Letter to Smiley from Hunter RE: brief of Amici Curiae

    State of North Carolina 
MICHAEL F. EASLEY Department of Justice 
ATTORNEY GENERAL P.O. BOX 629 REPLY TO: Tiare B, Smiley 

RALEIGH Special Litigation 
27602-0629 (812) 716-6900 

FAX: 9189) 716-6763 

TELECOPIER TRANSMITTAL SHEET 

TO: Adam Stein and Todd Cox 

FAX NUMBER: 919-976-4953 and 202-682-1312 5 

FROM: Tiare B. Smiley, Special Deputy Attorney General 

TELEPHONE NUMBER: : (919) 716-6900 

DATE: December 9, 1999 

SUBJECT: Brief of Amici Curiae 

NUMBER OF PAGES INCLUDING TRANSMITTAL SHEET: 3 

COMMENTS: For your information, here is a copy of the letter | received from Bob Hunter. | 

.Saw your letter to him Adam, and | thought it was directly on point. It does not appear that 

our efforts were to much avail, as | thought the brief was still fairly objectionable on several 

points. | wonder if the court wills discount the credibility of the brief any since Hunter still 

thinks the legislature redrew in 1994. 

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HUNTER, JOHNSTON, ELAM & BENJAMIN, PLLC 
ATTORNEYS AND COUNSELORS AT Law 

822 NORTH ELM STREET, SUITE 200 
GREENSBORO, NORTH CAROLINA 27401 

  

ROBERT NEAL HUNTER, JR TELEPHONE: 336-273-1600 MAILING ADDRESS: 
ROBERT L. JOHNSTON FACSIMILE: 336-274-4650 P.O. BOX 20570 

JOHN C, ELAM EMAIL: HIEB@grcensborolaw.com GREENSBORO, NC 27420 
WILLIAM P. EENJAMIN 

BRIAN K. TOMLIN 

  

December 7, 1999 

Tiare B. Smiley 
Special Litigation os 
North Carolina Department of Justice NE be ‘LUE pe CE 
P. O. Box 629 “PROWL LTIoATIGY 
Raleigh, NC 27602-0629 

Re: Cromartie v. Hunt 

Proposed Brief of Amicus Curiae 

Dear Tiare: 

Enclosed please find the revised brief of the Congressmen. Thank you for your 
review and comments. I have made changes which I think strengthen the brief’s points 
on supporting the 1997 plan and also conform to what I think I can persuasively say to 
convince the judges to use the 1997 plan. The tone of your letter suggests at several 
places that I have misled you or your office. [ do not think this is true. Although I come 
at these issues from a different viewpoint, I believe we share a common goal and my 
brief expresses it. 

If all the amici brief did was to “ditto” the state’s position, I do not think it would 
promote its credibility or be persuasive in advocating that the 1997 plan be used if a 
violation is found. Obviously, the brief is moot if no violation is found. However, the 
plaintiffs did win summary judgment and I felt that, since the brief is on remedy, this 

needs stressing. 

I do not understand my brief to say that the legislature does not have the right to 
deference. (See the first eight paragraphs of the brief.) Furthermoxe, if this court finds a 
violation, it appeared obvious to me that they do not want to hold a remedial hearing at 
all. Judge Boyle asked from the bench what remedy the parties wanted. I could be very 
mistaken about the answers given because I do not have a copy of the transcript, but 
my recollection is that neither side had a specific suggestion. Your argument was tilted 
toward a no liability finding and expressed exhaustion or frustration on the question of 
whether or not to return the matter to the legislature for another try. Robinson's 

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answer on remedy was vague. I realize from your letter that this was not your intent; 
however, it was my distinct impression from the arguments. Once this had been 
argued, I felt that my brief needed to address the remedial options the court has if they 
do not return the plan to the legislature, which I think is a distinct possibility, I 
certainly do not understand Judge Boyle's comment about finding a violation but 
declining to enter a remedy any other way. 

As for the legal support for finding a violation, entering no remedy, and having 
continued jurisdiction, see Scott v. Germano, 381 U.S. 407, Stout v. Hendricks, 235 F. 
Supp. 536, League v. Marsh, 209 F. Supp. 189. 

  

  

Thank you as ever for the courtesy you showed me during the trial. I think you 
will win on liability and these points will be moot. My best to you, Norma and Eddie 
for the holidays. 

Sincerely yours, 

Robert N. Hunter, Jr. 

RNHjr/byh 

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