Cannon v. Durham County Board of Elections Brief for Appellees

    In the

Umteb States Court of Appeals 
for tfte Jfourti) Circuit

NO. 97-1459

Hazard Cannon, Norman Phillips, and Dan Sizemore,
Plaintiffs-Appellants,

v.
The Durham County Board of Elections, an official agency 

of the State of North Carolina; THE DURHAM COUNTY BOARD of COMMISSIONERS,
Defendants-Appellees,

Durham Committee on the Affairs of Black People, Durham Branch of 
the NAACP, Dr. Beverly Jones, William Bell, Mozell Robinson, 

Deborah Giles, John jolly, Deborah jolly, Harris C. Johnson, Sr., 
Ellen Mays, Clarence R. Jones, Jennifer McGovern, Steve U nruhe, 
Dabney Hopkins, Patricia N. Page, Page McCullough, David Austin, 

Leigh Bordley, and Margaret McCreary,
Defendant-Intervenors-Appellees.

On Appeal from the United States District Court for the 
Eastern D istrict of North Carolina, Raleigh Division

BRIEF FOR APPELLEES

S. C. Kitchen 
Lowell L. Siler 
Office of the Durham  

County A ttorney 
200 E. M ain S treet 
P.O. Box 3508
Durham, N orth Carolina 27702 
(919) 560-0705

Attorneys for Defendants- 
Appellees

Irving Joyner 
1512 S. Alston Avenue 
Durham , N orth Carolina 27702 
(919) 560-6293

Anita S. Hodgkiss 
Ferguson, Stein, W allas, Adkins,

G resham  & Sumter, P.A.
741 Kenilworth Avenue 
Charlotte, North Carolina 28204 
(704) 375-8461

[Listing of Counsel continued inside cover]



[Listing o f Counsel continued from cover] 

Adam  Stein
Ferguson, Stein, Wallas, Adkins,

Gresham & Sumter, P.A.
312 West Franklin Street 
Chapel Hill, North Carolina 27516 
(919)933-5300

Elaine R Jones 
Director-Counsel 

N orman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th fl.
New York, New York 10013 
(212)219-1900

Attorneys fo r  Defendant-
Intervenors-Appellees



To be filed by: 4/21/97
sn

11 A p r i l  1997

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

Richmond, VA

No. 9 7 -1 4 5 9  Cannon v .  NC S t a t e  Bd o f  Edu

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER 
ENTITIES WITH A DIRECT FINANCIAL INTEREST IN LITIGATION

NOTE: ONLY ONE FORM NEED BE COMPLETED FOR A PARTY EVEN IF THIS PARTY IS
REPRESENTED BY MORE THAN ONE ATTORNEY. DISCLOSURES MUST BE FILED 
ON BEHALF OF INDIVIDUALS AS WELL AS CORPORATIONS AND OTHER LEGAL 
ENTITIES. DISCLOSE PUBLICLY OWNED CORPORATIONS AND ENTITIES ONLY 
EXCLUDE WHOLLY OWNED SUBSIDIARIES. COUNSEL HAS A CONTINUING DUTY 
TO UPDATE THIS INFORMATION.

P u r s u a n t  t o  FRAP 2 6 . 1  and  L o c a l  R u le  2 6 . 1 ,

Dnrhnm Cn._Board..nf F.lprrinn.s----  who i s  Appellee--------------------------------- >
(name o f  p a r t y )  ( a p p e l l a n t / a p p e l l e e )

makes t h e  f o l l o w i n g  d i s c l o s u r e :

1.  I s  t h e  p a r t y  a p u b l i c l y  h e l d  c o r p o r a t i o n  o r  o t h e r  p u b l i c l y  h e l d
e n t i t y ?  ( c h e c k  one)  ( ) YES ( x  ) NO

2.  I s  t h e  p a r t y  a p a r e n t ,  s u b s i d i a r y ,  o r  a f f i l i a t e  o f ,  o r  a t r a d e  
a s s o c i a t i o n  r e p r e s e n t i n g ,  a p u b l i c l y  h e l d  c o r p o r a t i o n ,  o r  o t h e r  
p u b l i c l y  h e l d  e n t i t y  ( s e e  L o c a l  R u le  2 6 . 1 ( b ) ) ?

( c h e c k  one) ( ) YES ( x ) NO

I f  t h e  answ er  i s  YES, s t a t e  t h e  name o f  t h e  e n t i t y  and i t s  
r e l a t i o n s h i p  t o  t h e  p a r t y :

3.  I s  t h e r e  any o t h e r  p u b l i c l y  h e l d  c o r p o r a t i o n ,  o r  o t h e r  p u b l i c l y  
h e l d  e n t i t y ,  t h a t  h a s  a d i r e c t  f i n a n c i a l  i n t e r e s t  i n  t h e  ou tcom e 
o f  t h e  l i t i g a t i o n  ( s e e  L o c a l  R u le  2 6 . 1 ( b ) ) ?

( c h e c k  one)  ( ) YES (X ) NO

I f  t h e  answ er  i s  YES, s t a t e  t h e  name o f  t h e  e n t i t y  and t h e  n a t u r e  
o f  i t s  f i n a n c i a l  i n t e r e s t :



11 A p r il  1997

sn
To be filed by: 4/21/97

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

Richmond, VA

No. 9 7 -1 4 5 9  Cannon v .  NC S t a t e  Bd o f  Edu

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER 
ENTITIES WITH A DIRECT FINANCIAL INTEREST IN LITIGATION

NOTE: ONLY ONE FORM NEED BE COMPLETED FOR A PARTY EVEN IF THIS PARTY IS
REPRESENTED BY MORE THAN ONE ATTORNEY. DISCLOSURES MUST BE FILED 
ON BEHALF OF INDIVIDUALS AS WELL AS CORPORATIONS AND OTHER LEGAL 
ENTITIES. DISCLOSE PUBLICLY OWNED CORPORATIONS AND ENTITIES ONLY 
EXCLUDE WHOLLY OWNED SUBSIDIARIES. COUNSEL HAS A CONTINUING DUTY 
TO UPDATE THIS INFORMATION.

P ursuant t o  FRAP 2 6 .1  and L o ca l R u le  2 6 . 1 ,

Durham C.n. Board of  Connin' s s i  n n e r iwho i s  A ppe l lee -----------------------------------,
(name o f  p a r t y )  ( a p p e l l a n t / a p p e l l e e )

makes t h e  f o l l o w i n g  d i s c l o s u r e :

1. I s  t h e  p a r t y  a p u b l i c l y  h e l d  c o r p o r a t i o n  o r  o t h e r  p u b l i c l y  h e l d
e n t i t y ?  ( c h e c k  one)  ( ) YES (X ) NO

2. I s  t h e  p a r t y  a p a r e n t ,  s u b s i d i a r y ,  o r  a f f i l i a t e  o f ,  o r  a t r a d e  
a s s o c i a t i o n  r e p r e s e n t i n g ,  a p u b l i c l y  h e l d  c o r p o r a t i o n ,  o r  o t h e r  
p u b l i c l y  h e l d  e n t i t y  ( s e e  L o c a l  R u le  2 6 . 1 ( b ) ) ?

(c h e c k  one) ( ) YES ( X ) NO

I f  t h e  an sw er  i s  YES, s t a t e  t h e  name o f  t h e  e n t i t y  and i t s  
r e l a t i o n s h i p  t o  t h e  p a r t y :

3. I s  t h e r e  any o t h e r  p u b l i c l y  h e l d  c o r p o r a t i o n ,  o r  o t h e r  p u b l i c l y  
h e l d  e n t i t y ,  t h a t  h a s  a d i r e c t  f i n a n c i a l  i n t e r e s t  i n  t h e  ou tcome 
o f  t h e  l i t i g a t i o n  ( s e e  L o c a l  R u le  2 6 . 1 ( b ) ) ?

( c h e c k  one)  ( ) YES (X ) NO

I f  t h e  answ er  i s  YES, s t a t e  t h e  name o f  t h e  e n t i t y  and t h e  n a t u r e  
o f  i t s  f i n a n c i a l  i n t e r e s t :



sn
To be filed by: 4/21/97

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

Richmond, VA
11 A p r i l  1997

No. 9 7 -1 4 5 9 Cannon v . NC S t a t e  Bd o f  Edu

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER 
ENTITIES WITH A DIRECT FINANCIAL INTEREST IN LITIGATION

NOTE: ONLY ONE FORM NEED BE COMPLETED FOR A PARTY EVEN IF THIS PARTY IS
REPRESENTED BY MORE THAN ONE ATTORNEY. DISCLOSURES MUST BE FILED 
ON BEHALF OF INDIVIDUALS AS WELL AS CORPORATIONS AND OTHER LEGAL 
ENTITIES. DISCLOSE PUBLICLY OWNED CORPORATIONS AND ENTITIES ONLY. 
EXCLUDE WHOLLY OWNED SUBSIDIARIES. COUNSEL HAS A CONTINUING DUTY 
TO UPDATE THIS INFORMATION.

P u r s u a n t  t o  FRAP 2 6 .1  and L o c a l  R u le  2 6 . 1 ,

J e n n i f e r  McGovern, e t  a l  .______  who i s  a p p e l l e e s _____________________ ,
(name o f  p a r t y )  ( a p p e l l a n t / a p p e l l e e )

makes  t h e  f o l l o w i n g  d i s c l o s u r e :

1. I s  t h e  p a r t y  a p u b l i c l y  h e l d  c o r p o r a t i o n  o r  o t h e r  p u b l i c l y  h e l d
e n t i t y ?  ( c h e c k  one)  ( ) YES ( y )  NO

2. I s  t h e  p a r t y  a p a r e n t ,  s u b s i d i a r y ,  o r  a f f i l i a t e  o f ,  o r  a t r a d e  
a s s o c i a t i o n  r e p r e s e n t i n g ,  a p u b l i c l y  h e l d  c o r p o r a t i o n ,  o r  o t h e r  
p u b l i c l y  h e l d  e n t i t y  ( s e e  L o c a l  R u le  2 6 . 1 ( b ) ) ?

( c h e c k  one)  ( ) YES ( y O  NO

I f  t h e  an s w er  i s  YES, s t a t e  t h e  name o f  t h e  e n t i t y  and i t s  
r e l a t i o n s h i p  t o  t h e  p a r t y :

3.  I s  t h e r e  any o t h e r  p u b l i c l y  h e l d  c o r p o r a t i o n ,  o r  o t h e r  p u b l i c l y  
h e l d  e n t i t y ,  t h a t  has  a d i r e c t  f i n a n c i a l  i n t e r e s t  i n  t h e  ou tcom e  
o f  t h e  l i t i g a t i o n  ( s e e  L o c a l  R u le  2 6 . 1 ( b ) ) ?

