Opposition — Hidalgo County Grand Jury Commissioners v. Ciudadanos Unidos De San Juan

Seg a eee

No. 80-741

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

>

HIDALGO COUNTY GRAND JURY COMMISSIONERS, ef al.

—_V—

CIUDADANOS UNIDOS DE SAN JUAN, ef ail.

DELLIS PRATER, ef al.

—

ROBERT CABALLERO, ef ai.

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JAMES C. HARRINGTON

Counsel of Record

American Civil Liberties Union

Foundation—South Texas Project

Box 1493

San Juan, Texas 78589

(512) 787-8171

CHARLES S. SIMS

American Civil Liberties Union

Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Attorneys for Respondents

TABLE OF CONTENTS

Page:

TABLE OF rite y 4 of 6: en yaar rss

STATEMENT OF THE es vk oe ws cae kee ee

SUMMARY OF Se. Vi cdaks ewe eka aun

Ro 5s kb Bae es 6s bee Oe eh eeeeeRe

Be

Ii.

IIIf.

THE FIFTH CIRCUIT CORRECTLY

DECIDED THAT THE CITIZENS

HAVE SHOWN A CONTINUING CASE

AND CONTROVERSY WITH REGARD

TO THE OFFICIALS' SUCCESSORS

IN OFFICE... cccccccccccccccececeedl

THE FIFTH CIRCUIT CORRECTLY

DECIDED THAT A CASE OR CON-

TROVERSY CONTINUES TO EXIST

BETWEEN THE CITIZENS AND THE

OFFICIALS OVER THE HISTORICAL

AND STATISTICAL DISCRIMINA-

TION IN THE GRAND JURIES OF

BOTH COUNTIES. ...ccccccccccceseedd

A. The Citizens Have Shown

That the Grand Jury Dis-

crimination Will Continue

Against Them in the Future..15

B. The Citizens Clearly Have

Standing to Attack Their

Unconstitutional Exclusion

from Grand Jury Service.....19

THIS CASE DOES NOT PRESENT A

QUESTION OF JUDICIAL IMMUNITY...21

CR Nc 6 66 60.646 66 6460'9:66 606 0984468608

TABLE OF AUTHORITIES

Case: Page

Berry v. Cooper, 577 F.2d 322

(5th Cir. Ped Ahad satan chiedecebeeeneee

Boddie v. Connecticut, 401 U.S. 371

Na RR Se ee ee ae ee RN ee

Carter v. Jury Commission, 396 U.S.

320 et bee Peres ey Lie 19

Castaneda v. Partida, 430 U.S. 482

CAST i lececcasscccsescvesedeccsecs co cPAselm

Drollinger v. Milligan, 552 F.2d

1220 (7th Cir. Ls a) PERE ERENT Rr eae 5

Erdmann v. Stevens, 458 F.2d 1205

(2a Cir.), cert. denied, 409 U.S.

889 ee ae 6 ee ee ae oe ee

Ex Parte Virginia, 100 U.S. 339

CRO) 6.08 soe Obt 626 Sete se coerce eed, 21

Fowler v. Alexander, 478 F.2d 694

(4th Cir. ep RR RY er

Gardner v. Toilet Goods Ass'n,

387 U.Ss. 167 eS ee er

Hansen v. Ahlgrimm, 520 F.2d 768

(7th Cir. id Go Ba a eee ee a eG

Jacobson v. Schaefer, 441 F.2d 127

(7th Cir. I eae te ela a ws en ae ae a ao ae Cee

Law Students Civil Rights Research

Council, Inc. v. Wadmond, 299 F.Supp.

117, 123 (S.D.N.Y. 1969), aff'd on

other grounds, 401 U.S. 154 (I971)...23

Littleton v. Berbling, 468 F.2d 389

(7th Cir. 1972), rev'd on other

grounds sub nom O'Shea v. Little-

ton, 414 U.S. 488 (1974)... 23

TABLE OF AUTHORITIES--Continued

Case: Page:

Mayor of Philadelphia v. Educational

Equality League, 415 U.S. 605

thie! ) RS ae rere ree ll

Mitchum v. Foster, 407 U.S. 225

Ce aa ko a Wie aa bneSs Seas heehee +e eee

Network Project v. Corporation for

Public Broadcasting, 561 F.2d

963 (D.C, Cir. 1977), cert. denied,

434 U.8. LOGE (1978) .cccccccccccehG, Ad

Nicholson v. Board of Commissioners

of Alabama Bar, 338 F.Supp. 48

els BhMe BHFSle vccccccecdcvceecsesecda

O'Shea v. Littleton, 414 U.S. 488

Crs a as 5 Maes eb o-66 bs we ee bese See

Person v. Association of Bar of New

York, 554 F.2d 534 (2d Cir. 1977),

22

cert. denied, 434 U.S, 924 (1977)....

