Letter from Kellog to Guinier; Motion and Order Setting Oral Arguments on Plaintiffs' Motion for Class Certification

    LAW OFFICES OF 

QUIGLEY & SCHECKMAN 
631 ST. CHARLES AVENUE 

NEW ORLEANS, LOUISIANA 70130 

TELEPHONE: 504-524-0016 

WILLIAM P. QUIGLEY IN ASSOCIATION WITH: 

STEVEN SCHECKMAN R. JAMES KELLOGG 

MARK S. GOLDSTEIN 

RONALD J. PURSELL 

August 6, 1982 

Lani Guinier 

NAACP Legal Defense and 

Educational Fund, Inc. 

10 Columbus Circle 

Suite 2020 

New York, New York 10019 

Re: Major v. Treen (Congressional) 
  

Dear Lani: 

Please find enclosed a Memorandum relative to the State's Production of 

Documents in the above captioned matter. I will proceed over the next 

several weeks to draw up a narrative description of what happened when in 

the legislative process, coupled with citations to the documents which we 

have. 

Unless you particularly want them, I see no need to send you a copy of 

the voluminous production. If you want them though, I will be glad to send 

them, or if you specify particular documents you would like to see, I will 

send them along. 

After we have the narrative description, we will have to again begin thinking 

about depositions. 

Also enclosed is a Motion for Class Certification recently filed. 

I'm still looking for your suggestions as to amendments of the complaints. 

If at all possible, I'd like to be able to file our Motion to Amend 

Complaint fairly soon, so that it can be set for hearing at the same time 

as our Motion for Classification. 

Sincerely, 

cof / 
Neer 

R. James Kellogg 

cc: Bill Quigley, Steve Scheckman 

Stanley Halpin  



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., Civil Action No. 82-1192 

Plaintiffs Section C 

-against- THREE JUDGE COURT CASE 
  

| DAVID C. TREEN; etc., et al. CLASS ACTION 

MOTION AND ORDER SETTING ORAL 

ARGUMENT ON PLAINTIFFS' 

MOTION FOR CLASS 

  

On motion of plaintiffs, it appearing that a district court of 

three judges has been enpanelled to hear this case, and it further appearing 

that in order to accomodate the schedule of the three judges, 

IT 1S ORDERED that Plaintiffs' Motion for Class Certification is 

| hereby get for oral argument on the = day of >» 1982 at   

| o'clock ihhM 

Dated: New Orleans, louisiana, this day of August, 1982. 

  

“UNITED STATES DISTRICT JUDGE 

Respectfully submitted, Certificate Service 

R. JAMES KELLOGG I certify that a copy of the foregoing 

{| WILLIAM P. QUIGLEY 
{| STEVEN SCHECKMAN 

|| STANLEY HALPIN for all parties to this proceeding, 
631 St. Charles Avenue 

New Orleans, Louisiana 70130 

504/524-0016 class United States mail, properly 

pleading has been served upon counsel | 

by mailing the same to each by first 

Jack Greenberg addressed and postage prepaid on this 

James M. Nabrit, III of . 
Napoleon B. Williams 

Lani Guinier 

NAACP Legal Defense and 

Educational Fund, Inc. 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

  

  

By: 
  

R. JAMES KELLOGG  



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., Civil Action No. 82-1192 

Plaintiffs Section C 

-against- THREE JUDGE COURT CASE   

{i DAVID C. TREEN, etc., et al. CLASS ACTION 
  

PLAINTIFFS' MOTION TO CERTIFY CLASS 
  

NOW INTO COURT come plaintiffs who respectfully move that this 

matter be certified as a class action composed of all black residents of 

Louisiana who are registered to vote. The grounds for the motion are that 

the prerequisites of Rule 23 of the Federal Rules of Civil Procedure are met 

and the plaintiffs are entitled to certification as a class action under Rule 

23(b) (2). 

