- prove that they will be bound by any disposition in the action. Edwards, 78 F.3d
at 1004 (noting that impairment is not contingent on being bound by a judgment). Impairment
can be shown by demonstrating that the interest will be affected in some meaningful practical
way. See Ozee v. American Council On Gift Annuities, Inc, 110 F.3d at 1096 (impairment found
where action "would impair the ability of Texas charities to operate"). The Perschall action
clearly impairs the interest of the Chisom applicants. While it is not clear what relief Plaintiff-
Appellant Perschall now seeks, any relief now sought may affect the relief afforded the Chisom
plaintiffs under their lawsuit, as provided in the Chisom consent decree, thus demonstrating
impairment of an interest.
Finally, the Chisom movants also satisfy the final prong of the intervention test: that
their interest cannot be adequately represented by any of the parties presently in this action,
even the State of Louisiana. When a governmental entity is a party in an action, this Court
"has created two presumptions of adequate representation." Edwards, 78 F.3d at 1005. First,
there is "a presumption of adequate representation arises whether the would-be intervenor is
a citizen or subdivision of the governmental entity." Id. "To overcome this presumption, the
applicant must show 'that its interest is in fact different from that of the [governmental entity]
and that the interest will not be represented by [it]." Edwards, 78 F.3d at 1005 (quoting
Environmental Defense Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C.Cir. 1979)); Hopwood
v. State of Tex., 21 F.3d 603, 605 (5th Cir. 1994). Second, a "presumption of adequate
representation arises when the would-be intervenor has the same ultimate objective as a party
14
•
to the lawsuit." Hopwood, 21 F.3d at 605. When this occurs, the applicant "must show
adversity of interest, collusion, or nonfeasance on the part of the existing party to overcome the
presumption." Id.; United States v. Franklin Parish Sch. Bd., 47 F.3d 755, 757 (5th Cir. 1995).
Both of these presumptions can be met by proving that, in a particular case, the government's
public interest is broader than the specific interest presented by a movant for intervention. See
Espy, 18 F.3d at 1208 ("The government must represent the broad public interest, not just the
economic concerns of the timber industry"); see also Glickman, 82 F.3d at 110 (intervenor had
"more flexibility . . . in advocating its position" than the government).
The interest of the Chisom intervenors is not adequately represented by the appellee,
the State of Louisiana. The existence of a consent decree to which the Chisom applicants and
the State of Louisiana are adversary parties indicates that the two parties have different
interests to be protected by this decree. In the Chisom case, this settlement came about after
extensive litigation with this case, appearing before this Court alone on three occasions, Chisom
v. Edwards, 975 F.2d 1092 (5th Cir. 1992)(dismissing pending appeals); Chisom v. Roemer, 970
F.2d 1408, 1409 (5th Cir. 1992)(providing for remand to Eastern District of Louisiana to
effectuate settlement); Chisom v. Edwards, 839 F.2d 1056, 1058 (5th Cir. 1988)(concluding that
§ 2 of the Voting Rights Act does not apply to judicial elections), and before the United States
Supreme Court, Chisom v. Roemer, 501 U.S. 380, 401-02 (1991). Simply because both parties
have a common interest in defending against a collateral attack on the Chisom consent decree
does not mean that both parties will agree on how the decree should be defended. Even if the
State of Louisiana shared the same objective as the Chisom intervenors, the proceedings below
amply demonstrate that there is an "adversity of interests."
In the proceedings below, the two parties differed on the bases for which a petition for
rehearing should be granted, which resulted in the Chisom applicants and the State of
15
Louisiana having different interpretations of the obligations mandated by the Chisom consent
judgment. Compare Exhibit "F" (State of Louisiana's Petition for Rehearing) at 2 n.1 (arguing
that the fact that the Louisiana Legislature reapportioned the Supreme Court Districts
according to a timetable different from the Chisom consent judgment is not inconsistent with
the State's obligations under the decree) with Exhibit "G" at 9-11 (arguing that the failure of
the Legislature to adhere to the timetable set forth in the Chisom consent decree warranted
rehearing the case). This difference of interpretation prompted the Chisom applicants to file
an objection with the United States Department of Justice to new legislation submitted by the
State of Louisiana with the intent of replacing Act 512, the subject matter of this litigation. See
Exhibit "I" (letter of Victor A. Bolden, attorney for Chisom plaintiffs, to the Hon. Isabelle Katz
Pinzler, Acting Assistant Attorney General for Civil Rights, dated October 15, 1997). Given
this set• of facts, the State of Louisiana cannot fairly be said to represent the interests of the
Chisom applicants adequately.
Conclusion
For the foregoing reasons, the proposed Chisom intervenors urge this Court to permit
them to intervene in this matters as appellees.
Respectfully submitted,
P. Quigley
niversity S
t. Charles Av
New Orleans, LA 70118
(504) 861-5590
Elaine R. Jones
Director-Counsel
16
Norman J. Chachkin
Charles Stephen Ralston
Victor A. Bolden
Jacqueline A. Berrien
NAACP Legal Defense & Educational
Fund, Inc.
99 Hudson Street
Suite 1600
New York, New York 10013
(212) 219-1900
Ronald L. Wilson
837 Gravier Street
New Orleans, LA 70113
(504) 586-1241
Counsel for Proposed Appellee-
Intervenors
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing MOTION TO INTERVENE AS
APPELLEES AND MEMORANDUM OF LAW IN SUPPORT OF MOTION TO
INTERVENE, have been served by depositing same in the United States mail, first class
postage prepaid, on this March\ 1998, addressed to the following:
2\ Clement F. Perschall, Jr., Esq.
One Galleria Boulevard
Galleria One, Suite 1107
Metarie, Louisiana 70001
Telephone: (504) 836-5975
Richard P. Ieyoub
Attorney General, State of Louisiana
State Capitol
P.O. Box 94005
Baton Rouge, Louisiana 70804-9005
Robert McDuff, Esq.
767 N. Congress Street
Jackson, Mississippi 39202
Telephone: (601) 969-0802
Peter Butler (Bar# 3731)-T.A.
Peter J. Butler, Jr. (Bar# 18522)
Richard G. Passler (Bar# 21006)
LL&E Tower, Suite 2400
909 Poydras Street
New Orleans, Louisiana 70112
Telephone: (504) 584-5454
Tyron D. Picard (Bar# 20473)
Mark Stipe (Bar# 19803)
Petroleum Tower, Suite 330
3639 Ambassador Caffrey Parkway
Lafayette, Louisiana 70503
Telephone: (318) 983-0090
Exhibit List
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Exhibit H
Exhibit I
Chisom v. Roemer Consent Judgment, dated August 21,
1992
Motion To Intervene As Defendants, filed in the
Eastern District of Louisiana -
Order and Reasons, dated July 5, 1995 (E.D.La.)
Motion To Intervene As Defendants, filed in the
19th Judicial District, East Baton Rouge Parish
Various orders from the Supreme Court of Louisiana,
listing the Chisom plaintiffs as intervenors
State of Louisiana's Petition of Rehearing, filed
in the Supreme Court of Louisiana
Chisom Intervenors' Brief In Support of Application
for Rehearing
Chisom Plaintiffs' Supplemental Memorandum of Law
In Support Motion To Dismiss
Letter of Victor A. Bolden, Esq. to Hon. Isabelle
Katz Pinzler, Acting Assistant Attorney General For
Civil Rights, United States Department of Justice,
dated October 15, 1997
FILEC
;.,
Auc Zi 1 28 hi 1S1
[A .
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS DIVISION
RONALD CHISOM, et al., )
)
Plaintiffs, )
)
UNITED STATES OF AMERICA, )
)
Plaintiff-intervenor, )
)
V. )
)
EDWIN W. EDWARDS, et al., )
)
Defendants, )
)
PASCAL F. CALOGERO, JR., et al. )
)
Intervenors. )
)
CONSENT JUDGMENT
Civil Action No.
86-4075
Section A
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 the multimember First Supreme Court district
along with Jefferson, Plaquemines, and St. Bernard Parishes.
The Chisom plaintiffs and the United States claim that the
multimember 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 eleotorate to participate in the
political process and elect justices of their choice. - In June
AUG 21 1992
DATE OF ENTRY ()
•
1992, the Louisiana Legislature passed and the Governor signed
Act No. 512 (S.B. 1255) (1992), which provides, inter alia, for a
change in the method of electing the Louisiana Supreme Court; for
the assignment of the judge elected to the newly-cre&ted position
from the first district (Orleans Parish) of the Fourth Circuit
Court of Appeal to the Louisiana Supreme Court; and for the
assigned judge to participate and share equally in the cases and
duties of the justices of the Supreme Court during this period of
assignment. The Chisom plaintiffs and the United States contend
that the provisions contained in Act No. 512 (1992) and in this
Consent Judgment are necessary to bring the system for electing
the Louisiana Supreme Court into compliance with Section 2.
While the defendants do not agree with this contention and only
enter into this compromise agreement to resolve extensive and
costly litigation, they believe that the relief contained in this
consent judgment will ensure that the system for electing the
Louisiana Supreme Court is in compliance with Section 2 of the
Voting Rights Act.
Accordingly, the parties to this litigation desire to effect
a settlement of the issues raised by the complaint and subsequent
proceedings without the necessity of further litigation, and
therefore consent to entry of the following final and binding
judgment as dispositive of all issues raised in this case:
S
It is hereby ORDERED, ADJUDGED, & DECREED:
A. The Court has jurisdiction over the parties and claims
in the complaint, under 28 U.S.C. 1331, 1343(3), and 1343(4).
B. The relief contained in this consent judgment will
ensure that the system for electing the Louisiana Supreme Court
is in compliance with Section 2 of the Voting Rights Act.
C. Consistent with Louisiana Act No. 512 (1992) and the
remedial objectives of the Voting Rights Act, the defendants
shall take the following actions:
1. There 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.
2. There shall be one new Fourth Circuit Court of
Appeal judicial position. This additional judge shall be
elected from the first district of the Fourth Circuit, which
is comprised of Orleans Parish. The initial election t
fill this position will be held on the congressional .primary
election date of October 3, 1992, and, if necessary, a
runoff election shall be held on November 3, 1992. The
candidate filing period for this election shall be set by
the Governor of Louisiana. The term of office shall
commence on January 1, 1993. The Louisiana Supreme Court
shall assign the judge elected to fill this new position
3
I.
immediately. to the Louisiana Supreme Court pursuant to its
authority under La. Const. Art. V, Section 5(A).
3. The Fourth Circuit Court of Appeal judge assigned
to serve on the Supreme Court shall receive the same
compensation, benefits, expenses, and emoluments of offices
as now or hereafter are provided by law for a justice of the
Louisiana Supreme Court.
4. The Fourth Circuit Court of Appeal judge assigned
to serve on the Supreme Court shall participate and share
equally in the cases, duties, and powers of the Louisiana
Supreme Court. Specifically, the assigned judge and the
seven Supreme Court justices shall be assigned on a rotating
basis to panels of seven judges, and the Court's cases shall
be assigned randomly to the seven-judge panels for decision.
The assigned judge and the seven Supreme Court justices
shall participate fully and share equally in all other
duties and powers of the Supreme Court, including, but not
limited to, those powers set forth by the Louisiana
Constitution, the laws of Louisiana, and the Louisiana Rules
of Court.
5. The additional judicial position for the Fourth
Circuit Court of Appeal described in paragraphs C.2.-C.4. of
this Consent Judgment shall expire automatically on the date
that a justice takes office subsequent to being elected in
any election called from a Supreme Court district composed
of Orleans Parish in accordance with paragraphs C.1. and
C.7. of this Consent Judgment.
6. 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 reasons 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 council, 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. Conste 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.
7. If a vacancy occurs in the presently existing
First Supreme Court District for any reason prior to January
1, 2000, the vacant first district Supreme Court position
shall be assigned immediately to the Supreme Court district
described in paragraph C.1. of this Consent Judgment that is
composed solely of Orleans Parish. The Governor shall call
a special election to fill the vacant position to coincide
with the next regularly scheduled presidential,
gubernatorial, congressional, New Orleans mayoral, state
legislative, New Orleans city council, 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.
8. Legislation 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 available. The reapportionment will provide for
a single-member district that is majority black in voting
age population that includes Orleans Parish in its entirety.
The reapportionment shall be effective on January 1, 2000,
and future Supreme Court elections after the effective date
shall take place in the newly reapportioned districts.
D. The State of Louisiana agrees to seek preclearance from
the Attorney General, pursuant to Section 5 of the Voting Rights
Act of 1965, 42 U.S.C. 1973c, in a timely manner for all changes
affecting voting covered by Section 5 that are necessary to
effectuate a full remedy and comply with this consent judgment.
•
E. Defendants agree that, in order to comply with the
Voting Rights Act, and in order to ensure black voters in the
Parish of Orleans have an equal opportunity to participate in the
political process and to elect candidates of their choice, the
Chisom plaintiffs and the United States are to be considered the
prevailing parties in this litigation. However, attorneys fees
and costs of litigation shall not be awarded in this matter
against parties who have intervened at any point in the
litigation.
F. This judgment is a restructuring of the Supreme Court
of Louisiana by federal court order within the meaning of Act No.
1063 of 1991 (R.S. 11:558(A)(5)), and the benefits of R.S.
11:558(A)(5)(a)(ii) shall be available to the current members of
the Court.
G. The Chisom plaintiffs' constitutional claims under the
Fourteenth and Fifteenth Amendments, as well as their statutory
claim alleging that the present electoral system violates Section
2 because it was intentionally, enacted or maintained for
discriminatory reasons, are hereby dismissed with prejudice.
H. This consent judgment constitutes a final judgment of
all claims raised in this action by the Chisom plaintiffs and the
United States, and is binding on all parties and their successors
in office.
I. This consent judgment shall not take effect unless and
until all changes affecting voting contained in Act No. 512
S
(1992) receive the requisite preclearance, pursuant to Section 5
of the Voting Rights Act.
•J. The parties agree to take all steps necessary to
effectuate this decree.
K. The Court shall retain jurisdiction over this case until
the complete implementation of the final remedy has been
accomplished.
1/ 4
This Consent Judgment is approved and entered this:744-11'
day of 1414-, 1992.
UNITED STATES DISTRI 4 "11A-j1
L7/611
John R. Dunne
Assistant Attorney General
Steven H. Rosenbaum
Donna M. Murphy
Attorneys, Voting Section
Civil Rights Division
United States Department Of Justice
P. 0. Box 66128
Washington, D.C. 20035-6128
(202) 514-6513
Counsel for Plaintiff—Intervenor—Appellant
United States of America
Albert 15ovan,Jr.
La. Bar Roll No. 17559
Executive Counsel
Honorable Edwin W. Edwards
Governor of Louisiana
Office of the Governor
Post Office Box 94004
Baton Rouge, Louisiana 70804-9004
(504) 342-0955
Edwin W. Edw
Governor of Lou
Post Office Box 94004
Baton Rouge, Louisiana 70804-9004
(504) 342-0955
Richard P. Ieyoub
Attorney General of Louisiana
State Capitol, 22nd Floor
Post Office Box 94005
Baton Rouge, Louisiana 70804-9005
(504) 342-7013
By:
Christina B. Peck
Assistant Attorney General
George M. Strickler, Jr.
639 Loyola Avenue, Suite 1075
New Orleans, Louisiana 70113
(504) 581-4346
M. Allen Stroud
Mitchell J. Landrieu
400 Poythas Street, Suite 2500
New Orleans, Louisiana 70130
(504) 566-0600
By:/41
Counsel for Intervenor
Honorable Pascal F. Calogero, Jr.
Chief Justice, Supreme Court of Louisiana
Peter J. Bu , S
601 Poydras Street, Suite 2440
New Orleans, Louisiana 70130-6036
(504) 523-2800
Counsel for Intervenor
Honorable Walter F. Marcus
Associate Justice, Supreme Court of Louisiana
W. Fox McKeithen
c t4ry of tat
in/I Minis rial Capacity as
Se
Je Fowle
in his Ministerial Capacity as
Cornrnissioei of Elections
By:
The parties agree to entry of this Consent Judgment by the
Court.
William P. Quigley
901 Convention Center Blvd.
Fulton Place, Suite 119
New Orleans, Louisiana 70130
(504) 524-0016
Julius L. Chambers
Charles Stephen Ralston
Dayna L. Cunningham
Sherrilyn F. Ifill
99 Hudson Street
16th Floor
New York, New York 10013
(212) 219-1900
Pamela S. Karlan
University of'Virginia School of Law
Charlottesville, Virginia 22901
(804) 924-7810
Roy J. Rodney, Jr.
643 Magazine Street
New Orleans, LA 70130-3477
(504) 586-1200
Ron Wilson
Richards Building, Suite 310
837 Gravier Street
New Orleans, Louisiana 70112
(504) 525-4361
„ i9.4e
Quj. ley /
Counsel or Plainti s-Appellants,
Ronald Chisom, Marie Bookman, Walter
Willard, Marc Morial, Louisiana Voter
Registration/Education Crusade, and
Henry A. Dillon, III
UNIYED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
4'3
CLEMENT F. PERSHCHALL, JR.,
Plaintiff,
vs.
THE STATE OF LOUISIANA,
Defendant,
and
RONALD CHISOM, et al.,
Defendant-Intervenors.