Rose vy. Mitchell, 443 U.S. 545

Tr eins et Re. | 19

Southern Pacific Terminal Co. y. ICC,

219 U.S. 498 al Se 8 AS rere

Spomer v. Littleton, 414 U.S. 154

Se wm ks a i cd we a es a a ose he 13

Stump v. Sparkman, 435 U.S. 349

CRE aber Oro he te be hak obs eke wee

Supreme Court of Virginia v. Consumers

Union of the United States, 446 U.S.

719 TR 6¢<s0 cds ode es Ohacese con

ii

TABLE OF AUTHORITIES--Continued

Case: Page:

Timmerman v. Brown, 528 F.2d 81l

(4th Cis. 1975). eeeee#*ee#eeee# Se ah a tan aa a ge

Turner v. Fouche, 396 U.S. 346

et ) ee eae rare |

Warth v. Seldin, 422 U.S. 490

ot yy ) ree e*eee#ee eyes Tro re Tre 20

Statute:

Federal Rule of Civil Procedure

oP a. 2) ee ee a ee ee |

Texas Code of Criminal Procedure

Article I re a eg e*eee#ées? ae es ae

Treatise:

7A Wright & Miller, Federal Practice

and Procedure: Civil §1960 (1972)...11

iii

STATEMENT OF THE CASE

Because the Hidalgo County action was

dismissed as a result of defendants' mo-

tion under Federal Rule of Civil Procedure

12(b) (1) and (6), and the Willacy County

suit was dismissed by the District Court

sua sponte, even before seryice on the

defendants, the citizens' allegations of

a historical and on-going systematic pat-

tern of exclusion and underrepresentation

of Mexican-Americans, women, the poor, and

the young from grand juries must be taken

as true in deciding whether the District

Court had jurisdiction and whether the

1/

citizens stated a cause of action.=—

1/

~ For purposes of brevity and simplicity

in this brief:

(1) the cause of Hidalgo County Grand Jury

Commissioners, et al. v. Ciudadanos Unidos

de San Juan, et al. is referred to as the

"Hidalgo County” case;

(2) the cause of Dellis Prater, et al. v.

Robert Caballero, et al. is referred to as

the "Willacy County" case;

(footnote continued on next page)

ale

Warth v. Seldin, 422 U.S. 490, 501 (1975);

Boddie vy. Connecticut, 401 U.S. 371, 373

(1971); Gardner v. Toilet Goods Ass'n, 387

U.S. 167, 172 (1967).

The nineteen individual citizens in

the two class actions before this Court

are all Mexican-American. Some are also

female, young, and/or poor persons. All

the citizens, except two, have been denied

service on their respective county grand

juries. Two Mexican-American political

action organizations are also Respondents

in the Hidalgo County case.

In October 1976, the Hidalgo County

Citizens filed a class action against the

officials who had selected twenty prospec-

tive grand jurors and the District Judge

(footnote continued from preceding page)

(3) the Respondents in either case are re-

ferred to as “the citizens"; and

(4) the Petitioners in either case are re-

ferred to as "the officials."

on Den

who had selected the officials.

The citizens alleged continuing and

systematic exclusion and underrepresenta-

tion of Mexican--Americans, women, the

young, and the poor on Hidalgo County grand

juries over the ten years prior to their

suit. According to the 1970 United States

Census, approximately 79% of Hidalgo County

residents are of Mexican descent; women

comprise 52% of the population; about 50%

of the people have incomes below the goyern-

ment-designated poverty level; and 16% of

the population is between the ages of 18

and 28.

In spite of their high representation

in Hidalgo County, those four groups have

been grossly underrepresented on grand

juries since January 1966. Mexican-Ameri-

cans constituted only 44% of grand jurors

chosen oyer that period, an underrepresenta-

tion of -.36 and a disparity of

aoZa

~,45,2/ Only 22% of the grand jurors were

women, an underrepresentation of -.30 and

a disparity of -.57. Since virtually no

poor people served on the grand juries,

they were -.50 underrepresented, a dispar-

ity of -1.00. Similarly, no young people

served as grand jurors, an underrepresenta-

tion of -.16 and a disparity of -1.00.

