Attorney Notes; Plaintiffs' Memorandum in Opposition to Motion of Charles Emile Bruneau, Jr. for Leave to Intervene

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IN THE 

UNITED STATES DISTRICT COURT 

POR THE 

EASTERN DISTRICT OF LOUISIANA 

  

BARBARA MAJOR, et al., 

Plaintiffs, 

-V.- Civil Action No. 82-1192 

Section C 
DAVID C. TREEN, etc., et. al., 

Defendants. 

  

PLAINTIFFS' MEMORANDUM IN OPPOSITION TO 

MOTION OF CHARLES EMILE BRUNEAU, JR. 

FOR LEAVE TO INTERVENE 

May it please the Court: 

Proposed intervenor, Charles Emile Bruneau, Jr., seeks 

leave to intervene in this matter pursuant to Rules 24 (a) (2) 

and 24 (b) (2), Federal Rules of Civil Procedure. Plaintiffs 

oppose the application for intervention in that the proposed 

intervenor meets neither the standards for intervention of 

right, Rule 24 (a) nor permissive intervention, Rule 24 (b). 

Furthermore, intervention should be denied even if all the 

requirements of Rule 24 are met because this court lacks juris- 

diction with regard to the intervenor's claims.  



Finally, no useful purpose will be served if the application 

for intervention is granted, whereas the potential for dis- 

ruption is serious. 

Intervention as of Right 
  

There are four factors which the Court should consider 

in reviewing an application for intervention of right pursuant 

to Rule tar (aye 

(a) timely application 

an interest in the transaction 

which applicant may be impeded in protecting 

because of the action 

that is not adequately represented by others 

Keith v. Louisiana Dept. of Ed., 
93 FRD 820 (MD La. 1981); see 
also US:v. La., 90 FRD 353 (¥F.D. 

Ia. 1981) aff'd 669 F.2d 314 (5th Cir. 
1982). 

Proposed intervenor's application fails to meet any of these 

  

standards. 

  

l/ Rule 24(a) provides: 

Upon timely application anyone shall be 
permitted to intervene in an action 
(2) when the applicant claims an interest 

relating to the property or transaction 
which is the subject of the action and he 
is so situated that the disposition of the 
action may as a practical matter impair 
or impede his ability to protect that 
interest, unless the applicant's interest 
is adequately represented by existing 
parties.  



(a) Timely application 
  

Proposed intervenor's application is not 

timely. Mr. Bruneau submitted to a deposition in this case 

on Tuesday, December 14, 1982. Mr. Bruneau testified at 

trial as a witness for defendants on March 8, 1983. (Vol. 

II, Tr. 226-278). Mr. Bruneau thus knew of the pendency of 

this action for almost a year prior to applying to intervene, 

and actively participated as a witness in the proceeding at 

trial. He has offered no reason for the delay in moving to 

intervene of eleven months from the date of his deposition in 

this case, or eight months from the time of trial. 

If an application for intervention is untimely, it must 

be denied. NAACP v. New York, 413 U.S. 345 (1973). 1In eval-~- 
  

uating the timeliness of an application, the relevant factors 

include the time at which the proponent knew or should have 

known of the pendency of the litigation. NAACP v. New York,   

gupra, 413 U.S. at 365. If the proponent failed to protect 

his interests in a timely fashion after the date he was informed 

they were the subject of litigation, in the absence of unusual 

circumstances, the intervention is not timely. Id. 

The delay in filing the motion to intervene places a burden 

on the proponent to make a strong showing justifying his inter- 

vention. Culbreath v. Dukakis, 630-F.2d4 15, 22 {lst Cir. 1980). 
  

This is especially true when the application to intervene is 

filed post-judgment. U.S. Vv. Allegheny-Ludlum, 553 F.2d 451, 453(5th Cir. 
  

1277). 7A Wright and Miller, Federal Practice and Procedure, 
   



§1916 at 579 (1972). No unusual circumstances warranting 

intervention at this late date have been alleged. 

(b) Interest in the transaction 
  

Mr. Bruneau alleges in paragraph III of his 

proposed intervention the following interest: 

Mr. Bruneau has an interest in the 
reapportionment of the First and 
Second Congressional Districts as 
a voter; secondly, as a member of the 
Louisiana Legislature, and, thirdly, 
as the representative of the First 
Congressional District on the House 
Legislative Services Council and 
having served on various committees 
pertaining to the reapportionment of 
that District. 

Nowhere in paragraph III of his proposed intervention or else- 

where in any of the papers filed with this Court does Mr. 

