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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 964

## Text

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-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0748%3A2. Public record. Not legal advice.