When the complaint was filed, this

Court had granted a Petition for Certiorari

in Partida y. Castaneda, 524 F.2d 481 (5th

Cir. 1975). Partida, a state prisoner, had

challenged the same Hidalgo County grand

2/ Disparity=Underrepresentation of group

% of group in population

Underrepresentation=% of group in popu-

lation minus % of group in grand juries.

See generally Berry v. Cooper, 577 F.2d

322, 326 n.11 (5th Cir. Lovey. In Casta-

neda v. Partida, the words "disparity" and

Yunderrepresentation" are used interchange-

ably for the concept here expressed as

"underrepresentation" only. 430 U.S. 482

(1977).

~

jury selection process by habeas corpus

petition. The Fifth Circuit found that

Partida had made out a prima facie case

of grand jury discrimination, which Hidalgo

County had not rebutted, and reversed the

District Court--the same Court which dis-

missed both the Hidalgo and Willacy County

actions here.

The District Court, on its own motion,

held the Hidalgo County case in abeyance

until the Court decided Castaneda v. Par-

tida, 430 U.S. 482 (1977), affirming the

Fifth Circuit.

Thereupon, the Officials moved to dis-

miss the action; and the District Court,

without a hearing, did so, essentially on

the ground that the discretion inherent in

the Texas grand jury system rendered it

unamenable to judicial relief, despite the

apparently controlling nature of Castaneda.

The citizens then appealed to the Fifth

Circuit, where they prevailed.

=S=

In November 1977, the Willacy County

Citizens filed a class action against the

officials who were about to select the

grand jurors from whom the Willacy County

Grand Jury would be chosen.

Those citizens alleged continuing and

systematic underrepresentation of Mexican-

Americans, Mexican-American women, women

generally, the young, and the poor on Wil-

lacy grand juries oyer the prior ten years.

According to the U.S. Census, approximately

77% of Willacy County residents are of

Mexican descent; Mexican-American women

make up 40% of the County; women generally

comprise 52% of the population; 57% of the

people have incomes below the government-

designated poverty level; and 16% of the

population is between the ages of 18 and

28.

Despite their high representation in

the population, those five groups have been

-6-

grossly underrepresented on Willacy grand

juries since at least January 1968. Mexi-

can-Americans constituted only 35% of grand

jurors chosen over that period, an under-

representation of -.42 and a disparity of

-.55. Only 9% of the grand jurors were

Mexican-American women, an underrepresenta-

tion of -.31 and a disparity of -.78. Only

25% of the grand jurors were women, an

underrepresentation of -.27 and a disparity

of -.52. Since yirtually no poor people

served on the grand juries, they were -.57

underrepresented, a disparity of -1.00.

Similarly, no young people served as grand

jurors, an underrepresentation of -.16 and

a disparity of -1.00.

The District Court sua sponte dismissed

the action without hearing and before pro-

cess was seryed. The citizens then appealed

to the Fifth Circuit, which consolidated

their case with the Hidalgo County action.

They also prevailed.

oJ=

In both cases, the citizens sought a de-

claratory judgment that Mexican-Americans,

women, young and poor people have been

and are still systematically excluded from

grand juries in violation of the United

States Constitution. They further sought

injunctive relief to insure that present

and future officials do not exclude their

cognizable groups from grand jury service.

The Hidalgo County citizens also sought

injunctive and declaratory relief against

the Judge who had named the Officials.

The citizens haye alleged the same pat-

tern of historical statistical deviations

faulted in Castaneda, 430 U.S. at 496-97,

and declared there (in footnote 17) as a

statistically improbable chance occurrence

under the Rule of Exclusion.

-8=

SUMMARY OF ARGUMENT

These cases raise no issues that re-

quire this Court's attention; to the con-

trary, the insubstantial claims raised by

the officials are easily disposed of under

this Court's grand jury discrimination and

Article III precedents.