(c h e c k  one) ( ) YES ( y f  NO

I f  th e  answer i s  YES, s t a t e  t h e  name o f  th e  e n t i t y  and t h e  nat ure  
o f  i t s  f i n a n c i a l  i n t e r e s t :

( da t e )



TABLE OF CONTENTS
Page

Table o f Authorities................................................................................................................................ iii

Counter-Statement o f Issues Presented for Review ...............................................................................1

Standard o f R ev iew .................................................................................................................................... 1

Counter-Statement of the Case ............................................................................................................... 2

Counter-Statement o f F a c ts ......................................................................................................................4

B ackground................................................................................................................................... 4

Development and approval o f the electoral plan challenged in this litigation ....................... 6

State proceedings........................................................................................................................ 11

Election Results under the challenged p la n ...............................................................................12

The District Court's ruling .................................................................................................... 14

Summary of Argument ...........................................................................................................................15

ARGUMENT -

I THE DISTRICT COURT CORRECTLY GRANTED SUMMARY 
JUDGMENT IN FAVOR OF DEFENDANTS AND 
INTERVENORS WITH RESPECT TO PLAINTIFFS' ASSERTED 
"SHAW V. RENO" AND FOURTEENTH AMENDMENT VOTE
DILUTION C LA IM S....................................................................................................17

A. The plaintiffs do not have standing to bring an action pursuant to
Shaw v. Reno .................................................................................................... 17

B. The plaintiffs do not have standing to bring an action to redress an
alleged Fourteenth Amendment vote dilution c la im ...................................19

l



TABLE OF CONTENTS (continued)
Page

ARGUMENT — (continued)

C. On the merits of the Shaw claim and the Fourteenth Amendment vote 
dilution claim, summary judgment in favor o f defendants and 
intervenors was required, and the judgment below should be affirmed 
on this basis .................................................................................................... 21

11 THE DISTRICT COURT CORRECTLY HELD THAT PLAINTIFFS HAD 
FAILED TO DEMONSTRATE THE PREREQUISITES FOR A VOTE 
DILUTION CLAIM UNDER SECTION 2 OF THE VOTING RIGHTS ACT

III IN RULING ON MOTIONS FOR SUMMARY JUDGMENT, THE
DISTRICT COURT PROPERLY EXCLUDED FROM CONSIDERATION, 
UNDER FED. R EVID. 408, A PURPORTED SETTLEMENT 
AGREEMENT BETWEEN THE ORIGINAL PA R TIES...................................... 30

IV THE DISTRICT COURT PROPERLY QUASHED SUBPOENAS TO
COMPEL COUNTY COMMISSIONERS TO TESTIFY ON THE 
GROUNDS OF THE COMMISSIONERS' LEGISLATIVE IMMUNITY 
AND IN ANY EVENT, THIS ISSUE IS NOW M O O T .........................................32

V THE TRIAL COURT PROPERLY DENIED PLAINTIFFS' MOTION FOR
A PRELIMINARY INJUNCTION AND THE APPEAL FROM THAT 
ORDER IS NOW M O O T .............................................................................................33

Conclusion ............................................................................................................................................... 35

Certificate of S erv ice ............................................................................................................................... 36

Addendum

Todd v. Sewell,
16 F.3d 411 (4th Cir. 1994) (unpublished opinion)

n



TABLE OF AUTHORITIES

Cases:

Barrow v. Falck,
977 F.2d 1100 (7th Cir. 1 9 9 2 ) .............................................................................................  32n

Blackwelder Furniture Co. v. Seilig Mfg. Co.,
550 F.2d 189 (4th Cir. 1 9 7 7 ) ..................................................................................................  34

Burtnick v. McLean, 76 F.3d 611 (4th Cir. 1996) ....................................................................  16, 33

Bush v. Vera,
___U .S .___ , 116 S. Ct. 1941 (1996) ....................................................  15, 17, 22, 25n, 26

Cannon v. North Carolina State Bd. of Educ.,
342 N.C. 399, 464 S.E.2d 43 (1995), rev'g 117 N.C. App. 399,

451 S.E.2d 302 (1 9 9 4 )................................................................................................ 12

City o f Mobile v. Bolden,
446 U.S. 55 (1980) ...........................................................................................................  20,28

City of Richmond v. J.A. Croson Co.,
488 U.S. 469(1989) ................................................................................................................ 24

Daly v. Hunt,
93 F 3d 1212 (4th Cir. 1 9 9 6 ) ......................................................................................... 15, 27n

Fiberglass Insulators, Inc. v. Dupuy,
856 F.2d 652 (4th Cir. 1 9 8 8 ) .................................................................................................. 31

Growe v. Emison,
507 U.S. 25 (1993) ..................................................................................................................  29

Johnson v. DeGrandy,
512 U.S. 997 (1994) ........................................................................................................  16, 28

Lewis v. Alamance County,
99 F.3d 600 (4th Cir. 1996), cert, denied, 65 U.S.L.W. 3766 (U.S. May 19,

1 9 9 7 ) ....................................................................................................................  25n, 30

iii

Lujan v. National Wildlife Fed'n, 
497 U.S. 871 (1990) 1



Cases (continued):

TABLE OF AUTHORITIES (continued)
Page

Miller v. Johnson,
515 U .S .___ , 115 S. Ct. 2475 (1995) .............................................................  20, 22, 25, 26

Personnel Adm'r v. Feeney,
442 U.S. 256 (1979) ...............................................................................................................  23

Shaw v. Reno,
509 U.S. 630 (1993) ...................................................................................................... passim

Shaw v. Hunt,
_ U .S .___ , 116 S. Ct. 1894 (1996) .............................................................  15 ,17 ,22 ,23

Smith v. Virginia Comm. Univ.,
84 F.3d 672 (4th Cir. 1 9 9 6 ) ...................................................................................................... 1

Thornburg v. Gingles,
478 U.S. 30 (1986) .............................................................................................  14, 16, 29, 30

Todd v. Sewell,
16 F.3d 411 (4th Cir. 1 9 9 4 )....................................................................................................  34

United States v. Hays,
515 U .S .___, 115 S. Ct. 2431 (1995) ....................................................................  15,17-21

United States v. National Fin. Services, Inc.,
98 F.3d 131 (4th Cir. 1 9 9 6 ) ......................................................................................  15, 21, 22

United States v. Occi Co.,
758 F.2d 1160 (7th Cir. 1 9 8 5 ) ...............................................................................................  32

Wheeler v. Durham City Bd. o f Educ.,
379 F. Supp. 1352 (M.D.N.C. 1974), affd sub nom. Wheeler v.

Durham County Bd. o f Educ., 521 F.2d 1136 (4th Cir. 1975)................................4

IV



TABLE OF AUTHORITIES (continued)

Constitution. Statutes and Rules.

U.S. Const., Art. IV, § 2 ................................................................................................2, 15, 16, 30n

U S. Const., amend. 5 ....................................................................................................2, 15, 16, 3On

U.S. Const., amend. 14 ............................................................................................................. passim

U.S. Const., amend. 15 ..................................................................................................................2, 14

1991 N.C. Sess. Laws, ch. 689, codified at
N.C. GEN. Stat. § 115C-68.1 ............................................................................................... 5n

1991 N.C. Session Laws, ch. 767, codified at
N.C. Gen . Stat. § 115C-68.3 (1994) .................................................................................. 12

N.C. Gen . Stat. § 115C-68.3 (1994) ...............................................................................................  24

Voting Rights Act of 1965, 42 U.S.C. § 1973 .........................................................................passim

Fed . R. App . P. 35(c) ...........................................................................................................................33

Fed. R. Civ . P. 26(a)(2) ...................................................................................................................... 10

FED. R. Civ. P. 5 6 .............................................................................................................................L 8n

Fed . R. Evid. 408 ........................................................................................................... 14n, 16, 30-32

4th Cir. R. 36(c) ................................................................................................................................. 34n

Page

v



COUNTER-STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Do Plaintiffs-Appellants ["plaintiffs"] lack standing to litigate their constitutional voting 

rights claims?

2. Was summary judgment dismissing plaintiffs'"Shaw v. Reno" claim properly granted?

3. Was summary judgment dismissing plaintiffs' vote dilution claims under Section 2 of the 

Voting Rights Act o f 1965, 42 U.S.C. § 1973, properly granted?

3. Were plaintiffs' remaining constitutional claims properly dismissed as a matter of law?

4. Did the trial court correctly refuse to consider, in deciding the motions for summary 

judgment, the contents of a proposed consent order settling this action that was executed by the 

plaintiffs and Defendants-Appellees ["defendants"] but was thereafter abandoned by defendants and 

never formally presented for approval by the court?

5. Did the court below err in quashing subpoenas to members of the Durham County Board 

of Commissioners who exercised their right to claim legislative immunity from being compelled to 

testify about matters within the scope of their official duties?

6. Is plaintiffs' appeal from the denial of their motion for preliminary injunction to stop the 

May, 1996 election now moot?

STANDARD OF REVIEW

The first three issues identified above were decided by the District Court's grant of motions 

for summary judgment; accordingly, this Court reviews them de novo for conformity with the 

standard set forth in Rule 56, Fed . R. Civ. P. and correct application of law. Lujan v. National 

Wildlife Fed'n, 497 U.S. 871, 833-34 (1990); Smith v. Virginia Comm. Univ., 84 F.3d 672, 675 (4th 

Cir. 1996) (en banc). The remaining questions present issues of law as to which this Court's review

1



is plenary.

On February 8, 1996, following dismissal of earlier state court litigation brought by two of 

the three plaintiffs in this action that challenged a plan to merge the Durham City and Durham 

County, North Carolina school systems, the present suit was commenced {see JA1 5).2 Plaintiffs' 

Complaint alleged that rights guaranteed by Article IV, § 2 of, and the Fifth, Fourteenth and Fifteenth 

Amendments to, the United States Constitution as well as by the Voting Rights Act of 1965, 42 

U.S.C. § 1973 et seq. (JA 20) were being denied them because "the primary rationale for the 

geographical structure o f the voting districts [established in the merger plan] was racial" (JA 25), the 

plan "illegally used total voting age population figures in constructing the voting district plan rather 

than registered voters" {id. , JA 88), and the plan would "consistently degrade the influence of white 

voters in this electoral system as a whole" (JA 26, 89).

Plaintiffs moved for a temporary restraining order and preliminary injunction to prevent the 

May, 1996 school board elections from being held. During the temporary absence of the judge to 

whom the case was assigned, Judge Terrence Boyle reviewed the allegations o f the complaint and 

found them sufficiently serious to warrant judicial action (JA 76-86).3 Following an evidentiary

COUNTER-STATEMENT OF THE CASE

'Citations in this format are to the two-volume Joint Appendix on this appeal.

2Plaintiffs originally named the State Board of Education, the Lieutenant Governor and State 
Senate President, and the Speaker o f the State House o f Representatives as defendants in this case 
but voluntarily dismissed the case as to these defendants on February 29, 1996 (JA 5).

3Appellants' brief (at 1) is incorrect in stating that Judge Boyle "conditionally granted" a TRO 
Rather, Judge Boyle deferred ruling, although he indicated that if the matter could not be seasonably 
calendared, he would issue an order and set a date for hearing the motion for preliminary injunction 
(JA 86).

