Motley, Constance Baker; Gantt, Harvey; Meredith, James; and Others, 1964, undated - 5 of 5

    rt 6 )?'YL

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I

RUFUS L EDMISTEN
ATTC,iNEY OEXIiAL

Fwa "f $*th @uultru
prpnrtmrrd sl lulilict

t. O. Eox 629
RALraoH
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June 22, L982

The Honorable J. Rich Leonard, Clerk
United States District Court
Eastern District of North Carolina
Federal Building
Ra1eigh, North Carolirra 27iLL

RE: RALPH GINGLES v. EDMISTEN, Civil no. 82-803-CIV-5
PUGH v. HUNT, Civil No. 81-I065-CIV-5

Dear Mr. Leonard:

Enclosed please fihd, for filing, the original and three
copie- of Defeirauttt" I Response to eugh Plaintif f s' Motion for
cl'ass Certification and supporting memorandum.

Please mark one coPy "Fi1ed" and return the same to me in
the enclosed, stamPed enveloPe.

rhahk you for your usual cooperation'

Very tru1Y Yours,

RUFUS L. EDI,IISTEN
ATTORNEY GENERAL

JI{JR: bhd

Enclosures

Attorrfey General
Lega1 Affairs



rt

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

R.ALEIGH DIVISION

GINGLES, et

v.

v.

JA}IES B. HUNT, JR.,

d1.7 )
Plaintiffs, )

)
)

EDMISTEN, €t A1.,
Defendants

*tt

V. PUGH, €t al.,
Plaintiffs,

No. 8I-803-CIV-5

No. 81-1055-CIv-5

)
)

)
)
)
)

etc., €t aI., )
Defendants. )

DEFENDANTSI RESPONSE TO PUGH PI,AINTIFFSI

NOW COIttE the Defendants, by and through their counsel of

record, resPonding, by way of objection, to the Pugh Plaintiffs'

I{OTION FOR DETERI{TNATTON THAT ACTION MAY BE MAINTAINED AS A

CLASS ACTION on the grounds set for in the attached memorandum.

Defendants request that the motion be denied and the Puqh

Plaintiffs be allowed to proceed individually.

rhis *"fZa.d uu, or )nC-,
RUFUS L.
Attorney

, L982.

EDI'TISTEN
General

Attorney General's Office
N. C. Department of Justice
Post Office Box 629
Raleigh, North Carolina 27502
Telephone: (919) 733-33?7

Norma Harrell
Tiare Smiley

s General

Jerris Leonard
Kathleen Heenan
Jerris Leonard & Associatesl P.C.
900 17t,h Street, N. w.
suite 1020
Washington, D. C. 20006
Telephone: (2021 872-1095

Attorneys for Defendants

Dep*y Attornef' General
r Legal Affairs



IN THE UNITED STATES DISTRTCT COURT
rOR THE EASTERN DISTRICT OF NORTH CAROLINA

RALEIGH DIVISION

RAIPH GINGLES, et BI.,
Plaintiffs,

V.

RUFUS EDMfSTEN, €t il1.,
Defendants

i***

ALAN V. PUGH, €t iI. r
Plaintiffs,

V'

JAMES B. HUNT, JR.1 €tc.7 et aI.,
Defendants.

In order for a Person

in a class action suit, the

tion requirements under the

Rules of Civil Procedure.

SYSTEI{, INC. V. RODRIGUEZ,

!,iEITIORANDUM IN
SUPPORT OF RESPONSE
TO PUGH PI..AINTIFFS I

uor-roN roR cr,Ass
CERTIFICATION

to be qualified to rePresent a class

person must meet various certifica-
strictures of Rule 23 of the Federal

See, g.gj-, EAST TEXAS II{OTOR E REIGHT

43I U.S. 395, 52 L.Ed. 2d 453, 97

I. STATEI{ENT OF THE F'ACTS

Plaintiff Pugh is a Caucasian male employed as an attorney

in Asheboro, Randolph County, North Carolina. Plaintiff Griffin

is a Caucasian male employed as an attorney in Clinton, Sampson

County, North Caro1ina. Plaintiff l'lcCullough is a black male

employed as a nelrspaper publisher in Statesville, Iredell County

North Carolina. Plaintiff Eaglin is a black maLe employed as an

attorney in Fayetteville, Cumberland County, North Carolina.

plaintiff Trotter is a Caucasian female housewife residing in

Robbins, Moore County, North Carolina. Plaintiffs, through

their motion, seek.to represent the entire class of black

citizens of North Carolina in the above titled action and furthe

the entire class of all voting citizens of North Carolina with

regard to allegations in the complaint not directly involved in

the discrimination agalnst black citizens.