Simply put, these cases present live

controversies because the historical pat-

tern of discriminatory exclusion of plain-

tiffs from grand jury service continues

and will continue, unless there is judicial

relief. The citizer: plainly have standing

to bring these cases, Carter y. Jury

Commission, 396 U.S. 320 (19/0), and the

state court judge is not protected by imnu-

nity because he was performing a ministerial

function in appointing the officials. Ex

Parte Virginia, 100 U.S. 339, 348 (1880).

The history of grand jury discrimination in

the counties shows that the successors-in-

office to the officials will continue the

discrimination Fespondents complain of.

-_—

ARGUMENT

I. THE FIFTH CIRCUIT CORRECTLY

DECIDED THAT THE CITIZENS

HAVE SHOWN A CONTINUING CASE

AND CONTROVERSY WITH REGARD

TO THE OFFICIALS' SUCCESSORS

IN OFFICE.

Federal Rule of Civil Procedure 25(d)

provides for the automatic substitution

of the successors of state officers who

haye been sued in their official capacities.

The successor can challenge the substitu-

tion; and at that point, the plaintiff

needs to show that the successor will like-

ly continue the predecessor's policy.

In cases involving patterns of discri-

mination, the plaintiff must establish some

basis to believe that the successor will

continue the practices of the predecessor

before prospective coerciye relief against

the successor is warranted. See Mayor of

Philadelphia v. Educational Equality League,

415 U.S. 605, 622 (1974); Network Project

v. Corporation for Public Broadcasting,

-10=

561 F.2d 963, 966-68 (D.C. Cir. 1977),

cert. denied, 434 U.S. 1068 (1978).

Those holdings indicate or imply that,

should defendants contest the presence of

a continuing controversy, the courts should

hold a specific hearing on the matter.

Mayor of Philadelphia, 415 U.S. at 622.

See 7A Wright & Miller, Federal Practice

and Procedure, Civil §1960 (1972), at 682.

There has been no such hearing in these

cases, and accordingly the officials’

successor argument is at this time prema-

ture.

In any event, the facts the citizens

have alleged constitute a sufficient basis

to believe that the successors will con-

tinue the practices of their predecessors.

The complaints allege in precise detail

ten years of grand jury discrimination.

The Court can also notice the facts in

Castaneda v. Partida, 430 U.S. 482, where

-ll-

the eleyven-year period (1962-72) of dis-

crimination at issue overlaps in part with

the ten-year period (1967-1976) in the

Hidalgo County case. Putting those to-

gether, one sees a factual, historical

pattern of discriminatory grand juries in

the affected area for at least fifteen

years.

Thus, despite Castaneda, a seemingly

intractable and long-standing pattern of

discrimination in these counties has con-

tinued to this day. Assuming that these

facts are true, neither this Court's cases

nor Article III preclude relief, as Judge

Goldberg's decision carefully demonstrates.

Pet. App. at A25-A33.

Spomer v. Littleton, 414 U.S. 154 (1974),

upon which the officials so heavily rely,

is easily distinguished. In Spomer, the

claim focused on an official's personal

racial discrimination toward minority per-

sons. It was not alleged that his successor

=] 2=

would continue the same discrimination,

and the plaintiffs never even attempted

to substitute the successor.

Spomer contrasts sharply with the cases

here, where there is a longstanding pattern

of historical discrimination against Mexi-

can-Americans, women, and poor and young

people in south Texas. That historical

pattern has been perpetuated without inter-

ruption by a series of numerous grand jury

commissioners for as far back as eighteen

years, and there is every reason to believe

the pattern will continue into the future.

The citizens alleged in their suits

that the successors of the officials will

continue the practices of the officials;

and they pleaded their class actions on that

premise. Although the Petitioners will

have an opportunity at trial to show Jwuuat

they have taken actions sufficient to end

the historical pattern and practice of

o)] 3=

discrimination, the allegations must at

this point be taken as true.

Finally, the successor argument is

further weakened hy the fact that some of

the named officials will undoubtedly serye

again as grand jury commissioners. In

Hidalgo County, 30% of the commissioners

serve as such more than one time; and 10%

serve more than twice.

The citizens thus met their burden of

alleging that the controversy with the

named Officials continues as to their suc-

cessors,.

The Officials' petition should be de-

nied and the Citizens should be given the

opportunity to prove their allegations at

trial.

aida

II. THE FIFTH CIRCUIT CORRECTLY

DECIDED THAT A CASE OR CON-

TROVERSY CONTINUES TO EXIST

BETWEEN THE CITIZENS AND THE

OFFICIALS OVER THE HISTORICAL

AND STATISTICAL DISCRIMINA-

TION IN THE GRAND JURIES OF

BOTH COUNTIES.

