Opposition Brief — Peter Lee, et al., Petitioners v. City of Los Angeles, California

No. 18-1257

In the

Supreme Court of the United States

PETER LEE, MIRI PARK, HO SAM PARK,

GENEY KIM, AND YONAH HONG

Petitioners,

v.

CITY OF LOS ANGELES,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Ninth Circuit

BRIEF IN OPPOSITION

Robin B. Johansen

Michael N. Feuer

Counsel of Record

Valerie L. Flores

Thomas A. Willis

Harit U. Trivedi

Remcho Johansen

Office of the Los A ngeles

& Purcell LLP

City Attorney

1901 Harrison Street,

200 North Main Street,

Suite 1550

Room 800,

Oakland, CA 94612

City Hall East

(510) 346-6200

Los Angeles, CA 90012

rjohansen@rjp.com

(213) 978-7100

Counsel for Respondent

Dated: May 1, 2019

288039

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

In 2012, the City of Los Angeles engaged in a lengthy,

public process to redraw the boundaries for its fifteen City

Council districts. Plaintiffs allege that the City Council

drew the lines to maintain Council District 10 (“CD 10”) as

an African-American district in violation of Shaw v. Reno,

509 U.S. 630 (1993). Despite having access to thousands

of pages of documents and video testimony, plaintiffs’

primary evidence is limited to statements by one member

of an advisory commission during the process and a postdecisional statement by one City Council member. The

questions presented are:

1.

Whether the Ninth Circuit correctly held that

“the factual record in this case falls short of

justifying the ‘substantial intrusion’ into the

legislative process” that would be caused by

allowing discovery into the motives of individual

legislators.

2.

Whether the Ninth Circuit properly held that

plaintiffs’ evidence regarding the motives of one

Commission member and one Council member

failed to raise a triable issue of fact as to whether

race was the predominant factor motivating the

City Council’s decision, particularly in light of the

objectively-verifiable evidence that the final plan

reduced CD 10’s African-American population

from the Commission’s recommended plan, CD 10

is one of the most compact and diverse districts

in the City, and its boundaries unify communities

better than before and comply with all traditional

districting criteria.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . v

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF FACTS AND OF THE CASE . . . . 5

A. Correction of Factual Misstatement

in Petition for Writ of Certiorari . . . . . . . . . . . . . 5

B. The Redistricting Commission Proceedings . . . 5

C. The City Council Proceedings . . . . . . . . . . . . . . . 7

D. Treatment of Koreatown in the Final Plan . . . . 7

E. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 8

REASONS FOR DENYING THE PETITION . . . . . 10

I.

PLAINTIFFS’ CASE WILL BE MOOT

LONG BEFORE IT COULD EV ER

BE RESOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iii

Table of Contents

Page

II. P L A I N T I F F S ’ L E G I S L A T I V E

PR I V I L EGE CL A I M D OE S NO T

WA R R A N T R E V I E W B Y T H I S

COURT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. There Is No Conflict in This Court’s

Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

1.

The Court applies Village of

Arlington Heights v. Metropolitan

Ho u s in g Devel o p m ent

Corporation in civil cases alleging

race discrimination . . . . . . . . . . . . . . . . 15

2. T h e C o u r t a p p l i e s Un i t e d

States v. Gillock only in

criminal cases . . . . . . . . . . . . . . . . . . . . 18

B. T h e N i n t h C i r c u i t D i d N o t

Establish An Absolute Legislative

Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C. Plaintiffs’ Application of a Balancing

Test Is Not Supported By the Case

Law on Which They Rely . . . . . . . . . . . . . . 22

D. There Will Be Far Better Cases In Which

the Court Can Decide the Proper Scope

of the Legislative Privilege . . . . . . . . . . . . . 25

iv

Table of Contents

Page

III. THERE IS NO REASON FOR THE

COURT TO REVIEW THE NINTH

CI RCU I T ’ S A F FI R M A NCE OF

THE DISTRICT COURT’S RULING

ON SUMMARY JUDGMENT . . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

v

TABLE OF CITED AUTHORITIES

Page

CASES

Abbott v. Perez,

138 S. Ct. 2305 (2018) . . . . . . . . . . . . . . . . . . . . . . 27-28

Atherton Mills v. Johnston,

259 U.S. 13 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Benisek v. Lamone,

241 F. Supp. 3d 566 (D. Md. 2017) . . . . . . . . . . . . 23, 24

Bethune-Hill v.

Virginia State Board of Elections,

137 S. Ct. 788 (2017) . . . . . . . . . . . . . . . . . . . . . . passim

Bethune-Hill v.