CIVIL ACTION NO.: 95-1265
SECTION "A"
MAGISTRATE: 2
MOTION TO INTERVENE AS DEFENDANTS
Ronald Chisom, Marie Bookman, Walter Willard, Henry Dillon, DI, and the Louisiana Voter
Registration/Education Crusade, move the Court to intervene in the present action as a matter of
right pursuant to Rule 24(a), and for permissive inervention pursuant to rule 24(b), Fed. Rules Civ.
Proc., as defendants in this action. In support of this motion they would show the following:
1. The proposed defendant-intervenors are named plaintiffs in Chisom v. Edwards, E.D. La.
Civil Action No. 86-4075(A). As such, they were signatories to the Consent Decree that settled that
case, and are entitled to the benefits of that decree. The consent decree requires that all parties take
all steps necessary to effectuate the decree.
2. The present action was filed originally in Louisiana state court for the specific purpose
of undoing the consent decree entered in Chisom through a collateral attack on Louisiana Act No.
512 (1992), the legislation enacted by the State of Louisiana that was the basis for the consent
decree. As recited in the consent decree, a copy of which is filed herewith as Exhibit A to the
proposed answer of the defendant-intervenors, Act No. 512 was enacted for the specific purpose of
settling the Chisom case.
3. If the relief plead for by plaintiff herein is granted, that is, if Act No. 512 is declared to
be unconstitutional and void, then the consent decree in Chisom will also fall, thereby destroying the
rights that plaintiff enjoys under that decree. Therefore, the applicants here, as the nained plaintiffs
in Chisom, have an interest relating to the transaction which is the subject of this action, and the
disposition of the action may impair or impede their ability , to protect their interest.
4. The applicants' interest is not adequately represented by the existing parties. Although
the State of Louisiana, the only named defendant herein, is also a party to the consent decree in
Chisom, it also represented the defendant in Chisom in that the nominal defendant therein was the
Governor of the State of Louisiana sued in his official capacity. Thus, the State of Louisiana
defended against the Chisom action vigorously. It was not until six years after the case was filed and
after two appeals to the Fifth Circuit and an appeal to the United States Supreme Court that the State
was finally willing to enter into the Consent Decree that would be destroyed by a verdict by the
plaintiff in the present case.
5. Alternatively, intervention should be permitted under Rule 24(b), since the defense of the
applicants herein and the defense of the defendant have a common question of law and fact, i.e., the
validity of the Consent-Decree in Chisom.
6. The present motion to intervene has been filed in a timely fashion, since this action was
removed to the Middle District of Louisiana on February 27, 1995, and transferred to this Court on
March 28, 1995.
WHEREFORE, for the foregoing reasons, the applicants pray that they be permitted to
2
intervene as defendants in the above entitled action. Their proposed answer is attached hereto as
required by Rule 24(c), F. Rules Civ. Proc.
Respectfully submitted,
William P. Quigley
Loyola Law School
7214 St. Charles
New Orleans, LA 70118
(504) 861-5590
Elaine R. Jones
Director-Counsel
Theodore M. Shaw
Charles Stephen Ralston
NAACP Legal Defense and Educational Fund,
Inc.
99 Hudson Street
Suite 1600
New York, New York 10013
(212) 219-1900
Defendant-Intervenors
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
CLEMENT F. PERSHCHALL, JR.,
Plaintiff,
vs.
THE STATE OF LOUISIANA,
Defendant,
and
RONALD CHISOM, et at.,
Defendant-Intervenors.
CIVIL ACTION NO.: 95-1265'
SECTION "A"
MAGISTRATE: 2
4.
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 2.08 E
Counsel for the State of Louisiana has no opposition to this intervention. Clement
Pershchall's consent was requested and he opposes this intervention, therefore this matter is set for
hearing.
•
Respectfully submitted,
William P. Quigley
Loyola Law School
7214 St. Charles
New Orleans, LA 70118
(504) 861-5590
Elaine R. Jones
Director-Counsel
Theodore M. Shaw
Charles Stephen Ralston
NAACP Legal Defense and Educational
S •
Fund, Inc.
99 Hudson Street
Suite 1600
New York, New York 10013
(212) 219-1900
.
el for Defendan rvenors
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
'CLEMENT F. PERSHCHALL, JR.,
Plaintiff,
vs.
THE STATE OF LOUISIANA,
Defendant,
CIVIL ACTION NO.: 95-1265
SECTION "A"
MAGISTRATE: 2
and
RONALD CHISOM, et al.,
Defendant-Intervenors.
ORDER
WHEREAS, Ronald Chisom, et al., the plaintiffs in Chisom v. Edwards, Civil Action
No. 86-4075(A) have moved to intervene as defendants in this action; and
WHEREAS, the gravaman of the present action is the validity of 1992 Louisiana Act
512, which formed the basis of the Consent Decree in Chisom v. Edwards; and
WHEREAS, the resolution of the present case will directly affect the rights of the
applicants for intdriGition in this case; and
WHEREAS, the proposed defendant-intervenors have moved for intervention in a timely
fashion and their intervention would not unduly delay these proceedings.
IT IS ORDERED that the motion to intervene as defendant-intervenors is granted and that
the proposed answer of the defendant-intervenors filed with their motion to intervene is deemed
1
New Orleans, Louisiana, , 1995.
CHARLES SCHWARTZ, JR.
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CLEMENT F. PERSCHALL, JR.
VERSUS
THE STATE OF LOUISIANA
ORDER AND REASONS
.1 12 19 Fli '95
• i'ceri:
CIVIL ACTION
NO. 95-1265
SECTION "A"
Before the Court are the following motions filed in the
captioned matter which have been submitted on the filings of
record:
1. Plaintiff Clement F. Perschall, Jr.'s ("Perschall's")
Motion to Dismiss for Lack of Jurisdiction;
2. Defendant the state of Louisiana's ("the State's")
Motion to Dismiss;
3. Motions to Intervene filed on behalf of the United
States, Jacqueline Carr, Ronald Chisom, Marie Bookman, Walter
Willard, Henry Dillon, III, and the Louisiana Voter
Registration/Education Crusade.
I. PROCEDURAL BACKGROUND:
On January 2, 1995, plaintiff Clement Perschall, Jr., filed a
"Petition for Declaratory Judgment on the Constitutionality of
" do. ••••••• pr. ow • .no
a/ ;••• • mi. •
•
-
TEE
PROCE
x cRCE
iNDEx
N•_et,P:.:-7.:". Kr.
117Z7.+IrnS
an.
Louisiana Acts 1992, No. 512" 1 in the Nineteenth Judicial District
for the Parish of East Baton Rouge. Distilled to its essence,
plaintiff's petition seeks a ruling declaring the aforesaid
Louisiana Act unconstitutional both as a violation of the Louisiana
Constitution and the Constitution of the United States.
Plaintiff's allegations are more particularly that: (1)
La.Rev.Stat. 13: 312.4 as amended by Louisiana Acts 1992, No. 512
which in effect creates an eighth seat on the Louisiana Supreme
Court violates Article 5 Section 3 of the Louisiana Constitution of
1974 which provides that the Louisiana Supreme Court shall be
composed of a chief judge and six associated justices; (2)
La.Rev.Stat. 13:312.4 as amended constitutes a violation of Article
3 Section 12 of the Louisiana Constitution of 1974 insofar as it
constitutes an attempt to legalize an unauthorized and invalid act
by the State and to temporarily suspend the provisions of law; (3)
Acts 1992, No. 512 amending La.Rev.Stat. 13:312.4 constitutes a
violation of Section 13, Article 3 of the 1974 Louisiana
Constitution in that its notice requirements were never met prior
to the passage of Senate Bill 1255; and (4) Acts 1992, No. 512
amending La.Rev.Stat. 13:312.4 violates the Fourteenth Amendment of
the United States Constitution and Section 2, Article 1 of the
'Louisiana Act 512 of 1992 provides at 5312.4 for the
establishment of a temporary additional judgeship for the Louisiana
Fourth Circuit Court of Appeal to be elected from the first
district of the Fourth Circuit which is comprised of Orleans Parish
and pursuant to its authority under Article V, Section 5(A) of the
of the Louisiana Constitution the Louisiana Supreme Court assigned
such official elected to fill the newly created position on the
Fourth rArr.11 41. to the T^" 4 ": Czurt. Azt :12 4-,Z 12
Louisiana Legislature was signed into law on June 22, 1992.
2
Louisiana Constitution in that the enactment constitutes a denial
of petitioner's right to vote, petitioner's ability to practice
law, etc., all of which are guaranteed by the United States
Constitution and the Constitution of the State of Louisiana and
thus, should be declared, unconstitutional on all counts and void ab
initio. See Plaintiff's Petition (Rec.Doc.No. 1, Exhibit "2"].
On February 27, 1995, defendant the State of Louisiana
pursuant to 28 U.S.C. S 1441 filed a Notice of Removal stating that
the United 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. Plaintiff's motion to dismiss/remand
is premised on his contentions that: (1) the Court lacks subject
matter jurisdiction over the entire •case because as original
defendant, the State of Louisiana has not waived sovereign immunity
under the Eleventh Amendment; (2) abstention is required under the
pleadings as this case is basically a state matter; and (3) venue
is improper in the Eastern District of Louisiana. See Plaintiff's
Motion to Dismiss for Lack of Jurisdiction and Memorandum in
Support; and Memorandum in Opposition to Jacqueline Carr's Motion
to Intervene.
II. ANALYSIS:
The Pullman doctrine of abstention authorizes a federal court
to abstain when adjudication of a federal constitutional issue can
be avoidd by a deteiluinaliou oi state law whie;1
3
addressed by a state court. Railroad Comm'n of Texas v. Pullman
Co., 312 U.S. 496, 498-500 (1941). Pullman abstention is addressed
to the inappropriateness of federal court resolution of difficult
or unsettled questions of state law and the undesirability of
reaching federal constitutional questions that might be mooted by
application of state law. Word of Faith World Outreach Center v.
Morales, 986 F.2d 962, 967 (5th Cir. 1993). It involves a
discretionary exercise of a Court's equity powers. Baggett V.
Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377
(1964).
As the state's supreme court is the ultimate authority and is
not bound by the federal court's ruling on the state law issues, a
ruling by the federal court in a case such as the present one would
be nothing but a forecast. pullman, 312 U.S. at 499-500. 2
• .
Moreover, a contrary decIslon by the state court may obviate the
need for a federal constitutional ruling. In such circumstances an
initial review by a federal court would create delay and waste
judicial resources.
As previously detailed at length, this removed/transferred
declaratory judgment action presents this Court with claims that
'Underlying the Supreme Court's order of abstention in Pullman
is an emphasis on comity. Respect for the expertise of a state's
judicial system in construing state statutes pervades the majority
opinion. It is the combination of unresolved state law issues with
the presence of a federal constitutional claim which makes the
present case analogous to ?unman. Justice Frankfurter, writing
for the Pullman Court, described the driving force behind the
abstention doctrine as follows: "[Fiederal courts, 'exercising a
wise discretion', restrain their authority because of a 'scrupulous
regard fer the rightful independence of the state twrant.N1 4,1A
tor the smooth working of the federal judiciary." 312 U.S. at 501.
4
•
Louisiana Act 1992, No. 512 offends the Louisiana Constitution of
1974 as well as other Louisiana statutory provisions. But for one
count in the plaintiff's petition referencing the Fourteenth
Amendment to the Constitution of the United States, state law
issues dominate this matter. A state court's determination that
Act 512 violates Louisiana law would in all likelihood moot or
substantially alter the plaintiff's single federal constitutional
claim. Moreover, in light of the state courts' final authority to
interpret doubtful state laws, a ruling by this Court as to the
state law issues would constitute merely a tentative decision
subject to prompt displacement by a state adjudication. On the
other hand, 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
y
constitutional adjudication, needless friction with state policies,
and decision on unsettled questions of state law better resolved by
state courts.
By abstaining from deciding the state constitutional issues,
the Court does not undermine the substantial federal interest in
determining the constitutionality of Act 512. Such an interest
clearly exists since the validity of the Consent Judgment entered
by this Court in the Chisom case rests on a determination of the
viability of the aforesaid act under the Louisiana Constitution.
However, since any judgment of this Court in that respect would
constitute merely a prediction, the net result would be to delay
final rennlntinn of the. state law ,monstitutional icsues.
5
Amendment claim which this Court retains and stays pending
resolution of the state law issues by the Louisiana courts.
Finally, this Court will abstain from ruling on the state's Motion
to Dismiss and the Motions to Intervene insofar as they relate to
the state law issues, as such motion should be addressed by the
Nineteenth Judicial District for the Parish of East Baton Rouge,
Louisiana. Accordingly,
IT IS ORDERED that the state law issues set forth in the
plaintiff's Petition for Declaratory Judgment be and hereby are
REMANDED to the Nineteenth Judicial District for the Parish of East
Baton Rouge, Louisiana.
IT IS FURTHER ORDERED that as to the single federal
constitutional claim this Court shall retain jurisdiction over
same, however, the Court STAYS further proceedings in this Court
pending resolution of the state law issues by the Louisiana courts.
IT IS FURTHER ORDERED that counsel for the parties shall
promptly advise this Court of any resolution of the state law
claims by the Louisiana courts and if and when appropriate, move to
lift the stay of these proceedings and return this case to the
Court's active docket.
IT IS FURTHER ORDERED that the case, now consisting of only
the solo federal constitutional claim is administratively closed.
New Orleans, Louisiana, thist.:5 day of July, 1995.
4,4t,
'UNITED STATES DfS ICT CO
7
-1
NUMBER: 413-714
- Cr)
- --FI
DEPUTY CLERK
***ep*****************************************************************************
19TH JUDICIAL DISTRICT COURT
• FOR THE PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
DIVISION A DOCKET NUMBER
CLEMENT F. PERSCHALL, JR.
VERSUS
STATE OF LOUISIANA
MOTION TO INTERVENE AS DEFENDANTS
Rqoald Chisom, Marie Bookman, Walter Willard, Henry Dillon, III, and the Louisiana Voter
CD t•-•
Registration/Education Crusade, through undersigned counsel, move the Court to intervene in the •-
▪ present action pursuant to the Louisiana Code of Civil Procedure, Articles 1031 et seq., particularly
••••••••••
Article 1.091(2) as defendants in this action. In support of this motion they would show the
t.:
< e-,
6t-91 figtOWthg:
119
r. The proposed defendant-intervenors are named plaintiffs in Chisom v. Edwards, E.D. La.
U.S.D.C. Civil Action No. 86-4075(A). As such, they were signatories to the Consent Decree that
settled that case, and are entitled to the benefits of that decree. The consent decree requires that all
parties take all steps necessary to effectuate the decree.
2. The present action was filed originally in Louisiana state court for the specific purpose
of undoing the consent decree entered in Chisom through a collateral attack on Louisiana Act No.
512 (1992), the legislation enacted by the State of Louisiana that was the basis for the consent
decree. As recited in the consent decree, a copy of which is filed herewith as Exhibit A to the
proposed answer of the defendant-intervenors, Act No. 512 was enacted for the specific purpose of
settling the Chisom case.
3. If the relief plead for by plaintiff herein is granted, that is, if Act No. 512 is declared to
be unconstitutional and void, then the consent decree in Chisom will also fall, thereby destroying the
rights that plaintiff enjoys under that decree. Therefore, the applicants here, as the named plaintiffs
in Chisom, have an interest relating to the transaction which is the subject of this action, and the
disposition of the action may impair or impede their ability to protect their interest.
4. The applicants' interest is not adequately represented by the existing parties. Although
1
the State of Louisiana, the only named defendant herein, is also a party to the consent decree in
Chisom, it also represented the defendant in Chisom in that the nominal defendant therein was the
Governor of the State of Louisiana sued in his official capacity. Thus, the State of Louisiana
defended against the Chisom action vigorously. It was not until six years after the case was filed and
after two appeals to the Fifth Circuit and an appeal to the United States Supreme Court that the State
was finally willing to enter into the Consent Decree that would be destroyed by a verdict by the
plaintiff in the present case.
5. Alternatively, intervention should be permitted since the defense of the applicants herein
and the defense of the defendant have a common question of law and fact, i.e., the validity of the
Consent Decree in Chisom.
6. The present motion to intervene has been filed in a timely fashion and will not retard the
progress of the principal action. Intervenors have tried to intervene in this matter already in federal
court but their intervention was delayed while the federal court decided whether to retain jurisdiction.
WHEREFORE, for the foregoing reasons, the applicants pray that they be permitted to
intervene as defendants in the above entitled action.
Respectfully submitted,
William P. Quigley #7769
Loyola University New Orleans
School of Law
7214 St. Charles
New Orleans, LA 70118
(504) 861-5590
Ronald L. Wilson
18th Floor, • 210 Baronne
New Orleans, LA 70112
(504) 525-4361
Walter Willard
1100 Poydras, Suite 2150
New Orleans, LA 70163-2150
(504) 568-0541
Elaine R. Jones
Director-Counsel
Theodore M. Shaw
Charles Stephen Ralston
Jacqueline Berrien
NAACP Legal Defense and Educational Fund,
Inc.
