# Jurisdictional Statement — Mississippi v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 934

## Text

Supreme a3 Ss
res
il JAN 14 196!
nig i IN THE MICHAEL at JR., CLERK
Supreme Court of the United States

OCTOBER TERM, 1980

STATE OF MISSISSIPPI,

Appellant,

We

BENJAMIN E. CIVILETTI and
THE UNITED STATES OF AMERICA,

Appellees.

On Appeal from the United States District Co
for the District of Columbia

JURISDICTIONAL STATEMENT

urt

CHARLES MORGAN, JR.
Counsel of Record

EDWARD ASHWORTH

PAMELA 8S. HOROWITZ

MORGAN ASSOCIATES,

CHARTERED

1899 L Street, N.W.

Washington, D.C.
(202) 466-7000

20086

Attorneys for Appellant

January 14, 1981

WILSON - EPES PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.

c. 20001

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction to hear an
interlocutory appeal pursuant to the direct appeal pro-
cedure under 42 U.S.C. §1978c and NAACP v. New
York, 413 U.S. 345 (1973).

2. Whether an order granting a motion to disqualify
counsel is a final decision on a collateral matter so as to
qualify for appeal pursuant to 42 U.S.C. §19738¢ and
28 U.S.C. §§ 1253, 1291, and 2284 under the “collateral
order” doctrine espoused in Cohen v. Beneficial Indus-
trial Loan Corp., 387 U.S. 541 (1949).

8. Whether a submission made in 1979 pursuant to
section 5 of the Voting Rights Act is the same matter as
a submission made in 1970 when based upon a different
statute passed by a different legislature and, if the same
matter, whether the Government waived its right to seek
disqualification by failing to raise the issue in a prior
Voting Rights Act case involving the same issues.

(i)

TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES. ..u..0......-ccscccsssscereeeeesneecees v
OPINION BELOW ..........0c.-cc-ccecesscscecdeccescencsssesnsnscsscsnesees 1
SUTTON oo nnsaonccnsinncronc-n2vescnsasrepesetvernntguecoceresenceseqesese 1
5 vylsy Bib 4) A’) | na eeeennnennn senate 2
STATEMENT OF THE CASE ...............22.22:---ccseceseeeeees d

REASONS FOR NOTING PROBABLE JURISDIC-
MHRA aksinta diiepadel edacbestnndntewenacthdusthaanepomelichivalaielin: --aipstinit 7

I. THIS COURT HAS UNIQUE APPELLATE
JURISDICTION OVER APPEALS FROM
STATUTORY THREE-JUDGE FEDERAL
DISTRICT COURTS ON ALL ISSUES ARIS-

ING PURSUANT TO LITIGATION UNDER
THE VOTING RIGHTS ACT OF 1965, AS
I litiicirapnnssopmsseicitdnainiton drorimastatitancdocscecsieeses 7

II. THE COURT SHOULD EXERCISE ITS SU-
PERVISORY POWER AND ITS APPELLATE
JURISDICTION TO HEAR APPEALS OF
ORDERS DISQUALIFYING COUNSEL IN
ORDER TO SAFEGUARD THE BASIC RIGHT
OF LITIGANTS TO COUNSEL OF THEIR
CORI sisi le sterenitnsh deen pahansquatninietpibentinatianstinatnbuesys 9

III. DISQUALIFICATION WAS IMPROPER BE-
CAUSE THE 1970 AND 1979 SUBMISSIONS
INVOLVE DIFFERENT MATTERS, AND,
EVEN IF THE SAME, THE GOVERNMENT
WAIVED ITS RIGHT TO SEEK DISQUALI-
PT TTTT stasis tenictceuicndovccnieedsienbaeiicomeeionsastondiiatins 14

PREVIOUS PAGE WAS Bi LANK 1

iv
TABLE OF CONTENTS—Continued

A. Disqualification Under DR 9-101(B) Was
Improper Because The 1970 Matter Was Dif-
ferent From That Which Is At Issue In The
PE RAO iirc centsndscicdcctbngntesnsticereres

B. Even If The 1970 And 1979 Submissions In-
volve The Same Matter, The Government
Waived Its Right To Disqualification ..........

ERT MRIRPTIIIIIT sere pesantionncisdwinngentsdtuionintonteniaesomemdiiianndbesnorcneoons
APPENDIX

Memorandum Opinion, Mississippi v. United
States, No. 79-8469 (D.D.C., filed Sept. 29,
ID th Abs is ccepethadehe vachaphatginabeaticknicttandadesieesaatnndanis

Notice of Appeal to the Supreme Court of the
United States, Mississippi v. United States, No.
79-8469 (D.D.C., filed Oct. 28, 1980) ...................

Page

17

21

V

TABLE OF AUTHORITIES
Cases Page

Abney v. United States, 481 U.S. 651 (1977) ........ 9,10, 12
Aetna Casualty & Surety Co. v. United States, 570
F.2d 1197 (4th Cir.), cert. denied, 489 U.S. 821

EE ahict iets bedi a nalidbneidcccncovigiecdibormssaueitecsnndbbains 12
Akerly v. Red Barn System, Inc., 551 F.2d 539 (3d

AB gf IR SORPDREIE s CeTI e SRN ev La CR 10, 12
Allen v. State Board of Elections, 398 U.S. 544

CI cocina ieitln cbt endian ini enh ericdeacnhss dead hoebessainisiads 20-21
American Trial Lawyers Association v. New Jer-

sey Supreme Court, 409 U.S. 467 (1978) ............ 8

Armstrong v. McAlpin, 606 F.2d 428 (1979), rev’d
on other grounds, 625 F.2d 433 (2d Cir. 1980)
(en banc), petition for cert. filed, 49 U.S.L.W.
83384 (U.S. Sept. 18, 1980) (No. 80-481) ............ 16, 24
Armstrong v. McAlpin, 625 F.2d 483 (2d Cir.
1980) (en banc), petition for cert. filed, 49
U.S.L.W. 3384 (U.S. Sept. 18, 1980) (No. 80-