Virginia State Board of Elections,

114 F. Supp. 3d 323 (E.D. Va. 2015) . . . . . . . . . . . 23, 25

Bogan v. Scott-Harris,

523 U.S. 44 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Busbee v. Smith,

549 F. Supp. 494 (D.D.C. 1982),

summarily aff’d, 459 U.S. 1166 (1983) . . . . . . . . . . . 16

Bush v. Vera,

517 U.S. 952 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Camreta v. Greene,

563 U.S. 692 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

vi

Cited Authorities

Page

Chen v. City of Houston,

206 F.3d 502 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 26

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

City of Mobile v. Bolden,

446 U.S. 55 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Committee for a Fair and Balanced Map v.

Illinois State Board of Elections,

No. 11 C 5065, 2011 U.S. Dist. LEXIS 117656

(N.D. Ill. Oct. 12, 2011) . . . . . . . . . . . . . . . . . . . . . . . . 22

Cooper v. Harris,

136 S. Ct. 1455 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 27

DeFunis v. Odegaard,

416 U.S. 312 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Easley v. Cromartie,

532 U.S. 234 (2001) . . . . . . . . . . . . . . . . . . . 4, 28, 29, 30

Favors v. Cuomo,

285 F.R.D. 187 (E.D.N.Y. 2012) . . . . . . . . . . . . . . 22, 23

Fletcher v. Peck,

6 Cranch 87 (1810) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Garza v. County of Los Angeles,

918 F.2d 763 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . 26

vii

Cited Authorities

Page

Gomillion v. Lightfoot,

364 U.S. 339 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Hunt v. Cromartie,

526 U.S. 541 (1999) . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

Hunter v. Underwood,

471 U.S. 222 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Kay v. City of Rancho Palos Verdes,

No. CV 02-03922, 2003 U.S. Dist. LEXIS 27311

(C.D. Cal. Oct. 9, 2003) . . . . . . . . . . . . . . . . . . . . . . . . 23

Knox v. SEIU, Local 1000,

567 U.S. 298 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Lake Country Estates, Inc. v.

Tahoe Regional Planning Agency,

440 U.S. 391 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Lewis v. Continental Bank Corp.,

494 U.S. 472 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Miller v. Johnson,

515 U.S. 900 (1995) . . . . . . . . . . . . . . . . . . . . . . . passim

Murphy v. Hunt,

455 U.S. 478 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

North Carolina v. Covington,

138 S. Ct. 2548 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . 13

viii

Cited Authorities

Page

Page v. Virginia State Bd. of Elections,

58 F. Supp. 3d 533 (E.D. Va. 2014),

vacated sub nom. Cantor v. Personhuballah,

135 S. Ct. 1699 (2015) . . . . . . . . . . . . . . . . . . . . . . 22-23

Pleasant Grove v. United States,

479 U.S. 462 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Port Arthur v. United States,

517 F. Supp. 987 (D.D.C. 1981), aff’d,

459 U.S. 159 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Reno v. Bossier Parish School Bd.,

520 U.S. 471 (1997) . . . . . . . . . . . . . . . . . . 15, 16, 17, 26

Rogers v. Lodge,

458 U.S. 613 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Shaw v. Hunt,

517 U.S. 899 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Shaw v. Reno,

509 U.S. 630 (1993) . . . . . . . . . . . . . . . . . . . . . . . passim

Spencer v. Kemna,

523 U.S. 1 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Tenney v. Brandhove,

341 U.S. 367 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ix

Cited Authorities

Page

United States v. Gillock,

445 U.S. 360 (1980) . . . . . . . . . . . . . . . . . . . . . . . passim

Village of Arlington Heights v.

Metropolitan Housing Development Corp.,

429 U.S. 252 (1977) . . . . . . . . . . . . . . . . . . . . . . . passim

Washington v. Davis,

426 U.S. 229 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

STATUTES AND AUTHORITIES

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

28 U.S.C. § 1253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

28 U.S.C. § 2284(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

L.A. City Charter, § 204 . . . . . . . . . . . . . . . . . . . . . . . . . 11

L.A. City Charter, § 401 . . . . . . . . . . . . . . . . . . . . . . . . . 11

L.A. City Charter, § 407 . . . . . . . . . . . . . . . . . . . . . . . . . 11

L.A. City Charter, § 421 . . . . . . . . . . . . . . . . . . . . . . . . . 11

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 27

Voting Rights Act § 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1

INTRODUCTION

Based primarily on statements made by one member

of an advisory redistricting commission and one postredistricting speech by a single City Councilmember,

petitioners claim that twenty-one members of that

commission, and then fifteen members of the Los Angeles

City Council and the Mayor – thirty-seven City officials

in all – engaged in intentional race discrimination when

they publicly debated and approved the boundaries of

City Council District 10 in 2012. Specifically, plaintiffs,

who reside in an area known as Koreatown that is part of

CD 10, allege that the district was drawn to ensure that it

would remain an African-American district, in violation

of Shaw v. Reno, 509 U.S. 630 (1993). This is despite the

facts that CD 10’s African-American population is only

25.9%, its citizen voting age population (CVAP) is only

40.5%, and the City Council’s final plan actually lowered

the African-American percentages in the district from

the percentages in the Commission’s recommended plan.

After two-and-a-half years of litigation and extensive

discovery, the District Court held that plaintiffs had failed

to raise a genuine issue of material fact as to whether race

was the predominant factor motivating the City Council’s

action, and the Ninth Circuit affirmed. Those rulings were

fully supported by the following facts:

• CD 10 is one of the most diverse districts in one of

the most diverse cities in the country. It continues

to be a multi-racial, coalition district with large

populations of Latino, Asian, White, and AfricanAmerican residents. If CD 10 is a Shaw district, no

district in the country is safe from such a claim;

2

• CD 10’s African-American population increased

only 1.7% from the 2002 plan (from 24.2% to

25.9%) and African-American CVAP increased

only 3.7% (from 36.8% to 40.5%);

• Far from ignoring Koreatown residents and

“maximizing” African-American population in

CD 10, the biggest change to CD 10 consolidated

all of Koreatown and 70% of the Wilshire Center

Koreatown Neighborhood Council (“WCKNC”),

which have very low African-American populations,

into CD 10;

• The t wo changes to CD 10 that for m the

plaintiffs’ Shaw claim (a change in the Palms and

Empowerment Congress neighborhood councils)

better unified those neighborhoods as their

residents requested;

• Both changes – either separately or together –

are insignificant changes on the perimeter of

the district that would not provide a viable Shaw

claim even if they did not adhere to traditional

districting criteria, which they did;

• The commissioner at issue did not get what

he allegedly wanted because the City Council

revised the Commission’s plan by moving a largely

African-American neighborhood out of CD 10 in

part to keep the CD 8 incumbent’s residence in his

district, thereby reducing the African-American

CVAP of CD 10 by approximately 3%; and

• CD 10 is not remotely unusual in shape. Rather,

it is one of the more compact districts in the City

3

and its shape has stayed remarkably unchanged

since the 1970s.

Despite all this, plaintiffs ask this Court to reverse

the lower court rulings and send the case back for a trial

that could not possibly be completed in time to impose new

districts for the one remaining citywide election before

the City must redraw its district lines in 2021. They do so

based on two arguments: (1) that the lower courts erred in

recognizing a legislative privilege that prohibits inquiry

into the motives of individual legislators in this case,

and (2) that the lower courts erred in granting summary

judgment in favor of the City.

Plaintiffs do not even pretend to argue that there is

a conflict in the circuit courts on either of the issues they

urge upon the Court. Instead, plaintiffs argue that there

is a conflict between this Court’s opinions on legislative

privilege in Village of Arlington Heights v. Metropolitan

Housing Development Corp., 429 U.S. 252 (1977) and in

United States v. Gillock, 445 U.S. 360 (1980). There is

no conflict. As Gillock makes clear, “in protecting the

independence of state legislators, [the Court’s cases] on

official immunity have drawn the line at civil actions.”

445 U.S. at 373. Thus, in civil actions, the Court applies

the rule that “[o]nly in “extraordinary instances” should

a legislator “be called to the stand to testify concerning

the purpose of the official action, although even then

such testimony frequently will be barred by privilege.”

Arlington Heights, 429 U.S. at 268. In criminal cases

involving state and local legislators, it does not.

Similarly, plaintiffs do not argue that there is any

conflict in the circuits regarding the proper standard

4

for summary judgment on Shaw claims. Instead, they

argue that the Ninth Circuit’s ruling conflicts with this

Court’s own decisions, ignoring the admonition in Rule 10

of the Supreme Court Rules that a “petition for a writ

of certiorari is rarely granted when the asserted error

consists of . . . the misapplication of a properly stated

rule of law.”

Even if there were a conflict in the circuits, however,

the Ninth Circuit’s decision was entirely consistent

with this Court’s rulings. As demonstrated below, the

Ninth Circuit carefully reviewed plaintiffs’ evidence in

light of this Court’s most recent Shaw cases and found

it wanting. That was entirely appropriate in light of the

Court’s earlier holdings that a legislative body “must have

discretion to exercise the political judgment necessary

to balance competing interests,” and that courts must

“exercise extraordinary caution in adjudicating claims

that a State has drawn district lines on the basis of race.”