2



hearing (see JA 101-213 [testimony], 342-81 [exhibits]), however, the District Court announced that 

plaintiffs had failed to support the allegations sufficiently to meet the standards for preliminary relief 

(JA 231-37). On April 1, 1996, the Court issued a written order memorializing the reasons for 

denying preliminary injunctive relief (JA 239-55).4 Plaintiffs appealed that ruling (JA 256-57); 

however, they did not seek injunctive relief pending appeal, either from the District Court or this 

Court, to prevent the 1996 school board elections from proceeding, and plaintiffs dismissed their 

appeal voluntarily in August, 1996 (JA 267-70).

After the close of discovery (see JA 9 [No. 35]), defendants and Defendant-Intervenors- 

Appellees ["intervenors"] filed motions for summary judgment on November 6 and 12, 1996, 

respectively (JA 271-73, 293-94), each supported by declarations or other exhibits (JA 274-92, 383- 

543). Plaintiffs opposed the motions by re-submitting material proffered during the preliminary 

injunction hearing and presenting a limited amount of additional information (see JA 544-772). While 

the motions were pending, the parties agreed to certain factual stipulations embodied in the final pre­

trial order entered February 18, 1997 (see JA 295-99).

On March 6, 1997 the District Court granted the motions for summary judgment. It 

concluded that plaintiffs had failed to establish the existence o f triable material issues of fact as to any 

of their claims and that, on the undisputable facts of record, plaintiffs had demonstrated no right to 

relief (JA 320-41). This appeal followed.

4At the hearing, the District Court quashed subpoenas issued by the plaintiffs seeking to compel 
testimony by incumbent and former members of the Durham County Board o f Commissioners who 
did not waive their legislative immunity (see JA 104-10; see also id. at 8 [Item 30] (written Order), 
316-17 [order of Magistrate Judge granting motion in limine on same grounds]).

3



COUNTER-STATEMENT OF FACTS

Background

The City of Durham was incorporated as an entity separate from Durham County, North 

Carolina in 1890, and separate school systems, each coterminous with the political subdivision 

boundaries, were operated until 1955. Beginning in 1956, some areas of Durham County that were 

annexed into the City o f Durham chose to remain a part of the county school system, so that 

municipal government and city school system boundaries ceased to be coterminous. Wheeler v. 

Durham City BcL o f  Educ., 379 F. Supp. 1352, 1361-62 (M.D.N.C. 1974), a jfd su b  nom. Wheeler 

v. Durham County Bd. o f  Educ., 521 F.2d 1136 (4th Cir. 1975). By 1974, the city school system 

included less than half the geographic area within the City of Durham, id., 379 F. Supp. at 1363. 

Pupil enrollment in the city school district was 71% Black; enrollment in the slightly larger county 

system was 75% white, id. at 1356, 1359.

Consolidation o f the two school systems was a recurrent subject of discussion and 

consideration. Referenda proposing merger were placed on the ballot with the support of both boards 

of education and of the Durham County Board of Commissioners in 1959 and 1971 but were 

defeated, id. at 1364. In 1988, the Board of Commissioners again raised the issue by establishing a 

City/County Merger Task Force (JA 359).5 That Task Force submitted a final report to the

5Unless otherwise indicated, citations are to uncontroverted factual evidence in the form of 
testimony at the preliminary injunction hearing, affidavits or declarations, responses to requests for 
admission or other materials offered by the parties in support of or in opposition to appellees' motions 
for summary judgment. The parties stipulated in the final pre-trial order issued February 18, 1997 
that all the testimony and documentary evidence introduced at the preliminary injunction hearing 
would become part o f the trial record (JA 297, U L ).

4



Commissioners on May 16, 1989 (JA 360 [Bell affidavit], 406-08 [Freemark declaration]; DX-16 

[Minutes o f Board o f Commissioners], at 17), recommending consolidation and election o f school 

board members for the merged system either from single-member districts or from a combination of 

single-member and at-large districts. (JA 360). The Commissioners then hired an outside consulting 

firm to make recommendations about a merger plan (id:, DX-1, at 18-20). Following receipt of the 

recommendations on January 16, 1991, the Commissioners asked the consultant to prepare a merger 

implementation plan (JA 360; DX-1, at 30-31); this was delivered to the Board of Commissioners on 

June 10, 1991 (JA 360, DX-1 at 33-37).7

Extensive public work sessions and hearings were conducted by the Board of Commissioners 

over the next several months regarding the content and mechanics of a merger proposal (DX-1, at 

38-92). On October 14, 1991, the Commissioners by a 3-2 vote adopted a merger plan incorporating 

a seven-single-member-district school board (DX-1, at 96). This merger proposal was rejected by 

the State Board of Education because it appeared to lack broad-based community support (JA 363). 

The Board of Commissioners then filed a lawsuit against the State Board in the Superior Court of 

Wake County to challenge the denial (JA 665-83) but also decided to try to develop a new plan for

6Citations in this format are to Defendants' Exhibit 1, a voluminous compendium of the official 
Minutes o f the Durham County Board of Commissioners that was introduced into evidence at the 
preliminary injunction hearing on March 22, 1996 but which was not reprinted in the Joint Appendix 
because of its bulk.

7At the Board meeting on June 10, 1991, it was noted that the North Carolina General Assembly 
was considering legislation that would authorize a County Board of Commissioners to recommend 
a merger plan to the State Board of Education without a requirement that the plan also be approved 
by the school boards of the systems to be consolidated (DX-1, at 35). That legislation was enacted 
on July 13, 1991, 1991 N.C. Sess. Laws, ch. 689, §37(b) and is now codified at N.C. Gkn. STAT. § 
115C-68.1 (1994).

5



electing the members o f the school board of a merged system that "might result in a greater 

consensus" (DX-1 at 120).

Development and approval of the electoral plan challenged in this litigation

Two members o f the Board o f Commissioners — one who had supported the seven-district 

alternative and one who had voted against it -  suggested a "1-2-4" mixed (single-member-district and 

at-large) plan, an idea originally presented to them by Michael Crowell, an attorney whom the Board 

o f Commissioners had earlier consulted in the development of the merger proposal (DX-1 at 123). 

At the same time, early in December, 1991, Paul Luebke, a State Representative from the Durham 

area, contacted Gerry Cohen, the Director of Legislative Drafting for the North Carolina General 

Assembly (who had substantial experience in developing electoral plans for both local and state-level 

bodies, including school boards of merged districts (JA 40-41)). Luebke requested Cohen's assistance 

in coming up with a compromise electoral plan that might be supported both by individuals who 

favored geographic districts and by those who favored allowing voters to cast ballots for more than 

one candidate (JA 125, 142).8

8Dr. Michael Freemark, whose declaration was submitted in support of intervenors' summary 
judgment motion, served on the School Merger Task Force. He found that Durham County residents 
had "many different views concerning the proposed school merger, as well as a variety of ideas about 
how the consolidated school system should be governed":

There was no single, monolithic view about either of these issues: there were people 
on the task force who advocated electing all members of the school board in county­
wide, at-large elections, and there were others who advocated just as forcefully that 
the entire board should be elected from single-member districts . . . .

As a member of The Task force and Chair of the People's Alliance Education 
committee, I personally knew and interacted with people of both races who wanted 
at least some members of the new School Board to be elected from districts so that 
particular neighborhoods and communities in Durham could be represented on the 
Board. For example, one of my colleagues on the Task Force, a white resident of the

6



Cohen spoke, during the same time period, with several of the County Commissioners (JA 

125-26). He testified that he was not given any directions about racial composition o f districts that 

might be part of any plan that he developed (JA 126, 156),9 although he had discussed a large number 

of factors relating to plan-drawing (including the racial composition of electoral districts) with State 

Rep. Luebke (JA 132).

Cohen testified that after studying a map, he was struck with the idea of creating overlapping 

districts to fashion a plan that would utilize geographic districts while permitting voters to cast ballots 

to fill more than a single seat (JA 142-43). After learning from Michael Crowell that Crowell had 

himself very recently suggested the same approach to some of the County Commissioners, Cohen 

attempted to fashion districts for a "4-2-1" plan — a seven-member school board, one of whom would 

be elected by all voters in the county; four of whom would be elected from single-member geographic 

electoral districts; and two of whom would be elected from two large Consolidated or "overlay" 

districts created by combining two of the four smaller single-member districts in each.

Cohen testified that he drew the plan consistent with past North Carolina practice, in instances

Gorham community supported single-member districts because he wanted . . . .  to 
elect a representative who was familiar with and sensitive to the needs of that 
comparatively rural, relatively low-income area of the County.

(JA 408-09.) There was widespread support for a compromise on governance issues, both among 
the Commissioners and the general public. See e.g., DX-1, at 76 (Commissioner Heron) (discussing 
possible compromise plans mixing district and at-large elections), 84 (comment at public hearing in 
support of mixed plan as "good compromise [that] would succeed in unifying the two school 
systems"), 85 (speaker urges Commissioners to find compromise between two types of plan), 135 
(Commissioners Reckhow and Heron characterize 4-2-1 plan as compromise); JA 409 (Freemark: 
"4-2-1 plan was an attempt to give as many people as possible at least some of what they had hoped 
for in the new election system").

9See also JA 138 (only instruction he had was to come up with a compromise acceptable to both 
the County Commissioners and the State Board of Education).

7



of school district mergers, of attempting to insure that the new board will at least initially include 

members who resided in both o f the separate pre-merger systems. Thus, he tried to configure each 

of the Consolidated districts to include, as its core, areas within the former city school district and 

the former county school district, respectively (JA 134, 145-46; see also JA 415 [Cohen 

declaration])10. To accomplish this goal, Cohen "started building the districts out o f the center o f the 

city school district" so that the population cores of districts 1 and 2 (Consolidated District A) are 

areas formerly within the city district and the cores o f District 3 and 4 (Consolidated District B) are 

from the former county system.1'

Cohen deliberately determined to use whole voting precincts as the building blocks for the 

plan to make it easy for the Board of Elections, the candidates and the voters to understand and 

administer, and to avoid questions o f manipulation that sometimes arise when precincts are divided 

(JA 141, 413-14).12 Irregularities in the shape of the districts result from this adherence to precinct 

boundaries (JA 414-17 [Cohen declaration ^ 3,6], 511-12 [report of Defendant-Intervenors' expert

10At the final pre-trial conference, plaintiffs indicated that they would object to Mr. Cohen's 
declaration as hearsay. See JA 309. However, use of affidavits in lieu of direct examination was 
permitted at the preliminary injunction hearing (see JA 106); more impor­
tant for the purpose of the present appeal, affidavits and declarations are explicitly authorized in 
connection with summary judgment motions, see Fed . R. Civ. P. 56(e).

u See JA 526, 527 for maps of these electoral districts. The red line on each of these maps 
delineates the Durham municipal boundary which, as previously indicated, ceased to be coterminous 
with the boundaries of the city school district in 1956.

I2Numerous Durham County voting precincts had previously been split between the former city 
and county school systems, see JA 421 [table based upon comparison of election return for October 
11, 1983 city school board contest (JA 440) and May 8, 1984 county school board race (JA 444)].