II. ARGUI{ENTS

A. PI,AINTIFF HAS NOT CARRIED THE BURDEN OF CO}IPI,AINCE WITH



rt
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S.Ct. 1891 (L9771; NANCE v. UNION CARBIDE CORP., 540 F.2d 7I8

(4th Cir. t976li DANNER v. PHTLLIPS PETROLEU!{ CO., 447 F.2d I59

(4th Cir. 197I); Local Rule L7 (b) (5). The af firrnative burden

of demonstrating facts sufficient to satisfy the requirements of

Rule 23 lies with the plaintiffs, See, €.9., DPCTPR v. SEABOARD

COAST LINE R.R., 540 F.2d 699, 705 (4th Cir. 1975) ; POINDEXTER

v. TEUBERT, 462 F.2d 1096, 1097 (4th Cir. L972). Hence, neither

a simple recitation of the mandates of RuIe 23 nor mere specula-

tion that Rule 23 requisites are met is sufficient. See, ?.9.1

DOCTOR v. SEABOARD COAST LINE R.R., suPrai POINDEXTER v. TEUBERT

supra; CARACTER v. MORGAN, 49L F.2d 458, 459 (4th Cir. 1973).

Examined below are the various requirements of RuIe 23 and the

case law application of them. As will be shown, the plaintiffs

fall far short of meeting several requirements of RuIe 23 be-

cause of the nature of the case, the makeup of the plaintiffs

and class and because of the plaintiffs' failure to provide the

requisite facts necessary to support class certification.

Hence, the plaintiffs have failed to meet their burden of

demonstrating that they have met each and every requisite of

RuIe 23.

The plaintiffs' reliance upon the 'across the board"

approach to class actions is misplaced. In EAST TEXAS I'{OTOR

FREIGHT, INC..v. RODRIGUEZ, suPra, the Supreme Court reversed

the Fifth Circuit, holding that the appeals court had "plain1y

erred" in its "across the board" approach to discrimination

cases. The Court said in reference to such an aPProach:

"hle are not unaware that suits alleging racial
or ethnic discrimination are often by their
very nature class sults, involving classwide
vrrongs. Common questions of law or fact are

' typicatly present. But careful attention to
the requirements of Fed. Rule Civ Proc 23
remains nonetheless indispensibLe. The mere
fact that a complaint alleges racial or ethnic
discrimination does not in itself ensure that
the party who has brought the lawsuit will be
an adequate rePresentative of those who may
have been the ieal victims of that discrimina-
tion. 43I U.S. at 405-406.

This passage leaves no doubt but that class action

diserimination sni.ts must meet aII requirements of Rule 23.



tt
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districts are now in controversy. Plaintiff must list the

issues to which it seeks to represent this 'class" and illus-
trate how these allegations affect this 'class.' HILLnR v.

KRAWCZYK, 4L4 F.Supp. 998 (D.C.Wic. 1976)

2. Plaintiffs are not members of the

In order to represent a c1ass, the plaintiffs must show a.

nexus between themselves and the members of the class. hIELLS

V. RAIISEY, SCARLETT _q_ CO., INC., 505 F.2d 435 (5th Cir. 1975)

A simple review of the identity of the plaintiffs and the over-

broad classes they would have the court certify exposes the

lack of nexus.

Trro of the plaintiffs are black citizens and three are

white citizens. By definition, the three white plaintiffs must

meet a strong standard before they may represent all black vot,-

ings whose voting strength has been submerged. Courts have con-

sistently held an individual cannot bring an action on behalf

of other persons unless they are similarly situated. KRAI{ER v.

UNION FREE SCHOOL DISTRICT NO. 15, 282 F.Supp . '10 (D.C.N.Y.

1958) SHIPP v. IIEMPHIS AREA OFFICE, TENN. DEPT. OF EII{PLOYI,IENT

SECURITY, 581 I. .2d 1157 (C.A. 6th 1978), cert. den. 99 S.Ct.

1788, 440 U.S. 980, 60 L.Ed. 2d 240.