Easley v. Cromartie, 532 U.S. 234, 242 (2001) (“Cromartie

II”) (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995))

(emphasis added in Cromartie II).

As Justice O’Connor said in Miller, plaintiffs’ burden

of proof is a “demanding one” meant to make only the

most “extreme instances of gerrymandering subject to

meaningful judicial review” without casting doubt on or

subjecting to challenge the “vast majority” of districts

throughout the country. Miller, 515 U.S. at 928-29

(O’Connor, J., concurring). A ruling that plaintiffs were

entitled to go to trial on this evidence would result in

precisely what Justice O’Connor sought to avoid.

5

STATEMENT OF FACTS AND OF THE CASE

A. Correction of Factual Misstatement in Petition for

Writ of Certiorari

Pursuant to Supreme Court Rule 15, defendant City

of Los Angeles brings to the Court’s attention a material

misstatement in plaintiffs’ brief. The petition misstates

the Citizen Voting Age Population (CVAP) percentage for

African-Americans in CD 10 as “43.1%.” Pet. 7-8. That

was the CVAP percentage for CD 10 in the Commission’s

final advisory map; the CVAP percentage for AfricanAmericans in the final ordinance approved by the City

Council was reduced to 40.5%. Pet. App. 11a. The other

CVAP percentages for CD 10 were: 28.9% Latino, 16.3%

Asian, and 12.3% White. See id.

B. The Redistricting Commission Proceedings

Under the Los Angeles City Charter, a twentyone member, volunteer Redistricting Commission (the

“Commission”) begins the task of redistricting the

fifteen City Council districts. The Commission submits a

recommended plan to the City Council, which can accept

or modify the proposal, or draw a new map. Pet. App. 33a.

The 2012 Redistricting Commission held 39 public

meetings and hearings, at which it not only took testimony

from the public, but also publicly deliberated the merits

of each proposal before it.1 More than 1,800 individuals

1. Most facts in this brief can be found in the opinions of the

District Court or Court of Appeal, included in the Petition Appendix

(“Pet. App.”). Any other facts are found in the Excerpts of Record

and Supplemental Excerpts of Record filed with the Ninth Circuit.

6

attended these hearings, and the Commission received

more than 500 oral or written comments, together with

more than 40 draft plans from the public. See id., 36a.

Like its predecessor in 2002, the Commission decided

to draft the preliminary plan for public comment in small

groups with the assistance of a Technical Director to

facilitate the use of redistricting software. The groups

were instructed not to talk to each other in order to ensure

compliance with California’s open meeting law. The West/

Southwest ad hoc group that drafted the initial proposal

for CD 4, 5, 8, 10, and 11 had seven members, including

Commissioner Christopher Ellison, and met only twice.

A resolution group met on January 24 to unite the plans

from the ad hoc groups into a citywide plan. Id., 36a-37a.

After the initial ad hoc committee meetings, the

Commission met and deliberated entirely in public. It

issued three draft plans, holding seven public hearings on

the first plan, then debating and voting at an eight-hour

public meeting on more than 80 proposed amendments to

the plan, of which it approved 42. The public then reviewed

and proposed additional changes. At yet another public

meeting, the Commission considered fourteen additional

amendments and approved five. The Commission then

approved a final recommended plan by a supermajority

vote of 16-5. The Commission also drafted a 951-page

report describing its work, including how it addressed

particularly difficult areas of the City such as Koreatown.

See Pet. App. 39a-41a.

The issue of how to handle Koreatown was a recurring

theme throughout the Commission process. Commissioner

Helen Kim strongly advocated unifying the Wilshire

7

Center Koreatown Neighborhood Council (“WCKNC”) in

CD 13. Commissioner Kim, joined by Commissioners Ahn,

Anderson, and Roberts, voted against the Commission’s

recommended plan and drafted a minority report that,

among other things, attached an email from Commissioner

Ellison, a focus of this case, and accused Commissioner

Ellison of race-based line-drawing.

Finally, before the Commission submitted its

recommended plan to the City Council, the City Attorney’s

Office reviewed the plan, as well as the minority report,

and concluded that the Commission’s recommended plan

met all relevant legal criteria. Id., 42a.

C. The City Council Proceedings

The City Council held three public hearings on the

plan at separate locations throughout the City. City

Councilmembers proposed twenty-five amendments. In

two lengthy public reports, the Chief Legislative Analyst’s

Office (“CLA”) discussed each proposed amendment,

recommending that eighteen be adopted, including

significant changes to CD 10 that reduced the AfricanAmerican population in the district.

On March 16, 2012, after extensive public discussion,

the City Council adopted eighteen amendments and voted

13-2 to approve the Redistricting Ordinance, which the

Mayor then signed. Pet. App. 43a.

D. Treatment of Koreatown in the Final Plan

Koreatown can be defined in several ways, but no

matter how it is defined, Koreatown is made more whole

8

under the new plan. One definition uses Koreatown

boundaries as defined through the City’s renaming policy,

and under that definition, Koreatown is made whole in

CD 10.

Plaintiffs prefer to define Koreatown by the boundaries

of the WCKNC. WCKNC is the largest neighborhood

council with more than 95,000 residents (which would

constitute almost 40% of a single council district) and lies

at the center of the City. As a result, it is very difficult

to unify WCKNC in one district without splitting other

communities of interest, and that area has not been whole

in previous plans. Under the old plan, the City renaming

policy neighborhood was split in two, and WCKNC was

split into three City Council districts. Under the new plan,

the renaming policy neighborhood is made whole in CD 10,

the WCKNC splits have been reduced to two, and 70% of

the neighborhood council is consolidated into CD 10. See

Pet. App. 57a-58a.

E. Procedural History

The Lee plaintiffs, who are voters residing in CD 10,

filed suit on July 31, 2012, principally alleging that the City

redrew the boundaries in CD 10 with the predominant

intent of increasing the percentage of African-American

voters in that district, in violation of Shaw v. Reno. 2

2. Another group of plaintiffs, known as the Haveriland

plaintiffs, filed a separate complaint that challenged CD 9 on the

same grounds. Although the District Court consolidated the two

cases, the Haveriland plaintiffs did not file briefs addressing CD 9

in the Ninth Circuit, and they have not filed a petition for writ of

certiorari in this Court.

9

The parties engaged in extensive discovery. The

redistricting efforts of both the Commission and City

Council produced a voluminous public legislative record

that was provided to plaintiffs in November 2012. These

records consist of: (1) full transcripts and/or video or

audio recordings of redistricting meetings and public

hearings; (2) all draft maps released by the Commission

along with related demographic data; (3) written public

comments and draft maps submitted by the public and

interest groups, including impact statements from several

Neighborhood Councils; (4) all Commission and City

Council meeting agendas, minutes, and reports provided

for the meetings, including the City’s Chief Legislative

Analyst’s Report and addendum; (5) all presentations to

either body; and (6) the Commission’s full Report.