Respectfully submitted, 

R. JAMES KELLOGG 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

STANLEY HALPIN 

631 St. Charles Avenue 

New Orleans, Louisiana 70130 

504/524-0016 

Jack Greenberg 

James M. Nabrit, III 

Napoleon B. Williams 

Lani Guinier 

NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC. 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

BY: 
  

R. JAMES KELLOGG 

Certificate Service 

I certify that a copy of the foregoing pleading 

has been served upon counsel for all parties 

to this proceeding, by mailing the same to 

each by first class United States mail, pro- 

perly addressed and postage prepaid on this 

of vo. 19 
  

  
   



UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF LOUISIANA 

BARBARA MAJOR, et al., Civil Action No. 82-1192 

Plaintiffs Section C 

-against- THREE JUDGE COURT CASE 

DAVID C. TREEN, etc,, et al, CLASS ACTION 

  

  

MEMORANDUM IN SUPPORT 

OF MOTION TO 

CERTIFY CLASS 
  

Nature of the Case   

This action brought pursuant to 42 USC 1973c, as amended, and 42 

| USC 1983, challenges the 1981 apportionment of the State of Louisiana for 

| purposes of elections of representatives to the U.S. Congress. The claims 

must be determined by a District Court of Three Judges pursuant to 28 USC 

2284(e), and the members of the Court have been enpanelled. This action was 

filed on March: 26, 1932. On June. 7, 1982, Judge Robert PF. Collins, as 

| convening judge, granted plaintiffs forty-five days to move for class certi- 

fication in addition to the ninty days provided for in Local Rule 2.12 of the 

Eastern District of Louisiana. 

Trial on the merits is scheduled for January 31, 1983. 

In general, the instant litigation attacks Act 20 of the First 

Extraordinary Session of 1981 on statutory and constitutional grounds in that 

the purpose and effect of the plan is to dilute the voting strength of black 

citizens and to deny them the effective utilization of the right to vote on 

| account of their race. 

II. Facts Relevant to this Motion 

The voter registration figures for the State of Louisiana as of 

June 30, 1982 have recently been released by Elections Commissioner Jerry 

Fowler. See "Plaintiff's A" attached hereto. As of that date, over 1.9 

million voters registered statewide, of whom almost 1.5 million were white. 

The exact number of blacks registered to vote statewide is 472,633. In the  



{| New Orleans area, the major focus of the instant litigation, the following 

is the racial breakdown by Congressional District (as constituted prior to 

the effective date of the Reapportionment in question): 

District White Black Total 

1 ¥97,775 60,467 258,272 

99,365 83,779 183,144 

224,105 31,393 255,408 

|| These figures alone give a factual background sufficient for a decision on 

the Motion to Certify Class. 

II. Argument 
This motion is made pursuant to Rule 23(a) and (b) (2) of the Federal 

Rules of Civil Procedure. The pertinent provisions of the Rule provide as 

follows: 

(a) Prerequisites to a Class Action. One or 

more members of a class may sue or be sued as 

representative parties on behalf of all only if 

(1) the class is so numerous that joinder of all 

members is impracticable, (2) there are questions 

of law or fact common to the class, (3) the claims 

or defenses of the representative parties are 

typical of the claims or defenses of the class, 

and (4) the representative parties will fairly 
and adequately protect the interests of the 

class. 

(b) Class Actions Maintainable. An action may 

be maintained as a class action if the prerequisites 

of subdivision (a) are satisfied, and in addition: 

(2) the party opposing the class has acted or 

refused to act on grounds generally applicable to 

the class, thereby making appropriate final injunc- 

tive relief or corresponding declaratory relief 

with respect to the class as a whole. 

There can be no serious dispute that the class is so numerous that 

joinder of all members is impracticable. "Impracticable'" does not mean 

"impossible", but rather refers to the difficulty or inconvenience of joining 

all members of the class. See, e.g., Cypress v. Newport News General,375 F 2d. 
  

648 (CA-4, 1967) and Harris v. Palm Springs Alpine Estates, Inc., 329 F 2d. 909 
  

(CA-9, 1964). According to the Fifth Circuit, a determination of numerosity  



|| depends on the facts of each case with the basic question being the practica- 

| bility of joinder, not the number of interested persons per se. Garcia v. 