A plaintiff who does not share the alleged grievance

common to the class is neither a member of the class nor has

standing to litigate regarding the alleged grievance. Under

RuIe 23(a) a plaintiff must show nerobership in a class. The

membership requirement of RuIe 23 (a) entails a showing that the

representatlve plalntiff is personally "aggrieved) or harmed so

that.the class representative has a personal stake in the out-

come. DOCTOR v. SEABOARD COAST LINE R.R., 540 F.2d 699, 705

(4th Cir. L976) ("But to support a class action which puts in

issue whether such a system is in violation of the act /iFitle
vfLT there must be a representative party who has been

personally aggrieved.') See also, OATES v. CROWN ZELLERBACH

CORP., 398 F.zd 496 (5th Cir. 1968); WHITE v. GATES RUBBER CO.,



v
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B. PI.AINTITFS DO NOT REPRESENT THE CI.ASS A}ID ARE NOT
ffiSSpS rHgy Sgsr rO REPRESTNT

RuIe 23 (a) reguires that the representative party for a

class must meet the real Party in interest requirement of RuIe

I? (a). A plaintiff who does not share the alleged grievance

common to the class, should one exist, is neither a mernber of

the class nor has standing to litigate regarding the alleged

grievance.

1. to show the existence

Plaintiffs attempt to isolate two classes based on

particular allegations of their complaint. One class is all

black citizens of the State of North Carolina and the second is

all voting citizens of the State of North Carolina.

The class of black citizens whose voting strength is sub-

merged is not defined with any detail in the Plaintiffs'motion.

Though the courts have liberally construed the exacting of a

class r the general outlines must be determinable at the outset

of the litigation and their identity must be feasible.

DeBREIIAECKER v. SHORT, 433 F.2d 733 (C.A.5 1970), TIJERINA v.

HENRY, 48 F.R.D. 274 (D.C. N.M. 1959) Plaintiffs have drawn

an overbroad class based on a litigable factor "submerged and

diluted voting strength. "

Similarly, Plaintiffs' allegations are based on the impact

of future elections.-Determining "future members of a classn is

too broad and ill-defined language with which to establish a

c1ass. BARCELO v. BROWN, 78 F.R.D. 531 (D.C. Puerto Rico 1978),

EDWARDS v. SCHLESINGER, 377 E.Supp. 1091. (D.C. D.C. L974)

The class of all votlng citizens for thbse allegations not

involving discrimination against black citizens is even less

defined. PlainQiffs give no reasoning of why a separate class

must be created and more importantly which of the allegations

are at issue. Plaintiffs filed a complaint with seven causes of

action and amended said complaint with six additional causes.

In answering interrogatories filed with the court, plaintiffs

3:t3.i-g that -n?eral. issues are mootl certain information regard-

ing allegations is currently unavailable and only certain

failed



U
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53 F.R.D. ILZ (D. Colo. 1971); NEWIIAN v. ANCO CORP., 313

F.Supp. 1059 (M.D. Tenn. I970).

A civil plaintiff must be sufficiently injured by the acts

they assail so that €heycan be expected to conduct a precisely

defined, vigorous litigation. See, €.9.1 SIMON v. EASTERN KY.

WELFARE RIGHTS ORGAIiIIZATION , 426 U.S. 26 (1975); WORTH v.

SELDIN, 422 U.S. 490 (1975); SIERRA CLUB v. UORION, 405 U.S.

727 (L972') . Standing and Rule 23 are twin hurdles. The fact

that "a suit may be a class action , ... adds nothing to the

guestion of standing, for even named plaintiffs who represent

a class rmust allege and show that they personally have been

injured, not that the injury has been suffered by other,

unidentified members of the class to which they belong and which

they purport to represent." fitation omittedZ. srl{oN, 9.'1gpg.,

426 U.S. at 40 n. 20. See also, SOdNA v. rOWA, 419 U.S. 393,

403 (1975).

In EAST TEXAS II{OTOR FREIGHT SYSTEM INC., v. RODRIGUEZ, 431

U.S. 395 (L977) ttre representatives of the class certified were

inappropriate because "the trial court proceedings made clear

that ... /Ene named plaintift{ were not members of the class

of discriminatees they purported to represent. As this Court

has repeatedly held, a class rePresentative must be part of the

class and rpossess the Same interest and suffer the same injuryr

as the class members. SCHLESfNGER v. RESERVISTS COMMITTEE TO

STOP THE WAR, 418 U.S. 2081 2L5. See, Q.9.1KREI{ENS v. BARTLEY,

ante at 131, D. L2i SOSNA v. IOWA, 4L9 U.S. 393, 403; ROSARIO

v. ROCKEFELLER, 410 U.S. 752, 759 n. 9; IIALL v. BEALS, 396 U.S.