Bruneau state anything but a general interest in the reappor- 

tionment of the First and Second Congressional Districts. A 

general interest is an insufficient ground on which to intervene 

as of right. United States v. State of Louisiana, 90 FRD 358 
  

{D.C. La. 1981), aff'd, 669 7,24 314 (5th Cir. 1982). The 

interest of an intervenor must be a legal interest as distinguished 

from an interest of a general and indefinite character. United 

States v. American Tel. and Tel. Co., 642 7.24 1285, 1292 (D.C.   

Cir. 1980). 

Essentially, this Court must confront the fact that 

Mr. Bruneau lacks standing to participate in the case. As with 

parents who have a general interest in the education of their 

children but have no right to intervene to oppose facets of  



a school desegregation plan under Rule 24 (a) (2), Valley v. 
  

Rapids Parish School Board, 646 F.2d 925 (5th. Cir. 1981), 
  

Mr. Bruneau has no standing to oppose facets of the imple- 

mentation of a nondiscriminatory reapportionment plan. See 

also, Pate v. Dade County School Board, 588 ¥.24 501 (5th Cir. 
  

1979), cert denied 444 U.S. 835 (there is no right to inter- 
  

vene to oppose the implementation of a desegregation order). 

Mr. Bruneau's status as a voter residing in the affected 

Congressional Districts is not enough to give him an interest 

in this litigation. Compare Arvida Corp. Vv. City of Boca Raton, 
  

59 FRD 316 (D.C. Fla. 1973). DBven as a legislator, he has no 

separate interest which could be affected. Smuck v, Hobson, 
  

408 F.2d 175 (D.C. Cir. 1969) (former superintendent of schools 

and member of Board of Education denied right of intervention 

to take an appeal; since Board had been sued as a collective 

entity, order was enforceable against the Board alone). 

If this Court were to interpret the interests requirement 

of Rule 24 so broadly as to include interests as general and 

i111 defined as Mr. Bruneau alleges, every disaffected white 

voter in New Orleans could move to intervene as well. The 

efficiency contemplated by Rule 24 would be completely defeated 

by the unmanageable scope of potential intervenors. 

(c) Which interest applicant cannot protect due to 
the pendency of this litigation 
  

  

Mr. Bruneau's failure to allege a legally cognizable 

interest in the litigation is underscored by his failure to allege  



how his interest is threatened by this action. He alleges 

nothing to suggest that he is impeded in any way from protecting 

his interests, whatever they are. In fact, this Court's 

Judgment of October 20, 1983 cannot be enforced against him, 

nor can he violate it. Smuck v. Hobson, supra; United States 
  

v. American Institute of Real Estate Appraisers, 442 F. Supp. 
  

1072 (D.Co21I1l1l..1977). 

(d) Adequacy of representation 
  

The burden is on the applicant for intervention 

to show that his interests are not adequately represented by 

the existing parties. Ordnance Container Corp. Vv. Sperry Rand 
  

Corp., 478 'P.24 844 (5th Cir. 1973); Hoots v., Com. of Pa., 672   

F.2d 1135 (3rd Cir. 1982). Without such a showing, the applica- 

tion is legally insufficient. 

The proposed intervention fails even to allege this necessary 

element of Rule 24 (a) (2). Indeed, Mr. Bruneau alleges just the 

opposite in paragraph IV wherein he adopts and incorporates by 

reference defendants' pleadings. 

In the absence of any allegations to the contrary, there is 

nothing in the record to rebut the presumption that the govern- 

ment officers who are named as defendants are adequately represent- 

ing the interests of the people they were elected to represent. 

See Keith v. louisiana Dept. of Ed., 93 FRD 820, 827 (M.D. La. 
  

1981). When the state or state officials are a party to the 

litigation, they are presumed to represent the interests of 
» 

all citizens of the state. Environmental Defense Fund v. Higginson, 
   



631 r.24 738, 740 (D.C. Cir. 1979); see also Graves v. Walton 
  

County Bd. of Bducation, 91 FRD 457 (D.C. Ga. 19281). Even 
  

where the State Attorney General declined to appeal, that 

decision was not enough to overcome this presumption in the 

absence of a showing that the Attorney General' s office did 

not adequately represent its citizens. Washington v. Keller, 
  

479 ¥. Supp. 569 (D.C. Md. 1979). 

II. Permissive Intervention 
  

Rule 24 (b) (2) allows intervention upon timely application 

"when an applicant's claim or defense and the main action have 

a. question of lawior fact in common.” Only if the application is 

1.) timely should the Court then engage in additional inquiry 

to determine: 

2.) whether there is a question of law or 

fact in common with the main action 

and, if this threshold requirement is met 

whether the intervention will unduly delay 

or prejudice the adjudication of 

of the original parties. 