Gloor, 618 F 2d 264 (CA-5, 1980). As has been shown above, the number of 

black registered voters in the State of Louisiana is over four hundred seventy- 

| two thousand. That joinder of so many persons is impracticable cannot 

| seriously be disputed. 

Similarly, it is apparent that there are questions of law and fact 

common to the class. Those questions include whether the challenged plan 

violates the U.S. Constitution and the Voting Rights Act, and myriad questions 

|| necessarily ancillary to those principal questions, including the intent and 

| effect of the challenged plan, the existence of racial bloc voting, the history 

of de facto and de jure discrimination by the State of Louisiana and its 

elected officials, and so forth. This litigation is not merely an aggregation 

of individual complaints, compare, Bailey v. Ryan Stevedoring Co., Inc., 528 
  

F 2d 551, 553-4 (CA-5, 1976), but rather involves the allegations that the 

State of Louisiana has discriminated against black registered voters by enact- 

ment of the challenged plan. Likewise, the claims of those who seek to 

represent the class are not only typical of the claims of other classmembers, 

they are virtually identical. It is not expected that the defendants in this 

litigation will argue otherwise. 

The fourth requirement of Rule 23(a) is also satisfied in that the 

|| representative parties will fairly and adequately protect the interests of the 

class. The first element to be proven by plaintiffs under this requirement is 

the qualifications and experience of counsel. Eisen v. Carlisle and Jacquelin, 
  

391 F. 2d 555 (CA-2, 1968). The record shows that the plaintiffs in this 

matter are represented by a number of attorneys, each of whom is independently 

well-qualified. Attorneys Greenberg, Williams and Guinier are employed by 

the NAACP Legal Defense and Educational Fund, Inc. 

For the greater part of this century, the Legal Defense Fund has 

been fighting to protect the voting rights of black Americans. The Fund was  



| actively involved in many of the famous voting cases of the early 1900's in 

which blacks were deprived of the right to vote. During the twenties and 

thirties, the Fund fought in cases such as Nixon v. Herndon, 273 U.S. 536   

(1927); Nixon v. Condon, 286 U.S. 73 (1932); and Smith v. Allwright, 321 U.S. 
    

{| 649 (1944), to declare the "white primary" unconstitutional. Since that time, 

| the Fund has participated in most litigation relating to the rights of minor- 

| ities to vote, including dozens of cases under the Voting Rights Act. 

Additionally, Attorneys Halpin and Kellogg have been directly involved with 

a number of Louisiana cases on voting rights: Halpin was primary counsel on 

Taylor v. McKeithen, 499 F 24 893(CA-5, 1974), Beer v. United States, 425 U.S.     

| 130 (1976), and Zimmer v. McKeithen, 485 F 2d 1297 (CA-5, 1973), among others.   

Both Halpin and Kellogg have practiced before this Court on a number of 

occasions. Attorneys Quigley and Scheckman each were attorneys with the New 

Orleans Legal Assistance Corporation, representing indigent clients, for a 

number of years. They also have extensive litigation experience. Each of 

the attorneys for the putative class have the experience, diligence and skill 

to adequately represent the plaintiff class. 

The second element is whether the plaintiffs' interests are antogon- 

istic to or in sharp conflict with those of the other classmembers. 

v. Lee, 311 U.8. 32 (1940). There simply is no such conflict in the instant 

litigation and the courts have held that speculative conflict is not sufficient | 

to deny class certification: the conflict must be real. See Clark v. Cameron-   

{ 

| 
| 
| 

| Brown, Co., 72 F.R.D. 48, 54-5 (M.D.N.C., 1976); Armstrong v. O'Connell, 416   

F. Supp. 1325, 1341 (F.D. Wisc., 1976). 

The provisions of Rule 23(b) (2) are also satisfied in that the 

| defendants have acted on grounds generally applicable to the class, thereby 

making appropriate final injunctive and/or declaratory relief with respect to 

the class as a whole. In fact, subdivision (b)(2) was added to Rule 23 in 

1966 in part to make it clear that civil rights suits for injunctive or declara-] 

tory relief can be brought as class actions. "The class suit is a uniquely  



| appropriate procedure in civil rights cases, which generally involve an 

I allegation of discrimination against a group" Wright and Miller, 7 Federal 

| Practice and Procedures secs. 1773, 1776. 