45, 49i BAILEY v. PATTERSON, 359 U.S. 31, 32-33.' 431 U'S' at

403.'

The Courtrs citations of ROSARIO and BAfLEY are noteworthy.

Both of these cases hold that a class representative does not

have standing to litigate about injuries suffered by some mem-

bers of the class but by himself, even though he and the entire

class may share other, common, injuries. Hence, the teaching of

RO33I4II32 !. th,'* .r :1:sr :ePresentative may litigate on behalf



-9-

of the class only those issues which they would have standing

to litigate ind,ividually. Even prior to RODRIGUEZ, courts have

recognized that a representative's failure to satisfy the stand-

ing doctrine disqualities him from representing the class. EE,
g=g--, JACOBS v. MARTIN SVTEETS, 550 r.2d 354 (5th Cir. L977li

FREEI.IAN v. I{OTOR COIIVOY, INC., 409 F.Supp. 1100 (N.C. Ga. 1976);

JA.trlES v. SCHLESINGER, 11 E,P.D. Para. I0, 904 (8.D. lrich. 1976);

POOLE v. WfLLIAI'IS, 'IF.E.P. Cases L02 (S.p. Tex. L9741 .

The Supreme Courtrs concept of standing does not permit

combining the distinctly different injuries alleged by the

named plaintiff and alleged on behalf of the class by labeling

them a single harm under the rubric of discrimination. BAILEY

v. PATTERSON, 369 U.S. 31, 32-33, 7 L.Ed. 2d 5L2r 5I4, 82 S.Ct.

549 (1952). Standing cannot be conferred by a merely "con-

jectural" injury. WARTH v. SELDIN, 422 U.S. 490, 509, 45 L.Ed.

2d.343, 360, 95 S.Ct. 2L9'1 (1975).

3. The Plaintiffs and members of the classes

fact

Simi}ar to the inability of the white plaintiffs to repre-

sent black citizens, the total grouP of citizens is unable to

represent all voting citizens due to differing questions of law

and fact.

In determining the question of commonality of questions,

differences between the plaintiffs and members of the proposed

class must be scrutinized, as the differences may turn on the

facts of the individual case and predominate over any common

questions. The incongruity is apparent in the very nature of

the plaintiffsr complaint. Black voters are rePresented for

submergence of voting strength and alI voters are represented

for an unknown list of issues. Broad generalizations cannot be

used to establish the existence of common questions of law or

fact. WILSON v. POST CONVICTION HEARING ACT OF THE COMMONWEALTH

OF PENNSYLVANIA, 32L F.Supp. L234 (D.C. Pa. 1971)

Looking at the allegations of class and comparing them to

thr P.!.ri.ns.i F.f a' Einrrtll ta l,.ntertr.daterieE -'filed with the oourtl



U
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it would appear that the plaintiffs have little in conuuon with

the voting citizenry they allege to represent. ltlalapportionmen

and dilution of minority voting strength are cited in Wake,

Guilford, Irlecklenburg, Cabarrus, Forsyth, Durham, Cumberland

and the Northeastern counties yet the plaintiffs reside in

Randolph, Sampson, Iredell, Moore and Cr.rmberland Counties.

Only plaintiff Eaglin has geographic commonality. Similarly no

allegations of malapportionment and dilution are made for the

other home counties. Class members all must be victims of the

discriminatory policy or the required common question wiIl not

be for:nd to exist. HYATT v. UNITED AIRCRAFT, 50 F.R.D. 242

(D.C. Conn. 1970), SOUTHERN V. BOARD OF TRUSTEES FOR THE DALI,AS

INDEPENDENT SCHOOL DIST., 3I8 E'. Supp. 355, affd. 461 F.2d L257

(Cir.5th L9721

C. PI"AINTIFFS SEEK TO PROIT{OTE THEIR OWN INTEREST

RuIe 23(a) (4) requires the rePresentative to fairly and

adequately protect the interests of the class. This issue is

of critical importance in aII class actions and the court is

under an obligation to pay careful attention to this provision

in every case. EISEN v. CARLISLE & JACQUELIN, 391 f'.2d 555

(Cir. 2nd 1968)

The point made in the previous argument is poignant here

in that the plaintiffs reside in counties differing from those

complained, yet they claim to rePresent a}l interests. Should

the plaintiffs prevail on all or portions of their claims and

certain other claims may be barred. Even more dangerous is the

effect of a loss. tn. potential res judicata effect on members

of the class may prove harsher than any comPlained of by the

plaintiffs.