A. The Citizens Have Shown That the Grand

Jury Discrimination Will Continue

Against Them in the Future.

Allegations of past illegal conduct

without continuing impact do not in them-

selves establish a live controversy. How-

ever, the Citizens have properly alleged

that the injury of which they complain con-

tinues and will continue in the future, and,

for present purposes, that allegation must

be taken as true.

Even though the compilation of each

grand jury list is a discrete act, the his-

torical pattern and practice of compiling

some forty lists over a ten-year period

(seventy lists over eighteen years) has

clearly produced grand juries in each

county which have excluded the citizens

oi Su

and members of the classes which they rep-

resent. In light of that factual pattern,

the citizens' claim that the grand jury

selection statutes haye been and will con-

tinue to be applied discriminatorily and

unconstitutionally by the officials and

their successors is plainly sufficient for

Article III purposes,

The Citizens’ cases are not like O'Shea

v. Littleton, 414 U.S. 488 (1974), where

the wrongful conduct complained of was the

personal conduct solely of a former State's

Attorney, where there was a no claim that

his successor would continue such wrong

conduct, and where plaintiffs had made no

attempt to substitute or seek injunctive

relief against the newly-elected State's

Attorney.

The Officials’ position is disingenu-

ous. They assert that "the present action

was moot from the outset, at no time pre-

senting a live controyersy." Petition for

~36=

Certiorari, p.ll. Their position clearly

underlines the problem in these cases. The

Grand Jury Commissioners serve just long

enough to name the grand jurors, and at

the pleasure of the state judge. Even if

they are sued before they select the poten-

tial grand jurors but the District Court

does not grant immediate relief, as in these

cases, the officials are free to choose

whom they wish and, an hour later, are no

longer Commissioners, These are classic

cases “capable of repetition, yet evading

review." Southern Pacific Terminal Co. y.

Icc, 219 U.S. 498 (1911). There is no way

of presenting more procedurally appropriate

claims than the Citizens did; and they

should be able to litigate those claims.

C£. Rose vy. Mitchell, 443 U.S. 545, 558

(1979); Carter v. Jury Commission, 396 U.S.

320 (1970).

The historical pattern of discrimina-

tion against the groups represented by the

oT Fe

citizens is so substantial and significant

that their future exclusion from grand jury

service is "real and immediate," certainly

not "conjectural" or "hypothetical."

Nor does the fact that, in 1979, Texas

enacted an optional grand juror selection

scheme create a mootness problem for the

citizens,

First, the scheme is only optional.

Second, the Officials haye made no commit-

ment to employ that system, and, in fact

have not done so.

Similarly, enactment of Article 19.06

of the Texas Code of Criminal Procedure,

which mandates that the grand jurors rep-

resent a cross-section of the county, tak-

ing into consideration factors of race,

sex, and age, also does not moot this case

because it simply embodies the constitu-

tional requirements to which Texas has al-

ways been subject.

alte

B, The Citizens Clearly Have Standing to

Attack Their Unconstitutional Exclu-

Sion from Grand Jury Service.

Contrary to the officials' position,

it is well-settled that civil class ac-

tions like these can be maintained by

victims of the officials' exclusionary

practices. Carter v. Jury Commission,

supra; Turner y. Fouche, 396 U.S. 346

(1970). Cf. Rose v. Mitchell, 443 U.S. at

at 558. In Carter, the Court stated:

Defendants in criminal proceedings

do not have the only cognizable

legal interest in nondiscriminatory

jury selection. People excluded

from juries because of their race

are as much aggrieved as those in-

dicted and tried by juries chosen

under a system of racial exclusion.

Surely there is no jurisdictional

Or procedural bar to an attack upon

svstematic jury discrimination by

way of a Civil suit such as the one

brought here. The federal claim is

bottomed on the simple proposition

that the State, acting through its

agents, has refused to consider the

appellants for jury service solely

because of their race.

396 U.S. at 329-30 (footnotes omitted; em-

phasis added).

o1 Ga

Persons in the citizens’ position haye

a right to be free from systematic exclu-

sion from grand jury service, and they are

aggrieved and injured by such exclusion.