This general principle has been applied to voting rights cases with 

| little debate or discussion. See, for example, Kirksey v. Board of Supervisors 
  

| of Hinds County, Miss., 402 F.Supp. 658, 660 and 675 (D., Miss. 1975), aff'd on   

other grounds 528 F.2d 536 (5th Cir. 1976), rev'd on other grounds on re- 

| hearing 554 F.2d 139 (5th Cir. 1977), cert. den. 434 U.S. 968 (1977), a 

reapportionment case in which the court certified a class action on behalf of 

| all black citizens who are registered voters qualified to vote in Hinds County. | 

See also James v. Humphrys County Board of Elections, 384 F.Supp. 114, 117 n,l1 
  

(D. Miss. 1974) (class of all black qualified and registered voters certified 

to challenge election process); Van Cleave v. Town of Gibsland, LA., 380 F. 
  

Supp. 135(W.D)La. 1974) (class of white voters who are residents of the town 

| certified to challenge at large apportionment of town council). 

Finally, it is respectfully submitted that there are no reasons not 
| 
| 

to certify the proferred class. Damages are not sought. See Lukenas v. Bryce's]   

Mt. Resent, Inc., 538 F.2d 594 (CA-4, 1976). There will be no necessity for 

for notice to’ class members, LARIONOFF v. U.S., 533 P.2d 1167, 1186 (D.C. CIR., 
  

1976), and there will not be a procedure for "opting out", La Chappelle v. 
  

I1linois-Owens, Inc., 513 F.24 286, 288 N. & (CA~35, 1975). 

CONCLUSION: Since each of the requirements of Rule 23{(a) and (b){(2), 

F.R. Civ. P., is met, plaintiffs request that the Court enter an order 

certifying this action to be a class action on behalf of all black residents 

of the State of Louisiana who are registered to vote. 

| Dated: August (- , 1982. 

BY: 

R. JAMES KELLOGG 

1 certify that a copy of the foregoing WILLIAM PL QUIGLEY 

STEVEN SCHECKMAN 

pleading has been served upon counsel STANLEY HALPIN 

631 St. Charles Avenue 

| for all parties to this proceeding, by New Orleans, Louisiana 70130 

504/524-0016 

  Certificate Service 

mailing the same to each by first class 

Jack Greenberg 

United States mail, properly addressed James M. Nabrit, III 

Napoleon B. Williams 

and postage prepaid on this Lani Guinier 

NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC. 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

  

   



--Times-Picayune/States~Item 
August 5, 1982 

fy. va 

Bas LA 
M 

ARDLAW 

a 

BATON ROUGE — Gov. David C- 
Treen Wednesday called a special elec- 
tion for Sept. 11 to fill the Gentilly seat 
in ‘the state House of Representatives 
left vacant by the resignation last 
week of Rep. Lane A. Carson, R-New 
Orleans. 

Candidates for the post can begin 
‘qualifying Monday. Qualifying closes 
at 5.p.m. Wednesday, Aug. 11. If a run- 
off is needed, it will be held Nov. 2. 

If a candidate. wins in the primary, 
he'can bessworn in in time to represent 
the district dn the special session 
expected in October. Lig 
fdrson, with das-served in the House 

sineerA970; redigited 4 become Assis- 
taht Secteta of the Department of 

an Resources 

dalielection in thé-9gth’ 
use" Distiior will coincide with the 

regi #eoNgressional and other elec- 
tions bein fel&Sept. 11-Nov. 2. 