The two threshold questions for permissive 

the rights 

intervention 

are, therefore, timeliness and a common question of law or 

fact. Plaintiffs have already argued the question of timeliness, 

supra, in our discussion of intervention as of 

same facts make the application for permissive 

untimely. See Brumfield v. Dodd, 425 F. Supp. 
  

As with Rule 24 (a), post judgment intervention 

the right. The 

intervention 

528 (D.C. La. 1976). 

under Rule 24 (b)  



should not be considered unless an extremely strong showing 

of justification for the delay is made. No showing at all 

can be discerned from the pleadings in this application. 

The second threshold question also must be resolved 

against the application. Proposed intervenor Bruneau raises 

no questions of law. He merely adopts the pleadings of defendants 

and asserts in the most sweeping generality that he "seeks 

leave to intervene to assert his rights and interests in the 

equitable and clear resolution of the reapportionment controversy." 

(Memorandum in Support of Motion for Leave to Intervene at 5.) 

At no point does he state what his rights and interests are 

or that they are separate from the claims of plaintiffs or 

defendants. His contribution would be merely cumulative. Most 

important, since he fails to plead a good claim for relief or 

a good defense, his application is not within the jurisdiction 

of this Court. 7A Wright and Miller, Federal Practice and 
  

Procedure, §1914 at 569 (1972). The motion should therefore 

be denied since a motion for intervention cannot expand the 

court's jurisdiction.” 14., $1917 at 587. 

Nor does Mr. Bruneau assert any unresolved factual questions 

or questions which the Court has not considered. Mr. Bruneau 

had an opportunity to testify at trial tO any relevant information 

in his possession. Since he has asserted no legal interest, 

and since the Court has already had an opportunity to consider 

any factual testimony, his application fails to meet the second 

threshold requirement. See Brumfield v. Dodd, 425 F. Supp. 528 
  

(D.C. La. 1976). Permissive intervention is rarely appropriate  



where the proposed intervenor merely underlines issues 

already raised by the primary parties. See, e.g., Valley 

v. Rapides Parish School Board, 646 F.2d 925, modified on 
  

rehearing on other grounds, 653 F.2d 941 (5th Cir. 1981); 

Hines v. Rapides Parish School Board, 479 F.2d 762 (5th Cir. 
  

1973); United States v. American Institute of Real Estate 
  

Appraisers, «442 P.: Supp. 1072 ¥{D.C. Ill. 1977).   

Finally, this Court should deny the application to inter- 

vene because plaintiffs' rights to an expeditious and orderly 

resolution of their claims will be jeopardized. To grant Mr. 

Bruneau's application would be to open the floodgates to 

additional, untimely motions by any of the more than 500,000 

white voters in the New Orleans area. The unnecessary delay 

involved will seriously prejudice plaintiffs' rights to an 

appropriate remedy and it may threaten the orderly conduct of 

the 1984 elections. 

If Mr. Bruneau does have any outstanding though as yet 

unarticulated legal or factual theories, he can contribute 

most effectively, expeditiously, and appropriately by a brief 

amicus curiae. Compare, Keith v. Louisiana Dept. of Education, 
    

supra at 823; Piedmont Paper Prods. v. American Financial Corp., 
  

89 FRD 41 (D.C. Ohio 1980); Rebublican National Committee V. 
  

Federal FPlection Comm'r, 461 PF. Supp. 570 (D.C. N.Y. 1973); 
  

7A Wright and Miller, §1913 at 558 (1972).  



Conclusion 
  

Since Mr. Bruneau fails to allege the necessary elements 

of Rule 24 (a) (2) and (b) (2), his untimely motion to intervene 

should be denied. He has proffered no excuse for his delay 

in moving to intervene. His interests are already adequately 

represented and intervention will not significantly contribute 

to a further development of the factual issues nor to adjudi- 

cation of any remaining legal questions. Plaintiffs may be 

adversely affected if leave to intervene is granted, since the 

potential for similar motions appears unlimited and since the 

remedy of the Voting Rights Act violations may be delayed beyond 

the time for non-incumbents to participate meaningfully in 

the 1984 elections. Mr. Bruneau's further participation, if 

any, in this lawsuit is only appropriate by way of filing a 

brief amicus curiae. 
  

Dated: December 13, 1983 Respectfully submitted, 

R. JAMES KELLOGG 

WILLIAM P. QUIGLEY 

STEVEN SCHECKMAN 

STANLEY A. HALPIN 

631 St. Charles Avenue 

New Orleans, Louisiana 70130 

JACK GREENBERG 

LANI GUINIER 

99 Hudson Street 

New York, New York 10013 

(212) 219-1900 

By: 
  

Attorney for Plaintiffs 

-10-