In addition to providing all of these documents,

the City also agreed to and produced to plaintiffs nonprivileged information contained in the files of the City

Council and Commission members, Mayor, and City

staffers who worked on redistricting. Finally, the City

agreed to – and plaintiffs took – the depositions of staff

and Commission members, subject to objection on the

basis of privilege.

The City objected to providing pre-decisional, nonpublic documents containing communications about the

thought processes of commissioners and City Council

members or their staff, citing legislative privilege. The

Lee plaintiffs initially claimed that they were entitled

to documents protected by the legislative privilege,

and they filed a motion to compel production of them.

After full briefing and argument, Magistrate Judge

Jay Gandhi suggested a compromise that would limit

10

plaintiffs’ discovery requests to any race-based factual

statements or race-based reports, but that would allow

the City to redact those portions that “include opinions,

recommendations or advice about legislative decisions.”

The Lee plaintiffs agreed to the compromise and

withdrew their motion to compel “without prejudice.” The

Lee plaintiffs did not reverse their position until three

months later, when the Haveriland plaintiffs sought to

depose staff and members of the Commission and the City

Council, including the Council President and the Mayor,

without limiting questioning to non-privileged material.

The Haveriland plaintiffs rejected the Magistrate Judge’s

suggestion of a compromise similar to the one that the

Lee plaintiffs had accepted. When the Magistrate Judge

issued a protective order, the Lee plaintiffs supported the

Haveriland plaintiffs’ motion for reconsideration, which

the District Court denied and which it declined to certify

for an interlocutory appeal to the Ninth Circuit.

The District Court granted the City’s motion for

summary judgment with respect to both the Lee and

Haveriland plaintiffs on February 24, 2015, and the Ninth

Circuit issued its ruling upholding the District Court’s

judgment on November 19, 2018.

REASONS FOR DENYING THE PETITION

I.

PLAINTIFFS’ CASE WILL BE MOOT

LONG BEFORE IT COULD EVER BE RESOLVED

The Court should deny plaintiffs’ petition because the

case will be moot long before it could ever be completed.

11

The merits of plaintiffs’ Shaw claim are not before the

Court, only the lower court’s discovery and summary

judgment rulings. Even if petitioners were to prevail

before this Court, the case must still be remanded for

additional discovery and a trial.

The current CD 10 boundaries will be used for the

last time in the City’s 2020 elections; thereafter the City

will redraw all of its district boundaries based on the

2020 Census, as required by the City Charter. Thus, the

window during which any effective relief could be ordered

and implemented closes once the pre-election deadlines for

the City’s March 3, 2020 primary election begin to occur.

Those deadlines are fast approaching. Under the City’s

election laws, all candidates for the March 2020 primary

election must be residents of their respective districts no

later than 150 days before the election, which is October 15,

2019, and must file their declarations of candidacy no later

than 115 days before the election, which is November 9,

2019. See L.A. City Charter, §§ 204, 401, 407 & 421.

As a practical matter, therefore, the case is already

essentially moot because it would be impossible for the

Court to take, hear, decide and remand the case, and then

have the District Court order discovery, hold a trial, and

order a remedial map, all within the next six months.

Article III’s “case-or-controversy requirement

subsists through all stages of federal judicial proceedings.”

Lewis v. Continental Bank Corp., 494 U.S. 472, 477

(1990). A case becomes moot “when it is impossible for

a court to grant any effectual relief whatever to the

prevailing party.” Knox v. SEIU, Local 1000, 567 U.S. 298,

305 (2012) (citations and quotations omitted); see, e.g.,

12

Camreta v. Greene, 563 U.S. 692, 711 (2011) (challenge

to Oregon officials’ interview of a minor about sexual

abuse allegations became moot when minor was only

months away from adulthood and had moved to Florida);

DeFunis v. Odegaard, 416 U.S. 312, 318 (1974) (challenge

to law school admissions policy became moot when

plaintiff neared graduation); Atherton Mills v. Johnston,

259 U.S. 13, 15-16 (1922) (challenge to validity of a child

labor statute became moot when child became adult).

Nor can plaintiffs demonstrate that their case qualifies

for the exception for disputes capable of repetition, yet

evading review. The exception only applies where “(1) the

challenged action is in its duration too short to be fully

litigated prior to cessation or expiration, and (2) there

is a reasonable expectation that the same complaining

party will be subject to the same action again.” Spencer v.

Kemna, 523 U.S. 1, 17 (1998) (citations and quotations

omitted).

Neither requirement is met here. First, the challenged

action – the use of CD 10 boundaries – will have lasted

eight years, more than enough time for plaintiffs to

have fully litigated the case had they prosecuted it with

any sense of urgency or even average pace. Instead,

they usually did the bare minimum to advance the case

pursuant to court-mandated deadlines. They never sought

temporary or preliminary relief before elections in CD 10,

and only rarely and inconsistently requested expedited

briefing or review on matters.

Second, this case is unlikely to recur. The “capable of

repetition” prong requires a “‘reasonable expectation’”

or a “‘demonstrated probability’” that “the same

13

controversy will recur involving the same complaining

party.” Murphy v. Hunt, 455 U.S. 478, 482 (1982)

(citation omitted). Here, there is little chance the same

controversy will recur involving the same complaining

parties. The next City redistricting ordinance will be

drafted by a newly appointed redistricting commission

and a completely different City Council than the one that

approved the current lines in 2012, using new census

data. It is entirely unknowable at this point how those

legislative bodies will go about drafting CD 10 and what

CD 10 will look like given the passage of ten years in a

diverse, centrally located urban district. 3

II.

PLAINTIFFS’ LEGISLATIVE PRIVILEGE CLAIM

DOES NOT WARRANT REVIEW BY THIS COURT

Plaintiffs argue that the Court should grant their

writ because (1) there is a division in this Court’s cases

on legislative privilege, and (2) the Ninth Circuit’s opinion

“effectively established an absolute privilege.” Pet. 22,

3. This is not like the situation in North Carolina v. Covington,

138 S. Ct. 2548 (2018), where the Court held that plaintiffs alleging a

Shaw claim had standing to challenge a remedial plan the Legislature

drew in response to plaintiffs’ original action. In that case, plaintiffs

contended that the new, remedial districts were mere continuations

of the old, gerrymandered districts. The Court held that “[b]ecause

the plaintiffs asserted that they remained segregated on the basis

of race, their claims remained the subject of a live dispute, and the

District Court properly retained jurisdiction.” 138 S. Ct. at 2553.

Here, the new districts are not yet drawn and it is impossible to

know how a new redistricting commission and City Council will

draw CD 10.