8



witness]).13

Because the population of the former city school district was predominantly African-American 

and that of the former county district predominantly white, Cohen realized that the traditional practice 

o f ensuring some initial representation from each on the new board, which he achieved by locating 

the cores of the consolidated districts in the areas o f the former systems, would result in two of the 

constituent single-member districts being predominantly black and two being predominantly white 

(JA 134-35). He therefore considered race in devising the final configuration of the plan to the extent 

necessary to avoid any minority vote dilution problem and to insure that the racial group that 

predominated in each district would have a realistic opportunity to elect candidates of its choice if 

members of that group were to vote cohesively (JA 145, 146, 149).14 Cohen flatly denied, however, 

that racial proportions were either the sole or the dominant consideration that he took into account 

in fashioning the plan (JA 132).15

The final configuration of the 4-2-1 plan produced seven districts (including the county-wide

13Thus, for example, the "finger" of District 2 pointing to the southwest along Hope Valley Road 
and Third Fork Creek (see JA 418) is Precinct No. 9, formerly divided between the city and county 
school systems along Cornwallis Road.

14During the Board of Commissioners' consideration of earlier plans, the Board received a 
recommendation from Mr. Crowell that it consider adopting a plan with at least some single-member 
districts to avoid possible dilution of African-American voting strength in a nonpartisan, all at-large 
scheme, inasmuch as polarized voting along racial lines appeared still to exist (see DX-1, at 91, see 
also id  at 53 [comments of Mr. O'Reilly]).

l5See also JA 183, 185-86 (former commissioner Giles: racial composition of districts was not 
most significant concern of Board as merger plan was being developed; she also wanted to assure 
county-wide representation), 199-201 (former Commissioner Bell: racial composition of districts not 
dominant consideration of Board); DX-1 at 95 (Bell: plan should provide "representation for all 
sections of the County"), 230 (Commissioner Black's principles for effective plan included 
"countywide Representation").

9



at-large seat)16 with the following population characteristics, according to 1990 census figures (JA 

56):

Total Population Voting-Age Population
District %W %B %W %B

1 36 63 40 58
2 39 56 43 52
Consolidated District A 37 60 42 55

Total Population Voting-Age Population
District %W %B %W %B

3 76 20 77 19
4 87 11 87 11
Consolidated District B 81 16 82 15
County-Wide seat 60 37 62 35

Four electoral districts thus are majority white and three are majority African-American. The 

report of intervenors' proposed expert witness (see Fed . R. Civ . P. 26(a)(2)), submitted as an exhibit 

to their motion for summary judgment, indicated that these population characteristics were consistent 

with the residential distribution of population throughout the county (JA 504-06). Moreover, Gerry 

Cohen (who drew the plan) believes that given the distribution of the African-American population 

within and among the voting precincts of Durham County (see JA 524), "any districting plan would 

have included one or more majority-black districts" (JA 417), an assessment also confirmed by 

intervenors' expert's report (JA 505-06). Significantly, plaintiffs proffered no alternative districting 

plan in the court below to demonstrate that equipopulous districts could be drawn in Durham County

^Districts 1 and 2 are combined as Consolidated District A; Districts 3 and 4 are combined as 
Consolidated District B. The two Consolidated Districts taken together cover the entire area of the 
county.

10



without this result.17 

State Proceedings

When his work was completed, Cohen sent Rep. Luebke "some statistics and maps and a list 

of precincts" (JA 129). These were put together in a different format by the Durham County Planning 

Department (id  ), and presented to the County Commissioners on December 18, 1991 (DX-1, at 

123). Following a public hearing on the new plan on January 29, 1992 (DX-1, at 129-33), it was 

unanimously approved for submission to the State Board of Education (id. at 136) 18 The State 

Board also approved the plan, on February 6, 1992 (see id. at 139; JA 22 [Complaint, ^  10]). Under 

the plan, at any time after the 1996 election, 10% of the County's registered voters may initiate a 

ballot referendum proposal to change the method of selecting the school board (JA 48).

17Plaintififs' designated "expert" witness, see JA 397-403, but see JA 312-13 (objection to 
qualification as expert), expressed only the opinion that "there is little congruence between school 
board voter districts one and two and any prior political boundaries within Durham County" (JA 661).

18Appellants' Brief asserts (at 17) that the

district court's finding that Cohen was the draftsman of the plan is erroneous. His testimony 
was to the effect that he prepared some maps and list of precincts, but the plan, option 4B, 
was prepared by the Durham county Planning Department under Mr. Norby (Tp 28, In 12- 
25, JA 128; and Tp 30 In 9-15 JA 130).

The District Court correctly found that Cohen developed the plan. During the preliminary injunction 
hearing, plaintiffs' counsel presented an exhibit to Cohen, who testified that he had not produced the 
document shown to him (JA 128 [lines 17-20]). When asked if he knew who did produce the 
document, Cohen said: "1 believe it was prepared by the Durham County Planning Department based 
on maps that I  prepared and [a] list ofprecincts that I  prepared for Mr. Lupke [sic]" (JA 128 [lines 
22-24] (emphasis supplied)). Similarly, Cohen stated that "[t]his again is a document prepared by the 
Durham County Planning Department for the Board of Commissioners, which I understand from 
talking, I believe, to Mr. Dorby at the time it was prepared was based on information I provided to 
Mr. Lupke [sic]" (JA 130 [line 23]-JA 131 [line 2] (emphasis supplied)). Plaintiffs did not proffer 
the affidavit of Mr. Norby -  or any other evidence -  to rebut Mr. Cohen's testimony. Consequently, 
the District Court's finding is amply supported and there is no basis for reversing it as clearly 
erroneous.

11



On February 13, 1992, two of the present plaintiffs (Cannon and Phillips),19 along with Alvin 

Olds, filed a lawsuit in the Superior Court of North Carolina challenging both the merger plan and 

the 1991 statute (see supra note 7) that established the procedure by which the merger was 

accomplished (JA 14-19). That suit alleged that the 1991 law was an unlawful delegation of 

legislative authority (JA 16-17) and a violation (in its funding scheme) of substantive due process and 

equal protection under the North Carolina and United States Constitutions (JA 17), as well as that 

the merger plan improperly incorporated district, rather than at-large, elections without enactment 

of local legislation by the North Carolina General Assembly (JA 18). On April 18, 1992 the state trial 

court entered judgment in favor of plaintiffs (JA 637-39). While Durham County's appeal from that 

decision was pending, the North Carolina General Assembly enacted 1991 N.C. Session Laws ch. 

767, codified at N.C. GEN. Stat. § 115C-68.3, ratifying and authorizing the Durham consolidation 

plan and sixteen other merger plans that had been approved by the State Board o f Education (JA 348- 

51).20 On the basis of this enactment, the trial court judgment in favor of the Cannon plaintiffs was 

ultimately vacated as moot. Cannon v. North Carolina State Bd. ofEduc., 342 N.C. 399, 464 S.E.2d 

43 (1995), rev'g 117 N.C. App. 399, 451 S.E.2d 302 (1994).

Election results under the challenged plan

On May 5, 1992, elections were conducted under the "4-2-1" plan for a seven-member Board 

of Education for the consolidated "Durham Public School District" (see JA 486-92 [election returns]),

19Dan Sizemore, the third plaintiff in this lawsuit, is Mr. Cannon's son-in-law, who was requested 
by Mr. Cannon to join in the case as a plaintiff shortly before it was filed (JA 386, 388).

20This Act recites that "[then-p]ending litigation threatens to disrupt the well-settled school 
mergers" that created 14 enumerated consolidated systems, as well as three "recently approved" 
mergers, including Durham County's (see JA 618, 619).

12



and the merger plan (JA 34-63) became effective. African-American candidates were elected in 

majority-black Districts 1, 2 and Consolidated District A. White candidates were elected in majority- 

white Districts 3, 4, Consolidated District B, and the county-wide at-large seat. (JA 296-97 

[Stipulations in final pre-trial order].) Two white candidates competed in the 1992 county-wide race 

and in the runoff for consolidated District B; the ultimate victor in each of these contests was 

endorsed by the intervenor Durham Committee on the Affairs o f Black People (JA 186-87, 296-97)“' 

but received substantial numbers of white as well as black votes.21 22 A second round of elections under 

the plan was held in 1996 (see JA 486-92 [election returns]). That year, six candidates competed for 

the at-large seat. The two leading vote-getters were Kathryn Meyers, the white incumbent who had 

received the Durham Committee's endorsement in 1992, with 45.23%, and Helen Bryant, an African- 

American supported in 1996 by the Durham Committee (JA 297), with 31.91%. This time, the 

heavily white precincts23 that had cast ballots in 1992 for the Committee-endorsed candidate voted 

overwhelmingly against Ms. Bryant, who was defeated (see JA 491-92). The school board thus is 

still made up of three African-American and four white members.

21The Committee is an organization of African-Americans that seeks to protect the interests of 
Durham County's black citizens, including through endorsing black or white candidates who exhibit 
a commitment to that goal (see JA 374-78 [affidavit of E. Lavonia Allison]).

22 For example, in the countywide race, the Committee-endorsed candidate won by large margins 
both in heavily black precincts such as nos. 10-13, and in heavily white precincts such as nos. 4, 37 
and 43 -  where the total number o f votes for the winning candidates substantially exceeded the 
number o f black registered voters in the precinct. See JA 71 (registration figures), 73-74 (vote 
totals).

nSee supra note 22. 1996 registration figures broken down by race were unavailable at the time 
the motions for summary judgment were filed. See JA 423-24.

13



The District Court’s rulin£

In granting summary judgment in favor of defendants and intervenors and dismissing plaintiffs' 

Complaint, the District Court held as follows:

— As to plaintiffs' Voting Rights Act claim, the Court found no evidence to support the 

necessary Gingles24 prerequisite findings (JA 328-29). The Court further concluded that 

plaintiffs had produced no evidence that could support a "totality o f the circumstances" 

finding that Section 2 of the Voting Rights Act had been violated" (JA 329-30).

— As to plaintiffs' apparent Shaw25 Fourteenth Amendment claim, the Court held that plaintiffs 

lacked standing because they admittedly did not reside in the majority-minority districts whose 

creation was alleged to have been a Shaw violation, and they produced no evidence that they 

otherwise had been subjected to a racial classification (JA 332-33).26

-- As to any separate Fourteenth or Fifteenth Amendment claims, the Court noted that such 

claims required a showing o f discriminatory intent (JA 333-35) but found that none of the 

evidence upon which plaintiffs relied, either singly or in combination, would support an 

inference of discriminatory intent (JA 335-37).

24Thornburg v. Gingles, 478 U S. 30 (1986).

25Shaw v. Reno, 509 U.S. 630 (1993).