BARS «5 Ae. SCORER LS Sa Re aE Oe AT Ee RE passim
Bailey v. Patterson, 369 U.S. 31 (1962) ................. 7
Board of Education v. Nyquist, 590 F.2d 1241 (2d

SRE SE CAS 8 Sem DOR 19-20, 20
Bonus Oil Co. v. American Petrofina Co., [1975-

1] Trade Cas. {| 60,315 (D.Neb. 1975) ................ 20
Borden Co. v. Sylk, 410 F.2d 848 (3d Cir. 1969)... 11

Brown & Williamson Tobacco Corp. v. Daniel In-
ternational Corp., 563 F.2d 671 (5th Cir. 1977).. 12

Carter v. Stanton, 405 U.S. 669 (1972) —....0000000000... 8
Caston v. Sears, Roebuck & Co., 556 F.2d 1805
5 SRR ARPT ea Re ut CO nr 12

Chugach Electric Association v. United States Dis-
trict Court for the District of Alaska, 370 F.2d
441 (9th Cir. 1966), cert. denied, 889 U.S. 863

RI deh asta dace anil nniedaidinade tebetnnodich bieclonsahcidiesilttastitane 18
Cohen v. Beneficial Industrial Loan Corp., 337
EG TRI Raicceticesaccensnad labssisietnndeestpndaebd bttaahididamiuns passim

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264
CIID icctccctinnincsdacnsapnetoncencqnnshichatitaassosatinciiessabedhpbisionibes 8

vi

TABLE OF AUTHORITIES—Continued

Page
Community Broadcasting of Boston, Inc. v. FCC,

646, F.2a 10282 (D.C.Cir. 1976) —..........,........:....... 10,13
Connor v. Finch, 419 F.Supp. 1072 (S.D.Miss.

IE scindtdlihclascpsclicsinictbiaiedD ticle hatchet hateiScponsiantahiighicdskaces 5
Connor v. Finch, 481 U.S. 407 (1977) .................. 5, 15, 21
Connor v. Johnson, 330 F.Supp. 506, supplemented

in 330 F.Supp. 521 (S.D.Miss. 1971) -................. 5
Control Data Corp. v. IBM Corp., 318 F.Supp.

145 (D.Minn.), aff'd, 480 F.2d 1277 (8th Cir.

ERE SEER RE Pe Sa a to SRN AERP URBAN aE 18
Coopers & Lybrand v. Livesay, 437 U.S. 463

BASES US Rady ee'e SUES CORSA ST PCW Re We See) eee 12
Coyle v. Smith, 221 U.S. 559 (1911) ..............02....... 21
Doud v. Hodge, 350 U.S. 485 (1956) ......................... 8

Evers v. State Board of Election Commissioners,
827 F.Supp. 640 (S.D.Miss. 1971), appeal dis-
missed, 405 U.S. 1001 (1972) ~.......-.22.-20000002022-.. 4,16
Firestone Tire & Rubber Co. v. Risjord, 612 F.2d
877 (8th Cir.), cert. granted, 100 S.Ct. 2150
SPEEA TS) NY) SEN 9 REY ART OY ERD ARIUS 13
First Wisconsin Mortgage Trust v. First Wiscon-
sin Corp., 571 F.2d 390, rev’d on other grounds,

584 F.2d 201 (7th Cir. 1978) (en banc) .............. 12, 16
Flast v. Cohen, 392 U.S. 88 (1968) _............0.00....... 8
Florida Lime & Avocado Growers, Inc. v. Jacob-

os Ge ee ee Camere eo 8
General Motors Corp. v. New York, 501 F.2d 639

I TI hi iia in tetrad eiaambecanbl 19
Granite Falls State Bank v. Schneider, 402 U.S.

I Na ctitccccthictiinnchidciiptctbiantemainciiaat taints Ahlicinaslaieas 8
Grinnell Corp. v. Hackett, 519 F.2d 595 (1st Cir.),

cert. denied, 423 U.S. 1083 (1975) -..................... 12
Gully v. Interstate Natural Gas Co., 292 U.S. 16

CE ccackhniiettairtrerahenssnidipianibsestitesediacininnadelicthiettieiare Bein Liniibs 7
Hicks v. Miranda, 422 U.S. 382 (1975) ................... 9

Hudak v. Curators of the University of Missouri,
586 F.2d 105 (8th Cir. 1978), cert. denied, 440
pM BIR A SER VRS NT CC ee 12

vii

TABLE OF AUTHORITIES—Continued

Page
In re General Motors Corp. Engine Interchange
Litigation, 594 F.2d 1106 (7th Cir.), cert. de-
SR, GO BP Ue AED avo crscdccerkccsccecssncsccneniene 11
International Electronics Corp. v. Flanzer, 527
f 2 B §e A... | ReRS eee eeeere 19
International Paper Co. v. FPC, 438 F.2d 1349 (2d
Cir.), cert. denied, 404 U.S. 827 (1971) .............. 23
Jicarilla Apache Tribe v. United States, 601 F.2d
1116 (10th Cir.), cert. denied, 444 U.S. 995
I oo raha akic tabellc Aces tabinihnceenophadibcsranntbiiesnahasiebinantte 12
Kesselhart v. United States, 555 F.2d 791 (Ct.Cl.
RE ae scl Re Sak Lellccipencemailuadncabipangtiactoniat 23
Lynch v. Household Finance Corp., 405 U.S. 538
CNRS SPE arse ae Sy Sear peaperersmwner onen ns ¢ >See vie 8

Marco v. Dulles, 169 F.Supp. 622 (S.D.N.Y. 1959).. 23
Melamed v. ITT Continental Baking Co., 592 F.2d

I I I opal ccna: Sictvant chase sevinstitodnoenbsectdess 12
Milone v. English, 306 F.2d 814 (D.C.Cir. 1962)... 23
Mississippi v. United States, No. 78-1425 (D.D.C.

