Johnson v. Mortham

VINSON, Judge,

concurring in part and dissenting in part.

I fully concur with almost all of this order and with its determination that the defendants must be required to put on their evidence at trial before the plaintiffs. However, since I am firmly convinced that the risk of nonpersuasion 1 on the issue of strict scrutiny is now wholly upon the defendants, I disagree with that part of the order which seems to describe the defendants’ burden as one of production only.

As the order sets out, the Supreme Court has used the terms “demonstrate,” “justify,” “show,” and “establish” to describe the defendants’ burden under strict scrutiny. According to Black’s Law Dictionary 389 (5th ed. 1979), “demonstrate” means “to derive from admitted premises by steps of reasoning which admit of no doubt; to prove indubitably.” “Justify” is defined as “to prove or show to be just, right, or reasonable ...; to show to have had a sufficient legal reason.” Webster’s Ninth New Collegiate Dictionary 656 (1985). “Show” is defined in this context as “[t]o make apparent or clear by evidence, to prove.” Black’s Law Dictionary 1237 (5th ed. 1979). “Establish” means “to put beyond doubt: PROVE.” Webster’s Ninth New Collegiate Dictionary 425 (1985); Black’s Law Dictionary 490 (5th ed. 1979). By repeatedly using these terms, the Supreme Court has clearly evinced its intent to force the state to bear a heavy burden of justification whenever it has used a racial classification. 2

*1584 Moreover, because the plaintiffs in this case established on summary judgment that Congressional District Three was the product of racial gerrymandering, there now exists a presumption of invalidity. See Shaw v. Reno, 509 U.S. 630 , -, 113 S.Ct. 2816, 2825 , 125 L.Ed.2d 511, 526 (1993) (“A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification.”) (quoting Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272 , 99 S.Ct. 2282, 2292 , 60 L.Ed.2d 870, 883 (1979)). Whether the presumption that now exists should effectively shift the risk of non-persuasion to the defendants is essentially an issue of evidence.

It has been asserted that the term “ ‘presumption’ is the slipperiest member of the family of legal terms, except its first cousin, ‘burden of proof.’ ” McCormick’s Handbook of the Law of Evidence, § 342 (2d ed. 1972). Although the term has been used in many senses, once a presumption arises, it generally has one of two effects. According to the so-called “bursting bubble” theory of presumptions, once the party against whom the presumption is raised offers some rebuttal evidence (i.e. meets a burden of production), the presumption simply falls out of the case. See Alabama By-Products v. Killingsworth, 733 F.2d 1511, 1514 (11th Cir.1984); 1 J. Weinstein & M. BERGER, Weinstein’s Evidence, ¶ 301 (1992); McCormick’s Evidence, supra, at § 345(A). Under this theory, often called the Thayer Doctrine, the risk of non-persuasion does not shift. See 9 J. Wigmore, Evidence, § 2493(e), (J. Chadboum rev. ed. 1981). The “bursting bubble” theory, or its many variations, is used in many situations [See, e.g., Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 255 , 101 S.Ct. 1089, 1094-95 , 67 L.Ed.2d 207, 216 (1981)], and has been adopted as the general rule by the Federal Rules of Evidence. Rule 301, Fed. R.Evid. 3

However, “[m]any legal scholars have now come to the view that there is a ... better rule: anything worthy of the name ‘presumption’ has the effect of fixing the burden of persuasion on the party contesting the existence of the presumed fact.” McCormick’s Evidence, supra, at § 345(B). This is the position advanced by Professor Morgan, and generally accepted by Maguire, McCormick, and other authorities in the field. J. Wigmore, Evidence, § 2493(c) (J. Chadbourn rev. ed. 1981). The Supreme Court has also applied this evidentiary principle to many situations. See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 , 97 S.Ct. 568, 576 , 50 L.Ed.2d 471, 484 (1977) (After plaintiff had established that his speech played a significant part in government’s decision not to rehire him, government had to show by a preponderance of the evidence that it would have reached the same decision even in the absence of protected conduct.); Keyes v. School Dist. No. 1, Denver, Colorado, 413 U.S. 189, 208 , 93 S.Ct. 2686, 2698 , 37 L.Ed.2d 548, 563 (1973) (“[A] finding of intentionally segregative school board actions in a meaningful portion of a school system ... creates a presumption that other segregated schooling within the system is not adventitious,” and shifts the burden of persuasion to the state to prove “that other segregated schools within the system are not also the result of intentionally segregative actions.”). All of the Supreme Court’s strict scrutiny decisions under the equal protection *1585 clause have utilized this same rationale, fully described in the order. Thus, the Third District will be invalid unless the defendants can “demonstrate/justify/show/establish” that it was narrowly tailored to achieve a compelling governmental interest. Therefore, the risk of nonpersuasion has to be upon the defendants.

. The term "risk of nonpersuasion” is often utilized as a more descriptive way of characterizing the burden of persuasion. See 9 J. Wigmore, Evidence, § 2486 (J. Chadboum rev. ed. 1981).

. Indeed, commentators who have examined the issue have concluded that once the plaintiff proves racial discrimination, the risk of nonper-suasion shifts to the government to show that its discrimination comports with strict scrutiny. See, e.g., James F. Blumstein, Racial Gerrymandering and Vote Dilution: Shaw v. Reno in Doctrinal Context, 26 Rutgers L.J. 517 , - (1995) ("Clearly, the risk of nonpersuasion on the issue of justification rests with the state and in the absence of the state’s satisfying that burden, [racial discrimination] cannot withstand strict scrutiny. Statutes that classify by race are subject to strict scrutiny and therefore are presumptively invalid. Since the default rule in such circumstances mandates that a failure on the part of the state to adequately justify, not just to articulate a rationale for, a law results in its invalidation, it seems apparent that more than just a burden of production shifts to the government.”) (footnotes omitted); Christopher J. Softer, Constitutional Law — Equal Protection — Voting Rights Act of 1965 — -Racial Redistricting and Gerrymandering— Election Discrimination, 32 Duq.L.Rev. 865, 891 (asserting that Shaw "shifted the burden of proof to the state to exhibit that the use of race in redistricting was narrowly tailored to a compelling governmental interest”); Russell W. Galloway, Jr., Basic Equal Protection Analysis, 29 Santa Clara L.Rev. 121,-(1989) (stating that the government must prove that its racial classification satisfies strict scrutiny).

. As originally proposed by the Judicial Conference and the Supreme Court, Rule 301 adopted the alternate approach, discussed infra, in which the party against whom the presumption is raised must overcome the presumption by a preponderance of the evidence. See 1 J. Weinstein & M. Berger, Weinstein’s Evidence, ¶ 301 (1992); Rules of Evidence for United States Courts and Magistrates, 56 F.R.D. 183 , 208 (1972). Congress modified the Supreme Court’s proposal to reflect the current Rule 301. However, "[t]he Rule merely defines the term ‘presumption.’ It in no way restricts the authority of a court ... to change the customary burdens of persuasion in a manner that otherwise would be permissible.” NLRB v. Transportation Management Corp., 462 U.S. 393 , 403 n. 7, 103 S.Ct. 2469 , 2475 n. 7, 76 L.Ed.2d 667 , 676 n. 7 (1983).