99 Hudson Street
Suite 1600
New York, New York 10013
(212) 219-1900
illiam P. Quigley
Counsel for Defendant-Intervenors
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing pleadings have been served by depositing
same in the United States mail, first class postage prepaid, on this I '2_ of
19, addressed to the following:
Richard P. Ieyoub
Attorney General of Louisiana
State Capitol, 22nd Floor
Post Office Box 94005
Baton Rouge, LA 70804-9005
Peter J. Butler
Peter J. Butler, Jr.
Special Counsel for the State of Louisiana
755 Magazine Street
New Orleans, LA 70130-3672
Robert McDuff
771 N. Congress St.
Jackson, MS 39202
Tyron D. Picard & Mark Stipe
Petroleum Tower, Suite 330
3639 Ambassador Caffrey Parkway
Lafayette, LA 70503
Clement F. Perschall, Jr.
One Galleria Boulevard
Galleria One, Suite 1107
Metairie, LA 70001
WILLIAM P. QUIGL
PASCAL F. CALOGERO, JR.
CHIEF JUSTICE
JOHN TARLTON OLIVIER
CLERK. OF COURT
uprznir anurt
STATE OF LOUISIANA
Priv( (Orleans
Newember 8, 1996
96-CC-0322 CLEMENT F. PERSCHALL, JR. v. THE STATE OF
LOUISIANA
On Supervisory Writs to thee Court of Appeal,
Finst Circnit No. 96 CW 0301; Parish of
East Baton Ronge Nn. 41.1 :714 W.,r. P. 7^.sta.r
Sanders Judge presiding.
DOMENGEAUX & WRIGHT
Tyron David Picard;
PICARD & STIPE
Mark Edward Stipit;
DEUTSCH, KERRIGAN & STLLES
Peter J. Butler, Peter J. Butler, Jr.
Richard Gary Passler;
Robert McDuff;
Counsel for Applicaat.
Clement F. Perschall, Jr.;
LEMLE & KELLEHER
Walter Ignatius Willard;
Ronald Earle Wilson;
LOYOLA LAW SCHOOL
William Patrick Quigley;
Jacqueline Carr;
NAACP LEGAL DEFENSE ED. FUND
Charles Stephen Ralston,
Theodore M. Shaw,
Eiaine k. doaes;
Counsel for Respondent.
NOTE: FOR BRIEFING PURPOSES WRIT GRANTED November 8, 1996
MEMORANDUM TO COUNSEL IN CAPTIONED CASE:
i0v 1.2 1996
301 LOYOLA AVE., 70112
TELEPHOME 504-568-5707
Please note Section 8 of Rule VII of the Rules of thi3 Court (as revised
November 19, 1991) provides that the amlicant(s) or relator (s), as the
case may be, must file brief(s) within L5 dais_ and the respondent(s)
within 45 days, respectively, from the date of the granting of this
writ. Briefs should be timely filed if oral argument is desired.
Briefs submitted on legal sized paper should be fastened at the top.
All briefs should be backed with the customary "Blueback" or other
flexible material. In criminal proceedings, the Court directs that
counsel must file a brief. Failure to do so may subject counsel to a
penalty of contempt of Court.
It is further provided in Rule VII, Section 9 that briefs sent through
the mail shall be deemed timely filed if mailed on or before the due
date. If the brief iz eciv h7 mail on f4irst lupl 8,%y
the expiration of the delay, there shall be a rebuttable presumption
that it was timely filed. In all cases where the presumption does not
apply, the timeliness of the mailing shall ba shown only by an official
United States postmark or by official receipt or certificate from the
United States Postal Service made at the time of mailing which indicates
the date thereof. Therefore, if your brief is sent by certified mail,
you may want to send us a copy of your official receipt showing date of
mailing.
rlton Olivier
Court
JTO:rd
•
SUPREME COURT OF LOUISIANA
No. 96-CC-0322
CLEMENT F. PERSCHALL, JR.
Versus
THE STATE OF LOUISIANA
ORDER*
This i an action for declaratory judgment which was filed in the 19th
Judicial District Court for East Baton Rouge Parish. Plaintiff seeks to have La.
Acts 1992, No. 512, declared unconstitutional as violative of the federal and state
constitutions.
Act 512 established a temporary additional judgeship for the Court of
Appeal, Fourth Circuit, to be elected from Orleans Parish, and further provided for
the Supreme Court of Louisia.:a assign iliat judge to the Supreme Court under
the assignment authority in La. Const. art. V, §22. Act 512, in effect, reconstituted
the Supreme Court in accordance with the consent decree, dated August 21, 1992,
in Chisom v. Edwards, No. 86-4075 on the docket of the United States District
Court for the Eastern District of Louisiana. .
The State removed the action to the United States District Court for the
Middle District of Louisiana, who transferred the action to the court that had issued
the consent decree.
*Calogero, C.J., and Marsus and Johnson, recused.
On plaintiff's motion to remand the action to the state court, the federal court
remanded "the state law issues" to the state court. Applying the doctrine of
Railroad Comm'n of Tx. v. Pullman Co., 312 U.S. 496 (1941), the federal court
noted the inappropriateness of its resolving unsettled questions of state law and the
undesirability of reaching federal constitutional questions that might be mooted by
application of state law.
On plaintiffs motion for reconsideration, the federal court amended its order,
retaining jurisdiction over the entirety of the action and remanding to the state court
solely to decide the issue of the constitutionality of Act 512 under state law.
After several applications for supervisory writs to this court,' we issued an
order instructing the parties to file briefs on the issues of (1) whether this court
should bypass the lower courts in this matter affected with a public interest and (2)
whether Louisiana courts should respond to the federal court's partial invocation
of the abstention doctrine.
Upon revwing the brif:.r-, hv1,-,..;(lerito bynass the lower courts and
bring up all aspects of the case. This court's supervisory authority under La.
Const. art. V, §5(A) is plenary, unfettered by jurisdictional requirements, and
exercisable at this court's discretion. Hainkel v. Henry, 312 So. 2d 867 (La. 1975);
State Bond Comm'n v. All Taxpayers. Property Owners and Citizens of the State
of La., 510 So. 2d 662 (La. 1987). Because of the importance of this case to the
public and to the orderly processes of government, we exercise our supervisory
jurisdiction and grant certiorari, bringing the entire case up to this court for
argtiment and decision.
The case will be set for oral argument on Monday, February 24, 1997 at 2:00
'The two justices elected in the First Supreme Court District
and the justice assigned to this court under Act 512 voluntarily
recused themselves from the case.
p.m. The clerk will notify the parties of the briefing schedule.
The court instructs the parties to include the following issues in their briefs:
1. Should the Louisiana court respond to the federal court's
remand order if to do so would require rendition of an advisory
opinion or of a declaratory judgment that will not terminate the
uncertainty or controversy that gave rise to the proceeding --
that is, a judgment declaring that Act 512 violates the Louisiana
Constitution unless saved by the federal consent decree?2
2. Does the federal court's remand order constitute certification of
a question of Louisiana law to the Supreme Court of Louisiana
which has discretion to refuse such certified questions from the
Supreme Court, of the United States and the federal courts of
appeals?
3. Does Act 512 violate the Louisiana Constitution?
November 0, 1996.
2P, judgment declaring that Act 512 does not violate the
Louisiana Constitution would leave plaintiff's due process claims
to be decided by the federal court.
3
e*titte (gaud of tilt etat e 01 Ermb34ga
CLEMENT F. PERSCHALL. JR.
VS
THE STATE OF LOUISIANA '
In re: State of Louisiana
applying for Writ of Certiorari
No. 413,7.14
No. 96-CC-0322
on the docket of the 19th Judicial
District Court for the Parish of East Bai..on Rouge , and
NO. 96 CW 301 on the docket of the Court of Appeal, First
Circuit, State of Louisiana.
And, whereas, the Court has this date, pursuant to Article 5, Section 5,
of the Constitution of Louisiana, made and issued the following order, to-wit ---
"It is ordered that the writ of review issue; that the District Court and the
Court of Appeal send up the record in Duplicate of the case; and that counsel for
all parties be notified."
Now, therefore, the said District Court and the Court of Appeal is hereby
commanded, in the name of the State of Louisiana and of this Honorable Court, to
send up forthwith to this Court, at the City of New Orleans, the record in
duplicate of the above entitled case.
Witness the Honorable Justices of the
Supreme Court of the State of Louisiana, on
this 8th day of November , in the
year of Our Lord, One Thousand, Nine
Hundred and Ninety Six.
John Tarlton Olivier
Clerk of Court
PASCAL F. C.ALOGERO, JR.
CHIEF JUSTICE
JOHN TARLTON OLIVIER
CLERK OF COURT
cSuprzutz arturt
STATE OF LOUISIANA
Mrieztits
September 5, 1997
Hon. Richard P.Ieyoub
Attorney General
State Capitol
P.O. Box 94005
Baton Rouge, La. 70804-9005
Tyron D. Picard, Esq.
Mark Stipe, Esq.
3639 Ambassador Caffrey Pkwy.
Suite 330
Lafayette, La. 70503
301 LOY° Uk AVE., 70112
TELEPHONE 504-568-5707
Peter J. Butler, Esq.
Peter J. Butler, Jr. Esq.
Richard G. Passler, Esq.
909 Poydras St., Ste. 2400
New Orleans, La. 70112
Robert McDuff, Esq.
767 N. Congress St.
Jackson, Ms. 39202
In Re: Clement Perschall vs. State of Louisiana
No. 96-CC-0322
Dear Counsel:
Enclosed please find a News Release documenting this court's denial
of the applications for rehearing, in the above entitled referenced
case.
This judgment is now final. By copy of this letter we are advising
both the trial court and appellate court of the finality of this
case and instructing them to do whatever is necessary to implement •
the judgment.
With kindest regards, I remain,
Very truly yours,
John Tarlton Olivier
Clerk of Court
TAD/rd
ccs: Hon. Robert D. Dwoning
Hon. Stanley Lemoine
Hon. Douglas Welborn
All Counsel
BY: Theophile A. -Duroncelet
Deputy Clerk of Court
S
Empretne (gaud of Eoutotana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 075
FROM: CLERK OF SUPREME COURT OF LOUISIANA
On the 5th day of September. 1997, the following action was taken by
the Supreme Court of Louisiana in the case(s) listed below:
REHEARING DENIED:
96-CC- 0322 CLEMENT F. PERSCHALL, JR. v. THE STATE OF LOUISIANA
(Parish of East Baton Rouge)
Three Applications
CALOGERO, MARCUS & JOHNSON recused.
PITCHER, J. - would grant the application of the State
of Louisiana and the Intervenors, Ronald Chisom, et al.
p. 1 of 1 page)
•
!,(1$
htt, r E13 1 0 1997
PASCAL F. CALOGERO, JR.
CHIEF JUSTICE
JOHN TARLTON OLIVIER.
CLERK OF COURT
$uprentr enurt
STATE OF LOUISIANA
!Girl Mritanz
February 5, -1997
301 LOYOLA AVE.. 70112
TELEPHONE 504-568-5707
96-CC-0322 CLEMENT F. PERSCHALL, JR. VS. THE STATE 0 OUISIANA
On Supervisory Writs to the Court of Appeal, First
Circuit Number CW96 0301; Parish of East Baton Rouge
19th Judicial District Court Number 413,714 Division
"A", Hon. Foster Sanders, Judge presiding
COUNSEL FOR APPLICANTS
Richard Ieyoub, Attorney General
PICARD & STRIPE
Mark E. Stripe, Tyron D. Pichard;
BREAZEALE, SACHSE & WILSON
Peter J. Butler, Peter J. Butler, Jr.,
Richard G. Passler;
Robert McDuff;
FOR RESPONDENT
Clement F. Perschall, Jr;
FOR INTERVENORS
LEMLE & KELLEHER
Walter I. Willard;
Ronald E. Wilson;
Loyola Law School,
William P. Quigley;
NAACP LEGAL DEFENSE EDUCATIONAL FUND,
Charles S. Ralston, Theodore M. Shaw,
Elaine R. Jones, Norman J. Chachkin,
Victory A. Bolden, Jacqueline A. Berrier;
Jacqueline Carr;
MEMORANDUM TO COUNSEL IN CAPTIONED CASE: RECORD LODGED 02/05/97
Very truly yours
John Tarlton Olivie
Clerk of Co rt jl
By: Theophile A. Duroncelet
Deputy Clerk of Court
TAD/m1m
PASCAL F. CALOGERO, JR.
CHIEF JUSTICE
JOHN TARLTON OLIVIER
CLERK OF COURT
Suprrnte Court
STATE OF LOUISIANA
ki Mrteztits
July 18, 1997
William Patrick Quigley Esq.
LOYOLA LAW SCHOOL
7214 St. Charles Ave.
New Orleans LA 70118
In Re: Perschall, Clement F., Jr.
vs. State of Louisiana
No: 96-CC- 0322
Dear Counsel:
RECO JUL 2 4 1997
301 LOYOLA AVE., 70112
TELEPHONE 504-568-5707
This is to advise that the Court took the following action on your
Motion for Time to Supplement Brief, filed in the above entitled
matter:
"Defendant - Intervenors motion for an additional 15
days to supplement their brief is granted."
With kindest regards, I remain,
JTO:mlb
ccs: Clement F. Perschall, Jr.
Mark Edward Stipe Esq.
Peter J. Butler Jr., Esq.
Robert McDuff, Esq.
Jacqueline Carr, Pro Se
Walter Ignatius Willard Esq.
Theodore M. Shaw, Esq.
Norman J. Chachkin, Esq.
Victor A. Bolden, Esq.
Jacqueline A. Berrien, Esq.
Very truly yours,
•
lton Olivier
Court
Tyron David Picard Esq.
Peter J. Butler Esq.
Richard Gary Passler Esq.
Hon. Richard P. Ieyoub
Ronald Earle Wilson Esq.
Elaine R. Jones, Esq.
Charles Stephen Ralston, Esq.
Jacqueline A. Berrier, Esq.
Charles S. Ralston, Esq.
Jacqueline Berrien, Esq.
Court of Appeal, First Circuit, Number CW96 0182
19th Judicial District Court Div."A" Number 413,714
S. •
tupreme Tout of Eoutstana
MONDAY, FEBRUARY 24, 1997
2:00 P.M. SESSION
(CHIEF JUSTICE CALOGERO AND JUSTICES MARCUS AND JOHNSON RECUSED)
96-CC-0322 Clement F. Perschall, Jr. v. The State of Louisiana
ON SUPERVISORY WRITS
Richard P. Ieyoub, Attorney General,
Picard & Stipe,
Mark Edward Stipe, Tyron David Picard;
Breazeale, Sachse & Wilson,
Peter J. Butler, Peter J. Butler, Jr.,
Richard Gary Passler;
Robert McDuff;
For Applicant.
Clement F. Perschall, Jr.;
For Respondent.
Lemle & Kelleher,
Walter Ignatius Willard;
Ronald Earl Wilson;
Loyola Law School,
William Patrick Quigley;
NAACP Legal Defense Educational Fund,
Charles Stephen Ralston, Theodore M. Shaw,
Elaine R. Jones, Norman J. Chachkin,
Victory A. Bolden, Jacqueline A. Berrier;
Jacqueline Carr;
For Intervenors.
3
•
BREAZEALE , SACHSE 8 W ILSON, L.L.R
GORDON A. PuGH
JAMES E. TOUPS, JR
PAUL N. HEBERT, JR.*
VAN R. MAYHAU... JR.•t
LEONARD R. NACHMAN. IIP MICHAEL M. WIRPEL
CLAUDE F. REWAu0. JR.
muRPHY J. CR111
'my* R. CASSIDY•t
ROBERT T. BOWSHER't
CHRISTINE UPSEY
DAVID R. KELLY
CECIL J. BLACHE
ROBERT L ATKINSON
DAVID M. CHARLTONt
DOUGLAS K. WILLIAMS
STEPHEN F. CHICCARELU
EMILE C. ROLFS, III
JOHN E. HEINRICH
RICHARD D. LEIBOWITZ
MICHAEL R. HUBBELL
JOHN W. BARTON, JR.
JUDE C. BURSAVICH
JOSEPH E. FRIEND
PETER J. BUTLER, JR.
FRANK S. CRAIG. Ills
JON C. ADCOCK
LEO C. HAMILTON
GAYLA M. MONCLA
STEVEN B. LOEB
JAMES R. CHASTAIN. JR
J. MARK ROBINSON
UNDA P CLARK
TRENTON J. OUBRE
JERRY L STOVALL. JR.t
LUIS A LEITZELAR
JEANNE C. COMEAUX
MICHAEL A. CRAwFORD
ELIZABETH SHERMAN COX
ANDREW J. HARRISON, JR..
