Brief of Amicus Curiae, Pascal F. Calogero, Jr., In Opposition to Plaintiffs' Motion for an Injunction Pending Appeal

    IN THE UNITED STATES COURT OF APPEAL 
FOR THE FIFTH CIRCUIT 

No. 87-3463 

RONALD CHISOM, et al 
Plaintiffs-Appellants 

versus 

EDWIN EDWARDS, et al 
Defendants-Appellees 

BRIEF OF AmICuS CURIAE, 
PASCAL F. CALOGERO, JR., 

IN OPPOSITION TO PLAINTIFFS' MOTION 
FOR AN INJUNCTION PENDING APPEAL  

Justice Pascal F. Calogero, Jr., has served on the 

Louisiana Supreme Court for sixteen years as one of two 

justices on the Court elected from the First Supreme Court 

District. The next election for the seat on the Court which 

Justice Calogero holds is scheduled for October 1, 1988. He 

intends to seek reelection, and for the past year has been 

actively preparing to qualify as a candidate. The qualifying 

period is in July of this year. 

The First Supreme Court District consists of the 

Parishes of Orleans, Jefferson, St. Bernard and :Plaquemines. 

Justice Calogero currently resides in Jefferson Parish. 



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In addition to the scheduled 1988 election, the 

Louisiana Constitution also requires an election in 1990 for 

the First Supreme Court District seat currently held by Justice 

Walter F. Marcus. Justice Marcus is a resident of Orleans 

Parish. 

Justice Calogero opposes the plaintiffs' motion to 

stay the 1988 election for two primary reasons. First and 

foremost, it is not necesarry, nor advisable, for this Court to 

interrupt the state electoral process at this stage of this 

litigation. The State of Louisiana and the other named 

defendants have not yet had the opportunity to complete the 

process of appellate review with respect to their motion to 

dismiss the case pursuant to Federal Rule of Civil Procedure 

12(b)(6) . Defendants have asked this Court to grant rehearing 

en banc in the case, and to reconsider its recent ruling that 

defendants are not entitled to dismissal under Rule 12(b)(6). 

Even if rehearing were to be denied, defendants will 

still have the right to apply for a writ of certiorari from the 

United States Supreme Court, an application which may well 

result in a writ grant, considering the far reaching importance 

and national implications of the issues raised by this case. 

Further, even if defendants exhaust their appeals on the Rule 

12(b)(6) motion, and this Court's February 29, 1988 ruling 

stands, a determination on the merits will still have to be 



made by the district court. At the district court level, this 

proceeding has not yet reached the pre-trial discovery phase. 

No case or other authority cited by the plaintiffs 

stands for the proposition that an election should be enjoined 

simply because a non-final determination has been made on 

appeal, subject to further review, that the plaintiffs have a 

cause of action. In the pertinent cases cited in plaintiffs' 

memorandum, the injunctions have issued after an explicit 

determination on the merits that the elctoral process under 

attack was unlawful Even then, courts have expressed a 

reluctance to interfere with the electoral process until the 

state legislature has had a reasonable opportunity to react to 

the ruling and to take remedial measures. See Reynolds v.  

Sims, 377 U.S. 533, 585 (1964). See also Defendants' 
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Opposition to Plaintiffs-Appellants Motion for an Injunction 

Pending Appeal, pp. 6-14. Furthermore, one remdial measure 

which surely would pass constitutional muster would be to 

change the present system to give relief as early as 1990 to 

one of two newly created districts. 

Secondly, and alternatively, even if the plaintiffs 

ultimately prevail on the merits, the upcoming elections for 

the two First District at large positions are scheduled in a 

manner that would allow full accomodation of the plaintiffs 

interests without the necessity of enjoining the 1988 



election. It is difficult to conceive of a final determination 

in this case prior to the 1988 election, but it is certainly 

likely that such a determination will be made in advance of the 

1990 race. (Legislative reapportionment of the Louisiana 

Supreme Court before 1990, or the Legislature's splitting the 

First Supreme Court District into two districts, is also a 

possibility). The interests of plaintiffs in this litigation 

would be fully protected if the 1988 election goes forward in 

all four parishes of the current First District, to be 

followed, if plaintiffs later prevail on the merits in this 

case, by the election in 1990 for a newly created urban 

district. Any such district would presumably consist of most 

or all of Orleans Parish (at least plaintiffs so contend), 

which is where the justice who presently holds the 1990 seat 

resides. (The other newly created district, which presumably 

would consist of most or all of the voters who reside in 

Jefferson, St. Bernard and Plaquemines Parishes, would then be 

in place for the term and seat which succeeds the term won in 

the 1988 election). 