14

25. Plaintiffs then catalog the reasons why they should

have been allowed to probe the motives of commissioners

and City Councilmembers without ever mentioning

the compromise that they had accepted that limited

their discovery or that they had access to thousands

of documents and hours of video from the redistricting

process, as well as the opportunity to depose legislators

and staff about how that process unfolded. In short,

as demonstrated below, there is no need to clarify the

common law of legislative privilege, but even if there were,

this case is not the proper vehicle for doing it, because

plaintiffs had access to a wealth of material with which

to make their case.

A. There Is No Conflict in This Court’s Case Law

Plaintiffs strain to find a conflict in this Court’s

case law where there is none. Specifically, they insist

that the Court’s decision in United States v. Gillock,

445 U.S. 360 (1980) conflicts with its decision in Village of

Arlington Heights v. Metropolitan Housing Development

Corporation, 429 U.S. 252 (1977) on the applicability of

a common law legislative privilege for state and local

legislators. That argument misses the fact that the Court

has drawn a sharp line between the kind of civil action

discussed in Arlington Heights and federal criminal

actions against state or local legislators like the one at

issue in Gillock.

15

1.

The Cour t applies Village of Arlington

Heights v. Metropolitan Housing Development

Corporation in civil cases alleging race

discrimination

Like this case, Arlington Heights was a civil case

involving charges that a municipality had acted with a

racially discriminatory intent. There, this Court made

clear that proof of racially discriminatory legislation

must be made through objective evidence, not by placing

individual legislators on the stand, where their testimony

“frequently will be barred by privilege.” 429 U.S. at 268.

In Reno v. Bossier Parish School Board, the Court held

that the framework established in Arlington Heights

applies to claims of racial gerrymandering as well:

As our discussion illustrates, assessing a

jurisdiction’s motivation in enacting voting

changes is a complex task requiring a “sensitive

inquiry into such circumstantial and direct

evidence as may be available.” In conducting

this inquiry, courts should look to our decision

in Arlington Heights for guidance.

52 0 U. S. 471, 4 8 8 (19 97)

(quoting Arlington Heights,

429 U.S. at 266).

The Reno Court went on to say that the framework set

in Arlington Heights for analyzing whether discriminatory

purpose motivated a governmental body’s decisionmaking

had served “as the framework for examining discriminatory

purpose in cases brought under the Equal Protection

Clause for over two decades,” citing no fewer than six of

16

its other voting rights cases. Id.4 The first case listed was

Shaw, 509 U.S. 630, on which plaintiffs’ entire claim of

racial discrimination is based.

The framework that this Court has explicitly stated

should be used to decide cases like this one includes

the recognition that only in “extraordinary instances”

legislators “might be called to the stand at trial to testify

concerning the purpose of the official action, although

even then such testimony frequently will be barred

by privilege.” Arlington Heights, 429 U.S. at 268. It

also includes the admonishment that “[t]his Court has

recognized, ever since Fletcher v. Peck, 6 Cranch 87,

130-31 (1810), that judicial inquiries into legislative or

executive motivation represent a substantial intrusion into

the workings of other branches of government.” Id. at 268

n.8. “Placing a decisionmaker on the stand,” the Court

said, “is therefore usually to be avoided.’” Id. (quoting

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,

420 (1971)).

4. The cases, with the Court’s parenthetical descriptions,

were Shaw, 509 U.S. at 644 (citing Arlington Heights standard in

context of Equal Protection Clause challenge to racial gerrymander

of districts); Rogers v. Lodge, 458 U.S. 613, 618 (1982) (evaluating

vote dilution claim under Equal Protection Clause using Arlington

Heights test); City of Mobile v. Bolden, 446 U.S. 55, 70-74 (1980)

(same); Pleasant Grove v. United States, 479 U.S. 462, 469-70

(1987) (considering city’s history in rejecting annexation of black

neighborhood and its departure from normal procedures when

calculating costs of annexation alternatives); see also Busbee v.

Smith, 549 F. Supp. 494, 516-17 (D.D.C. 1982), summarily aff’d, 459

U.S. 1166 (1983) (referring to Arlington Heights test); Port Arthur v.

United States, 517 F. Supp. 987, 1019 (D.D.C. 1981), aff’d, 459 U.S.

159 (1982) (same). Accord Hunter v. Underwood, 471 U.S. 222, 227-28

(1985) (court of appeals properly used Arlington Heights approach in

case challenging disenfranchisement of felons as racially motivated).

17

Plaintiffs argue that the statements about legislative

privilege in Arlington Heights are dicta, because the

plaintiffs in that case based their argument on the effect

of the Village board’s vote, as opposed to the motivation

behind the vote. Pet. 23. The Court’s statements about

privilege and the proper way to prove discriminatory

intent were not carelessly tossed about, however, as

plaintiffs suggest. Although the Arlington Heights

plaintiffs originally tried their case on a theory of

discriminatory effect, they did so because the Court had

not yet ruled in Washington v. Davis, 426 U.S. 229 (1976)

that proof of discriminatory intent is necessary to show

a violation of the Equal Protection Clause. Arlington

Heights, 429 U.S. at 268. Writing post-Washington, the

Court laid out the framework for proving discriminatory

intent and then held that the plaintiffs had failed to meet

their burden to prove such intent. Id. at 266-70.

Three members of the Court dissented, saying that

the case should have been remanded in order to give

plaintiffs an opportunity to meet the different standard.

The Arlington Heights majority clearly disagreed with the

dissent and retained its discussion of the appropriate test

for discriminatory intent. Most importantly, as described

above, the Court has reaffirmed that courts should use the

framework in Arlington Heights to decide Shaw claims, as

it had done “for over two decades.” Reno, 520 U.S. at 488

(collecting cases).

Finally, it is simply not true, as plaintiffs claim, that

the Arlington Heights plaintiffs were able to question

Board members about materials and information available

to them at the time of decision while the plaintiffs in this

case were not. Pet. 23. As described earlier, plaintiffs

agreed to a compromise that limited discovery to

18

objective, race-based reports that may have been before

the legislators, which plaintiffs received. Although the

City objected when the Haveriland plaintiffs sought to

depose the Mayor and the City Council President, it did

not object to the Lee plaintiffs’ notices of deposition for the

Executive Director and two members of the Commission.

At these depositions, plaintiffs were allowed to question

the Commissioners and the Executive Director about

the factors that this Court has said are relevant to a

racial discrimination claim like theirs: the legislative or

administrative history, the historical background of the

decision, the sequence of events leading to the decision,

and departures from procedural and substantive norms.

Arlington Heights, 429 U.S. at 267-68. Finally, plaintiffs

had full access to three of the four dissenting Commission

members, who provided declarations on which plaintiffs

relied. Plaintiffs’ choice not to take more depositions or

do additional discovery does not mean that they were

prevented from doing so.