MATTHEW M. COURTmAN
RICHARD 0, PASSLF.11
W. CHRISTOPHER BEARY
STEPHEN R. WHALEN
ANDREW TYRONE McMAINS
WENDY E. WISEMAN
CULLEN J. DyPUY
AVERY LEA GRIFFIN
JOSEPH P. :T1TONE
JUUET T. RIZZO
MICHAEL C. LUOUET
DAVID S. VOSS
SEWARD curronco FAMILY LAW SPECIAUST
*MASTER OF LAWS IN TAXATION
?BOARD CERTIFIED TAX ATTORNEY
&ALSO ADMITTED IN TEXAS
AmASTER OF LAWS IN ENVIRONMENTAL
ATTORNEYS AT LAW
LL8E TOWER. SUITE 2400
909 POYDRAS STREET
NEW ORLEANS. LOUISIANA 70112
(504) 584-5454
FAX (504) 584-5452
BATON ROUGE OFFICE
TWENTY-THIRD FLOOR. ONE AMERICAN PLACE
POST OFFICE BOX 3197
BATON ROUGE. LOUISIANA 70821-3197
(504) 387-4000
FAX (504) 387-5397
Via By-Hand Delivery
, Honorable John Tarlton Olivier
Clerk of Louisiana Supreme Court
301 Loyola Avenue
New Orleans, Louisiana
July 15, 1997
Re: Clement F. Perschall, Jr. v. The State of Louisiana
No. 96-CC-0322
Dear Mr. Olivier:
H. PAYNE BREAZEALE (ieleem990)
VICTOR A SACNSE. JR. (I003-1979)
MAURICE .1. WILSON (19,94990)
HOPKINS P BREAZEALE. JR. (9 204979)
SPECIAL COUNSEL
PETER BUTLER
OF COUNSEL
VICTOR A SACNSE. III
GARY L LABORDE
Please find enclosed for filing in the above referenced matter an original and nine copies of
the Application for Rehearing on behalf of the State of Louisiana.
Pursuant to La. R.S. 13:4521 the State of Louisiana is exempt from the paying of costs and,
thus, none are enclosed.
If you have any questions concerning this letter or the enclosed pleading, please do not
hesitate to contact our office.
With kindest personal regards, I remain
Yours very truly,
PETER. BUTLER
PJB/lfrn
Enclosure
SUPREME COURT FOR THE STATE OF LOUISIANA
NO. 96-CC:0322
CLEMENT F. PERSCHALL, JR.
VERSUS
THE STATE OF LOUISIANA
On Grant of Certiorari
APPLICATION FOR REHEARING
ON BEHALF OF THE STATE OF LOUISIANA
Richard P. Ieyoub,
Attorney General, State of Louisiana
State Capitol
P.O. Box 94005
Baton Rouge, Louisiana 70804-9005
Peter J. Butler (Bar # 3731) - T.A.
Peter J. Butler, Jr. (Bar #18522)
Richard G. Passler (Bar # 21006)
LL& E Tower, Suite 2400
909 Poydras Street
New Orleans, Louisiana 70112
Telephone: (504) 584-5454
Tyron D. Picard (Bar #20473)
Mark Stipe (Bar # 19803)
Petroleum Tower, Suite 330
3639 Ambassador Caffrey Parkway
Lafayette, Louisiana 70503
Telephone: (318) 983-0090
Robert McDuff, Esq.
767 N. Congress St.
Jackson, Mississippi 39202
Telephone: (601) 969-0802
Special Counsel for the State of Louisiana
NOW INTO COURT, through undersigned counsel, comes the State of Louisiana (the
"State"), who, pursuant to Rule IX of the Louisiana Supreme Court, moves this Court to grant the
State a rehearing in this case, and pursuant to Rule a Section 3 of the Louisiana Supreme Court,
for further time for the filing of a brief in support of this application, all for the reasons set forth
below:
1.
In this case, the Court has declared La. Acts 1992, No. 512 ("Act 512") to be unconstitutional
in its entirety.
2.
Act 512 impacts upon the present composition of the Louisiana Supreme Court and its own
power of assignment and, thus, upon the entire Louisiana judicial system.
3.
In the opinion issued by this Court, it has effectively rewritten Louisiana law and, for the first
time, authorized the issuance of advisory opinions by the Louisiana judicial system; the effect of
which may open the proverbial "litigation floodgates" in Louisiana courts.
4.
In the opinion issued by this Court, it has also overruled its own precedent that the right and
power to assign judges to assist courts is "explicit and unfettered." State v. Bell, 392 So.2d 442 (La.
1981) (citing La. Const. Art. V § 5(A) providing without qualification that this Court "may assign
a sitting or retired judge to any court"). As stated in Bell by this Court: "all efforts to limit the
plenary power during the 1973 Constitutional Convention were decisively rejected." 392 So.2d at
443.
5.
In the opinion issued by this Court, it has also overruled its own precedent that the state
constitution permits a temp-orary addition of several Court of Appeal judges to the Louisiana
Supreme Court, State v. Petterway, 403 So.2d 1157 (La. 1981). While the dissent in Petterway
complained that the addition of the Court of Appeal judges had not been authorized by the
legislature in accordance with the language of Article V, Section 4 -- "by law enacted by two-
thirds of the elected members of each house of the legislature" -- 403 So.2d at 1164 (Redmann J.,
dissenting), the temporary addition of one Court of Appeal judge in the present situation was so
authorized through Act 512 by over two-thirds of the members of each house of the legislature. See
State's Original Brief at p. 13. n.9.
6.
In accordance with Rule IX Section 3 of the Louisiana Supreme Court, the State requests
additional time, specifically sixty (60) days, in which to file a brief in support of this application.
WHEREFORE, the State of Louisiana respectfully requests that this Court grant this
Application for Rehearing and provide the State of Louisiana sixty (60) days within which to file
a brief in support hereof.
Respectfully submitted,
Richard P. Ieyoub,
Attorney General, State of Louisiana
State Capitol
P.O. Box 94005
Baton Rouge, Louisiana 70804-9005
Peter J. Butler (Bar # 3731) - T.A.
Peter J. Butler, Jr. (Bar #18522)
Richard G. Passler (Bar # 21006)
LL&E Tower, Suite 2400
909 Poydras Street
New Orleans, Louisiana 70112
Telephone: (504) 584-5454
Tyron D. Picard (Bar #20473)
Mark Stipe (Bar # 19803)
Petroleum Tower, Suite 330
3639 Ambassador Caffrey Parkway
Lafayette, Louisiana 70503
Telephone: (318) 983-0090
Robert McDuff, Esq.
767 N. Congress St.
Jackson, Mississippi 39202
Telephone: (601) 969-0802
BY:
PETER J. 'BUTLER
Special Counsel for the State of Louisiana
2
CERTIFICATE
I HEREBY CERTIFY that a copy of the above and foregoing pleading has been forwarded
to:
Clement F. Perschall, Jr., Esq.
One Galleria Boulevard
Galleria One, Suite 1107
Metairie, LA 70001
Telephone: (504) 836-5975
Counsel for plaintiff, Clement F. Perschall, Jr., pro se
Jacqueline Can, Esq.
L.C.I.W. - Post Office Box 26
St. Gabriel, Louisiana 70776
Counsel for intervenor, Jacqueline Can, pro se
William P. Quigley, Esq.
Loyola University of New Orleans
School of Law
7214 St. Charles Avenue
New Orleans, Louisiana 70118
Telephone: (504) 861-5590
Counsel for intervenors, Ronald Chisom, Marie
Bookman, Walter Willard, Henry Dillon, III, Marc Morial
and the Louisiana Voter Registration / Education Crusade
by depositing a copy thereof, postage prepaid, in the United States mail, addressed to them on this
ISItiti day of July, 1997.
PETER J. BUTLER
3
SUPREME COURT FOR THE STATE OF LOUISIANA
NO. 96-CC-0322
CLEMENT F. PERSCHALL, JR.
VERSUS
THE STATE OF LOUISIANA
ORDER
CONSIDERING the Application for Rehearing on behalf of the State of Louisiana:
IT IS ORDERED that the Application for Rehearing on behalf of the State of Louisiana be
and is hereby GRANTED;
IT IS FURTHER ORDERED that the State of Louisiana be and is hereby GRANTED sixty
(60) days within which to file a brief in support of its Application for Rehearing.
New Orleans, Louisiana, this day of , 1997.
JUSTICE, LOUISIANA SUPREME COURT
No. 12187
4
•
July 15, 1997
Page 2
cc w/encl.: Clement F. Perschall, Jr. (Via Hand Delivery)
William P. Quigley (Via U. S. Mail)
Jacqueline Carr (Via U. S. Mail)
Richard Ieyoub (Via U. S. Mail)
Tyron Picard/Mark Stipe (Via U. S. Mail)
Robert McDuff (Via U. S. Mail)
SUPREME COURT FOR THE STATE OF LOUISIANA
CLEMENT F. PERSCHALL,
Plaintiff,
vs.
THE STATE OF LOUISIANA,
Defendant,
and
RONALD CHISOM, et al.,
Defendant-Intervenors.
No. 96-CC-0322
DEFENDANT-INTERVENORS' BRIEF IN SUPPORT OF APPLICATION FOR
REHEARING
Introduction
The challenge for every Court in issuing every decision is to ensure fairness to the
litigants and the public. This is done by having the rules (the law) be clear and universally
applicable and the rulemakers (the Court) being impartial and unbiased on any matter before
it. When either the rules are unclear or the rulemakers not impartial, then fairness is not
ensured and any decision rendered is easily questioned. For these reasons, this case must be
reheard. This decision leaves the long-held doctrine of justiciability in a state of confusion.
This decision raises serious questions about the degree of partiality of the elected members of
the Louisiana Supreme Court. To remove these doubts and to ensure unquestionable fairness,
defendant-intervenors respectfully request that their application for rehearing be granted.
Factual and Procedural History
The road to this point in the case is long and winding. Plaintiff Clement Perschall
[hereinafter "Plaintiff] filed a "Petition for Declaratory Judgment on the Constitutionality of
Acts 1992, No. 512" against the State of Louisiana in the 19th Judicial District Court for the
Parish of East Baton Rouge, State of Louisiana, Division A, challenging the validity of La. Acts
1992, No. 512 [hereinafter "Act 5121 under both the Louisiana Constitution and the United
States Constitution.. The lawsuit specifically challenges the assignment of a Judge of the Fourth
Circuit Court of Appeal (the "Fourth Circuit") to this Court for a temporary and determinable
period of time. The assignment of this judgeship was a basis for the settlement of the federal
voting rights case known as Chisom v. Edwards, No. 86-4075 (E.D. La.).
Before the enactment of Act 512, no black had ever served on the Louisiana Supreme
Court, although blacks constitute nearly one-third of Louisiana's population and comprise a
majority in Louisiana's largest parish, Orleans Parish. See Chisom v. Edwards, 839 F.2d 1056,
1058 (5th Cir. 1988). The seven justices on the Supreme Court of Louisiana were elected from
six geographical judicial districts. Id. at 1056. With the exception of the First District *of the
State Supreme Court, each of the judicial districts elected one Supreme Court justice. Id.
The First District of the State Supreme Court ("First Supreme Court District"),
comprised of four parishes (Orleans, St. Bernard, Plaquemines, and Jefferson Parishes), elected
two Justices at-large. Id. In the late 1980's, blacks represented approximately thirty-two
percent of the registered voter population in the First Supreme Court District and whites
represented approximately sixty-eight percent of the District's population. Id. Over half of the
First Supreme Court District's registered voter population lived in Orleans Parish, where blacks
• comprised fifty-two percent of the registered voter population. Id.
• In 1986, Ronald Chisom and a group of other blacks, as well as the Louisiana Voter
Registration Education Crusade (hereinafter "Chisom plaintiffs"), filed a class action lawsuit in
the United States District Court for the Eastern District of Louisiana("United States District
Court") on behalf of all blacks registered to vote in Orleans Parish. Chisom v. Edwards, 659
F.Supp. 183 (E.D. La. 1987). The Chisom plaintiffs alleged that the system of electing Justices
to the Louisiana Supreme Court.violated, inter alia, Section 2 of the Voting Rights Act of 1965,
42 U.S.C. §1973.
As a result of the Chisom litigation, the State of Louisiana enacted Act 512 in order to
settle the Chisom litigation. It was enacted by a two-thirds vote in both houses. League of
United Latin Amer. Citizens Council No. 4434 v. Clements, 999 F.2d 831, 848 (5th Cir. 1993),
cert. denied, 510 U.S. 1071 (1994)(citing Official Journal of the Proceedings of the Senate of the
State of Louisiana, 18th Reg. Sess. at 24 (June 18, 1992); Official Journal of the Proceedings
of the House of the State of Louisiana, 18th Reg. Sess. at 31 (June 16, 1992)). The legislation
created a Supreme Court District comprised of Orleans Parish, removing Orleans Parish from
•
inclusion in a districrt with St. Bernard, Plaquemines and Jefferson Parishes. La. R.S. 13:101.1.
It further provided that, during the 1998 Regular Session, the Louisiana Legislature was to
reapportion the districts of the Louisiana Supreme Court into seven districts, rather than six
districts, for elections beginning in the year 2000. Id. In the event of a vacancy from the First
Supreme Court District prior to the year 2000, the Act provides that there will be an election
2
for a Supreme Court Justice from the newly created Orleans Parish district. Id. The Act also
provided for the creation of a temporary additional judgeship for the Court of Appeal for the
Fourth Circuit to be elected by voters from Orleans Parish and assigned to the Louisiana
Supreme Court until the year 2000, when elections would be held under the newly drawn
election districts. La. R.S. 13:312.4. The Act thus avoids shortening the term of office of any
Louisiana Supreme Court Justice holding office on June 22, 1992, the time of its enactment.
Id.
Not only was the Chisom litigation wholly responsible for Act 512, without the entry of
a federal court order codifying the language of Act 512 into federal law, this legislation would
have been short-lived.
This legislation shall be null, void, and of no force and effect whatsoever if a
consent decree approving this legislation to be entered into between all parties
in federal litigation involving the at-large election of two justices from the
presently existing first supreme court district, which is pending on the docket of
the United States Court of Appeals for the Fifth Circuit, and which • is styled
Chisom v. Edwards, is not entered into by the appropriate federal court.
Acts 1992, No. 512, §2. Thus, Act 512 was entirely contingent on the entry of a federal court
order. On August 21, 1992, the United States District Court entered such a consent decree
which incorporated Act 512 into its final order and judgment. Consent Judgment, August 21,
1992 (E.D. La.).
In 1995, plaintiff filed the instant action, alleging violations of both the Louisiana and
the United States Constitution. 'Plaintiff alleges that Act 512 violates both the Louisiana and
United States Constitutions. The State removed the action to the United States District Court
for the Middle District of Louisiana, which subsequently transferred the action to the United
States District Court for the Eastern District for Louisiana, which had issued the consent
judgment in the Chisom case. The Chisom plaintiffs, not named in the Perschall action, moved
to intervene and are now a part of this new litigation.
The United States District Court for the Eastern District of Louisiana "remanded" the
issue of the constitutionality of Act 512 under state law to the state court. On July 12, 1996,
this Court requested that all parties to this litigation file briefs on "whether to allow the case
to proceed in norvial fashion or to bypass the lower courts on the threshold issue." Order,
dated July 12, 1996. The State of Louisiana filed briefs which requested that this Court grant
certiorari and review the entire case. As this Court stated in doing so:
Because of the importance of this case to the public and to the orderly processes
of government, we exercise our supervisory jurisdiction and grant certiorari,
3
bringing the entire case up to this court for argument and decision.
Order, dated November 8, 1996 at 2. The Court asked to the parties to address, at least, three
issues:
1. Should the Louisiana court respond to the federal court's remand order if to do
so would require rendition of an advisory opinion or of a declaratory judgment
that will not terminate the uncertainty or controversy that gave rise to the
proceeding -- that is, a judgment declaring that Act 512 violates the Louisiana
Constitution unless saved by the federal consent decree?
2. Does the federal court's remand order constitute certification of a question of
Louisiana law to the Supreme Court of Louisiana which has discretion to refuse
such certified questions from the Supreme Court of the United States and the
federal courts of appeals?
3. Does Act 512 violate the Louisiana Constitution?
Id. at 3 (footnotes omitted). The Court also noted that, if the appropriateness of Act 512
under Louisiana law is not an issue, then plaintiffs due process claims should be decided by
the federal court. See id. at n.2. ("A judgment declaring that Act 512 does not violate the
Louisiana Constitution would leave plaintiffs due process claims to be decided by the federal
court.")
The State of Louisiana, the Applicant, filed a brief, addressing the three questions posed
by this Court. The State made four arguments regarding the Perschall litigation. First, it is
nothing more than a collateral attack on the consent judgment entered into in the Chisom case
and therefore, should be dismissed insofar as state court proceedings are concerned. Second,
any ruling by this Court on thee constitutionality of Act 512 would be advisory, because the
consent judgment in Chisom remains in place regardless of any action by this Court. Third, the
United States Court of Appeals for the Fifth Circuit has already held, and an analysis of
Louisiana law makes clear, that the Chisom consent judgment, Act 512 and the present
composition of the Louisiana Supreme Court are proper both under federal law and the
Louisiana Constitution. Fourth and finally, respondent-plaintiff Perschall lacks standing to
bring this action.
. Defendant-intervenors filed a brief arguing that there were no substantive Louisiana law
issues for the Court to resolve, the only substantive issues were federal law issues. The
constitutionality opAct 512 was immaterial because of the existence of the Chisom consent
judgment.
The substantive issue in this case, quite simply, involve federal law, not state law.
In this case, the application of federal law, as required by the Supremacy Clause
of the United States Constitution, means that a subsequent state law or court
order cannot invalidate a federal court order. If Act 512 were sought to be
4
•
invalidated' by a ruling under Louisiana law, even under the Louisiana
Constitution, effectuation of such a judgment would require invalidation of a
federal court order, and there is no basis under the law for such a result.