June 1, 1979), aff’d mem., 100 S.Ct. 994 (1980) ..passim

Mitchell v. Maurer, 293 U.S. 287 (1934) -............... 8
Mitchum v. Foster, 407 U.S. 225 (1972) ................ 8
Morris v. Gressette, 482 U.S. 491 (1977) ................ 20
NAACP v. New York, 413 U.S. 345 (1978) ........... i,7,8,9 :
NLRB v. Robbins Tire & Rubber Co., 487 U.S. 214
I ae hate cian salhcatewedlapinntacaanaasbstcsdninatehepeovens 20
National League of Cities v. Usery, 426 U.S. 833
a aideclaa halides ciilibsiapan aeabesnenanipesnddbaneitnone 21
New Mexico v. Aamodt, 587 F.2d 1102 (10th Cir.
1976), cert. denied, 429 U.S. 1121 (1977) .......... 12
Orloff v. Willoughby, 345 U.S. 83 (1953) ................ 16
Premium Service Corp. v. Sperry & Hutchinson
Co., 511 F.2d 225 (9th Cir. 1975) ........................ 11

Redd v. Shell Oil Co., [1974-2] Trade Cas. {| 75,392
(D.Utah 1974), rev’d on other grounds, 518 F.2d
EE MI ROG, MITER cancdlsntncshesnpetennssceiqninieseingassmephei 20

viii
TABLE OF AUTHORITIES—Continued

Page
Silver Chrysler Plymouth, Inc. v. Chrysler Motors
Corp., 496 F.2d 800 (2d Cir. 1974), overruled
on other grounds, Armstrong v. McAlpin, 625
F.2d 488 (2d Cir. 1980) (en banc), petition for
cert. filed, 49 U.S.L.W. 38384 (U.S. Sept. 18,
1980 (No. 80-481) SEC UE Ba DET REN ce Oe 12
Society for Good Will to Retarded Children, Inc.
v. Carey, 466 F.Supp. 722 (E.D.N.Y. 1979) ........ 20
Swanson v. American Consumer Industries, Inc.,
yee Fee. Le AB). > Pa OuR Clean 11
Swift & Co. Packers v. Compania Columbiana Del
Caribe, 889 U.S. 684 (1950) ................................ 11
The Attualita, 238 F. 909 (4th Cir. 1916) .............. 11
United States v. Deutsch, 599 F.2d 46 (5th Cir.),
cert. denied, 444 U.S. 985 (1979) ........................ 12

United States v. MacDonald, 485 U.S. 850 (1978).. 10
United States v. Perkins, 433 F.2d 1182 (D.C.Cir.

ATI HY RE EE SSID EE ASA SDR 1 ON OR cn 14
United States v. Standard Oil Co. (New Jersey),

186 F.Supp. 345 (S.D.N.Y. 1955), .....-.................. 24
Van-S-Aviation Corp. v. Piper Aircraft Corp.,

Mee bee fb Ry Lo MD | y 5 Seen Smear ee nneNeNen 12

Westinghouse Electric Corp. v. Rio Algom, Ltd.,
448 F.Supp. 1284 (N.D.IIl.), modified, 580 F.2d
1811, rev’d on other grounds, 588 F.2d 221 (7th

Cir.), cert. denied, 489 U.S. 955 (1978) ......0000.... 19
Woods v. Covington County Bank, 587 F.2d 804

RE PA I RS 16
Zwickler v. Koota, 389 U.S. 241 (1967) -............... x

Constitution, Statutes, and Regulations

EE RRR GR SI Op 6
5 U.S.C. § 552, Freedom of Information Act .......... 20
5 U.S.C. § 552b, Government in the Sunshine Act.. 20
Se I neo echenbionaiinalipnies i,9
EER RSE RO ERT SE NAO oo No i,9
ee i sahiane 2
28 U.S.C. § 22864 .......... Oe UREN Ys CSRS BR STO i,9

ix
TABLE OF AUTHORITIES—Continued

Page
r. id Toa Go! 5 7 Reese MeaaemenameoeeN. meen vrees SE 9
42 U.S.C. § 1973, Voting Rights Act of 1965, Sec-
A Ud a dee) Ei Pas aie eee eee ma me passim
28 C.F.R. § 45.785-7(a) (1979) ... ets 18
Law Review Articles

Kaufman, The Former Government Attorney and
the Canons of Professional Ethics, 70 Harv.L.
po, bp RREMRSROIRISPRE ORACLE DS eon SCE 24
Lacovara, Restricting the Private Practice of For-
mer Government Lawyers, 20 Ariz.L.Rev. 369
CRITI ciniessnessiinsicnsttenisapiesn eihatipiedndivsiptansienestietinantgittiaaam 24
Sutton, How Vulnerable Is the Code of Profes-
sional Responsibility?, 57 N.C.L.Rev. 497

CTD onsakccis bencishcsinatlicenhcsniegiedemincnasianpinescalineiats 20
Underwood, Appeals in Federal Practice From
Collateral Orders, 36 Va.L.Rev. 731 (1950) ........ 1l
Miscellaneous
15 C.Wright, A.Miller & E.Cooper, Federal Prac-
tice and Procedure § 8911 (1976) ........................ 14

ABA Code of Professional Responsibility, Canon 4.. 18
ABA Code of Professional Responsibility, Canon 9.. 15, 18,

19
ABA Code of Professional Responsibility, DR 9-

DO CY acecscnscscedinctibeintebinnctdidarcinenaacudinatibtete 14, 16, 18, 19
ABA Comm. on Professional Ethics, Opinions, No.

OU CRUD acekiisceecee ee eeni-inene 19
ABA Formal Opinion No. 342 ...........................- 16, 19, 23
9 Jcint Center for Political Studies, National

Roster of Black Elected Officials (1979) ............ 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

STATE OF MISSISSIPPI,
Appellant,
V.

BENJAMIN E. CIVILETTI and
THE UNITED STATES OF AMERICA,
Appellees.