2.

The Court applies United States v. Gillock only

in criminal cases

United States v. Gillock was a criminal case in which

federal authorities charged a state senator with accepting

bribes to perform legislative acts. 445 U.S. 360, 362 (1980).

In holding that the defendant legislator could not use

the legislative privilege to exclude evidence regarding

his legislative acts, this Court distinguished between

civil and criminal cases with respect to recognizing a

legislative privilege for state and local officials, saying

that “in protecting the independence of state legislators,

Tenney and subsequent cases on official immunity have

drawn the line at civil actions.” Id. at 373.

19

Gillock came three years after the Court’s decision

in Arlington Heights, and the Court’s statement that it

has “drawn the line at civil actions” had to have been

written with that case in mind. Moreover, an examination

of “Tenney and subsequent cases on official immunity,”

to which the Court referred, reveals that the interests

at stake in the civil cases where the Court upheld the

legislative privilege were every bit as important as the

interests that plaintiffs seek to assert here. In Tenney v.

Brandhove, 341 U.S. 367 (1951), a private individual alleged

that the California Legislature’s Fact-Finding Committee

on Un-American Activities subpoenaed him and held him

in contempt for refusing to testify in violation of his First

Amendment rights. Nevertheless, this Court held that

his lawsuit was prohibited by legislative privilege, saying

that “[t]he claim of an unworthy purpose does not destroy

the privilege,” which exists “not for [legislators’] private

indulgence but for the public good.” Id. at 377.

Tenney is not an isolated case. In Bogan v. ScottHarris, 523 U.S. 44 (1998), this Court reaffirmed that local

legislators are absolutely immune from a lawsuit alleging

that they had eliminated a city employee’s position in

violation of her First Amendment rights. The lawsuit in

Bogan also included claims of race discrimination, because

the plaintiff employee alleged that the city council retaliated

against her for disciplinary action she had taken against a

subordinate who reportedly “had made repeated racial and

ethnic slurs about her colleagues.” Id. at 46. Nevertheless,

this Court unanimously held that the city councilmembers

and mayor were entitled to absolute legislative immunity.5

5. Accord Lake Country Estates, Inc. v. Tahoe Regional

Planning Agency, 440 U.S. 391, 404-06 (1979) (absolute legislative

20

Plaintiffs may argue that there is a difference between

immunity from suit and evidentiary or testimonial

immunity in a lawsuit against the governmental entity

of which a legislator is a part. As an initial matter, of

course, absolute immunity from suit is a far more extreme

jurisprudential bar than evidentiary immunity.

Second, as is clear from the preceding discussion

of Arlington Heights and its progeny, the Court has

addressed the evidentiary privilege issue as well. Only in

“extraordinary instances” should a legislator “be called

to the stand at trial to testify concerning the purpose

of the official action, although even then such testimony

frequently will be barred by privilege.” Arlington Heights,

429 U.S. at 268.

B. The Ninth Circuit Did Not Establish An Absolute

Legislative Privilege

Plaintiffs next argue that the Ninth Circuit’s opinion

effectively establishes an absolute legislative privilege,

because the Court of Appeals did not apply a formal

balancing analysis to the legislative privilege claim.

Pet. 22-25. Plaintiffs argue that “[t]he Ninth Circuit

acknowledged that the legislative privilege is qualified,

but eschewed the test employed in other redistricting

cases.” Id. at 22 (citation omitted).

Far from eschewing the test used in other redistricting

cases, the Ninth Circuit and the District Court did

precisely what this Court has long held a court should do in

a redistricting case. In Miller v. Johnson, this Court made

immunity for individual members of regional agency performing

legislative functions).

21

clear that courts should “exercise extraordinary caution”

in adjudicating Shaw claims and in “determining whether

to permit discovery or trial to proceed.” 515 U.S. 900,

916-17 (1995) (emphasis added).

The Ninth Circuit’s opinion must be read with these

principles in mind. The entire first part of the Ninth

Circuit’s opinion carefully reviews the massive amounts

of evidence that the plaintiffs had available to them,

including evidence about what went on in the nonpublic ad

hoc committee meeting for CD 10.6 Each of these things

informed the Ninth Circuit’s conclusion that “the factual

record in this case falls short of justifying the ‘substantial

intrusion’ in the legislative process.” Id., 25a. Because the

Ninth Circuit lacked sufficient grounds to distinguish this

case from Arlington Heights, it said, “we conclude that the

district court properly denied discovery on the ground of

legislative privilege.” Id., 26a.

T he Ni nth Ci rcu it ’s conclusion was enti rely

appropriate. Even plaintiffs concede that the Ninth

Circuit acknowledged that the legislative privilege is not

absolute. Pet. 22. The fact that it did not engage in a formal

balancing exercise in no way suggests that it intended to

hold that the privilege is in fact absolute after all.

6. The emails from Mr. Ellison that are so central to plaintiffs’

argument were attached to the minority report that was part of the

redistricting commission’s final Report.

22

C. Plaintiffs’ Application of a Balancing Test Is Not

Supported By the Case Law on Which They Rely

Plaintiffs next ask this Court to act as a court of first

review by applying a balancing test that not surprisingly

comes out in their favor. On closer examination, however, it

becomes clear that the balancing cases on which plaintiffs

rely will not bear the weight of their argument.

For example, plaintiffs cite this Court’s statement

in Arlington Heights that “contemporary statements

by members of the decisionmaking body” are highly

relevant to the issue of discriminatory intent. Pet. 25.

However, the rest of the text reveals that the Court was

not talking about private conversations. If it had been

referring to private conversations, the Court would never

have said that “such testimony frequently will be barred

by privilege.” Arlington Heights, 429 U.S. at 268.

Plaintiffs also repeatedly cite Favors v. Cuomo,

285 F.R.D. 187 (E.D.N.Y. 2012) without mentioning that

the magistrate judge in that case upheld the privilege

for legislators and only allowed questioning of the

outside consultants used to develop the redistricting

plan. Pet. 25, 27. The same was true in Committee for

a Fair and Balanced Map v. Illinois State Board of

Elections, a redistricting case in which the three-judge

court held that “the legislative privilege shields from

disclosure pre-decisional, non-factual communications

that contain opinions, recommendations or advice about

public policies or possible legislation.” 7 Page v. Virginia

7. No. 11 C 5065, 2011 U.S. Dist. LEXIS 117656, at *33 (N.D. Ill.

Oct. 12, 2011).