Brief of Defendant-Intervenors at 6-7. Thus, no ruling under Louisiana law could terminate the
controversy at issue in the Perschall case: the appropriateness of having a Fourth Circuit Court
of Appeals judge temporarily assigned to the Louisiana Supreme Court.
Oral argument was heard before the Court on February 24th. The seven member Court
was different in composition than normal. Chief Justice Calogero and Justices Marcus and
Johnson recused themselves from any consideration of the matter. Chief Justice Charles
Marvin of the Second Circuit Court of Appeals and Judge Freddie Pitcher of the First Circuit
Court of Appeals were appointed as associate justices ad hoc to ensure that a seven member
Court would hear this case.
The issue of recusal had been an issue throughout the proceedings. Initially, plaintiff
had sought the recusal of every Louisiana Supreme Court Justice, except Justice Victory, on
the grounds that the Justices were around at the time of the enactment of Act 512 and
therefore, could not be imPartial. At the time, defendant-intervenors found this motion to be
unsupported by evidence and too general in scope to be given any credence. See generally
Opposition of Intervenors Ron Chisom, et al., To Motion To Recuse Supreme Court Justices. Prior
to oral argument, plaintiff filed another motion for recusal. The issue was the appropriateness
of Judge Pitcher to hear the case. Plaintiffs alleged that Judge Pitcher came from a district •
much like the one at issue and would be biased. Once again, plaintiffs' bald assertions had no
empirical support or could not even draw a plausible connection between Judge Pitcher and
this case. See generally Opposition of Intervenors Ron Chisom, et aL, To Motion To Recuse Judge
Freddie Pitcher, Jr.
Over a month after oral argument, on March 31, 1997, the Louisiana Legislature began
its 1997 legislative session. Later in that legislative session, the Legislature began consideration
of a bill to reapportion Louisiana's Supreme Court Districts. The language contained in Act
512 and the Chisom consent judgment states the following with respect to the redistricting
timetable for the Supreme Court Districts:
During the 1998 Regular Session, the legislature shall reapportion the districts of the
Louisiana Supreme Court into seven districts in accordance with applicable state
and federal law at the time of the reapportionment based upon the most current
census data. Except as provided in Subsection C, the districts created by the
reapportionment shall become effective on January 1, 2000, and supreme court
districts occurring on and after January 1, 2000 shall be based on such districts.
5
La. R.S. § 101.1(B). (emphasis added). Elected members of the Louisiana Supreme Court, who
were considering this matter, participated in the redistricting process in various ways, including
but not limited to testifying before the Legislature and lobbying for various positions on the
proposed legislation. On June 19th, the Legislature passed a new Louisiana Supreme Court
redistricting bill.
The bill, House Bill No. 581, is intended to replace Act 512. See House Bill No. 581,
Regular Session, 1997, re-engrossed, at 1 (intended to "amend and reenact R.S. 13.101 and
312.4(D) and to repeal R.S. 13:101.1, relative to the supreme court"). The bill calls for the
seven Supreme Court Districts to be drawn in the same manner as Louisiana's , seven
congressional districts. See id. at 3("The state shall be divided into seven supreme court
districts which shall be the congressional districts"). Under Act 512 and the Chisom consent
judgment, while the redistricting of the six other Supreme Court Districts were left to the
discretion of the Legislature, one of the districts was to be "comprised of Orleans Parish." La.
R.S. § 101.1A. In order to facilitate this new plan of congressional districts and deal with the
currently elected Supreme Court Justices, the bill includes language which gives the Supreme
Court the power to assign which districts incumbent Supreme Court Justices will run from:
The supreme court, by rule, shall assign each justice in office at the time the
supreme court districts are changed to the district which is most similar in
geographical composition to the district from which the justice was elected. The
supreme court shall assign only one justice to each district. Each such district
shall complete the term of office to which he was elected. •
H.B. No 581 at 3, § C.
The bill also calls for the elimination of the temporary assignment of a judge from the
Fourth Circuit Court of Appeals at a time not wholly consistent with Act 512. Compare House
Bill No. 581 (The Fourth Circuit judgeship assigned to the Louisiana Supreme Court "shall
expire automatically on the date that a justice of the supreme court takes office elected in the
regular supreme court election held in the year 1998 . . . or on December 31, 2000, whichever
comes first") with Act 512 ("The [Fourth Circuit] judgeship . . . shall expire automatically on
the date that a justice of the supreme court takes office after being elected in a special election
called for Orleans .r.Parish supreme court district as provided in R.S. 13:101.1(A) or R.S.
13:101.1(C). . . or from the date that the justice takes office after"). Finally, the bill calls for
the legislation to take effect in 1999 or, in the event that the temporary judgeship from the
Fourth Circuit Court of Appeals is found inappropriate, in 1998. H.B. No. 581 at 4("This Act
shall become effective on January 1, 1999, and shall not affect any election held prior to that
6
date, except that if said temporary additional judgeship is hold [sic] invalid, this Act shall
become effective on July 1, 1998"). There is no reference whatsoever in House Bill No. 581
about the impact of the Chisom consent judgment on its legality. This bill was signed into law
• by the Governor on July 14th.
On July 1st, the Court issued its opinion in this case. The Court's opinion, written by
Justice Kimball and joined by Justices Knoll, Lemmon, Traylor and Victory as well as associate
justice ad hoc Chief Judge Marvin, held that, despite the supremacy of federal law and the
existence of the Chisom consent judgment, that there was a justiciable controversy and that,
upon reaching the merits of this case, found Act 512 to be unconstitutional. Perscha// V. State
of Louisiana, No. 96-CC-0322, dated July 1, 1997 at 2.
The Court resolved the justiciability issue in the following manner. Since neither the
defendants nor the defendant-intervenors appealed the federal district court's remand order,
the issue, the constitutionality of Act 512, was properly before them. Id. at 12. Once the issue
was properly before the Court, the Court turned to whether or not this was an advisory opinion.
See id. at 14-19. According to the Court, although this issue is not and cannot be properly
certified to.us by a federal district court, the reasoning of the federal district court, regarding
Pullman abstention, should be adopted and followed in reaching this Court's ruling. Thus, an
opinion under Louisiana law cannot be advisory, when a federal district court in the remand
order states that:
A state court's determination that Act 512 violates Louisiana law would in all
likelihood moot or substantially alter the plaintiff's single federal constitutional
claim . . . By abstaining from deciding the state constitutional issues, the Court
does not undermine the substantial federal interest in determining the
constitutionality of Act 512. Such an interest clearly exists since the validity of
the Consent Judgment entered by this Court in the Chisom case rests on a
determination of the viability of the aforesaid act under the Louisiana
Constitution.
Id. at 19, n.20(quoting Perschall v. Louisiana, No. 95-1265, 1995 WL 396311, *2 (E.D. La. July
5, 1995). After deciding that the opinion was not advisory, the Court then addressed the merits
of the case, without any notable discussion of standing.
When the Court reached the merits, the Court decided that Act 512 could not be
constitutional. Twci different provisions under the Louisiana Constitution were considered
probative cif this issue: Article V, § 3 and Article V, § 5(A). The former provision placed a
limit on the number of justices who can serve on the Louisiana Supreme Court. LA. Const.
art. V, § 3 ("The supreme court shall be composed of a chief justice and six associate justices,
7
four of whom must concur to render judgment").. The latter provision vested the Court with
the authority to "assign a sitting or retired judge to any court. .." LA. Const. art. V, § 5(A).
To the Court, Article V, §3 and Article V, § 5(A) constitute "conflicting constitutional
provisions regarding supreme court composition." Perschall at 21. Harmonizing the two
provisions required the Court to give more weight to the specific provision than the general •
one, Id. at 22; see id. at 27, and, therefore, not vitiate the meaning of the more specific Article
V, § 3. Under the Court's analysis, harmonizing in this case meant that:
We must hold the Act unconstitutional under article V, section 3, insofar as it
effectively imposes an eighth justice on the supreme court by the provisions of
La. R.S. 13:312.4.
Id. at 28. The Court also found that the unconstitutional portions of Act 512 could not be
severed from those provisions which are constitutional. Id. at 28-29.
Despite holding Act 512 unconstitutional, the Court did not recommend a change in the
status quo:
We realize that Act 512 does not exist in a vacuum. The State argues, and we
agree, the Act and the Chisom Consent Judgment are separate and independent
methods by which the negotiated remedy was implemented. Although the Act
falls by this judgment, we recognize the status quo remains intact under the
Chisom Consent Judgment. Consequently, this court as it is currently composed
shall continue to function as a de jure court with its actions valid and effectual.
We emphasize that the court-approved settlement in Chisom, which is under the
jurisdiction of the United States District Court for the Eastern District of
Louisiana, is not affected by this judgment.
Id. at 30. The Court also dismissed plaintiff's argument that rendering Act 512 unconstitutional
•
voids all decisions decided by the Court since the creation of Act 512. Id. at 30-32.
Judge Pitcher, sitting as associate justice ad hoc, dissented from the Court's opinion,
arguing that the Pullman abstention reasoning applied by the Court is not a basis for
"overrid[ing] this court's long-standing policy of not giving advisory opinions." and that, upon
reaching the merits, still found Act 512 constitutional, finding the legislation in accord with
Article V, § 5(A) and not in conflict with Article V, § 3. Perschall at 1-2 (Pitcher, J.
dissenting).
SUMMARY OF ARGUMENT
The decision rendered by this Court raises profound questions which can only properly
be addressed through a rehearing of the matter. First, there is the issue of recusal. Given that
the Louisiana Legislature's decision to take up the issue of reapportionment conflicted with the
express language in both Act 512 and the Chisom consent judgment, the elected members of
the Louisiana Supreme Court should recuse themselves from deciding the application for
8
S
rehearing and should have recused themselves from rendering a decision in this case. For any
member of the Louisiana Supreme Court who testified before the Legislature, discussed the
pending legislation with a legislator or attempted to influence the legislation in any way, recusal
is appropriate. Without recusal on the application of rehearing, there can be no assurance that
the outcome in this case is impartial. With recusal by the elected members of the Louisiana
Supreme Court, such an assurance can be given.
Second, there is the issue of justiciability. Justiciability is a classic and important
doctrine for judicial administration. The Court's ruling suggests a historic change from the
fundamental principles behind justiciability and should be reheard to determine the scope of
the Court's ruling and its impact on this critical doctrine. The issue of standing has to be
addressed. Prior to this decision, Louisiana law did not provide standing for a plaintiff, like Mr.
Perschall, and there is no reason from deviating from these well-established principles for
purposes of this case. The advisory opinion issue should be re-heard. This decision, in effect,
carves out an exception in the justiciability doctrine, nullifying the need for an opinion to have
a conclusive effect. Neither Pullman abstention doctrine nor anything else under Louisiana law
offers support for this exception.
Ultimately, the moral and legal stakes in this case are too high for an application for
rehearing not to be granted. As the opinion stands today, the public can reasonably question
whether the Court's opinion was rendered by an impartial arbiter. As the opinion stands today,
•
there is no reason to believe that the legal principles articulated therein will be limited to just
this case. If these principles could be so limited, this case leaves an unanswered:question: Why
is this case different from all the others?
ARGUMENT
I. THE ELECTED MEMBERS OF THE LOUISIANA SUPREME COURT
SHOULD RECUSE THEMSELVES FROM HEARING THIS APPLICATION
FOR REHEARING AND SHOULD HAVE RECUSED THEMSELVES
FROM RENDERING A DECISION IN THIS CASE
No motion for recusal focused on matters directly related to the decision-making process
in this case, until now. The passage of House Bill No. 581, now law, and the instant decision
in this case necessitiktes recusal for the elected members of the Louisiana Supreme Court who
rendered the decision in this case. Recusal is especially appropriate where, as is the case here,
these members have a vested interest in the outcome of this litigation, no different from the
kind of interest which prompted Chief Justice Calegero and Justices Johnson and Marcus to
9
S
recuse themselves in this matter.
A judge may be recused when he:
Is biased, prejudiced, or interested in the cause or its outcome or biased or
prejudiced toward or against the parties or the parties' attorneys to such an
extent that he would be unable to conduct fair and impartial proceedings.
La. C.C.P. Art. 151(B)(5) (West's La. Stat. Ann., C.C.P. Vol. 2, 1997 Cum. Ann. Pocket Part).
Any allegation of "bias, prejudice or personal interest must be of a substantial nature and baked
on more than conclusionary [sic] allegations." Pierce v. Charity Hosp. of Louisiana, 550 So.2d
211, 213 (La.App. 4 Cir.), cert. denied, 551 So.2d 1341 (La. 1989); Tamporello v. State Farm Mut
Auto Ins. Co., 665 So.2d 503, 506 (La.App. 5 Cir. 1995); Use v. Use, 654 So.2d 1355, 1361'
(La.App. 1 Cir.), corrected on rehearing, 1995 La.App. Lexis 1715 (La.App. 1 Cir.), cert. denied,
662 So.2d 468 (La. 1995); McCoy v. Calamia, 653 So.2d 763, 772 (La.App. 3 Cir.), cert. denied,
655 So.2d 336 (La. 1995); Earles v. Ahlstedt, 591 So.2d 741, 746 (La.App. 1 Cir. 1991); State
v. Edwards, 420 So.2d 663, 673 (La. 1982). The mere appearance of impropriety will not
suffice. Pierce, 550 So.2d at 215; Christian v. Christian, 535 So.2d 842, 845 (La.App. 2 Cir.
1988). Facts must be presented "from which an observer could reasonably perceive that [the
judge] would not\could not handle this case impartially." Pierce, 550 So.2d at 214-215(emphasis
supplied). No "reasonable" observer could suggest that the elected members of the Louisiana
Supreme Court could handle this case impartially.
The language of both Act 512 and the Chisom consent judgment could not be any
clearer about when reapportionment of the Supreme Court Districts should take place:
During the 1998 Regular Session, the legislature shall reapportion the districts
of the Louisiana Supreme Court into seven districts . . . .
La. R.S. §101.1(B). Nevertheless, the Louisiana Legislature considered the matter in the 1997
session and elected members of the Louisiana Supreme Court, who were also considering the
constitutionality of Act 512, engaged in activities designed to influence the scope of this new
law. These actions demonstrate partiality, by endorsing an interpretation of the federal consent
order and Act 512, prior to having reached a decision on the merits in this case, which was
before it.
Given the Ourt's opinion, there is no basis for arguing that any ruling by this Court was
of no consequence and therefore, immaterial to House Bill No. 581. Under the Court's own
reasoning, a decision on the constitutionality of Act 512 will affect the outcome of this entire
case:
10
The present controversy placed before the state system questions ripe for
decision, not premature or abstract. This judgment serves the useful purpose
and gives the practical effect of terminating the uncertainty or controversy giving
rise to the proceeding as far as the Louisiana state court system is able in this
Pullman abstention context. In its abstention order, the federal district court
recognized this effect, reasoning that submission of 'plaintiff's novel state law
claims to the expertise of a Louisiana court would respect the values .of
federalism highlighted in Pullman' and would 'in all likelihood moot or
substantially alter the plaintiff's single federal constitutional claim.'
Perschall at 18(quoting Perschall v. Louisiana, No. 95-1265, 1995 WL 396311, *2). If the Court
did not have that understanding, their opinion would have been advisory, under their own
reasoning. Thus, the elected members of the Court, who participated in the deliberations and
decision in this case, not only tried and/or successfully influenced legislation potentially at odds
with Act 512, but also concede that it is within the Court's power to have their "interest" take
effect. Certainly, this situation required recusal before its decision and requires recusal now
on the matter of rehearing. Under the current circumstances, no "reasonable" observer can
conclude that this matter was handled impartially.
THE ISSUE OF WHETHER THERE IS A JUSTICIABLE CONTROVERSY
SHOULD BE RE-HEARD
The critical legal issue in this case is whether there is a justiciable controversy. Without
a justiciable controversy, the Court has no basis to reach the issue of the constitutionality of
Act 512. In deciding that there is a justiciable controversy and, on that basis, reaching the
merits, the Court issued an opinion which undermines established principles of law. As a
result, this issue should be reheaerd and full attention given to justiciability, both on the matter
of standing and the issue of whether any opinion in this case under the Louisiana Constitution
is merely advisory.
While the Court's opinion makes no mention of the standing issue, there can be no
finding of justiciability without standing, even in a declaratory action. Under Louisiana law,
a party must allege a specific interest in the case and, from that interest, identify a particular
injury flowing from the action complained of. Mouton v. Dept. Of Wildlife & Fisheries, 657
So.2d 622, 626 (La.App. 1 Cir.), cert. denied, 663 So.2d 710 (La. 1995)("Specifically, standing
raises the issue of whether the plaintiff belongs to a particular class for which the law grants
a remedy for a ga'rticular grievance or whether the plaintiff has an interest in judicially
enforcing he right asserted"); Richardson v. Reeves, 600 So.2d 138, 140 (La.App. 2 Cir.