Several basic factors need to be used in determining both

the motive and adequacy of rePresentation of the class by the

plaintiffs. First, there must be quality rePresentation. see

EISEN above. Quality of representation embraces both the

counsel of the representatives and thecompetence of the legal



t
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stature and interest of the plaintiffs. JOHNSON.v. GEORGIA

HIGIIWAY EXPRESS, INC., 417 f'.2d LL22 (Cir. 5th 1969), CARPENTER

v. HALL, 311 F.Supp 1099 (D.C. Tex. 1970) Second, the

plaintiffs must have a reasonable interest in the outcome of the

litigation. RODRIGUEZ v. SI{ANK, 3I8 F. Supp . 289 (D.C. I11.

1970) affd. 403 U.S. 901, 9I S.Ct.2202,29 L.Ed. 2d 6?7. (197f)

Third, the representative cannot have conflicting interests

with the members of the class. see EISEN Not all voters have

been shown to agree with the plaintiffs' position and

practically, many are antagonistic. SCHY v. SUSQUEEAI.INA CORP.,

4I9 F.2d 1112, cert. den.400 U.S. 826r 27 L.Ed.2d 55r 91

S.Ct. 5I (1970) Fourth, the interests of the representative

must be co-extensive with the class. GOLDEN v. LOCAL 55 OF

THE INTERNATIONAL ASSOC. OF FIREFIGHTERS, 633 T,.2d 8I7 (CiT.

9th 1980) The concerns voiced above about commonality raise

considerable questions of motive and position. Finally, the

court needs to evaluate the experience and competence of counsel

for the plaintiffs. Voting Rights Act and redistricting litiga-
tion is complicated and difficult. The court should ensure

adequate protection for the class before authorizing particular

counsel to serve in their behalf.

III. SUMMJ{RY

Defendants oppose the motion for certification of class for

the reasons stated above and urge the court to follow the well

charted guidelines set out by case law before entrusting the

legal.rights of milllons of North Carolinians into the hands of

the plaintiffs. The responaibillty of class representation is

one that should not be taken light1y.
'Defendants feel confident in the courtrs judgment in this

issue of dire and utmost importance.



U
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rhis trle ZZLIv^, "r )rru , L982.

Depufy Attorney Gfi
i fy'r Legal Affairs

Cr(orney General's

RUFUS L. EDMISTEN
Attorney General

ace,

Suite 1020
Washington, D. C.
Telephone: (2021

ral

N. C. Department of
Post Office Box 529

Office
Justice

Raleigh, North Carolina 27602
Telephone: (919) 733-3377

Norma Harrell
Tiare Smiley
Assistant Attorneys General

'siter
Attorney General

Jerris Leonard
Kathleen Heenan
Jerris Leonard & Associates,
900 17th Street, N. W.

P.C.

20006
872-I0 95

Attorneys for Defendants



U
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CERTIFICATE OF SERVICE

I hereby certify that I have this day served the foregoing

DEFENDA}.ITS I RESPONSE !O PUGH PI,AINTTFFS I I.IOTION E'OR CI"ASS

CERTTTICATION and }IEMOR,A}{DUM IN SUPPORT OF SAID RESPONSE by

placing a copy of same in the United States Post Office,

postage prepaidr addressed to:

J. Levonne Chambers
Les1ie Winner
Chambers, Ferguson, Watt, Wallas,

Adkins E Fuller, P. A.
951 ._South Independence Boulevard
Charlotte, North Carolina 28202

Jack Greenberg'
ilames l.t. Nabrit, III
Lani Guinier
I0 Colurnbus Circ1e
New York, New York 10019

Arthur iI. Donaldson
Burke, Donaldson, Holshouser, & Kenerly
309 ttoith llain street
Salisbury, North Carolina 28L44

Robert N. Hunter, Jr.
Attorney at Law
Post Office Box 3245
201 West l,larket Street
Greensboro, North Carolina

rhis *" ?LI
27 402

1982.aay or )frL

iter
Attorney General