“The Court refused to consider, in ruling on the summary judgment motions, the factual and legal 
recitations o f a purported "consent decree" between plaintiffs and the original defendant parties, 
sustaining the defendant parties' objections that it was evidence derived from settlement negotiations 
inadmissible under FED. R. EviD. 408. The unauthenticated document was proffered as an exhibit 
to an affidavit of plaintiff Cannon, which stated that it had been "delivered" to the trial court by an 
unspecified person other than the affiant "prior to the hearing" o f March 22, 1996 on preliminary 
injunction. However, on March 8, 1996 the trial court had granted intervenors' motions to become 
parties to the lawsuit, and the purported "consent decree" was never presented nor even mentioned 
at the hearing on preliminary injunction.

14



— The Court also rejected the plaintiffs' complaint that the districting plan should have been 

based on voter registration rather than population data, citing this Court's ruling in Daly v. 

Hunt, 93 F.3d 1212, 1224 (4th Cir. 1996) (JA 337-38).

— Finally, the Court held that neither the Privileges and Immunities Clause nor the Fifth 

Amendment had any application to the facts of this case (JA 337 n.7).

SUMMARY OF ARGUMENT

Plaintiffs lacked standing to pursue either their constitutional vote dilution claim or their 

"analytically distinct" Fourteenth Amendment claim recognized in Shaw v. Reno, 509 U S. 630, 652 

(1993) because none of them resides within any of the majority-minority districts that they allege to 

have been created through improper gerrymandering, and they have presented no evidence that any 

of them were assigned to either District 3 or District 4 because of race. See Shaw v. H unt,___U S.

_ ,  116 S. Ct. 1894, 1900 (1996) (to have standing, complainants must live "in a district which is 

the subject of a racial-gerrymander claim" or "provide[] specific evidence that they personally were

assigned to their voting districts on the basis of race"); Bush v. Vera,___U .S .___ , 116 S. Ct. 1941,

1951 (1996); United States v. Hays, 515 U .S .___, 115 S. Ct. 2431, 2436-37 (1995).

Even if plaintiffs had standing to sue, the District Court correctly dismissed their claims on 

summary judgment because plaintiffs failed to offer sufficient evidence from which a rational trier of 

fact could find the essential elements of each of the claims to have been established. United States 

v. National Fin. Services, Inc., 98 F.3d 131, 135 (4th Cir. 1996). The "Shaw v. Reno" claim was 

subject to dismissal because plaintiffs did not present evidence from which a fact-finder justifiably 

could draw the inference that race predominated in the fashioning of the election districts contained 

in the merger plan. Plaintiffs' Fourteenth and Fifteenth Amendment claims similarly fall because there

15



was wholly insufficient evidence upon which to rest a determination that the Durham County Board 

of Commissioners acted with discriminatory intent. As to the Section 2 claim, plaintiffs failed, after 

full opportunity for discovery, to present any evidence that would support either a finding that the 

prerequisite conditions for such a claim, as enunciated in Thornburg v. Gingles, 478 U S. 30 (1986), 

existed or a conclusion, based upon the "totality of the circumstances," that white voting strength in 

Durham County school board elections was diluted by the electoral plan they sought to invalidate, 

as required by Johnson v. DeGrandy, 512 U S. 997, 114 S. Ct. 2647 (1994). Finally, the Court 

below acted properly in granting summary judgment on plaintiffs' remaining constitutional claims 

because neither the Privileges and Immunities Clause nor the Fifth Amendment has any application 

to the facts o f this case.

In passing upon the summary judgment motions, the District Court correctly refused, pursuant 

to Fed . R. Evid . 408, to consider factual recitations contained in an unauthenticated document 

proffered as an exhibit to an affidavit of one of the plaintiffs. Purporting to be a "consent decree" 

executed by plaintiffs and defendants, the document allegedly was "delivered" to the trial court by an 

unspecified person other than the affiant "prior to the hearing" of March 22, 1996 on preliminary 

injunction. The document was inadmissible as an offer or settlement; the trial court had on March 

8, 1996 granted the motions o f intervenors, who never signed the document, to become parties to 

the lawsuit; the purported "consent decree" was never approved by the Court nor even mentioned 

at the hearing on preliminary injunction; and one of the purported signatory parties (defendants) has 

consistently taken the position that the document related only to settlement discussions that never 

came to fruition.

The District Court also acted in accordance with binding precedent of this Court, Burtnick

16



v. McLean, 76 F.3d 611 (4th Cir. 1996), in quashing subpoenas issued to compel the testimony, at 

the preliminary injunction hearing, of members of the Durham County Board o f Commissioners who 

desired to exercise their legislative immunity.

Finally, plaintiffs' appeal of the District Court's denial of preliminary injunctive relief to 

prevent the holding of the 1996 school board election is moot, since no stay or injunction pending 

appeal was ever sought or granted, final judgment in the litigation has been entered, and the election 

has been held and the successful candidates have taken office.

ARGUMENT

I. THE DISTRICT COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN 
FAVOR OF DEFENDANTS AND INTERVENORS WITH RESPECT TO 
PLAINTIFFS’ ASSERTED "SHAWv. RENO" AND FOURTEENTH AMENDMENT 
VOTE DILUTION CLAIMS

A. The plaintiffs do not have standing to bring an action pursuant to Shaw v. Reno

The United States Supreme Court in United States v. Hays, 515 U S .___ , 115 S. Ct. 2431

(1995) has set forth the test for determining standing when plaintiffs challenge election districts as 

being unconstitutional racial gerrymanders pursuant to the decision in Shaw v. Reno, 509 U S. 630 

(1993). The Court in Hays required the plaintiff to live in the challenged district or to provide 

evidence that he or she had "personally been subjected to a racial classification," Hays, 115 S. Ct. at

2436; accord, Shaw v. H unt,___U .S .___ , 116 S. Ct. 1894, 1900 (1996); Bush v. Vera,___ U.S.

___, 116 S. Ct. 1941, 1951 (1996) (plaintiff did not have standing who did not allege specific facts

showing he personally was subjected to racial classification). In this case, it is uncontested that the 

plaintiffs do not live in the challenged majority-minority districts (JA 392-93). In addition, they did

17



not produce any evidence that they were personally subjected to a racial classification.27 Plaintiffs 

thus fail the test for standing in Hays, and the District Court was correct in dismissing their "Shaw 

v. Reno" claim.

In Hays, 115 S. Ct. at 2435, the Supreme Court explained the basis o f the rule regarding 

standing as follows:

[W]e have repeatedly refused to recognize a generalized grievance against allegedly illegal 
government conduct as sufficient for standing to invoke the federal judicial power . . . .

Allen  v. Wright, [468 U.S. 737 (1984)] made clear, that even if a governmental actor is 
discriminating on the basis o f race, the resulting injury "accords a basis for standing only to 
' those persons who are personally denied equal treatment1 by the challenged discriminatory 
conduct." 468 U.S., at 755 . . . .

The plaintiffs in this action have described nothing other than a general grievance about the district 

lines as they have been drawn in the Durham County school merger plan. The plaintiffs have shown 

only that they are white and live in districts where the majority of voters are also white. This does 

not amount to a showing of the particularized injury necessary to confer standing to pursue a Shaw 

claim.

Just as they failed to introduce evidence below to support a finding that they have been 

personally subjected to a racial classification, plaintiffs' appeal brief fails to present any persuasive 

arguments in support of their standing to sue. Plaintiffs argue that the standing requirement in Hays 

does not apply to this case, since it concerns not elections for members o f Congress, but for a school 

board (Br. at 9). But they have failed to cite any cases in support of this assertion, and the defendants 

and intervenors are not aware that any court has held that the requirements for standing enunciated

27Plaintiffs did not even introduce evidence of the exact location of their residences within 
Districts 3 and 4, and Consolidated District B, much less demonstrate that these areas were placed 
in District 3 or District 4 because of race.

18



in Hays do not apply outside the congressional redistricting arena.

In fact, the rationale used by the Court in Hays is equally applicable to the present case. In 

Hays, the Court indicated that there was no standing where the complaint presented only a 

"generalized grievance." But if the plaintiffs are correct in their argument, all citizens, regardless of 

race and whether or not they live in a voting district in which the majority o f the voters are o f their 

own race or another, would have standing to challenge the configuration of any voting district in the 

jurisdiction. This would explicitly run counter to the rationale o f Hays, preventing such generalized 

grievances from becoming federal court actions.

B. The plaintiffs do not have standing to bring an action to redress an alleged 
Fourteenth Amendment vote dilution claim________________________

In addition to the Shaw Fourteenth Amendment challenge, the District Court concluded that 

plaintiffs' complaint embodied a separate Fourteenth Amendment claim based on vote dilution (JA 

334).28 The District Court, despite its serious reservations as to whether plaintiffs intended to assert 

a Fourteenth Amendment claim outside the Shaw framework (JA 333), nevertheless adjudicated such 

a claim -  but dismissed it on the merits and did not hold that plaintiffs lacked standing to assert it.29 

However, appellees submit that the same principles announced in Hays (requiring a plaintiff to live

28The question whether a separate, viable vote dilution claim directly under the Fourteenth 
Amendment to the United States Constitution may be brought in a case in which the same dilution 
claim is brought pursuant to Section 2 of the Voting Rights Act was not considered below and is 
therefore not addressed by appellees in this brief.

-’’In a footnote, the District Court indicated that the defendants did not raise the standing question 
(JA 334 n.5). Plaintiffs' lack of standing "to maintain this action" was, however, explicitly raised as 
a defense in Defendants' Answer (see JA 263). No specific argument was directed toward the 
supposed Fourteenth Amendment vote dilution claim in defendants' brief supporting their motion for 
summary judgment because of the uncertainty about whether plaintiffs were presenting such a claim, 
which even the District Court found to have been "tucked away in a footnote" (JA 334).

19



in a challenged district or otherwise demonstrate that he or she was subjected to a racial

classification) apply to this alternative Fourteenth Amendment claim, that plaintiffs therefore also

lacked standing to pursue this claim, and that their lack of standing to sue serves as an additional basis

for affirming the District Court's grant o f summary judgment in favor of defendants and intervenors.

As the District Court recognized, a vote dilution challenge is analytically different on the

merits from a Shaw Fourteenth Amendment challenge. The Supreme Court stated in Miller v.

Johnson, 515 U .S .___ , 115 S. Ct. 2475, 2485-86 (1995):

Whereas a vote-dilution claim alleges that the State has enacted a particular voting scheme 
as a purposeful device "to minimize or cancel out the voting potential of racial or ethnic 
minorities," Mobile v. Bolden, 446 U.S. 55, 66, 100 S. Ct. 1490, 1499, 64 L. Ed. 2d 47 
(1980) (citing cases), an action disadvantaging voters o f a particular race, the essence of the 
equal protection claim recognized in Shaw is that the State has used race as a basis for 
separating voters into districts.

While the two claims are analytically distinct, this does not mean that standing can simply be ignored. 

The plaintiffs brought their action contending that the districts, as established by the Commissioners 

in the merger plan, violate their rights under the Fourteenth Amendment. If the plaintiffs did indeed 

intend to bring a vote dilution claim directly under the Fourteenth Amendment, then it is still subject 

to the Hays requirements for standing because the complaint of the plaintiffs is that the mechanism 

used to dilute the voting strength o f their racial group is the racial gerrymandering of districts.