23

State Bd. of Elections did not even discuss legislative

privilege. Indeed, there was no need to do so; as with so

many Shaw cases, legislators openly acknowledged that

racial considerations predominated because they were

trying to comply with Section 5 of the Voting Rights Act. 8

Moreover, the D.C. Circuit cases that plaintiffs cite for

the proposition that no privilege should apply if a plaintiff’s

claim turns on government intent (Pet. 26) all involved the

deliberative process privilege applicable to the executive

branch, not the legislative privilege. Courts have generally

held that the legislative privilege is “weightier” or more

“robust” than the deliberative process privilege. Favors,

285 F.R.D. at 210 n.22; Kay v. City of Rancho Palos Verdes,

No. CV 02-03922, 2003 U.S. Dist. LEXIS 27311, at *54

(C.D. Cal. Oct. 9, 2003).

Of all of plaintiffs’ cases, only two redistricting cases

held that plaintiffs’ need for documents outweighed the

legislative privilege: Benisek v. Lamone, 241 F. Supp. 3d

566 (D. Md. 2017) and Bethune-Hill v. Virginia State

Board of Elections, 114 F. Supp. 3d 323 (E.D. Va. 2015).

8. 58 F. Supp. 3d 533, 533-34 (E.D. Va. 2014), vacated sub nom.

Cantor v. Personhuballah, 135 S. Ct. 1699 (2015). See Shaw v. Hunt,

517 U.S. 899, 906 (1996) (state admits in preclearance submission

that its “overriding purpose” was creation of majority-minority

district) (emphasis in original); Bush v. Vera, 517 U.S. 952, 969 (1996)

(state’s DOJ submission explains the drawing of the district at issue

“in exclusively racial terms.”); Miller, 515 U.S. at 918 (state admits,

in brief to the Court, that district “is the product of a desire by the

General Assembly to create a majority black district” to comply with

DOJ’s repeated instructions to do so.).

24

Benisek involved a partisan gerrymandering claim

currently before this Court. Two things make Benisek

inapplicable here. First, the Benisek court relied on

United States v. Gillock in weighing the extent to which

discovery would impede legislative action, 9 which even

plaintiffs concede “may present the closest question” in

the balancing process. Pet. 28. As discussed above, Gillock

is a criminal case not applicable here.

The other distinguishing characteristic of Benisek

was the lack of transparency and the way in which

redistricting unfolded in that case. Although the Maryland

Legislature used a redistricting advisory committee

that held public hearings to take public comment, the

committee was exempt by law from the state’s open

meetings act and may not have deliberated in public, as the

Commission and the City Council did in this case. Benisek,

241 F. Supp. 3d at 568. Most importantly, in contrast to

the City Council’s lengthy deliberations at issue here,

the Maryland Legislature held only one joint committee

hearing the same day the plan was introduced and, after

making only technical amendments, passed the plan in

three days. Id. at 569.

Bethune-Hill involved a racial gerrymandering

claim that ultimately reached this Court on the merits.

Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788

(2017). Before the case reached this Court, however, the

District Court resolved a discovery dispute limited to

production of documents – not testimony – on legislative

privilege. After a lengthy discussion of whether or not

the legislative privilege for state legislators was absolute,

9. 241 F. Supp. 3d at 576-77.

25

the District Court used a balancing process and held that

most documents were protected, but that a document

that “pertains to, or ‘reveals an awareness’” of racial

considerations must be produced. Bethune-Hill, 114

F. Supp. 3d at 344-45.

The District Court in Bethune-Hill discussed both

Arlington Heights and Gillock, but it did so almost entirely

in the context of absolute immunity. Although the court

quoted this Court’s statement in Arlington Heights that

placing a decisionmaker on the stand is usually to be

avoided, it omitted the second part of that sentence in

which the Court said that such testimony “frequently

will be barred by privilege.” Compare id. at 337 with

Arlington Heights, 429 U.S. at 268. That failure appears

to have led the District Court to conclude that once it held

that only a qualified privilege applies, the balancing test

used by other courts skews heavily in favor of disclosure.

As demonstrated above, that is not the case.

D. There Will Be Far Better Cases In Which the Court

Can Decide the Proper Scope of the Legislative

Privilege

Plaintiffs’ final argument in favor of review is that the

scope of the legislative privilege in redistricting cases is an

important and recurring issue, but that it will seldom be

addressed by the courts of appeals or this Court, because

of restrictions on appeals under 28 U.S.C. section 1253.

Pet. 34.

Section 1253 only applies to appeals from three-judge

courts, and in the redistricting context, a three-judge

court is only convened in a challenge to a statewide

26

or Congressional redistricting. 28 U.S.C. § 2284(a).

Plaintiffs’ argument ignores the many other redistricting

cases that did not require a three-judge court and that

could just as easily have reached this Court by writ of

certiorari. That is because redistricting occurs at least

every ten years for thousands of cities, counties, school

districts, and special districts across the nation. Those

redistricting efforts often result in the same conflicts and

disagreements that produced this lawsuit, with groups of

citizens claiming that the linedrawers were motivated by

discriminatory intent. See, e.g., Reno v. Bossier Parish

School Bd., 520 U.S. 471, 487-89 (1997) (school district

redistricting case alleging discriminatory intent); Chen v.

City of Houston, 206 F.3d 502 (5th Cir. 2000) (city council

redistricting case alleging discriminatory intent); Garza v.

County of Los Angeles, 918 F.2d 763 (9th Cir. 1990) (county

redistricting case alleging discriminatory intent). The

issue of legislative privilege could come up in any of these

cases and reach the Court.

Moreover, there is no reason that this Court could

not address legislative privilege in other cases involving

allegations of race discrimination against governmental

bodies. Arlington Heights itself was a case about race

discrimination in zoning. Gomillion v. Lightfoot, 364 U.S.

339 (1960) held that the Alabama Legislature changed the

boundaries of the City of Tuskegee in order to deprive

African-American voters of their right to vote in city

elections.

Most importantly, this case is clearly not an appropriate

vehicle for reaching the privilege issue. As noted above,

the redistricting process at issue in this case was a

very public one that contrasted sharply with the kind

27

of redistricting that usually occurs behind closed doors,

where prospective plaintiffs have no access to the

deliberations. Here, plaintiffs had access to a wealth of

data, including detailed information from a redistricting

commissioner about what happened in the only nonpublic

meeting at which CD 10 was discussed.

III.

THERE IS NO REASON FOR THE COURT TO

REVIEW THE NINTH CIRCUIT’S AFFIRMANCE

OF THE DISTRICT COURT’S RULING ON

SUMMARY JUDGMENT

The Court should reject plaintiffs’ request that it

review the lower court’s ruling on summary judgment

for several reasons.

First, plaintiffs do not point to any conflict in the

circuits regarding the standard for summary judgment

on Shaw claims, nor do they contend that the question has

not been, but should be, settled by the Court. Instead,

they argue that the Ninth Circuit’s ruling conflicts

with this Court’s own decisions, ignoring Rule 10 of the

Court’s Rules that a “petition for a writ of certiorari is

rarely granted when the asserted error consists of . . . the

misapplication of a properly stated rule of law.”