1992)("Standing requires that the plaintiff have an adequate interest in himself, which the law
recognizes, against a defendant having a substantial adverse interest"); Bruneau v. Edwards, 517
11
•
So.2d 818, 822 (La. App. 1 Cir. 1987)("The jurisprudence, however, requires the plaintiff show
something more than a mere interest as a member of the public at large to justify his standing
to challenge the constitutionality of a statute") Guidry v. Roberts, 331 So.2d 44, 47 (La.App. 1st
Cir.), affd in part & rev'd in part, 335 So.2d 438 (La. 1976)("The requirement of standing is
satisfied if it can be said that the plaintiff has a legitimate protectible and tangible interest at
stake in this litigation"); see Municipal Employees' Retirement System v. Rural Devel, 676 So.2d
835, 837 (La.App. 1 Cir.), cert. denied,. 683 So.2d 269 (La. 1996)("A taxpayer may resort to
judicial authority to restrain public servants from transcending their lawful powers, or violating
their legal duties in any unauthorized mode which will increase the burden of taxation or
otherwise unjustly affect the taxpayer or his property"). There is no evidence that the plaintiff
in this case has standing.
Plaintiff claims to have standing as a lawyer and as a voter.
Petitioner, as a practicing attorney, 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. Further, petitioner's votes
previously cast for justices to the Louisiana Supreme Court are negated.
Petition, %XXX. The Court's ruling makes clear that, even if Act 512 is unconstitutional,
plaintiff is not entitled to have decisions already rendered revisited on that basis. See Perschall
at 30-32("Plaintiffs argues a declaration that Act 512 is unconstitutional renders void all
decisions by this court decided during the time the Act was effective. By applying long-
established authority, we reject this contention"). Plaintiff cannot have standing for a claim
which does not entitle him to the relief that he seeks. Similarly, plaintiff fails to articulate a
claim for standing as a voter. As defendants stated succinctly in their brief on the merits:
To the extent that he previously voted for Chief Justice Calogero and Justice
Marcus, who are the justices elected from the plaintiff's district and who were
sitting prior to Act 512, they remain on the Court even after the implementation
of Act 512. Moreover, as indicated in the plaintiff's Petition, he is a resident of
Orleans Parish. Therefore, he is allowed to vote for the Fourth Circuit seat
created by Act 512 and assigned to the Louisiana Supreme Court.
Brief On Behalf Of The State Of Louisiana at 11-12. Certainly, plaintiff cannot claim any special
"interest" or "injury";on his part. See League of Women Voters of New Orleans v. City of New
Orleans, 381 So.24 441, 447 (La. 1980)(requiring the need for a "personalized grievance or
interest"); Pruneau, 517 So.2d at 822("It is the opinion of this court that the individual with the
right to assert a challenge to acts that reduce the authority of the legislature is a legislator
himself. Plaintiffs are members of the same body (the legislature) whose constitutional authority
12
and duty has been improperly delegated"); see also Mouton v. Dept. Of Wildlife & Fisheries, 657
So.2d at 627("While each member of the general public has an interest, in equal measure with
all other citizens of the state, in the public trusts of the state's various natural resources,
including wildlife and fisheries, no one citizen or citizen group has a "special interest" beyond
that enjoyed by the general public"). Like the fishermen in the Mouton case, plaintiff's interest
"is, at best, remote and does not rise to the level necessary to constitute a real and actual
interest." 657 So.2d at 628.
This matter must be reheard and the matter of standing squarely addressed. If there
is no standing, then there is no basis for reaching the merits in this action. For plaintiff to have
standing to bring this action, either this Court has decided to recognize either lawyer or generic
voter standing or the previous decisions regarding standing have been overturned and a new
doctrine created. Either result opens the Louisiana courts to a host of lawsuits previously
barred. Either results requires this matter to be reheard.
The Court's reasoning on whether or not deciding the constitutionality of Act 512 would
require issuing an advisory opinion is at odds with the result reached in the case. In its
reasoning, the Court finds that resolving this issue is not advisory. In its result, the Court finds
that, having resolved this issue, the Court's opinion cannot terminate the litigation or the
controversy about the appropriateness of a temporary assignment to the Supreme Court from
the Fourth Circuit Court of ApraIs. The end result is a new standard for justiciability, one
where finality is not required. Given the impact of this result on Louisiana jurisprudence, a
rehearing of this matter is necessary.
Prior to this decision, under Louisiana law, the existence of a justiciable controversy
meant the case or the claim could be resolved:
A justiciable controversy is a real and substantial controversy admitting of
specific relief through a decree of conclusive character, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts.
American Waste v. St. Martin Parish, 627 So.2d 158, 161 (La. 1993)(emphasis supplied); Church
Point Wholesale Beverage Co., Inc v. Tarver, 614 So.2d 697 (La. 1993)("[T]he Louisiana
Constitution prohibits courts from issuing merely advisory opinions which will have no effect on
the rights of the parties")(emphasis supplied); see Peterson v. Louisiana Public Service Com'n, 671
So.2d 460 (La.App. 1 Cir. 1995)(recognizing that although availability of declaratory relief is
available, there must exist concrete, justiciable controversy framing facts to avoid rendering of
advisory opinion). If the matter could not be resolved by the Louisiana courts, then the
13
opinion was deemed advisory. This opinion eliminates the justiciability requirement for finality
by admitting that the "status quo remains intact" while reaching the merits in this case:
We realize that Act 512 does not exist in a vacuum. The State argues, and we
agree, the Act and the Chisom Consent Judgment are separate and independent
methods by which the negotiated remedy was implemented. Although the Act
falls by this judgment, we recognize the status quo remains intact under the
Chisom Consent Judgment. Consequently, this court. as it is currently composed
shall continue to function as a de jure court with its actions valid and effectual.
We emphasize that the court-approved settlement in Chisom, which is under the
jurisdiction of the United States District Court for the Eastern District of
Louisiana, is not affected by this judgment.
Perschall at 30. It reaches this unprecedented conclusion only by relying on Pullman abstention
doctrine: "This judgment serves the useful purpose and gives the practical effect of terminating
the uncertainty or controversy giving rise to the proceeding as far as the Louisiana state court
system is able in this Pullman abstention context." Id. at 18 (emphasis supplied).
However, the Pullman abstention doctrine does not provide support for the Court's
novel decision. Pullman abstention has been described as the doctrine
that a federal court may, and ordinarily should, refrain from deciding a case in
which state action is challenged in federal court as contrary to the federal
constitution if there are unsettled questions of state law that may be dispositive
of the case and avoid the need for deciding the constitutional question.
Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 4242 (2d ed. 1988)
("Wright, Miller & Cooper"); see Harrison v. NAACP, 360 U.S. 167, 177 (1959). If a federal
court does order abstention, traditionally, the parties are required to commence an action in
state court seeking a declaratorY judgment on the state law issues. Wright, Miller & Cooper,
§ 4242. In Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941), the Supreme Court
directed a district court to abstain from deciding a case until the state courts settled the state
law question. In explaining why it examined the questions concerning Texas law, the Court
stated that the complaint introduces a constitutional issue which "the federal courts ought not
enter unless no alternative to its adjudication is open. Such constitutional adjudication plainly
can be avoided if a definitive ruling 9n the state issue would terminate the controversy."
Pullman, 312 U.S. at 498.
The basis for the Pullman abstention doctrine is to dispose of an action, not to have
state courts provi4ei direction to the resolution of federal issues. See Mayor v. Educational
Equality League, 415 U.S. 605, 624 (1974)(stating that neither abstention nor pendent
jurisdiction should be utilized when "[a] decision...[on the state law issues] would not have
approached resolving the case nor would it have provided a basis for granting relief'); Ba 24: ett
14
v. Bullit, 377 U.S. 360, 376-377(1964)(holding that abstention cases "principally concerned the
applicability of the challenged statute to a certain person or a defined course of conduct, whose
resolution in a particular manner would eliminate the constitutional issue and terminate the
litigation"). Indeed, the necessity for abstention of the federal law under Pullman is to prevent
a federal court from ruling in a case where that ruling could be upset by state law. Pullman,
312 U.S. 500("In this situation a federal court of equity is asked to decide an issue by making
a tentative answer which may be displaced tomorrow by a state adjudication"). As the Court
held:
The reign of law is hardly promoted if an unnecessary ruling of a federal court
is thus supplanted by a controlling decision of a state court. The resources of
equity are equal to an adjustment that will avoid the waste of a tentative decision
as well as the friction of a premature constitutional adjudication.
Id.
As a result, the application of Pullman abstention doctrine to this case turns on its head
the United States Supreme Court's ruling. There is no threat -- and neither the federal district
court's remand order nor this Court's opinion identifies a threat -- to a decision under federal
law being made in this case which could later be upset by a ruling by a Louisiana court under
Louisiana law.' Nor could there be because, in order to do so, a Louisiana court would have
to issue an opinion, invalidating the Chisom consent judgment, in violation of the Supremacy
Clause of the United States Constitution. See Howlett v. Rose, 496 U.S. 356, 367 (1990);
Northwest Pipeline v. Kansas Corp. Comm 'n., 489 U.S. 493, 509 (1989); City of New York v. FCC,
486 U.S. 57, 63-64 (1988); R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 (1986).
Instead of ruling on a sacred state law issue, this Court instead understands that the Chisom
consent judgment exists, despite a ruling under Louisiana law. See Perschall at 30.
The Court's analysis of the Pullman abstention doctrine under federal law must be
reconsidered.' With Pullman abstention doctrine removed as a justification for reaching the
merits, this Court must hold, as its opinion already makes clear, that an opinion on the
'Another factol in determining whether to abstain is the availability of certification
procedures does qqt require discussion. "[A]bstention is more readily ordered if there is a
certification procedure available by which the state question can be answered more
expeditiously than is possible if it must be litigated through the entire state hierarchy of courts."
Wright, Miller & Cooper, § 4242; see Bellotti v. Baird, 428 U.S. 132, 151 (1976); Planned
Parenthood Assn. of Kansas City v. Ashcroft, 462 U.S. 476, 493, n. 21 (1983); Scheinbetg v. Smith
482 F.Supp. 529 (S.D. Fla. 1979), aff'd in part and vacated in part, 659 F.2d 476 (5th Cir. 1981).
Here, as the Court held, there is no basis for certification given Louisiana's own laws and this
Court's own rules. See La.Rev.Stat.Ann. § 13:72.1 (West Supp. 1983); La. S.Ct. Rule XII; see
also Sandefur v. Cheny, 718 F.2d 682 (5th Cir. 1983).
15
• constitutionality of Act 512 would be merely advisory. This issue should be reheard and the
issue of whether this ,decision was an advisory opinion revisited. Until now, no opinion under.
Louisiana law provided such a change in the appropriateness of finality in deciding justiciability.
This decision creates a change which is not easily distinguishable, particularly given the
unavailability of Pullman abstention doctrine to provide a basis for distinction.
••••
16
CONCLUSION
While the road to this point has been long, the work on this case in the Louisiana courts
should not end with this recent decision. The implications are too far-reaching to end here.
The issue of recusal must be addressed. The justiciable controversy issue must be addressed.
Rehearing is the only viable option for a Court determining to prove that its decisions are just
and its rulings appropriate. Moreover, there are issues regarding the factual and procedural
history which must be clarified. For the foregoing reasons, defendant-intervenors respectfully
re-submit this matter to this Court for rehearing and request additional time to supplement the
application and brief now being submitted.
Respectfully submitted,
William P. Quigley (Bar #7769)
Loyola University School of Law
7214 St. Charles Avenue
New Orleans, LA 70118
(504) 861-5590
Ronald L. Wilson
837 Gravier Street
New Orleans, LA 70113
(504) 525-4361
Walter Willard
•
Lemle & Kelleher
601 Poydras Street
New Orleans, LA 70130
(504) 586-1241
Elaine R. Jones
Director Counsel
Norman J. Chachkin
Charles Stephen Ralston
Victor A. Bolden
Jacqueline A. Berrien
NAACP Legal Defense Sc. Educational
Fund, Inc.
99 Hudson Street
Suite 1600
New York, N.Y. 10013
(212) 219-1900
Counsel for Defendant-Intervenors, Ronald Chisom, et al.
17
S
SUPREME COURT FOR THE STATE OF LOUISIANA
NO. 96 CC 0322
CLEMENT F. PERSCHALL, JR.
VERSUS
THE STATE OF LOUISIANA
Certificate
I HEREBY CERTIFY that a copy of the above and foregoing Application For
Rehearing and Brief In Support Of Application For Reheariong has been forwarded to
all counsel of record bx.1,epositips a copy thereof, postage prepaid, in the United
States mail, on this day of ‘.1.\\I , 1997 to the following:
Honorable A. Foster Sanders,
Judge
19th Judicial District Court
222 St. Louis Street
Baton Rouge, LA 70802
Richard P. Ieyoub
Attorney General of Louisfana
State Capitol, 22nd Floor
Post Office Box 94005
Baton Rouge, LA 70804-9005
Peter J. Butler
Peter J. Butler, Jr.
Special Counsel for the State
Louisiana
755 Magazine Street
New Orleans, LA 70130-3672
Robert McDuff
771 N. Congress St.
Jackson, MS 39202
Tyron D. Picard & Mark Stipe
Petroleum Tower, Suite 330
3639 Ambassador Caffrey Parkway
Lafayette, LA 70503
Clement F. Perschall, Jr.
One Galleria Boulevard
Galleria One, Suite 1107
Metairie, LA 70001
Honorable Stanley P. Lemoine
Clerk of First Circuit Court of Appeal
of 1600 North 3rd Street
Baton Rouge, Louisiana 70802
Victor A. Bolden
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
CLEMENT F. PERSCHALL. JR.,
Plaintiff,
vs.
THE STATE dF LOUISIANA.
Defendant.
and
RONALD CHISOM. et at.,
Defendant-Intervenors.
Civil Action No. 95-1265
SECTION "A"
MAGISTRATE: (1)
DEFENDANT-INTERVENORS' REPLY TO STATE'S MOTION AND INCORPORATED
MEMORANDUM TO DISMISS
Defendant-intervenors, Ronald Chisom, et al., by their undersigned counsel, file this
reply to the motion to dismiss filed by the State of Louisiana. The defendant-intervenors agree
with the views expressed in the State's Motion and Incorporated Memorandum to Dismiss. As
stated in the State's Motion and Incorporated Memorandum, Plaintiff sought only a declaration
that La. Acts 1992, No. 512 ("Act 512") was unconstitutional. On July 1, 1997, the Louisiana
Supreme Court issued a ruling granting the relief sought by plaintiff. This ruling renders moot
the issue of whether this Court should make a similar declaration. Furthermore, because of
the Louisiana Supreme Court's ruling, plaintiff no longer has a cognizable "injury" sufficient to
invoke this Court's jurisdiction.
Defendant State of Louisiana's Motion To Dismiss Should Be Granted
Plaintiffs action should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure for the Court now lacks jurisdiction over the subject matter. Fed. R. Civ. P.
12(b)(1). The requirements of mootness and standing must be satisfied by any and every
federal action. Article III of the United States Constitution requires nothing less. Article III
"limits the jurisdiction of federal courts to 'Cases' and 'Controversies'. ." Lujan v. Defenders
of Wildlife, 504 U.S. 555, 559 (1992). In this case, given the Louisiana Supreme Court's ruling,
plaintiff's action can no longer satisfy these threshold requirements. Therefore, dismissal
pursuant to Rule 12(b)(1) of the Federal Rules is appropriate.
A. Plaintiffs Action is Moot
Any legal action "must remain alive throughout the course of litigation, to the moment
of final appellate disposition." Charles A. Wright, Arthur R. Miller, and Edward H. Cooper,
Federal Practice and Procedure, § 3533.2 (1984). If the matter no longer involves a live case or
controversy, then the matter is quite simply moot and there is no need for any further action
by a federal court. "[T]he definitive mootness of a case or controversy .... ousts the jurisdiction
of the federal courts and requires dismissal of the case." Deposit Guaranty Nat'l Bank v. Roper,
445 U.S. 326, 332-333 (1980); see Murphy v. Hunt, 455 U.S. 478, 481 (1982)(the issue must be
"live" for mootness not to be found); Powell v. McCormack, 395 U.S. 486, 496 (1969) (case is
moot when "the parties lack a legally cognizable interest in the outcome"); see also In re Tucson
Estates, Inc., 912 F.2d 1162, 1170 (9th Cir. 1990) (cross-appeal taken by officers of bankrupt
corporation became moot when state appellate court vacated underlying judgment, which was
the basis for officers' cross-appeal concerning interpretation of bankruptcy court's stay of
execution of judgment). The granting of the relief sought by a party in one court renders moot
any remaining actions seeking the same relief. See James v. Singletwy. 995 F.2d 187, 188 (11th
Cir. 1993)(party received relief in another tribunal); Simpson v. Camper, 974 F.2d 1030, 1031
(8th Cir. 1992)(federal action moot when party receives in a state court proceeding "precisely
the relief that petitioner has been seeking in . . . federal proceeding"). Plaintiffs action must
now be considered moot.
All the relief sought by the plaintiff has been granted. Both the Petition for Declaratory
Judgment and the First Supplemental and Amending Petition filed by the Plaintiff sought only
a declaration that Act 512 was unconstitutional. See Motion And Incorporated Memorandum
To Dismiss at 1-2 and Exhibits 1 and 2. The Louisiana Supreme Court has issued a ruling
granting plaintiff this relief. See id. at Exhibit 3. Since the plaintiff has already been afforded
complete relief, the action should be dismissed as moot.