On Appeal from the United States District Court
for the District of Columbia

JURISDICTIONAL STATEMENT

OPINION BELOW

The opinion of the district court is not reported and
is reproduced in the Appendix.

JURISDICTION

This is a direct appeal by the State of Mississippi (the
State) from the judgment of the United States District
Court for the District of Columbia entered on October 28,
1980, ordering the disqualification of the State’s counsel

2

and the separation of counsel and his law firm from
further participation in a de novo section 5 review of a
submission by the State pursuant to the Voting Rights
Act of 1965 as amended, 42 U.S.C. §§ 1973 et seq., seeking
the implementation of an “open primary” for all elected
officials in the State. Jurisdiction also was invoked pur-
suant to 28 U.S.C. § 1831. Notice of Appeal was filed in
the United States District Court for the District of
Columbia on October 28, 1980. The jurisdiction of this
Court is invoked under 42 U.S.C. § 1973c.

STATUTE INVOLVED

The statute involved is section 5 of the Voting Rights
Act:

Whenever a State or political subdivision with re-
spect to which the prohibitions set forth in section
1973b(a) of this title based upon determinations
made under the first sentence of section 1973b(b)
of this title are in effect shall enact or seek to ad-
minister any voting qualification or prerequisite to
voting, or standard, practice, or procedure with re-
spect to voting different from that in force or effect
on November 1, 1964, or whenever a State or political
subdivision with respect to which the prohibitions
set forth in section 1973b(a) of this title based upon
determinations made under the second sentence of
section 1973b(b) of this title are in effect shall en-
act or seek to administer any voting qualification or
prerequisite to voting, or standard, practice, or pro-
cedure with respect to voting different from that in
force or effect on November 1, 1968, or whenever a
State or political subdivision with respect to which
the prohibitions set forth in section 1973b(a) of this
title based upon determinations made under the third
sentence of section 1973b(b) of this title are in ef-
fect shall enact or seek to administer any voting
qualification or prerequisite to voting, or standard,
practice, or procedure with respect to voting different

from that in force or effect on November 1, 1972,
such State or subdivision may institute an action in
the United States District Court for the District
of Columbia for a declaratory judgment that such
qualification, prerequisite, standard, practice, or pro-
cedure does not have the purpose and will not have
the effect of denying or abridging the right to vote
on account of race or color, or in contravention of
the guarantees set forth in section 1973b(f) (2) of
this title, and unless and until the court enters such
judgment no person shall be denied the right to vote
for failure to comply with such qualification, pre-
requisite, standard, practice, or procedure: Provided,
That such qualification, prerequisite, standard, prac-
tice, or procedure may be enforced without such
proceeding if the qualification, prerequisite, standard,
practice, or procedure has been submitted by the
chief legal officer or other appropriate official of such
State or subdivision to the Attorney General and the
Attorney General has not interposed an objection
within sixty days after such submission, or upon
good cause shown, to facilitate an expedited ap-
proval within sixty days after such submission, the
Attorney General has affirmatively indicated that
such objection will not be made. Neither an affirma-
tive indication by the Attorney General that no ob-
jection will be made, nor the Attorney General’s
failure to object, nor a declaratory judgment entered
under this section shall bar a subsequent action to
enjoin enforcement of such qualification, prerequisite,
standard, practice, or procedure. In the event the
Attorney General affirmatively indicates that no ob-
jection will be made within the sixty-day period
following receipt of a submission, the Attorney Gen-
eral may reserve the right to reexamine the sub-
mission if additional information comes to his at-
tention during the remainder of the sixty-day period
which would otherwise require objection in accord-
ance with this section. Any action under this sec-
tion shall be heard and determined by a court of

’%

4

three judges in accordance with the provisions of
section 2284 of Title 28 and any appeal shall lie
to the Supreme Court.

Voting Rights Act § 5, 42 U.S.C. § 1973e.

STATEMENT OF THE CASE

From February 1969 until May 1971, Jerris Leonard
served as Assistant Attorney General for Civil Rights. In
1970, the State of Mississippi (the State) submitted to the
Attorney General House Bills 362 and 363, which con-
tained changes in Mississippi’s electoral system, for pre-
clearance pursuant to section 5 of the Voting Rights Act,
42 U.S.C. § 1973c. On September 21, 1970, Mr. Leonard
responded to that submission, stating that the Attorney
General was “not prepared [within the required statutory
period] to make any determination of the validity or in-
validity [of the changes] under the Voting Rights Act.” *
Letter from Jerris Leonard to A. F. Summer at 2 (Sept.
21, 1970), attached as Exhibit 1 to Memorandum in Op-
position to Defendants’ Motion for Order Disqualifying
Plaintiff’s Counsel (Opposition Memorandum).

On February 25, 1974, Mississippi resubmitted House
Bills 362 and 363 to the Attorney General. At that time,
Mr. Leonard’s successor as Assistant Attorney General
for Civil Rights, J. Stanley Pottinger, characterized the
1970 submission as “prior similar proposals” and objected
to their implementation. Letter from J. Stanley Pottinger
to A. F. Summer at 2 (Apr. 26, 1974) (emphasis added),
attached as Exhibit 2 to Opposition Memorandum. Mr.
Pottinger found that the Evers case “foreclosed” any
further action on the 1970 submission. Id.

1 Subsequently, the United States District Court for the Seethern
District of Mississippi held that the Department’s failure to approve
the bills precluded their implementation. Evers v. State Board of
Election Commissioners, 327 F.Supp. 640 (S.D.Miss. 1971) (per
curiam), appeal dismissed, 405 U.S. 1001 (1972).