Second, the Ninth Circuit’s opinion demonstrates

that it closely followed and applied this Court’s standards

for adjudicating Shaw claims, including the Court’s

latest opinions in Bethune-Hill v. Virginia State Board

of Elections, 137 S. Ct. 788 (2017), Cooper v. Harris,

136 S. Ct. 1455 (2017), and Abbott v. Perez, 138 S. Ct.

28

2305 (2018). Specifically, the Ninth Circuit held that

in order to prove that race predominated in drawing a

district, plaintiffs must show that the legislative body

subordinated other factors, and that “[w]hat matters is

the ‘actual considerations that provided the essential

basis for the lines drawn, not post hoc justifications the

[legislative body] in theory could have used but in reality

did not.’” Pet. App. 14a (quoting Bethune-Hill, 137 S. Ct.

at 799). The Ninth Circuit also made clear that plaintiffs

were not required to “show an actual conflict between the

enacted plan and ‘traditional redistricting principles.’” Id.

at 15a (quoting Bethune-Hill, 137 S. Ct. at 799). Finally,

the court held that, nonetheless, the “‘good faith of [the

legislative body] must be presumed’ and the burden of

proof rests with the challenger to demonstrate that race

predominated [in] the districting process.” Id. at 15a

(quoting Abbott, 138 S. Ct. at 2324).

Applying these standards, the Ninth Circuit carefully

reviewed the entire record, all of the District Court’s

findings, and the facts plaintiffs point to as direct or

circumstantial evidence of “racial motivation.” Based on

that review, the Court of Appeals determined that the

District Court properly granted summary judgment in

favor of the City. The reason was simple: throughout

this case, plaintiffs have ignored the fact that they

have the burden of showing that the City subordinated

other districting criteria for racial considerations. That

burden is a “demanding one”10 meant to make only the

most “extreme instances of gerrymandering subject to

meaningful judicial review” without casting doubt on or

10. Easley v. Cromartie, 532 U.S. 234, 241 (2001) (“Cromartie

II”).

29

subjecting to challenge the “vast majority” of districts

throughout the country. Miller, 515 U.S. at 928‑29

(O’Connor, J., concurring).

Inst ead, pla inti ffs a rg ue here, as they have

unsuccessfully at every stage of this litigation, that

summary judgment in Shaw cases is disfavored and

that they only needed to provide some evidence of racial

motivation in order to overcome summary judgment.

For that argument, they rely on Hunt v. Cromartie,

526 U.S. 541 (1999) (“Cromartie I”), which denied

summary judgment to plaintiffs on a Shaw claim, but

they never even cite, much less address, the Court’s

subsequent holding in Cromartie II, 532 U.S. 234, which

granted judgment to defendants on plaintiffs’ Shaw claim

as a matter of law.

The issue in Cromartie I was whether a three-judge

court correctly granted summary judgment in favor of

plaintiffs before discovery had occurred. This Court

held that “[s]ummary judgment in favor of the party

with the burden of persuasion . . . is inappropriate when

the evidence is susceptible of different interpretations

or inferences by the trier of fact.” Cromartie I, 526 U.S.

at 553. The Court also noted that “[j]ust as summary

judgment is rarely granted in a plaintiff’s favor in cases

where the issue is a defendant’s racial motivation . . . the

same holds true for racial gerrymandering claims of the

sort brought here.” Id. at 553 n.9. Thus, Cromartie I does

not stand for the proposition that summary judgment is

disfavored for resolving Shaw claims, as plaintiffs contend.

It is only disfavored for resolving Shaw claims in favor of

the party with the burden of proof.

30

Cromartie II provides the applicable standard here,

not Cromartie I. In Cromartie II, the Court reviewed

plaintiffs’ direct and circumstantial evidence and held

that plaintiffs had failed to demonstrate that traditional

redistricting criteria had been subordinated to racial

considerations. Finding that the evidence “was consistent

with a constitutional political objective, namely, the

creation of a safe Democratic seat,” the Court held that the

plaintiffs’ evidence of race discrimination was insufficient

to support a Shaw claim as a matter of law. Cromartie

II, 532 U.S. at 239, 257. Accord Miller, 515 U.S. at 91617 (courts should consider the intrusive nature of Shaw

claims when assessing the strength of plaintiffs’ case

and “determining whether to permit discovery or trial

to proceed.”).

Moreover, the Ninth Circuit’s holding is entirely

consistent with the Court’s most recent summary of the

burden of proof necessary to establish a Shaw claim:

As a practical matter, in many cases, perhaps

most cases, challengers will be unable to prove

an unconstitutional racial gerrymander without

evidence that the enacted plan conflicts with

traditional redistricting criteria. In general,

legislatures that engage in impermissible

race-based redistricting will find it necessary

to depart from traditional principles in order

to do so. And, in the absence of a conflict with

traditional principles, it may be difficult for

challengers to find other evidence sufficient

to show that race was the overriding factor

causing neutral considerations to be cast aside.

In fact, this Court to date has not affirmed a

31

predominance finding, or remanded a case

for a determination of predominance, without

evidence that some district lines deviated from

traditional principles.

Bethune-Hill, 137 S. Ct. at 799

(collecting cases) (emphasis

added).

The plaintiffs in this case have never presented any

evidence that CD 10’s lines deviated from traditional

districting principles, nor could they. The evidence

was overwhelming and uncontested that the district’s

boundaries were very similar to the district’s previous

boundaries dating back to the 1970’s (which plaintiffs

never criticized as racially gerrymandered), were

compact, and followed Neighborhood Council boundary

lines, thereby healing many more Neighborhood Council

splits than existed in the previous plan. In reviewing

plaintiffs’ evidence, the Ninth Circuit correctly took into

account these undisputed facts, as well as the fact that

the City Council actually made changes that reduced the

African-American population in CD 10 from that in the

Commission plan.

Finally, it is important to keep in mind the context in

which this redistricting took place. As noted earlier, unlike

the linedrawing exercises in most other jurisdictions,

the City conducted its redistricting in public, which in

turn produced a public record available to plaintiffs and

everyone else. The Ninth Circuit was aware of this fact,

and based on the entire record, it correctly held that

evidence that race may have motivated one commissioner

and even one member of the City Council is not enough to

32

raise a triable issue of fact as to whether it motivated the

other 35 city officials who deliberated and voted upon the

2012 redistricting plan.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

Robin B. Johansen

Michael N. Feuer

Counsel of Record

Valerie L. Flores

Thomas A. Willis

Harit U. Trivedi

Remcho Johansen

Office of the Los A ngeles

& Purcell LLP

City Attorney

1901 Harrison Street,

200 North Main Street,

Suite 1550

Room 800,

Oakland, CA 94612

City Hall East

(510) 346-6200

Los Angeles, CA 90012

rjohansen@rjp.com

(213) 978-7100

Counsel for Respondent

Dated: May 1, 2019