They have a personal stake in the outcome

of these cases, and they have a right to

assert those claims. Warth v. Seldin,

422 U.S. 490, 498-501 (1975).

~2Gu

IIL. THIS CASE DOES NOT PRESENT A

QUESTION OF JUDICIAL IMMUNITY.

This case does not present the ques-~-

tion, offered as a basis for certiorari

by Petitioners, whether judges should be

held immune from injunctive and declara-

tory relief as well as damages, a question

reserved in Supreme Court of Virginia v.

Consumers Union of the United States, 446

U.S. 719 (1980). The reason is plain: In

choosing grand jurors, the defendant judges

here acted not in a judicial capacity, but

rather in an enforcement or administrative

capacity. It is not part of the judicial

function to choose three to fiye persons

to serve as grand jury commissioners. See

Pet. App. at All n.16. As the Supreme

Court stated in Ex Parte Virginia, 100 U.S.

339, 348 (1880):

Whether the act...was judicial or

not is to be determined by its

character, and not by the charac-

ter of the agent. Whether he was

a2) «

a county judge or not is of no im-

portance. The duty of selecting

jurors might as well have been

committed to a private person as

to one holding the office of a

judge....In such cases, it surely

is not a judicial act, in any such

sense as 1s contended for here. It

1s merely a ministerial act, as

much so as the act of a sheriff

holding an execution, in determin-

ing upon what piece of property he

will make a levy, or the act of a

roadwaster in selecting laborers

to work upon the roads. That the

jurors are selected for a court

makes no difference. (Emphasis

added. )

Accordingly, even if judicial immunity ap-

plied generally to equitable actions against

judges acting in their judicial capacities,

3/

it would not apply here. Ex Parte

3/

~ Should the Court disagree with our analy-

sis and find the question properly presented

on this record, we believe there is no need

to disturb the Fifth Circuit's resolution

of this issue; no real conflict exists. The

courts are in near-unanimous agreement that

judges are subject to §1983 actions for de-

Claratory and injunctive relief. See Fow-

ler v. Alexander, 478 F.2d 694, 696 (4th

Cir. 1973); Person v. Association of Bar of

(footnote continued on next page)

3290

Virginia, supra; Stump v. Sparkman, 435

U.S. 349, 360-63 (1978); Supreme Court of

Virginia vy. Consumers Union of the United

States, 446 U.S. at , 64 L.Ed.2d at 656.

(footnote continued from preceding page)

New York, 554 F.2d 534 (2a Cir. 1977),

cert. denied, 434 U.S. 924 (1977); Drol-

linger vy. Milligan, 552 F.2d 1220 (7th

Cir. 1977); Timmerman v. Brown, 528 F.2d

811 (4th Cir?I975); Hansen V. Ahlgrimn,

520 F.2d 768 (7th Cir. 1975); Littleton v.

Berbling, 468 F.2d 389 (7th Cir. 1972),

rev'd on other grounds sub nom O'Shea vy.

Littleton, 414 U.S. 488 (1974); Erdmann v.

Stevens, 458 F.2d 1205 (2a Cir.), cert.

denied, 409 U.S. 889 (1972); Jacobson v.

Schaefer, 441 F.2d 127 (7th Gir. 1971);

Nicholson vy. Board of Commissioners of Ala-

bama Bar, 3358 F.Supp. 46, 52 n.4 (M.D. Ala.

three-judge court); Law Students Civil

Rights Research Council, Inc. v. Wadmond,

99 F.Supp. 117, 123 (§.D. N.Y. 1969) (three-

judge court), aff'd on other grounds 401

U.S. 154 (1971). This Court has allowed

equitable suits with judges named as defen-

dants. E.g. Mitchum v. Foster, 407 U.S.

225 (1972). Of the cases cited by Peti-

tioners for the contrary proposition, we

note that the only two which actually ap-

pear to support them are no longer good law

in their circuits. See Supreme Court of

Virginia v. Consumers Union of the United

States, 446 U.S. at , 64 L.Ed.2d at 655

n.13; see also id. at 656 n.14,

a= 3u

CONCLUSION

The Petition for a Writ of Certiorari

should be denied.

Dated: Respectfully submitted,

January 29, 1981 JAMES C, HARRINGTON

Counsel of Record

American Civili Liberties

Union Foundation

South Texas Project

Box 1493

San Juan, Texas 78589

(512) 787-8171

CHARLES S. SIMS

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Attorneys for Respon-

dents

-24-