5

In 1976, the United States District Court for the South-
ern District of Mississippi, pursuant to Connor v. John-
son, 330 F.Supp. 506, supplemented in. 330 F.Supp. 521
(S.D.Miss. 1971) (per curiam), formulated an appor-
tionment plan for the 1979 quadrennial election. Connor
v. Finch, 419 F.Supp. 1072 (S.D.Miss. 1976). The De-
partment of Justice intervened sometime between June
10, 1975, and August 24, 1976. See Connor v. Finch. 431
U.S. 407, 412 n.8 (1977). Thereafter, Mr. Leonard was
retained to represent Mississippi before the Supreme
Court. “The issue primarily presented and argued [was]
whether the District Court plan impermissibly dilute[d]
Negro voting strength.” Id. at 431 (Powell, J., dissent-
ing). This Court ruled for Mississippi but did not reach
the dilution question. See id. at 421.

On June 1, 1978, Mississippi’s Attorney General sub-
mitted a newly enacted apportionment statute to the At-
torney General of the United States for preclearance
under section 5. On July 31, 1978, Assistant Attorney
General for Civil Rights, Drew S. Days, III, objected to
the statute, stating that “we have been unable to con-
clude that the submitted plans for the Mississippi Senate
and House of Representatives do not have the purpose or
effect of abridging the right to vote because of race or
color.” Letter from Drew S. Days, III to A. F. Summer
at 2 (July 31, 1978), attached as Exhibit 3 to Opposition
Memorandum.

Represented by Mr. Leonard, the State of Mississippi
filed an action for declaratory relief pursuant to section
5 of the Voting Rights Act, 42 U.S.C. § 1973c. Missis-
sippi v. United States, No. 78-1425 (D.D.C. June 1,
1979), aff'd mem., 100 S.Ct. 994 (1980) (Mississippi I).
Again the issue was whether the statute in question re-
sulted in the dilution of black electoral strength. See id.,
slip op. at 4, 5, 8, 10, 11, 14-16, 19, 21-23 & n.6.

6

On April 12, 1979, Mississippi submitted the legisla-
tion which is the subject matter of this suit (Senate Bill
2802) to the Department of Justice for preclearance
under section 5 and, in documents then submitted, pro-
vided Mr. Leonard’s name to the Department of Justice
specifying that he was “Counsel for the Legislature.”
Affidavit of Mississippi’s Attorney General William A.
Allain at 2 (Allain Affidavit), attached to and incor-
porated by reference in the Opposition Memorandum.

On June 11, 1979, Assistant Attorney General Days
objected to this statute, basing his objection upon the
dilution of the electoral strength of black voters and
stating: “Under Section 5 an objection is required if the
modifications of the electoral system of the State of Mis-
sissippi made by Senate Bill 2802 would ‘lead to a retro-
gression in the position of racial minorities with respect
to their effective exercise of the electoral franchise.’ ”
Letter from Drew S. Days, III to A. F. Summer at 2
(Jun. 11, 1979), attached as Exhibit 4 to Opposition
Memorandum.

On December 27, 1979, the State, with Mr. Leonard
and his firm as its counsel, sought de novo review of
Senate Bill 2802 in the United States District Court for
the District of Columbia pursuant to section 5 of the
Voting Rights Act, 42 U.S.C. § 1973. On April 2, 1980,
the Government filed its motion to disqualify counsel on
the ground that the 1970 and 1979 submissions were the
same matter. On September 29, 1980, the three-judge
district court disqualified Mr. Leonard and his firm from
further participation in this case.

Under the law of Mississippi, different legislatures
passed the statutes considered in the 1970 and 1979 sub-
missions. Miss. Const. § 36. Additionally, not only are
the 1970 and 1979 enactments different (fewer than half
of the provisions of the statutes are even comparable),
see A Comparative Digest of the 1970 and 1979 Missis-

7

sippi Open Primary Laws, attached as Exhibit 5 to
Opposition Men.srandum, but in social, political, and
electoral terms, Mississippi itself is different. In 1970,
there was one black member of the Mississippi Legisla-
ture. Today, there are 17. In 1970, both of Mississippi’s
United States senators were Democrats. Today, one is a
Democrat; the other is a Republican. In 1970, there were
81 black elected officials in Mississippi; by 1979, there
were 327, 2nd the state ranked second only to Louisiana.
9 Joint Center for Political Studies, National Roster of
Black Elected Officials, Table 1 at x-xi (1979).

REASONS FOR NOTING PROBABLE JURISDICTION

I. THIS COURT HAS UNIQUE APPELLATE JURIS-
DICTION OVER APPEALS FROM STATUTORY
THREE-JUDGE FEDERAL DISTRICT COURTS ON
ALL ISSUES ARISING PURSUANT TO LITIGA-
TION UNDER THE VOTING RIGHTS ACT OF 1965,
AS AMENDED.

This Court must be able to determine the authority of
the court below “ ‘to make such corrective order as may
be appropriate to the enforcement of the limitations
which that section [of the law in question] imposes.’ ”
Bailey v. Patterson, 369 U.S. 31, 34 (1962) (per cu-
riam), quoting Gully v. Interstate Natural Gas Co., 292
U.S. 16, 18 (19384) (per curiam). 42 U.S.C. § 19738c
provides for direct review of “any appeal” by this Court
of any decision by a three-judge district court duly con-
stituted under the provisions of the Voting Rights Act.
In NAACP v. New York, 418 U.S. 345 (1973), this
Court’s only prior ruling on the jurisdictional issue pre-
sented here,? the words “any appeal” were held to require

2 NAACP was brought pursuant to section 4 of the Voting Rights
Act, 42 U.S.C. §1973b. This action is brought pursuant to sec-
tion 5, 42 U.S.C. §1973c. The appellate jurisdiction is exactly the

8

Supreme Court review of the collateral issue of inter-
venor standing. Jd. at 354.

Congress sought to have the broad statutory and con-
stitutional principles at issue in Voting Rights Act cases
subjected to timely and economical adjudication, id., and
district court disqualification orders fall within the lan-
guage of NAACP v. New York, because such orders are
“meaningful judicial determination[s] made in the prog-
ress of the § 4 lawsuit.” Id. at 353-54.*

Because direct-appeal statutes provide an expedited
procedure to ensure speedy resolution of important issues,
this Court has held that under certain unique statutes,
it has jurisdiction to review direct appeals from three-
judge district court orders on grounds short of the
merits. To allow an exception to this process would

same in both sections: “An action . .. shall be heard and deter-
mined by a court of three judges ... and any appeal shall lie to
the Supreme Court.” 42 U.S.C. §§1973b(a), 1973c (emphasis
added).