If the law were otherwise, no persons would ever be barred from bringing an action to 

challenge allegedly racially gerrymandered districts regardless of where they lived, so long as they 

articulated a "vote dilution" claim under the Fourteenth Amendment in addition to a "Shaw v. Reno" 

claim. This would defeat the purpose of the standing requirement in Hays, to prevent suits founded 

only upon generalized grievances against government action. As the Court in Hays emphasized,

20



"[t]he rule against generalized grievances applies with as much force in the equal protection context 

as in any other." Hays, 115 S. Ct. at 2435.

Both the Shaw claim and the "vote dilution" claim asserted by plaintiffs are based upon the 

Fourteenth Amendment's Equal Protection Clause. When the gravamen of the Equal Protection claim 

is the alleged use o f racially gerrymandered districts, standing exists only when the plaintiffs live in 

the purportedly gerrymandered districts, or when they can demonstrate that they have personally been 

denied equal treatment by government action. In the case at bar, neither of these two situations 

exists; thus, plaintiffs failed to establish that they had standing and the judgment below should be 

affirmed.

C. On the merits of the Shaw claim and the Fourteenth Amendment vote dilution 
claim, summary judgment in favor of defendants and intervenors was required, 
and the judgment below should be affirmed on this basis_________________

Even if plaintiffs were determined to have standing to bring their Shaw claim, the judgment 

below, dismissing the claim, should nevertheless be affirmed because of the absence of sufficient proof 

introduced by plaintiffs to create any factual basis on the record — even if all supportable inferences 

that are favorable to plaintiffs are drawn — for a finding that the central elements o f a Shaw violation 

can be made out. As this Court has recognized, "[o]n summary judgment, any permissible inferences 

to be drawn from the underlying facts must be viewed in the light most favorable to the party 

opposing the motion . . . .  However, where the record taken as a whole could not lead a rational trier 

of fact to find for the non-moving party, disposition by summary judgment is appropriate." United 

States v. National Fin. Services, Inc., 98 F.3d 131, 135 (4th Cir. 1996) (emphasis supplied and 

citations omitted). This is such a case.

21



The essence o f a Shaw claim is the factual question whether "race for its own sake, and not 

other districting principles, was the legislature's dominant and controlling rationale in drawing its 

district lines," Miller v. Johnson, 115 S. Ct. at 2486 (emphasis supplied); accord, Bush v. Vera, 116 

S. Ct. at 1951-52; Shaw v. Hunt, 116 S. Ct. at 1900-01. Inferences from circumstantial evidence are 

relevant to this factual inquiry, Miller, 115 S. Ct. at 2486. But in order to survive a summary 

judgment motion, a Shaw plaintiff must introduce a quantum of proof from which the necessary 

finding might be inferred that is sufficient to outweigh other evidence in the record tending to indicate 

that factors other than race controlled districting decisions. See National Fin. Services, 98 F.3d at 

135.

The District Court's rulings in this matter demonstrate that it measured the plaintiffs' evidence 

by this standard and found it wanting. After considering the testimony and exhibits tendered at the 

preliminary injunction hearing — which formed a substantial portion of the proof offered by plaintiffs 

to defeat the summary judgment motions -  the Court quoted the "predominant racial motive" 

requirement articulated 'm Miller and held (JA 252):

At the hearing, plaintiffs produced no evidence supporting their argument that racial 
considerations predominated. In fact, the evidence suggests otherwise. (See, e.g.. Giles Aff.

6, 10 (indicating that her three concerns in evaluating the election plans were broad 
geographic representation, fair opportunity for minority representation, and "the break up of 
City/County dichotomy" and that the "key factors" influencing her vote for the current plan 
were the opportunities it provided for geographic and racial representation).)

See also supra notes 8, 15 (citizens' and Commissioners' interest in assuring representation on board

from all across county). In granting summary judgment, the Court did not analyze the merits of

plaintiffs' Shaw claim because this was unnecessary in light o f its holding that plaintiffs lacked

standing to assert the claim, see supra § I. A. However, the Court did make an equivalent inquiry in

22



considering whether plaintiffs had placed on the record sufficient evidence to support a finding that 

the election plan was the product o f intentional racial discrimination in violation of the Fourteenth 

Amendment (JA 334-37). It recognized that to prove such a violation, plaintiffs] must prove that 

the disputed plan was conceived or operated as [a] purposeful devic[e] to further racial . . . 

discrimination1" (JA 334, quoting from  City o f  Mobile v. Bolden, 446 U S. 55, 66 (1980)); that they 

"must show more than intent as volition or intent as awareness of consequences'" (JA 335, quoting 

from  Personnel Adm'r v. Feeney, 442 U S. 256, 279 (1979)), but it found summary judgment 

appropriate on this claim because "[ojverall, plaintiffs have again failed to offer evidence sufficient 

to warrant a Fourteenth Amendment violation" (JA 337). Nothing offered in Appellants' Brief is 

persuasive to the contrary.

It bears emphasis that at the preliminary injunction hearing, plaintiffs cross-examined two 

former County Commissioners (Giles and Bell) who had approved the plan and whose affidavits were 

introduced in lieu o f direct testimony on behalf of intervenors, as well as Gerry Cohen, who had 

drawn the plan.30 Plaintiffs produced no direct evidence that race predominated in the configuration 

of the electoral plan. Compare Shaw v. Hunt, 116 S. Ct. at 1901 (evidence was th a t". creating 

two majority-black districts was the principal reason' for Districts 1 and 12"). Indeed, the witnesses 

examined by plaintiffs all testified strongly to the contrary. See supra note 15 and accompanying text. 

Nor did plaintiffs present significant circumstantial evidence to support their position; as noted, the 

District Court found that plaintiffs had produced "no evidence" that racial considerations

30Cohen, whom plaintiffs now claim was not the creator o f the election plan, but see supra note 
18, was called as plaintiffs' first witness at the preliminary injunction hearing precisely because he 
devised the 4-2-1 electoral mechanism contained in the merger plan that has been effectuated (see JA 
125).

23



predominated in the fashioning of the plan (JA 252). Little additional evidence was submitted by 

plaintiffs in response to the summary judgment motions:31 the only item arguably dealing with the 

issue is an attachment to the affidavit o f Hazard Cannon, a document produced in settlement 

discussions (see supra note [25]; infra § III).

Appellants argue in their brief (at 14-17, 21-22), however, that a series o f uncontested facts 

will support a finding that "race predominated" in the creation o f the electoral plan, making summary 

judgment improper. The court below dealt with most o f these (JA 336-37) and correctly deemed 

them irrelevant or inadequately probative to support an inference to that effect. For example, 

appellants assert that the facts (a) that the State Senator and State Representative who sponsored the 

bill ratifying some seventeen school mergers previously accomplished without local legislation — 

codified at N.C. Gen. STAT. § 115C-68.3 (1994) -  are "both racially black" (Brief, at 14) and (b) that 

African-American political leaders in Durham County supported the merger plan (id.), warrant an 

inference that racial motives predominated in the earlier decision to adopt the school board election 

mechanism contained in the Durham County schools merger plan. The suggestion that the race of 

the decision maker may be relevant in determining legislative motive has been made only in a case 

involving an explicit racial classification, see City o f  Richmond v. J.A. Croson Co., 488 U S. 469, 

495-96 (1989). Unlike Croson, however, the ultimate decision maker in this instance — the North 

Carolina General Assembly — is overwhelmingly white. Moreover, the present case does not involve

31The Randall affidavit (JA 564-78) and Michaux affidavit and attachments (JA 576-643) were 
submitted at the preliminary injunction hearing, as were the complete Minutes o f the Board of 
Commissioners from which the excerpts appearing at JA 644-56 were taken).

24



an explicit racial classification,32 and the District Court therefore correctly deemed the race o f the 

legislation's sponsors and supporters to be irrelevant to its inquiry into the existence o f a Shaw or 

other Fourteenth Amendment violation. Plaintiffs' argument itself rests upon an odious racial 

distinction.33

The Supreme Court has held that "[sjtrict scrutiny does not apply merely because redistricting 

is performed with consciousness o f race. . . . Nor does it apply to all cases o f intentional creation of 

majority-minority districts," Bush v. Vera, 116 S. Ct. at 1951 (citations omitted). Therefore, the facts 

(a) that during the long process of developing a merger plan, the County Commissioners' attention 

was directed by counsel to the possibility that minority vote dilution could result from an all-at-large 

plan, (b) that the map prepared by the County Planning Department as a graphic exemplification of 

the zoning configurations also contained information concerning the racial breakdown of total and 

voting-age population within each district, and (c) that Gerry Cohen became aware o f the districts' 

racial composition as he drew the plan, are also an insufficient basis for inferring that race was the 

"dominant purpose" behind the plan. "Redistricting [authorities] will, for example, almost always be 

aware o f racial demographics; but it does not follow that race predominates in the redistricting 

process," Miller v. Johnson, 115 S. Ct. at 2488.

“"Electoral district lines are 'facially race neutral,1 so a more searching inquiry is necessary before 
strict scrutiny can be found applicable in redistricting cases than in cases o f ' classifications based 
explicitly on race.1" Bush v. Vera, 116 S. Ct. at 1951.

“ Plaintiffs' argument is essentially that because African Americans actively participated in the 
process of developing the merger plan, race "predominated." As this Court has observed in another 
context, "[a] Martin Luther King, Jr. or a Colin Powell can represent white Americans, no less than 
a John Fitzgerald Kennedy or a Hubert Humphrey can represent black Americans." Lewis v. 
Alamance County, 99 F.3d 600, 607 (4th Cir. 1996), cert, denied, 65 U.S.L.W. 3766 (U S. May 19, 
1997).

25



The Supreme Court has emphasized that "[a] State is free to recognize communities that have 

a particular racial makeup, provided its action is directed toward some common thread of relevant 

interests," Miller, 115 S. Ct. at 2490. Here, the plan for electing members o f the school board for 

the merged systems was drawn so as to assure broad representation from all areas o f the county, to 

give effect to the common experience of residents in each of the predecessor systems, and to increase 

the likelihood of a successful merger by assuring initial representation on the new board of residents 

from each of the former districts, see supra pp. 8-9. Whole precincts were used as the building 

blocks for the plan (JA 141, 413-14) and there are no instances o f point contiguity (JA 41) or, for 

example, "narrow and bizarrely shaped tentacles . . . tailored perfectly to maximize minority 

population," Bush, 116 S. Ct. at 1954, 1957. Plaintiffs presented no evidence o f any alternative 

districting configuration that they claim was rejected for racial reasons or that should have been 

adopted, compare Bush v. Vera, 116 S. Ct. at 1955; instead, they apparently prefer all-at-large 

elections in spite of the legitimate non-racial reasons for using single-member districts to help make 

the school merger plan successful. Moreover, the plan follows traditional districting principles such 

as compactness and adherence to precinct boundaries. Under these circumstances, strong evidence 

indeed would be necessary to overcome these facts and to justify an overriding inference that race 

predominated in the districting process. Plaintiffs' proffers, even if they were relevant and material, 

fell woefully short. Even if plaintiffs had standing, the judgment below dismissing their Shaw claims 

was appropriate.34

34The discussion above, at pp. 26-28 also establishes the correctness o f the District Court's 
dismissal of plaintiffs' Fourteenth and Fifteenth Amendment claims on their merits because plaintiffs 
had failed to adduce evidence from which the necessary finding of intentional discrimination could 
be made.