B. Plaintiff Lacks Standing To Maintain This Action
Stated another way, having received the relief sought. plaintiffs action not only becomes
moot, but plaintiff now no longer has standing to pursue the action. "[Title core component
of standing is an essential and unchanging part of the case-or-controversy requirement of
Article III." Lujan, 504 U.S. at 560. To have standing, a three-prong test must be satisfied.
"First, the plaintiff must have suffered an 'injury in fact' -- an invasion of a legally protected
interest." Id. The "injury in fact" must be both "(a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical." Id. Second, there must be a causal connection
between the injury and the defendant's action. Id. "Third, it must be 'likely,' as opposed to
merely speculative,' that the injury will be 'redressed by a favorable decision." Id. at 561
(quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 43 (1976)). Plaintiff cannot
satisfy this standard.
Plaintiff Perschall does not have standing to pursue this action any further. When the
Louisiana Supreme Court ruled in plaintiffs favor and declared Act 512 unconstitutional.
3
plaintiff lost any claim to having an injury upon which standing could be based. See Powder
River Basin Resource Council v. Babbitt. 54 F.3d 1477. 1485 (10th Cir. 1995)(plaintifis action.
based on the refusal of the state to reimburse plaintiff for its attorney's fees, "lost the injury on
which its standing was originally based" when the Wyoming Supreme Court ordered the state
to pay for the attorney's fees incurred by plaintiff). Thus, plaintiff lacks standing and this
action should be dismissed for lack of jurisdiction.
Conclusion
For the reasons stated above and addressed in the State of Louisiana's Motion And
Incorporated Memorandum To Dismiss, this Court should dismiss this action pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure.
Respectfully submitted,
Ronald L. Wilson
837 Gravier Street
New Orleans, LA 70113
Elaine R. Jones
Director-Counsel
Norman J. Chachkin
Charles Stephen Ralston
Victor A. Bolden
Jacqueline A. Berrien—
NAACP Legal Defense & Educational
Fund, Inc.
99 Hudson Street, Suite 1600
New York, New York 10013
(212) 219-1900
P. Quigley
o. 7769)
University
4 St. Charles Avenue
New Orleans, LA 70118
(504) 861-5590
Walter Willard
1100 Poydras
Suite 2150
New Orleans, LA 70112
(504) 568-0541
4
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Plaintiff's DEFENDANT-INTERVENORS'
REPLY TO MOTION AND INCORPORATED MEMORANDUM TO DISMISS, have been
served by depositing same in the United States mail, first class postage prepaid, on this
November 3, 1997, addressed to the following:
Clement F. Perschall, Jr., Esq.
One Galleria Boulevard
Galleria One, Suite 1107
Metarie, Louisiana 70001
Telephone: (504) 836-5975
Richard P. Ieyoub
Attorney General, State of Louisiana
State Capitol
P.O. Box 94005
Baton Rouge, Louisiana 70804-9005
Robert McDuff, Esq.
767 N. Congress Street
Jackson, Mississippi 39202
Telephone: (601) 969-0802
Peter Butler (Bar# 3731)-T.A.
Peter J. Butler, Jr. (Bar# 18522)
Richard G. Passler (Bar# 21006)
LL&E Tower, Suite 2400
909 Poydras Street
New Orleans, Louisiana 70112
Telephone: (504) 584-5454
Tyron D. Picard (Bar# 20473)
Mark Stipe (Bar# 19803)
Petroleum Tower, Suite 330
3639 Ambassador Caffrey Parkway
Lafayette, Louisiana 70503
Telephone: (318) 983-0090
Jacqueline Carr
L.C.I.W.- Post Office Box 26
St. Gabriel, Louisiana 70776
5
•
UJF NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
National Office
Suite 1600
99 Hudson Street
New York, N.Y. 10013-2897 (212) 219-1900 Fax: (212) 226-7592
October 15, 1997
Honorable Isabelle Katz Pinzler
Acting Assistant Attorney General for Civil Rights
United States Department of Justice
Tenth Street and Constitution Avenue, N.W.
Washington, D.C. 20530
Comment Regarding the State of Louisiana's Submission of the
Redistricting Plan for the Louisiana Supreme Court, Act 776, 1997
Regular Session, Section 5 Submission File No. 97-2518
Dear Acting Assistant Attorney General Pinzler:
We write on behalf of our clients, Ronald Chisom, et al., concerning the submission
by the State of Louisiana of Act 776 of the 1997 Regular Session of the Louisiana
Legislature (hereinafter "Act 776"), which provides, inter alia, for new election districts for
the Louisiana Supreme Court. Because the members of the Louisiana Supreme Court are
elected directly by the voters of the State, this redistricting must adhere to the requirements
of the Voting Rights Act of 1965. See Chisom v. Roemer, 501 U.S. 380 (1991). The
implementation of Act 776 would result in the retrogression of African-American voting
strength, and we therefore urge the Attorney General to interpose an objection to the
implementation of this legislation, pursuant to Section 5 of the Voting Rights Act.
I. The Factual and Procedural Background of Chisom v. Roemer and Perschall v. State
of Louisiana Prior To Act 776
Before 1992, no African-American had ever been elected to the Louisiana Supreme
Court, although African-Americans constitute nearly one-third of Louisiana's population
and a majority in Louisiana's largest parish, Orleans Parish. See Chisom v. Edwards, 839
F.2d 1056, 1058 (5th Cir. 1988). The seven justices on the Supreme Court of Louisiana
were elected from six geographical judicial districts. Id. at 1056. With the exception of the
First District of the State Supreme Court, each of the judicial districts elected one Supreme
Court justice. Id. The First District of the State Supreme Court ("First Supreme Court
District"), consisting of four parishes (Orleans, St. Bernard, Plaquemines, and Jefferson
Parishes), elected two Justices at-large. Id. In the late 1980's, African-Americans
represented approximately 32 percent of the registered voters in the First Supreme Court
Contributions are
deductibk for U.S.
bsconte tax ptoposts.
The NAACP Legal Defense & Educational Fund, Inc. (LDF) is not part
of the National Association for the Advancement of Colored People
(NAACP) although LDF was founded by the NAACP and shares its
commitment to equal rights. LDF has had, since 1957, a separate .
Regional Offices
Suite 301
1275 K Street, NW
Washington, DC 20005
(202) 682-1300
Fax: (202) 682-1312
Suite 208
315 West Ninth Street
Los Angeles, CA 90015
(213) 624-2405
Fax: (213) 624-0075
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 2
District and whites represented approximately 68 percent of the District's population. Id.
Over half of the First Supreme Court District's registered voters lived in Orleans Parish,
where African-Americans comprised 52 percent of the registered voters. Id.
In 1986, Ronald Chisom and several other African-American voters, as well as the
Louisiana Voter Registration Education Crusade (hereinafter "Chisom plaintiffs"), filed a
class action lawsuit in the United States District Court for the Eastern District of
Louisiana("United States District Court") on behalf of all African-Americans registered to
vote in Orleans Parish. Chisom v. Edwards, 659 F.Supp. 183 (E.D. La. 1987). The Chisom
plaintiffs alleged that the system of electing Justices to the Louisiana Supreme Court
violated Section 2 of the Voting Rights Act of 1965, 42 U.S.C. §1973, as well as the
Fourteenth and Fifteenth Amendments to the United States Constitution.
The United States District Court held that Section 2 of the Voting Rights Act did
not apply to state judicial elections because judges are not "representatives" under the Act,
thereby dismissing the Chisom plaintiffs' complaint for failure to state a claim upon which
relief could be granted pursuant to Fed.R.Civ.P. 12(b)(6). See id. at 183-187. The Chisom
plaintiffs appealed that ruling to the United States Court of Appeals for the Fifth Circuit
("Fifth Circuit").
A panel of Fifth Circuit judges disagreed with the District Court and held:
After consideration of the language of the Act itself; the policies behind the
enactment of Section 2; pertinent legislative history; previous judicial
interpretations of Section 5, a companion section to Section 2 in the Act; and
the position of the United States Attorney General on this issue; we conclude
that Section 2 does apply to the election of state court judges. We therefore
reverse the judgment of the district court.
Chisom v. Edwards, 839 F.2d at 1058. The Fifth Circuit panel originally remanded the case
back to the United States District Court. Id. at 1065. However, based on the intervening
decision from the Fifth Circuit in League of United Latin Amer. Citizens Council No. 4434
v. Clements, 914 F.2d 620 (5th Cir. 1990) (en banc) ("LULAC I") the Court of Appeals
subsequently remanded the Chisom case to the District Court with instructions to dismiss
the complaint.' In LULAC I, the Fifth Circuit held that Section 2 did not apply to judicial
elections. Id. at 390. The Chisom and LULAC plaintiffs appealed to the United States
Supreme Court, which granted certiorari in both cases. Id. at 390.
On June 20, 1991, the United States Supreme Court held that Section 2 of the
Voting Rights Act applies to state judicial elections in general, and to the election of
Supreme Court Justices in Louisiana in particular. Chisom v. Roemer, 501 U.S. 380, 401-02
(1991). The Court held that when states, like Louisiana, decide to choose judges by
'Like Chisom, LULAC involved the election of state court judges, but in Texas.
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 3
election, rather than by appointment, then these judges are appropriately "representatives"
under the Voting Rights Act. The Court stated in particular about Louisiana:
When each of several members of a court must be a resident of a separate district,
and must be elected by the voters of that district, it seems both reasonable and
realistic to characterize the winners as representatives of that district. Indeed, at
one time the Louisiana Bar Association characterized the members of the Louisiana
Supreme Courts representatives for that reason: 'Each justice and judge now in
office shall be considered as a representative of the judicial district within which is
situated the parish of his residence at the time of his election.'
Id. at 401(quoting Louisiana State Law Institute, Project of a Constitution for the State of
Louisiana with Notes and Studies 10309 (1954)(1921 Report of the Louisiana Bar
Association submitted to the Louisiana Constitutional Convention)). The Supreme Court's
decision reversed the Fifth Circuit's ruling and remanded Chisom back to the Fifth Circuit
Court of Appeals "for further proceedings consistent with th[e Court's] opinion." Id. at 404.
Following the Supreme Court's reversal and remand to the Fifth Circuit, the parties
to the Chisom litigation reached a settlement. The Louisiana Legislature agreed to use its
power under the Louisiana Constitution to assign temporarily a judge to be elected from
the Fourth Circuit Court of Appeals to the Louisiana Supreme Court until the year 2000,
in order not to disrupt the terms of any incumbent. The temporary assignment process had
been used by the Court on many occasions before and there was precedent from the
Louisiana Supreme Court that such an assignment was wholly consistent with Louisiana
constitutional and statutory law. See State v. Bell, 392 So.2d 442, 442-443 (La.
1981)(permitting Louisiana Supreme Court to assign a judge to any court under Louisiana
Constitution); see also State v. Petterway, 403 So.2d 1157 (La. 1981).2
The Louisiana Legislature enacted Acts 1992, No. 512 ("Act 512") as part of its
settlement of the Chisom litigation. The legislation eliminated the four parish, multi-
member election district which included Orleans Parish, and instead called for the creation
of a Supreme Court District consisting solely of Orleans Parish. La. R.S. 13:101.1. Act 512
further that, during the 1998 Regular Session, the Louisiana Legislature was to reapportion
the districts of the Louisiana Supreme Court into seven districts, rather than six districts,
for elections beginning in the year 2000. Id. Each of the newly created Supreme Court
districts would elect a single Justice to the Supreme Court. In the event of a vacancy from
the First Supreme Court District prior to the year 2000, the Act provided that there will
be an election for a Supreme Court Justice from the newly created Orleans Parish district.
Id. The Act also provided for the creation of a temporary additional judgeship for the
Court of Appeals for the Fourth Circuit, to be elected by voters from Orleans Parish
2In exchange, the Chisom plaintiffs agreed to dismiss their claims under Section 2
of the Voting Rights Act and the Fourteenth and Fifteenth Amendments of the United
States Constitution.
•
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 4
exclusively, and assigned to the Louisiana Supreme Court until the year 2000, when
elections would be held under the newly drawn election districts. La. R.S. 13:312.4. Act
512 thus avoided shortening the term of any Louisiana Supreme Court Justice holding
office on June 22, 1992, the time of its enactment. Id.
Act 512 "was carefully crafted" to avoid interfering with or invalidating any other
Louisiana laws. See League of United Latin Amer. Citizens Council No. 4434 v. Clements,
999 F.2d 831, 848 (5th Cir. 1993)("LULAC IF). "The consent decree did not set aside any
state laws -- and not by accident." LULAC II, 999 F.2d at 848. Under Art. 5 § 4 of the
Louisiana Constitution, the Louisiana Legislature "can create more supreme court districts
with a two-thirds vote from both houses" Id. Act 512 was enacted by the necessary two-
thirds vote in both houses. Id. (citing Official Journal of the Proceedings of the Senate of
the State of Louisiana, 18th Reg. Sess. at 24 (June 18, 1992); Official Journal of the
Proceedings of the House of the State of Louisiana, 18th Reg. Sess. at 31 (June 16, 1992)).
Under Art. 5, § 5(A) of the Louisiana Constitution, the Legislature also has the authority
to "create[ ] an additional place for a judge on the Court of Appeal for the Fourth Circuit,
who, upon election, would be assigned to the supreme court to serve, in reality, as the
eighth justice," id., a temporary judgeship "to expire with a vacancy on the supreme court
from the first district." Id. "The vacancy would be filled by an election in the newly created
seventh district consisting of Orleans Parish." Id.
Act 512 was entirely contingent on the entry of a federal court order:
This legislation shall be null, void, and of no force and effect whatsoever if
a consent decree approving this legislation to be entered into between all
parties in federal litigation involving the at-large election of two justices from
the presently existing first supreme court district, which is pending on the
docket of the United States Court of Appeals for the Fifth Circuit, and which
is styled Chisom v. Edwards, is not entered into by the appropriate federal
court.
Acts 1992, No. 512, §2. After Act 512 was signed into law, all parties to the Chisom
litigation filed a Joint Motion to Remand to Effectuate Settlement. Chisom v. Edwards, 970
F.2d 1408, 1409 (5th Cir. 1992). The Fifth Circuit granted this motion and remanded the
case "to the United Stated District Court for the Eastern District of Louisiana for the
limited purpose of effectuating a settlement." Id. at 1409. The Court of Appeals indicated
that it would dismiss the appeals, H[u]pon notification that a consent judgment has been
entered by the district court. . . ." Id. On August 21, 1992, the United States District
Court entered a consent decree which incorporated Act 512 into its final order and
judgment. Consent Judgment, August 21, 1992 (E.D. La.). On October 6, 1992, the Fifth
Circuit dismissed the appeals pending in the case. Chisom v. Edwards, 975 F.2d 1092 (5th
Cir. 1992).
In 1995, nearly three years after the entry of the consent judgment in the Chisom
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 5
case, Plaintiff Clement F. Perschall, Jr. ("Perschall"), an attorney proceeding pro se, filed
a "Petition for Declaratory Judgment on the Constitutionality of Acts 1992, No. 512" against
the State of Louisiana in the 19th Judicial District Court for the Parish of East Baton
Rouge, State of Louisiana, Division A. Perschall alleged that Act 512 violates both the
Louisiana and United States Constitutions. The State removed the action to the United
States District Court for the Middle District of Louisiana, which subsequently transferred
the action to the United States District Court for the Eastern District of Louisiana, where
ultimately the case was assigned to Judge Schwartz, who was the presiding judge in the
Chisom case. The Chisom plaintiffs, not named in the Perschall action, moved to intervene
and became a part of this new litigation.
The United States District Court for the Eastern District of Louisiana "remanded"
the issue of the constitutionality of Act 512 under state law to the state court. On July 12,
1996, the Louisiana Supreme Court requested all parties to file briefs on "whether to allow
the case to proceed in normal fashion or to bypass the lower courts on the threshold issue."
Order, dated July 12, 1996. The State of Louisiana filed briefs which requested that the
Louisiana Supreme Court grant certiorari and review the entire case. The Court stated in
doing so:
Because of the importance of this case to the public and to the orderly
processes of government, we exercise our supervisory jurisdiction and grant
certiorari, bringing the entire case up to this court for argument and decision.
Order, dated November 8, 1996 at 2.3
3The Louisiana Supreme Court asked the parties to address, at least, three issues:
1. Should the Louisiana court respond to the federal court's remand order if to
do so would require rendition of an advisory opinion or of a declaratory
judgment that will not terminate the uncertainty or controversy that gave rise
to the proceeding -- that is, a judgment declaring that Act 512 violates the
Louisiana Constitution unless saved by the federal consent decree?
2. Does the federal court's remand order constitute certification of a question
of Louisiana law to the Supreme Court of Louisiana which has discretion to
refuse such certified questions from the Supreme Court of the United States
and the federal courts of appeals?
3. Does Act 512 violate the Louisiana Constitution?
Id. at 3 (footnotes omitted). The Court also noted that, if the appropriateness of Act 512
under Louisiana law is not an issue, .
then plaintiff's due process claims should be decided by the federal court. See id. at n.2.
("A judgment declaring that Act 512 does not violate the Louisiana Constitution would
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 6
The Louisiana Supreme Court heard oral arguments in the Perschall case on
February 24, 1997. The seven member Court was different in composition than normal.