3In NAACP, the United States “ ‘substantially’ agree[d] that
this Court has jurisdiction to review on direct appeal the denial
of intervention in an action of this kind.” 413 U.S. at 353,
quoting Brief for United States (footnote omitted). Of course, this
Court is the ultimate arbiter of its own jurisdiction. 413 U.S. at
358; Mitchell v. Maurer, 293 U.S..237, 244 (1934). As Chief Jus-
tice Marshall observed in Cohens v. Virginia, 19 U.S. (6 Wheat.)
264, 404 (1821), “It is most true that this court will not take juris-
diction if it should not; but it is equally true, that it must take
jurisdiction if it should.”

4See American Trial Lawyers Ass’n v. New Jersey Supreme
Court, 409 U.S. 467 (1973) (per curiam) ; Mitchum v. Foster, 407
U.S. 225 (1972); Carter v. Stanton, 405 U.S. 669 (1972) (per
curiam) ; Lynch v. Household Finance Corp., 405 U.S. 538 (1972) ;
Granite Falls State Bank v. Schneider, 402 U.S. 1006 (1971); Flast
v. Cohen, 392 U.S. 83 (1968); Zwickler v. Koota, 389 U.S. 241
(1967); Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362
U.S. 73 (1960) ; Doud v. Hodge, 350 U.S. 485 (1956).

r

9

nibble away at Congress’ clear intent and ultimately ailow
this Court’s jurisdiction to “evaporate.” Hicks v. Miranda,
422 U.S. 382, 343 (1975).

As this Court noted in contrasting the “any appeal”
language of section 1978b(a) of the Voting Rights Act
with that of 28 U.S.C. § 1253, the language “any appeal”
differs significantly from the language “any civil action,
suit or proceeding required by any Act of Congress to be
heard and determined by a district court of three judges.”
NAACP v. New York, 413 U.S. at 356. Striking dif-
ferences also are found between §1973c and 42 U.S.C.
§1971g (“from the final judgment” of the three-judge
court) ; 28 U.S.C. § 1291 (“appeals from all final deci-
sions”), and 28 U.S.C. § 2284 (“any action required to
be heard and determined by a district court of three
judges’).

“The broader language of § 4(a), when viewed in the
light of Congress’ concern about hastening the resolution
of suits involving voting rights, . . . prompts us to con-
clude that the . . . §4(a) appeal is directly here and
not to the Court of Appeals.” NAACP v. New York, 413
U.S. at 355 (citation omitted).

Probable jurisdiction, therefore, should be noted.

Il. THE COURT SHOULD EXERCISE ITS SUPER-
VISORY POWER AND ITS APPELLATE JURIS-
DICTION TO HEAR APPEALS OF ORDERS DIS-
QUALIFYING COUNSEL IN ORDER TO SAFE-
GUARD THE BASIC RIGHT OF LITIGANTS TO
COUNSEL OF THEIR CHOICE.

This case falls into “the ‘small class of cases’ that
[Cohen v. Beneficial Industrial Loan Corp., 387 U.S. 541
(1949) ] has placed beyond the confines of the final-
judgment rule.” Abney v. United States, 431 U.S. 651,
659 (1977). When its standards are met, Cohen “allows
immediate appeals from certain orders that do not fully

eee 4

10

and finally terminate the litigation between the parties.”
Community Broadcasting of Boston, Inc. v. FCC, 546
F.2d 1022, 1024 (D.C.Cir. 1976) .°

The four Cohen standards are met here.

1. The district court’s ruling on the matter must not
be “tentative, informal or incomplete.” Cohen v. Bene-
ficial Industrial Loan Corp., 387 U.S. at 546. Here the
disqualification issue has been finally decided.

2. The ruling must be “separable from, and collateral
to, rights asserted in the [main] action.” Id. Here the
disqualification ruling is not a step toward final judg-
ment into which that ruling would “merge.” It does not
“affect, [nlor [is it] ... affected by, [any] decision of
the merits.” Id. It is so “independent of the cause itself,”
id., that appellate disposition should await no further
action on the main matter. Disqualification of counsel is
important, is entirely collateral to the merits, and, if
erroneous, is effectively unredressable after final judg-
ment on the merits.

3. The matter under review must present “a serious
and unsettled question.” Id. at 547. There is a conflict
among the circuits on the issue of attorney disqualifica-
tion. Compare, e.g., Armstrong v. McAlpin, 625 F.2d
433 (2d Cir. 1980) (en banc), petition for cert. filed, 49
U.S.L.W. 3334 (U.S. Sept. 18, 1980) (No. 80-431) (dis-
qualification immediately reviewable) and Akerly v. Red
Barn. System, Inc., 551 F.2d 539 (3d Cir. 1977) (refusal
to disqualify immediately reviewable) with Community
Broadcasting of Boston, Inc. v. FCC, 546 F.2d 1022 (re-
fusal to disqualify not immediately reviewable).

4. The matter must demonstrate a risk of important
loss if present review is not available. The injury to the

5 The Cohen criteria have been reaffirmed. See United States v.
MacDonald, 435 U.S. 850 (1978); Abney v. United States, 431 U.S.
651 (1977).

11

aggrieved party must be “too important to be denied
review,” so that the party is “probably irreparably ' dam-
aged. Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
at 546. Here the rights of the attorney as well as those
of his client will be irreparably lost if review is postponed
until final judgment on the merits, for Mississippi must
proceed through other counsel,* and that satisfies the “ir-
reparable injury” requirement of Cohen. Armstrong v.
McAlpin, 625 F.2d at 439 n.11.

Absent immediate appeal of the disqualification issue,
“it will be too late [after final disposition of the case on
the merits] effectively to review the present order and
... rights... will have been lost, probably irreparably.”