Plaintiffs can hardly complain about such a 

resolution, as it would allow black voters within the contours 

of any future minority district to participate in both the 1988 

election, held under the present districting scheme, and the 



1990 race, held for the newly created district. Nor would such 

a solution delay plaintiffs' stated goal of having an election 

held for such a district. Whether the 1988 election is stayed 

or not, an election for any newly created urban district almost 

certainly would not be held before 1990, a fact which 

plaintiffs at least implicitly acknowledge in their 

memorandum. See Memorandum in Support of Plaintiffs-Appellants 

Motion for an Injunction Pending Appeal, pp. 16-18. Also, 

plaintiffs have stated the position that any black lawyer or 

judge who wishes to mount a serious campaign for a seat on the 

Louisiana Supreme Court needs a fair amount of lead time in 

which to prepare for such a campaign. So presumably they would 

not want an election for a newly created urban district to 

occur sooner than 1990. 

Nor would this approach prejudice the rights of any 

Orleans resident who would consider running for the First 

Supreme Court District seat which is to be filled in 1988. Any 

such potential candidate (including the incumbent justice 

presently holding the 1990 seat) has the option of running in 

either the four-parish race in 1988 or, if plaintiffs prevail 



herein, in a newly created district in 1990 1, or in both 

elections should such candidate be unsuccessful in a 1988 

campaign. 

Since it would be possible to have an election in 1990 

for an urban district without cancelling the 1988 election, 

surely that is the preferable approach. When an election is 

cancelled, no one participates in the political process, and it 

is submitted that such an extreme remedy should be a matter of 

last resort. 

Finally, whatever the merits of the State'sl argument 

that the plaintiffs' motion should have been filed with the 

district court, if this Court is of the view that it may decide 

plaintiffs motion through the discretionary exercise of its 

supervisory jurisdiction, then Justice Calogero submits that it 

is appropriate for this Court to decide now whether the 1988 

1 If the present district were to be split into two 
districts, there is no precedent which would require altering 
the term of either of the two First Supreme Court District 
incumbents and holding the elections for the two new districts 
simultaneously. To the contrary, elections for the two First 
Supreme Court District seats were traditionally staggered six 
and eight years apart (when the term was for 14 years). 
Because the Louisiana Constitution of 1974 reduced the length 
of an elected term on the Court from fourteen to ten years, the 
elections for the two First Supreme Court District seats happen 
to fall now two (and eight) years apart, rather than six (and 
eight). 



election should be enjoined. While this Court could instruct 

plaintiffs to first seek an injunction from the district court, 

•any ruling made on the issue there will almost surely be 

appealed to this Court. Since the qualifying period for the 

1988 election is only two months hence, a definitive ruling by 

this Court on plaintiffs' motion would serve the interests of 

all concerned. 

CONCLUSION  

Justice Calogero submits that plaintiff's request to 

enjoin the 1988 election is premature, considering the status 

of this litigation. He also submits that even if the 

plaintiffs were to prevail on the merits, cancelling the 1988 

election is not necessary to protect their stated interests. 

Therefore, he respectfully opposes the plaintiffs' motion for 

an injunction. 

Charles A. Kronlage, Jr. 
717 St. Charles Avenue 
New Orleans, Louisiana 70130 
(50 581-2400 

a s ronlage, Jr. 
Attorney for Mover, 
Pascal F. Calogero, Jr. 
Associate Justice, 
Louisiana Supreme Court 



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CERTIFICATE  

I HEREBY CERTIFY that on May 23, 1988, I served copies 

of the foregoing motion and attached brief upon the parties 

listed below by depositing same in the United States mail, 

postage pre-paid, first class, addressed to them at their 

respective offices: 

William P. Quigley, Esq. 
631 St. Charles Ave. 
New Orleans, La. 70130 

Julius L. Chambers, Esq. 
Charles Stephen Ralston, Esq; 
C. Lani Guinier, Esq. 
Ms. Pamela S. Karlan 
99 Hudson Street 
16th Floor 
New York, New York 10013 

Roy Rodney, Esq. 
643 Camp Street 
New Orleans, La. 70130 

Ron Wilson, Esq. 
Richards Building, Suite 310 
837 Gravier Street 
New Orleans, La. 70112 

William J. Guste, Esq. 
Attorney General 
Louisiana Department of Justice 
234 Loyola Ave., Suite 700 
New Orleans, La. 70112-2096 

M. Truman Woodward, Jr., Esq. 
1100 Whitney Building 
New Orleans, La. 70130 

Blake G. Arata, Esq. 
210 St. Charles Avenue 
Suite 4000 
New Orleans, La. 70170 

(continued, next page) 

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A.R. Christovich, Esq. 
Suite 2300, Pan-American Life Center 
601 Poydras Street 
New Orleans, La. 70130 

Moise W. Dennery, Esq. 
Suite 2100, Pan American Life Center 
601 Poydras Street, Suite 1200 
New Orleans, La. 70130 

Robert G. Pugh 
330 Marshall Street, Suite 1200 
Shreveport, La. 71101 

Mark Gross, Esq. 
Civil Rights Division 
Department of Justice 
Washington, D.C. 20035 

Paul D. Kamener, Esq. 
Washington Legal Foundation 
1705 N. Street, N.W. 
Washington, D.C. 20036 

Peter J. Butler 
712 American Bank Building 
New Orleans, La. 70130 

ar es onlage, Jr.