26



n. THE DISTRICT COURT CORRECTLY HELD THAT PLAINTIFFS HAD FAILED 
TO DEMONSTRATE THE PREREQUISITES FOR A VOTE DILUTION CLAIM 
UNDER SECTION 2 OF THE VOTING RIGHTS ACT

In their Complaint, plaintiffs also alleged "vote dilution" in that the "school board election 

system . . . has and will consistently degrade the influence o f white voters on this electoral system as 

a whole" (JA 25, 26, 89), claiming that the election plan violated Section 2 of the Voting Rights Act 

o f 1965, 42 U.S.C. § 1973. The District Court dismissed this count of the Complaint on summary 

judgment on the ground that plaintiffs had failed to introduce proof of the facts whose existence, the 

Supreme Court has held, is a necessary prerequisite for a successful Section 2 claim (JA 327-30). 

As we show below, this determination was unquestionably right.

Before exploring these substantive deficiencies in plaintiffs' case, we are compelled to point 

out that their vote dilution claims, under either Section 2 or the Fourteenth Amendment, rest upon 

a fundamentally flawed view of the facts of this matter applicable to a dilution argument. Appellants 

persist in mischaracterizing the election system embodied in the merger plan, by arguing that there 

are only six single-member districts and that white voters cannot elect candidates of their choice to 

a proportion of these six school board seats that equals the proportion of white voters in the relevant 

population:35 "If the six single member districts had been proportionally divided by race, there would 

be four white districts and two black districts" (Br. at 8) [because] "African-American voters 

constituted 31.7% of the total voter registration " (Br. at 10).

But Appellants cannot simply blink away the fact that the whole county, from which the 

seventh member (and only the seventh member) of the school board is elected, itself constitutes a

35Plaintiffs have insisted throughout this case that the relevant population should be limited to 
registered voters, not total or voting-age population. But see Daly v. Hunt, 93 F.3d 1212, 1224 (4th 
Cir. 1996).

27



single-member district — and one which has a 60% white population, see table supra pp. 10-11. If, 

for the sake of argument, one accepts the submission of plaintiffs that the proportion o f members of 

the new school board elected from single-member districts having white majorities should be the same 

as the county-wide proportion of whites, see Br. at 10-11,36 the merger plan achieves "substantial 

proportionality," see Johnson v. DeGrandy, 512 U S. 997, 114 S. Ct. 2647, 2658 (1994), for white 

voters (see JA 144-45), since four  (or 57%) of the seven single-member districts have white 

population majorities. Although "substantial proportionality" is not a "safe harbor" against a claim 

o f vote dilution, it is a significant factor weighing against such a finding unless it is overcome by 

"evidence otherwise indicating th a t. . . voters in the [white] group have ' less opportunity than other 

members of the electorate to participate in the political process and to elect representatives of their 

choice,’" DeGrandy, 114 S. Ct. at 2663.

The District Court never got to this point in the analysis, however, because neither the 

Fourteenth Amendment nor the Voting Rights Act requires "substantial proportionality" as a 

substantive matter. City o f  Mobile v. Bolden, 446 U.S. 55, 66 (1980) (plurality opinion); id. at 86 

(Stevens, J., concurring in the judgment); 42 U.S.C. § 1973(b). Instead, the Supreme Court has held, 

plaintiffs must (at least for § 2 purposes) make three threshold factual showings before a district court 

should reach the issue of dilution: "First, that the [protected group] is sufficiently large and 

geographically compact to constitute a majority in a single-member district’; second, that it is 

politically cohesive’; and third, that the [other group] votes sufficiently as a bloc to enable it . . .

36But see 42 U.S.C. § 1973(b): ”[N]othing in this section establishes a right to have members of 
a protected class elected in numbers equal to their proportion in the population."

28



usually to defeat the [protected group's] preferred candidate[s]."' See Thornburg v. Gingles, 478 

U.S. 30, 50-51 (1986) (announcing threshold requirements in multi-member at-large election case); 

Growe v. Emison, 507 U.S. 25, 39 (1993) (applying same requirements to claim that single-member 

districts were gerrymandered to accomplish dilution), /fthose threshold conditions are shown, then 

the trier of fact must determine, based upon the "totality o f the circumstances," 42 U.S. C. § 1973(b), 

whether "voters in [the protected] group have less opportunity than other members o f the electorate 

to participate in the political process and to elect representatives of their choice.'"

Both after the preliminary injunction hearing and in granting summary judgment, the District 

Court ruled that plaintiffs in this case failed to introduce any evidence to satisfy their obligation either 

to prove the threshold factors or to prevail under the "totality of the circumstances" analysis (JA 247, 

328-30). Appellants treat this aspect of its ruling only in the "standing" section of their Brief, see 

Brief at 9-11. Nowhere do they address the "Gingles" prerequisites. For example, although there 

are white total and voting-age population majorities in four o f seven districts, plaintiffs neither 

showed below nor contend here that white voters in Durham County form a group "sufficiently large 

and geographically compact to constitute a majority in a[n additional] single-member district" in a 4- 

2-1 plan.37 As to the second threshold factor (white voter cohesion), plaintiffs designated no expert 

witness to prepare — and certainly did not introduce -  any statistical analysis o f election returns (such 

as a bivariate ecological regression and extreme or homogeneous case analysis) -  that would indicate 

the existence o f white cohesion at the polls. In fact, the evidence of record indicates the contrary,

i7Cf. JA 417 (Cohen declaration): "I believe that if I had sought to create four [of the six single­
member, non-county-wide districts as] majority-white districts o f equal population based upon whole 
precincts, the configuration of such districts would have been substantially more irregular and the 
districts substantially less compact than the plan presently in effect."

29



see supra note 22 and accompanying text; JA 329. The same lack of statistical analysis o f election 

returns necessary to show the third prerequisite in this case — that African-American bloc voting 

"usually" defeated the candidates preferred by white voters38 — requires affirmance of the ruling 

below.

[I]t is the plaintiffs' burden to establish a violation o f Section 2, and therefore their burden to 
proffer data from a sufficient number of elections to enable the district court to determine 
whether [African-American] bloc voting usually defeats [white]-preferred candidates. Where, 
as here, plaintiffs fail to carry their burden to proffer sufficient evidence, and the district court 
correctly concludes on the basis o f the proffered evidence that no Section 2 violation has been 
established, then the plaintiffs cannot be heard to complain.

Lewis v. Alamance County, 99 F.3d at 606 (affirming summary judgment rejecting Section 2 claim).

Finally, as the District Court recounted (JA 245-47, 329-30), plaintiffs presented no evidence

at all of the "Senate Report factors" or other matters relevant to the "totality o f the circumstances"

analysis. As this Court said in Lewis, under these circumstances "plaintiffs cannot be heard to

complain."39

III. IN RULING ON MOTIONS FOR SUMMARY JUDGMENT, THE DISTRICT 
COURT PROPERLY EXCLUDED FROM CONSIDERATION, UNDER FED. R. 
EVID. 408, A PURPORTED SETTLEMENT AGREEMENT BETWEEN THE 
ORIGINAL PARTIES

In response to the defendants' and intervenors' motions for summary judgment, plaintiffs

,8In a jurisdiction that is 60% white, divided into seven single-member districts o f which four have 
white population majorities ranging from 60% to 87%, the existence of the third Gingles prerequisite 
is particularly counter-intuitive and, accordingly, must be the subject of hard proof, not speculation. 
Plaintiffs tendered no evidence from which the trier o f fact could draw the counter-intuitive 
conclusion. In fact, they admitted that "whites [in Durham County] have been able to elect 
candidates of their choice in county-wide elections" (JA 282, 286, 290).

wWe need not present elaborate arguments to defend the soundness of the District Court’s rulings 
on the Fifth Amendment and "Privileges and Immunities Clause" claims {see JA 337 n.7).

30



attempted to introduce a purported consent decree which had been signed by the original parties40 

but not by the Judge. Subsequent to the original parties' discussion and execution of the document, 

the defendants decided to contest the claims of the plaintiffs and filed answer (JA 258). The 

purported consent decree was never approved by the Court and was neither introduced nor 

mentioned at the preliminary injunction hearing. Furthermore, two weeks prior to that hearing, the 

District Court had granted intervenors' motions to become parties defendant in the litigation, and they 

were not signatories to the document. Although plaintiffs make a bare argument in their Brief that 

the District Court erred in excluding this purported settlement agreement from consideration in its 

adjudication of the summary judgment motions, the agreement or decree was properly excluded under 

Rule 408 of the Federal Rules of Evidence.

Rule 408, Fed. R. Evid. provides in pertinent part:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or 
promising to accept, a valuable consideration in compromising or attempting to compromise 
a claim which was disputed as to either validity or amount, is not admissible to prove liability 
for or invalidity of the claim or its amount. Evidence of conduct or statements made in 
compromise negotiations is likewise not admissible . . . .

Plaintiffs attempt to draw a distinction between negotiations and a settlement agreement. Plaintiffs

apparently believe that a negotiation offer is excluded by Rule 408 while a concluded agreement is

not, but they cited no cases in their brief supporting this position. This Court has previously rejected

the same argument. In Fiberglass Insulators, Inc. v. Dupuy, 856 F.2d 652, 655 (4th Cir. 1988), the

Court stated:

As Weinstein's Evidence, ]j 408[04] p. 408-27 (1986), points out, it is the general practice of 
the federal courts to hold inadmissible " . . .  the attempted use of a completed compromise of

‘“The purported consent judgment was not signed by the intervenors, nor by the original State 
defendants (see supra note 2), who remained in the case until February 29, 1996 (JA 6 [Item 7]).

31



a claim arising out of the same transaction between a third party and a party to the suit being 
litigated." (Italics added) Since Rule 408 would exclude such evidence, . . .  we think that 
there is even more reason to exclude such evidence when settlement or settlement 
negotiations are between the same parties to the suit at hand. Thus, we are o f opinion the 
strong public policy favoring exclusion was correctly applied by the district court to exclude 
the statements in question under Rule 408.

Once it is shown that the purported settlement agreement is excluded from evidence by Rule 

408, it cannot be used to support or oppose summary judgment. United States v. Occi Co., 758 F. 2d 

1160, 1165 n.6 (7th Cir. 1985) (evidence inadmissible pursuant to Rule 408 cannot be used in motion 

for summary judgment). Thus, the District Court did not err and properly excluded the purported 

consent decree from its consideration on the motions for summary judgment, as the purported 

settlement agreement was between the parties in the same litigation.