*It is enough that no further consideration of the order is con-
templated by the court below. In re General Motors Corp. Engine
Interchange Litigation, 594 F.2d 1106, 1118 (7th Cir.), cert. de-
nied, 444 U.S. 870 (1979). Nor is the express entry of a final
judgment provided for by F.R.Civ.P. 54(b) required. See, e.g.,
Swanson v. American Consumer Industries, Inc., 517 F.2d 555, 560-
61 (7th Cir. 1975). On the disqualification issue, the district court
has had its last word, see Premium Service Corp. v. Sperry & Hut-
chinson, Co., 511 F.2d 225, 228 (9th Cir. 1975), and “nothing else
can be done in the court below which would be worth doing.” The
Attualita, 238 F. 909, 910 (4th Cir. 1916). This case “fall[{s] in
that small class which finally determine claims of right separable
from, and collateral to, rights asserted in the [main] action, too
important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until the
whole case is adjudicated.” Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. at 546. This appeal, therefore, is “not an ingredi-
ent of the [main] cause of action and does not require consider-
ation with it.” Jd. at 546-47. Rather, it has reached that point
where it is “fairly severable,” Swift & Co. Packers v. Compania
Columbiana Del Caribe, 339 U.S. 684, 689 (1950), so that it may be
addressed “without any reference to the substance of the [main]
action.” Borden Co. v. Sylk, 410 F.2d 843, 846 (3d Cir. 1969). In
essence, this appeal “is an action itself, a separate litigation.”
Underwood, Appeals in Federal Practice from Collateral Orders,
36 Va.L.Rev. 731, 738 (1950).

12

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. at
546."

The requirement that a significant question of law
must be present in order to justify immediate review
has been held to mean that the issue be “important” or
“too important to be denied review.” Coopers & Lybrand
v. Livesay, 487 U.S. 468, 468 (1978); Abney v. United
States, 481 U.S. at 658.

One measure of importance is a conflict among the
circuits. Five circuits require a Cohen analysis of appeal-
ability of disqualification motions; * five circuits permit
interlocutory appeals of denials of disqualification ;* four

7 Several courts have recognized that, in cases disqualifying coun-
sel, no effective review could be had on appeal of the case on the
merits. See United States v. Dewtsch, 599 F.2d 46, 48 (5th Cir.),
cert. denied, 444 U.S. 935 (1979) (appointment of counsel for
criminal defendant) ; Hudak v. Curators of the University of Mis-
souri, 586 F.2d 105, 106 (8th Cir. 1978), cert. denied, 440 U.S. 985
(1979) (appointment of counsel in civil rights case); Caston v.
Sears, Roebuck & Co., 556 F.2d 1305, 1308 (5th Cir. 1977) (ap-
pointment of counsel under Title VII of the Civil Rights Act).

8 See Grinnell Corp. v. Hackett, 519 F.2d 595, 597-98 & n.4 (1st
Cir.), cert. denied, 423 U.S. 1033 (1975) ; Silver Chrysler Plymouth,
Inc. v. Chrysler Motors Corp., 496 F.2d 800, 802 (2d Cir. 1974),
overruled on other grounds, Armstrong v. McAlpin, 625 F.2d 433;
First Wisconsin Mortgage Trust v. First Wisconsin Corp., 571 F.2d
390, 393, rev’d on other grounds, 584 F.2d 201 (7th Cir. 1978) (en
banc); Van-S-Aviation Corp. v. Piper Aircraft Corp., 551 F.2d 213,
217 (8th Cir. 1977); Jicarilla Apache Tribe v. United States, 601
F.2d 1116, 1124 (10th Cir.), cert. denied, 444 U.S. 995 (1979).

®See Akerly v. Red Barn System, Inc., 551 F.2d 539; Aetna
Casualty & Surety Co. v. United States, 570 F.2d 1197 (4th Cir.),
cert. denied, 439 U.S. 821 (1978); Brown & Williamson Tobacco
Corp. v. Daniel International Corp., 563 F.2d 671 (5th Cir. 1977) ;
Melamed v. ITT Continental Baking Co., 592 F.2d 290 (6th Cir.
1979) (by implication); New Mexico v. Aamodt, 537 F.2d 1102
(10th Cir. 1976), cert. denied, 429 U.S. 1121 (1977).

13

circuits do not permit such interlocutory appeals; *° and
pending in this Court are two cases arising from denials
of disqualification.“

The arguments favoring appeals of orders granting dis-
qualification, as in this case, are more compelling than
those relating to denials of disqualification. As the Sec-
ond Circuit observed en banc:

[i]n such cases, the losing party is immediately sep-
arated from counsel of his choice. If the order is
erroneous, correcting it by an appeal at the end of the
case might well require a party to show that he lost
the case because he was improperly forced to change
counsel. This would appear to be an almost in-
surmountable burden. In addition, permitting an
immediate appeal. from the grant of a disqualifica-
tion motion does not disrupt the litigation, since the
trial must be stayed in any case while new counsel
is obtained. Moreover, the grant of a disqualification
motion may effectively terminate the litigation if the
party whose counsel is disqualified cannot afford to
hire new counsel to begin the litigation anew... .
Furthermore, the granting of a disqualification mo-
tion by a district judge is a fair indication that a
nonfrivolous issue has been raised; there is no simi-
lar assurance that appeals from denials of disqualifi-
cation motions will raise a substantial question. Thus,
it is far less likely that appeals from orders granting
disqualification motions will be taken purely for
tactical reasons. Finally, disqualification often im-

10 See Armstrong v. McAlpin, 625 F.2d 433; Firestone Tire &
Rubber Co. v. Risjord, 612 F.2d 377 (8th Cir.), cert. granted, 100
S.Ct. 2150 (1980) ; Chugach Electric Ass’n v. United States District
Court for the District of Alaska, 370 F.2d 441 (9th Cir. 1966),
cert. denied, 389 U.S. 863 (1967); Community Broadcasting of
Boston, Inc. v. FCC, 546 F.2d 1022.