In" eeited dévelopment, Elections Commissioner Jerry Fowler released stite wg in wpegistration figures through 
Tse ‘sd a istpation’ for fe primary 

E Cif BAUR. LL: x 

JT June 30. Figures show 1.9’ millions 
visters. registered ‘Statbwides: § Fohom 
1,450 504 ap TI ki 

¢ 5 LTeilliog regisiared De 
RSet EE 

‘3 CEE 

nicalls electior. 
entity. 8 

** ocrats compéred 

at 
Ry a i 

{19108 Republi 
cans and 125,476 independents or, other 
parties, a Democratic, pores » of 
85.4. BORO i 

Kapt, AESY 
Here is the breakda¥ir ie the four 

nal dis- New Orleans area clfige 
tricts: van BC 

First District — Totakgegistration, 
258,272, includes 157,054'40 Orleans, 
12,356 in Plaquemines, ‘35,656 in’ St. 
Bernard and 53,206 in "St. Tamefsiny. | 
The district includes 197,775whipe teg- | 
istrants and 60,467 blatks; 211,987 | 
Democrats, 27,333 Républicans' and 
19,042 others. BAA 

Second District — Tofg} registration, 
183,144, includes 85,2171 Jefferson 
and 97,927 in Orleans. Whites, 99,365, 
blacks, 83,779. Demoeyats; 156,379, 
Republicans, 12,948, others 13,817: 

_ Third District — Total pegistration, 
255,408, includes 98,966 ig Jefferson, 
19,508 in St. Charles, the pest outside 
the seven-parish metropgfitian area. 
Whites, 224,105, blacks 31,393. Demo- 
crats, 212,942, Republicans, 24,265, 
others 18,201. od 

Eighth District — Total registration, 
260,467, includes 18,311 in Sts John the 
Baptist Parish. Whites, 184,368, blacks | 
78,147. Democrats, 238,104, Republi- 
cans 11,091, others 11,272. - 

In the state 10th Senate District 
where an election is being held to 

  

‘replace former Sen. M.-Jogeph. Tie- mann, D-Metairie, the figupes are — 
; Total registration, 58,3828 Whites, 

98,546, blacks 276. Democrats, 44,861, 
Republicans 9,047, other 4,914; 

In the 99th House Distfict . the figures are — Total regisyration, 
19,225. Whites, 12,173, hlackser, 052. 
Democrats, 16,604, Republically’ 1,424, 
others 1,197, ALE a : 

Registration by. parishes in the 
metropolitian area shows: i a, 

Orleans, 254,981: Jefferson, 184,181; 
St. Tammany, 53,206; St. Bernard, 
35,856: Plaquemines, 12,356; St. 
Charles, 19,508; St. Jehn® the Baptist, 
18,311, 

"Plaintiff, Exhibit A"   

 



LAW OFFICES OF 

QUIGLEY & SCHECKMAN 
031 ST. CHARLES AVENUE 

NEW ORLEANS, LOUISIANA 70130 

TELEPHONE: 504-524-0016 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

IN ASSOCIATION WITH 

R. JAMES KELLOGG 

MARK S. GOLDSTEIN 

Major v. Treen wPQ, 3S. 1G. 

Jim Kellogg 

August 5, 1982 

State's Production of Documents 

We have received the documents requested from the State with only a few 

exceptions. The exceptions are #4, a memorandum by the LA House staff 
on "Reapportionment Jurisprudence" and #75-93, letters to and from var- 
ious LA Members of Congress. No explanation is given for the first 

deletion: The second group were not given because the originals were 

sent to DOJ and no copies were kept. 

A cursory review of the materials shows we now have the following: 

1. Rules for Reapportionment adopted by the Joint 

Legislative Committee - #3 

Various legal memoranda analyzing jurisprudence of 

reapportionment and Section 5 procedures 

The complete legislative history, including 

A. Al] bills, amendments, etc. 

B. Journal of Proceedings 

C. Transcripts of all committee meetings 

D. Statistical analyses of major bills 

Letters to and from Governor Treen 

Miscellaneous letters and press releases 

TO DO: Analysis of documents so that narrative description of legis- 

lative process can be written