IV. THE DISTRICT COURT PROPERLY QUASHED SUBPOENAS TO COMPEL 
COUNTY COMMISSIONERS TO TESTIFY ON THE GROUNDS OF THE 
COMMISSIONERS' LEGISLATIVE IMMUNITY AND IN ANY EVENT, THIS 
ISSUE IS NOW MOOT

The plaintiffs have appealed from an Order issued by the District Court quashing subpoenas 

requiring the testimony of three current Durham County Commissioners in a hearing on their motion 

for a preliminary injunction. The three Commissioners moved to quash the subpoenas on the grounds 

o f legislative immunity. The Court allowed the motion to quash in open court (JA 109) and 

confirmed its ruling in a written order (see JA 8 [Item 30]). The plaintiffs elected to appeal from the 

Order quashing the subpoenas (JA 256). Subsequent to filing the appeal, the plaintiffs elected to 

dismiss it (JA 267, 269).41

41The dismissal of an appeal places the parties in a position as if no appeal had been taken. See 
Barrow v. Falck, 977 F.2d 1100, 1103 (7th Cir. 1992) (citing unpublished opinion from Ninth 
Circuit).

32



As indicated in plaintiffs' brief, the District Court correctly followed this Court's decision in 

Burtnick v. McLean, 76 F.3d 611 (4th Cir. 1996), which held that the legislative testimonial immunity 

is still the law in this Circuit. Apparently, plaintiffs intend, from the indication given in their brief, to 

ask that the Court hear this matter en banc in order to reconsider its decision in Burtnick; at present, 

appellees are unaware of the filing o f any Suggestion for en banc hearing and accordingly, the time 

within which plaintiffs might make that request may have expired, see Fed. R. App. P. 35(c). In any 

event, it is clear that on the state of the law as it existed when the District Court acted, and at present, 

the Court was clearly correct in upholding legislative immunity and quashing the subpoenas.

Moreover, plaintiffs' appeal o f the Order quashing the subpoenas issued to the three County 

Commissioners should be dismissed as moot. The Order quashing the subpoenas was issued in a 

proceeding in which the plaintiff sought an order for preliminary injunction. As shown below, the 

appeal from that Order is moot in that once the final order granting summary judgment was entered 

by the District Court, that disposed of the issues relating to the preliminary injunction request 

conclusively. As the plaintiffs therefore are not entitled to any relief from this Court regarding the 

denial o f the preliminary injunction, any error in determining that the County Commissioners had 

legislative immunity and were not required to testify at the preliminary injunction hearing could have 

no consequence on this appeal.

V. THE TRIAL COURT PROPERLY DENIED PLAINTIFFS' MOTION FOR A 
PRELIMINARY INJUNCTION AND THE APPEAL FROM THAT ORDER IS NOW 
MOOT

As indicated above, the District Court held a hearing on a Motion for a Preliminary Injunction 

filed by the plaintiffs on March 22, 1996 and, subsequent to the hearing, denied the motion by written

33



Order (JA 239-55).42 Thereafter, the Court entered a final judgment dismissing the action in response 

to motions for summary judgment filed by defendants and intervenors. Any appeal from the denial 

o f preliminary injunctive relief is now moot.

This Court has previously addressed this situation in an unpublished opinion. In Todd v. 

Sewell, 16 F.3d 411 (4th Cir. 1994) (table) (unpublished),43 the Court stated:

After Todd filed his appeal, the district court entered summary judgment for all 
Defendants . . . .

A preliminary injunction is superseded by entry o f final judgment on the merits. See 
United States ex rel. Bergen v. Ijmrence, 848 F.2d 1502, 1512 (10th Cir.), cert, denied, 488 
U.S. 980 (1988); see also Cypress Barn, Inc. v. Western Elec. Co., 812 F.2d 1363, 1364 
(1 1th Cir. 1987) (due to interlocutory nature, preliminary injunction cannot survive a final 
order dismissing action). "Once a final judgment is rendered, the appeal is properly taken 
from the final judgment, not the preliminary injunction." Burton v. Georgia, 953 F.2d 1266, 
1272 n. 9 (11th Cir. 1992). Because final judgment has been entered in this case, this Court 
cannot provide relief from the district court's denial of Todd's preliminary injunction motion.

We therefore dismiss Todd's appeal as moot.

As indicated by the Court in the Todd case, once the final judgment has been rendered, as it 

has in the present case, any appeal from a preliminary injunction is moot. This is self-evident insofar 

as one of the requirements for a preliminary injunction is to show the likelihood of success. See 

generally, Blackwelder Furniture Co. v. SeiligMfg. Co., 550 F.2d 189 (4th Cir. 1977). Once the 

final judgment is rendered, there is no "likelihood of success" if the party is unsuccessful in the final 

judgment. Therefore, appeal is properly taken only from the final judgment. If the appellate court 

reverses the lower court on its final judgment, there is no need for a preliminary injunction as the

42Plaintiffs initially pursued an appeal from the denial o f the preliminary injunction but, as 
indicated supra, text at note 41, they voluntarily dismissed this appeal.

43 A copy of the unpublished opinion of this Court in Todd is reproduced in the addendum to this 
brief pursuant to 4th Cir. R. 36(c).

34



appellant has been successful in the case, while if the final judgment is upheld, the Court clearly was 

correct in denying the preliminary injunction.

Inasmuch as the District Court has granted summary judgment in favor o f the defendants and 

intervenors in this case, so much of the present appeal by plaintiffs as is taken from the Order denying 

a preliminary injunction should properly be dismissed as moot.

CONCLUSION

For the foregoing reasons, the judgment below dismissing plaintiffs' claims should be affirmed 

and the appeal dismissed with respect to the preliminary injunction and legislative immunity 

determinations.

Respectfully

Office o f the Durham 
County Attorney 

200 E. Main Street 
P .0  Box 3508
Durham, North Carolina 27702 
(919) 560-0705

Attorneys fo r  Defendants- 
Appellees

submitted,

Irving Joyner 
1512 S. Alston Avenue 
Durham, North Carolina 27702 
(919) 560-6293

Anita S. Hodgkiss 
Ferguson, Stein, Wallas, Adkins,

Gresham & Sumter, PA.
741 Kenilworth Avenue 
Charlotte, North Carolina 28204 
(704) 375-8461

[Listing of Counsel continued on next page]

35



[Listing o f Counsel continued from previous 
page]

Adam  Stein
Ferguson, Stein, Wallas, Adkins,

Gresham & Sumter, P.A.
312 West Franklin Street 
Chapel Hill, North Carolina 27516 
(919) 933-5300

Elaine R. Jones 
Director-Counsel 

N orman J. Chachkin 
Jacqueline A. Berrien 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th fl.
New York, New York 10013 
(212)219-1900

Attorneys fo r  Defendant-
Intervenors-Appellees

CERTIFICATE OF SERVICE

This is to certify that I have this date served a copy o f the foregoing Brief for Appellees on 
the following persons, by depositing a copy hereof in a postpaid wrapper in a post office or official 
depository under the exclusive care and custody of the United States Post Office properly addressed 
as listed below:

John C. Randall, Esquire
Randall, Jervis & Hill 
Post Office Box 1010
400 West Main Street, Suite 608 
Durham, NC 27702

This the-P^^day of June, 1997.

Durham County Attorney

36



16 F.3d 411, Todd v. Sewell, (C.A.4 (S.C.) 1994) 

*411 16 F.3d 411

NOTICE: Fourth Circuit Local Rule 36(c) states that 
citation of unpublished dispositions is disfavored 
except for establishing res judicata, estoppel, or the 
law of the case and requires service of copies of cited 
unpublished dispositions of the Fourth Circuit.

(The decision of the Court is referenced in a "Table 
of Decisions Without Reported Opinions" appearing 
in the Federal Reporter.)

John W. TODD, Plaintiff-Appellant,
v.

James SEWELL; Wayne Hyatt; Terry Brooks;
L. Westfield;

Parker EVATT, Defendants-Appellees, 
and

Johnny JACOBS, Defendant.

No. 93-6667.
United States Court of Appeals,

Fourth Circuit.
Submitted: Dec. 17, 1993.

Decided: Jan. 6, 1994.

Appeal from the United States District Court for the 
District of South Carolina, at Anderson. Joseph F. 
Anderson, Jr., District Judge. (CA-92-1060-8-17)

John W. Todd, Appellant Pro Se.

Robert Eric Petersen, South Carolina Department of 
Corrections, Columbia South Carolina, for Appellees.

D.S.C.

DISMISSED.

Before MURNAGHAN, NIEMEYER, and 
LUTTIG, Circuit Judges.

OPINION

PER CURIAM

John W. Todd, a South Carolina state inmate, 
appeals the district court's order denying his motion 
for a preliminary injunction in his 42 U.S.C. § 1983 
(1988) action. Because we find that this appeal is 
moot, we dismiss.

Page 1

Todd filed a civil rights complaint against several 
prison officials, claiming that they violated his 
constitutional rights by interfering with his right to 
practice his religion (Wicca). He filed a motion 
seeking preliminary injunctive relief, claiming that he 
was stabbed once in prison because of his religious 
beliefs and that prison officials transferred him six 
times in the past five years and prevented outside 
Wiccan priests and priestesses from visiting him and 
other Wiccan inmates. He also claimed that a prison 
chaplain showed videotapes at the prison depicting 
Wiccans as devil worshippers. Todd sought an order 
preventing Defendants from transferring the Wiccan 
worshippers to other facilities and enjoining 
Defendants from inciting inmates against them. The 
district court denied preliminary injunctive relief and 
Todd appealed.

After Todd filed his appeal, the district court 
entered summary judgment for all Defendants on 
August 6, 1992. Todd has not filed an appeal of the 
final judgment. (FN*)

A preliminary injunction is superseded by entry of 
final judgment on the merits. See United States ex 
rel. Bergen v. Lawrence, 848 F.2d 1502, 1512 (10th 
Cir.), cert, denied, 488,U-S. 980(1988); see also

Cypress Bam, Inc. v. Western Elec. Co., 812 F.2d 
1363, 1364 (11th Cir. 1987) (due to interlocutory 
nature, preliminary injunction cannot survive a final 
order dismissing action). "Once a final judgment is 
rendered, the appeal is properly taken from the final 
judgment, not the preliminary injunction." Burton v. 
Georgia, 953 F.2d 1266, 1272 n. 9 (11th Cir.1992). 
Because final judgment has been entered in this case, 
this Court cannot provide relief from the district 
court's denial of Todd's preliminary injunction 
motion.

We therefore dismiss Todd's appeal as moot. We 
dispense with oral argument because the facts and 
legal contentions are adequately presented in the 
materials before the Court and argument would not 
aid the decisional process.
FN* Todd has filed nothing in this Court since the 

district court entered its final order. Therefore, 
there is no document that could be construed as a 
notice of appeal of the final order under Smith v. 
Barry, 60 U.S.L.W. 4065, 4066-67 (U.S.1992).

Copyright (c) West Group 1997 No claim to original U.S. Govt, works