Chief Justice Calogero and Justices Marcus and Johnson recused themselves from any
consideration of the matter. Chief Judge Charles Marvin of the Second Circuit Court of
Appeals and Judge Freddie Pitcher of the First Circuit Court of Appeals were appointed
as associate justices ad hoc to ensure that a seven-member Court would hear this case.4
Legislative Consideration of Louisiana Supreme Court Redistricting
Act 512 and the Chisom consent judgment state the following with respect to the
redistricting timetable for the Supreme Court Districts:
During the 1998 Regular Session, the legislature shall reapportion the districts of
the Louisiana Supreme Court into seven districts in accordance with applicable
state and federal law at the time of the reapportionment based upon the
most current census data. Except as provided in Subsection C, the districts
created by the reapportionment shall become effective on January 1, 2000,
and supreme court elections occurring on and after January 1, 2000 shall be
based on such districts.
La. R.S. §13:101.1(B). (emphasis added). Nevertheless, the Louisiana Legislature
reapportioned the Supreme Court districts during the 1997 legislative session, without the
Chisom plaintiffs' agreement to this deviation from the statute and consent judgment, or
leave of Court to modify this term in the consent judgment.
Louisiana House Bill No. 581 -- upon which Act 776 was based -- adopted the
State's congressional districting plan for use in future Supreme Court elections. See House
Bill No. 581, Regular Session, 1997, re-engrossed, at 3 (reproduced as Section 5 Submission
of Act 776 of the 1997 Regular Session of the Louisiana Legislature, Exhibit G) (hereinafter
"Section 5 submiSsion")("The state shall be divided into seven supreme court districts which
leave plaintiff's due process claims to be decided by the federal court.")
4The issue of recusal had been raised intermittently throughout the proceedings. In
addition to seeking the recusal of Chief Justice Calogero and Justices Johnson and Marcus,
the plaintiff also sought the recusal of every Louisiana Supreme Court Justice, except
Justice Victory, on the ground that all of the
remaining Justices were members of the Court at the time of the enactment of Act 512 and
therefore, could be partial. Shortly before the scheduled oral argument, the plaintiff filed
another motion for recusal, which argued that Judge Pitcher should be disqualified from
hearing the case. Plaintiff alleged that Judge Pitcher, who is African American, had been
elected by a majority Black district and therefore may be biased.
•
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 7
shall be the congressional districts"). The bill also called for the legislation to take effect
in 1999 or, in the event that the temporary judgeship from the Fourth Circuit Court of
Appeals is invalidated, in 1998, signaling the Legislature's awareness that a ruling in the
Perschall case might nullify the temporary assignment. See H.B. No. 581 at 4("This Act
shall become effective on January 1, 1999, and shall not affect any election held prior to
that date, except that if said temporary additional judgeship is hold [sic] invalid, this Act
shall become effective on July 1, 1998"). The final version of House Bill No. 581 -- Act 776
-- did not adopt the redistricting plan based on the congressional districts. Nor did this
plan make any reference to the possibility of the ChLsom seat becoming invalid.
On June 19, 1997, the Louisiana Legislature passed Act 776; the Louisiana Supreme
Court redistricting bill, which was signed into law by Louisiana's Governor on July 14, 1997.
In contrast with Act 512, however, the new law divides Orleans Parish into two Supreme
Court Districts. Compare La. R.S. 13:101.1(A) (One district is to be "comprised of Orleans
Parish") with Act 776 at 1-4 (dividing Orleans Parish into Districts 1 and 7). Act 776 also
differs from Act 512 in its timetable for implementation. Compare La. R.S.
§13:101.1(B)("[T]he districts created by the reapportionment shall become effective on
January 1, 2000, and supreme court elections occurring on and after January 1, 2000 shall
be based on such districts") with Act 776 at 7("This Act shall become effective on January
1, 1999, and shall not affect any election held prior to that date, except that if and when
a vacancy occurs prior to January 1, 1999 . . . the provisions of R.S. 13:101 (District 1) and
(District 7) and 101.1(D) shall become effective immediately upon the occurrence of the
vacancy"). Thus, Act 776 proposes to change the geographic configurations of the election
districts and the timetable for the implementation of these districts, as established by Act
512. Act 776 provides for the continuation of an additional judgeship on the Court of
Appeal for the Fourth Circuit to be elected from the first district of the Fourth Circuit to
be assigned to the Louisiana Supreme Court. See Act 776 at 6. However, before
Louisiana's Governor signed Act 776 into law, the Louisiana Supreme Court struck down
as violative of the Louisiana Constitution, the one provision of Act 512 which remained
virtually untouched by Act 776: the temporary assignment provision.
On July 1, little more than a week after the end of the legislative session, the
Louisiana Supreme Court issued an opinion in the Perschall case.5 The Court's opinion,
'Members of the Louisiana Supreme Court, while deliberating over the fate of Act 512
in the Perschall case, simultaneously played an active role in the reapportionment process.
On April 23, Justice Harry T. Lemmon testified before the House and Governmental
Affairs Committee, on behalf of himself and five other members of the Court. See Minutes
of Meeting, Committee on House and Governmental Affairs, 1997 Regular Session, April
23, 1997 at 3-4 (reproduced as Section 5 submission, Exhibit G). Justice Lemmon testified
that the six justices were prepared to introduce their own plan for redistricting. Id. at 4;
see Jack Wardlaw, Bill Would Replace Court Districts, New Orleans Times-Picayune, April
24, 1997 at A3. Although it appears that some members of the La. Supreme Court
submitted a redistricting plan, this plan was not included in the State's submission.
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 8
written by Justice Kimball and joined by Justices Knoll, Lemmon, Traylor and Victory as
well as associate justice ad hoc Marvin, held that, despite the supremacy of federal law and
the existence of the Chisom consent judgment, there was a justiciable controversy. Upon
reaching the merits of this case, the Louisiana Supreme Court found Act 512 to be
unconstitutional. Perschall v. State of Louisiana, 697 So.2d 240 (La. 1997).
Two different provisions under the Louisiana Constitution were considered probative
of this issue: Article V, § 3 and Article V, § 5(A). The former provision placed a limit
on the number of justices who can serve on the Louisiana Supreme Court. LA. Const. art.
V, § 3 ("The supreme court shall be composed of a chief justice and six associate justices,
four of whom must concur to render judgment"). The latter provision vested the Court
with the authority to "assign a sitting or retired judge to any court. .. ." LA. Const. art. V,
§ 5(A). To the Court, Article V, §3 and Article V, § 5(A) constitute "conflicting
constitutional provisions regarding supreme court composition." Perschall, 697 So.2d at 255.
The Court gave more weight to the specific provision (Art. V, § 3) than the general one
(Art. V, § 5(A)). Id. at 256. Under the Court's analysis, harmonizing these "conflicting"
constitutional provisions meant that:
We must hold the Act unconstitutional under article V, section 3, insofar as
it effectively imposes an eighth justice on the supreme court by the provisions
of La. R.S. 13:312.4.
Id. at 259. The Court also found that the unconstitutional portions of Act 512 could not
be severed from those provisions which are constitutional. Id. at 259-260. Thus, the
Louisiana Supreme Court struck down Act 512 in its entirety.
Despite holding Act 512 unconstitutional, the Court did not recommend a change
in the status quo:
We realize that Act 512 does not exist in a vacuum. The State argues, and
we agree, the Act and the Chisom Consent Judgment are separate and
independent methods by which the negotiated remedy was implemented.
Although the Act falls by this judgment, we recognize the status quo remains
However, according to at least one press account, the plan submitted by the Louisiana
Supreme Court did not contain a majority-Black Supreme Court district. Section 5
submission, Exhibit G, Dan Juneau, "Court redistricting is confusing," unidentified
publication, May 7, 1997.
In late May, another Louisiana Supreme Court justice, Jeanette Knoll, objected to
the congressional plan on the grounds that it would place her outside of her current
district. Jack Wardlaw, Senate Delays Decision on Court Redistricting, New Orleans Times-
Picayune, May 22, 1997 at A6. Justice Knoll was quoted as saying: "I don't want to hurt
anybody . . . I just want to be in my district." Id.
•
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 9
intact under the ChLsom Consent Judgment. Consequently, this court as it
is currently composed shall continue to function as a de jure court with its
actions valid and effectual. We emphasize that the court-approved settlement
in ChLsom, which is under the jurisdiction of the United States District Court
for the Eastern District of Louisiana, is not affected by this judgment.
Id. at 260. The Court also dismissed plaintiff's argument that, if Act 512 is
unconstitutional, then all decisions decided by the Court since the creation of Act 512 are
now void. Id. at 260-61.6
The Louisiana Supreme Court's ruling in Perschall calls into question the temporary
assignment of a Fourth Circuit Court of Appeals judge to the Louisiana Supreme Court,
insofar as such assignment is based upon Louisiana law.' The legal validity of the
provision in Act 776 relating to the temporary assignment, Act 776 at 6, is now
questionable in light of the Perschall decision. See Section 5 submission, Exhibit C. Thus,
while Act 776 has been proposed to replace Act 512 in its entirety, this new law does not -
- and cannot under Louisiana law -- include a provision providing for a temporary
assignment to the Louisiana Supreme Court from an Orleans Parish-based district.
III. The Attorney General Should Interpose An Objection Pursuant To Section 5 of the
Voting Rights Act Because, If Implemented, Act 776 Will Have A Retrogressive
Effect
The State of Louisiana has the burden of demonstrating that the implementation of
Act 776 "does not have the purpose and will not have the effect of denying or abridging the
6Judge Pitcher, sitting as associate justice ad hoc, dissented from the Court's opinion,
arguing that the Pullman abstention reasoning applied by the Court is not a basis for
"overrid[ing] this court's long-standing policy of not giving advisory opinions." Upon
reaching the merits, Associate Justice ad hoc Pitcher still found Act 512 constitutional,
finding the legislation in accord with Article V, § 5(A) and not in conflict with Article V,
§ 3. Perschall at 262 (Pitcher, J. dissenting).
'The Chisom plaintiffs petitioned for rehearing on the grounds that: (1) the elected
members of the Louisiana Supreme Court who participated in deciding the Perschall case
and the constitutionality of Act 512, while lobbying the Louisiana Legislature to replace Act
512, should have recused themselves from deciding the case and should recuse themselves
from any rehearing of the matter; (2) the Louisiana Supreme Court erred as a matter of
federal law with respect to its interpretation of the Pullman abstention doctrine; (3)
Perschall lacked standing to bring this action and the Court failed to address this issue; and
(4) the Court's ruling with respect to the constitutionality of assigning a judge temporarily
to the Louisiana Supreme Court conflicted with prior decisions and actions of the Court.
The Louisiana Supreme Court denied the application for rehearing and the ruling became
final on September 5, 1997.
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 10
right to vote on account of race or color," 42 U.S.C. § 1973c; see also Georgia v. United
States, 411 U.S. 526 (1973); Procedures for the Administration of Section 5, 28 C.F.R. §
51.52 ("The burden of proof is on a submitting authority"). The State cannot meet its
burden here. The temporary assignment of a Fourth Circuit Court of Appeals judge to the
Louisiana Supreme Court is an essential part of Act 512. The temporary assignment of a
judge from the Fourth Circuit Court of Appeals to the Louisiana Supreme Court, a
mechanism designed to ensure that African-American voters in Orleans Parish would have
the right to elect the candidate of their choice to the Louisiana Supreme Court -- until the
final implementation of the ChLsom settlement through the legislative adoption of a new
Supreme Court redistricting plan and the conduct of elections thereunder. As a result of
the Louisiana Supreme Court's ruling in Perschall, however, the validity of the provisions
of Act 776 which purport to continue that temporary assignment has been called into
question.8
The State of Louisiana has not met its burden, under Section 5 of the Voting Rights
Act, of showing that Act 776 will not cause retrogression of the voting strength of African-
Americans residing in Orleans Parish, Louisiana. If implemented, Act 776 will in fact have
a retrogressive effect, in violation of Section 5. "The purpose of § 5 has always been to
insure that no voting procedure changes would be made that would lead to a retrogression
in the position of racial minorities with respect to their effective exercise of the electoral
franchise." Beer v. United States, 425 U.S. 130, 141 (1976). Voting changes which diminish
"the ability of minority groups to participate in the political process and to elect their
choices to office" are retrogressive, and therefore objectionable under Section 5. Beer, id.
More recently, the Supreme Court has reaffirmed that "Section 5 was directed at
preventing a particular set of invidious practices, which had the effect of "undoing or
defeating the rights recently won by nonwhite voters." Miller v. Johnson, 115 S. Ct. 2475,
2493 (1995); see also Bush v. Vera, --- U.S. ---, 135 L.Ed.2d 248, 272
(1996)("[n]onretrogression . . . mandates that the minority's opportunity to elect
representatives of its choice not be diminished, directly or indirectly, by the State's
actions"). As a consequence, the Department of Justice's determination of whether a plan
passes muster under Section 5 involves analysis of how the proposed plan would affect
minority voting strength relative to the current legally enforceable plan: in other words,
whether the proposed plan is ameliorative and would strengthen minority voting strength
or whether it is retrogressive and would set back minority voting strength. See Miller, 115
S. Ct. at 2492-93. The Department of Justice typically performs retrogression analysis with
reference to the existing voting practices in the jurisdiction. See Holder v. Hall, 114 S. Ct.
8The ChLsom plaintiffs believe that the Perschall decision is not only erroneous,
but also violates their due process rights under the Fourteenth Amendment of the
United States Constitution, see Aetna Life Insurance Co. V Lavoie, 457 U.S. 813
(1986)(holding that the failure of a state supreme court justice to recuse him or herself
from a case where he or she has an interest in the outcome violates the Due Process
Clause of the Fourteenth Amendment). Nevertheless, unless and until the decision is
reversed by a higher court, it remains the law of the State of Louisiana.
•
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 12
may consider evidence of minority vote dilution in considering whether a plan is
retrogressive or intentionally discriminates against minority voters. In Bossier Parish, the
Court recognized that: "The fact that a plan has a dilutive impact therefore makes it 'more
probable' that the jurisdiction adopting that plan acted with an intent to retrogress than 'it
would be without that evidence." 137 L.Ed.2d at 748. There is significant evidence that
this legislation will dilute minority voting strength if implemented, given the history of racial
discrimination in the electoral process in Louisiana in general and the areas included within
Louisiana's First Supreme Court District specifically. See e.g., Major v. Treen, 574 F.Supp.
325, 351 (E.D. La. 1983) ("[R]acial bloc voting substantially impairs the ability of black
voters in [Orleans] parish to become fully involved in the democratic process")"; Clark v.
Roemer, 777 F. Supp. 471, 478 (M.D. La. 1991), appeal dismissed, 958 F.2d 614 (5th Cir.
1992) (finding that "historical de jure and de facto restrictions on minority voting . . . [and]
socio-economic factors" which reflected historic discrimination and the disparate economic
and educational status of Black and white residents of Louisiana "have not been shown to
have dissipated . . . [and] still operate to discourage more blacks than whites from full
[political] participation"); Theriot v. Parish of Jefferson, 966 F.Supp. 1435, 1446 (E.D. La.
1997)(noting that "there are remaining vestiges of discrimination . .. [and] race neutrality
has not been achieved in Jefferson Parish at this time")."
'The Treen Court also went on to state that:
Application of [the] amended § 2 "results' test to the
aggregate of the facts adduced at trial, including Louisiana's
history of discrimination and the impact of that history on
the present ability of blacks in Orleans Parish to join in the
political process, the vestiges of discrimination which take
the form of a marked disparity in the socio-economic
conditions under which blacks and whites currently subsist,
the parish's racially polarized voting, as exacerbated by the
state's majority vote requirement, the tenuousness of the
state policy underlying [congressional reapportionment
legislation] and the history of its enactment, and the
manipulation of district boundary lines so as to fracture a
cohesive minority voting bloc, preponderates in favor of the
[African-American residents of Louisiana].
574 F.Supp. at 354.
"Even the three-judge court which struck down a second majority-black
congressional district in Louisiana as a racial gerrymander held that the majority-black
congressional district in Orleans Parish satisfied the requirements of Thornburg V.
Gingles, 478 U.S. 30 (1986). See Hays v. State of Louisiana, 936 F.Supp. 360, 370
(W.D.La.), app. dismissed as moot, 135 L.Ed.2d 1063, pet. for reh'g denied, 136 L.ed.2d
551 (1996).
Honorable Isabelle Katz Pinzler
October 15, 1997
Page 13
Conclusion
For the foregoing reasons, the Attorney General should interpose an objection to
the implementation of Act 776.
Please notify Victor Bolden if you have any questions concerning- this comment
letter. Thank you for your consideration of these views and please notify us of your
decision concerning the pending submission of Louisiana Act 776 of the 1997 Regular
Session.
Respectfully submitted,
Elaine R. Jones
Director-Counsel
Norman J. Chachkin
Jacqueline A. Berrien
Victor A. Bolden
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street
Suite 1600
New York, New York 10013
(212) 219-1900
William P. Quigley
Loyola University School of Law
7214 St. Charles Avenue
New Orleans, LA 70118
(504) 861-5590
Ronald L. Wilson
837 Gravier Street
New Orleans, LA 70113
(504) 586-1241
cc: Elizabeth Johnson, Chief, Voting Section