11 Firestone Tire & Rubber Co. v. Risjord, 100 S.Ct. 2150;
Armstrong v. McAlpin, 49 U.S.L.W. 3334.

14

pairs the reputation of the disqualified firm or at-
torney, and this injury may never be corrected on
appeal if the party is satisfied with the performance
of his new counsel.

Armstrong v. McAlpin, 625 F.2d at 440-41.

“Grants of disqualification motions... should there-
fore be immediately appealable as a matter of right.”
Id. at 441.

III. DISQUALIFICATION WAS IMPROPER BECAUSE
THE 1970 AND 1979 SUBMISSIONS INVOLVE DIF-
FERENT MATTERS AND, EVEN IF THE SAME,
THE GOVERNMENT WAIVED ITS RIGHT TO
SEEK DISQUALIFICATION.

“TA]t least a modest initial exploration of the merits
of the collateral issue itself” should be made here, 15
C. Wright, A. Miller & E. Cooper, Federal Practice and
Procedure § 3911, at 494 (1976), because “the importance
of the controversy cannot be decided in a vacuum.”
United States v. Perkins, 483 F.2d 1182, 1186 (D.C.Cir.
1970). The district court concluded that Mr. Leonard
“participated personally and substantially in the matter
before the Court while he was employed by the Depart-
ment of Justice,” and that “DR 9-101(B) [of the ABA
Code of Professional Responsibility] preclude[d] further
participation in this action by Leonard or any member
of his law firm.”

The Government contended and the lower court appar-
ently agreed that, because of a prior section 5 “non-
action” »? involving the State’s 1970 submission during

12 Acting on behalf of the Attorney General, Mr. Leonard neither
approved nor disapproved of the State’s 1970. submission. Exhibit
1 to Opposition Memorandum at 3 (“I want to make clear that no
inference of approval or disapproval is to be drawn from the failure
of the Attorney General to object ....”).

15

his tenure as Assistant Attorney General for Civil Rights,
Mr. Leonard’s representation of the State in its efforts to
obtain approval of the 1979 submission contravenes Canon
9 of the Code of Professional Responsibility of the Ameri-
can Bar Association (ABA Code). But the statutes in-
volved in the 1970 and 1979 submissions are different,
were enacted by different legislatures, and were signed
by different governors during socially and politically dif-
ferent times.”

As in many other section 5 cases, the 1970 and 1979
submissions, as well as the statutes in question in. Connor
v. Finch, 481 U.S. 407, and Mississippi I,“ while differ-
ent, did present a common legal issue—whether the dilu-
tion of black voting strength is statutorily permissible.

When Mississippi resubmitted precisely the same acts
that were the subject of the 1970 submission (House Bills
362 and 363) to the Department of Justice in 1974, the
then Assistant Attorney General for Civil Rights, J. Stan-

18 Even Assistant Attorney General Days, one of the attorneys
that represented the Government in the lower court, has noted the
changes that have occurred in the State.

Q. Do you agree that things have changed dramatically for
the better since 1963-64 compared to what it is today?

A. Yes, I think there have been substantial improvements.
Deposition of Drew S. Days, III at 70, Mississippi J.

4 Dilution was the issue in Connor v. Finch and in Mississippi I.
See, e.g., 431 U.S. at 409, 422-26; No. 78-1425, slip op. at 4-5, 8, 10-
11, 14-16, 19, 21-23 & n.6. Indeed, Justice Powe!l, dissenting in
Connor v. Finch, noted: “The issue primarily presented and argued
in these appeals is whether the District Court plan impermissibly
dilutes Negro voting strength.” 431 U.S. at 431. Compare Exhibit
4 to Opposition Memorandum at 2. There “retrogression” is the
euphemism for “dilution”: “Under Section 5 an objection is re-
quired if the modifications of the electoral system of the State of
Mississippi made by Senate Bill 2802 would ‘lead to a retrogression
in the position of racial minorities with respect to their effective
exercise of the electoral franchise.’” Id.

16

ley Pottinger, characterized the 1970 submission as the
“prior similar proposals,” Exhibit 2 to Opposition Memo-
randum at 2, and found that Evers v. State Board of
Election Commissioners, 327 F.Supp. 640 (S.D.Miss.
1971), appeal dismissed, 405 U.S. 1001 (1972), “fore-
closed” any further action on the 1970 submission. Ex-
hibit 2 to Opposition Memorandum at 2. Now, “as nimbly
as if dancing a quadrille,” Orloff v. Willoughby, 345 U.S.
88, 87 (1953), the Government resurrects the 1970 sub-
mission to disqualify Mississippi’s counsel of choice.

Yet, at least one court has warned that “[l]eveling the
charge of impropriety at opposing counsel, which if
sustained would require withdrawal, should not be a
standard part of counsel’s offensive armament to be used
routinely or without reasonable and good faith belief in
its necessity.” * This is especially true when the litigant

15 First Wisconsin Mortgage Trust v. First Wisconsin Corp., 584
F.2d at 206. To arbitrarily disqualify Mr. Leonard and his firm
would be to “interfere needlessly with the right of litigants to
obtain competent counsel of their choosing, particularly in special-
ized areas requiring special, technical training and experience,”
which the ABA was concerned about safeguarding, rather than
vitiating, under DR 9-101(B). ABA Formal Opinion 342 at 5.

In a disqualification case, involving a former government em-
ployee, the court must balance “the client’s right to counsel of his
choice, the lawyer’s right freely to practice his profession, and
the government’s need to attract skilled lawyers.” Woods v. Coving-
ton County Bank, 537 F.2d 804, 812 (5th Cir. 1976). As the Second
Circuit has noted :

An overly strict approach to disqualification of the former
government attorney and especially to disqualification of his
firm impairs the client’s choice of counsel and can impair the
government’s ability to attract non-career attorneys, if they
come to believe that their post-government employment oppor-
tunities will be unduly restricted. These considerations them-
selves implicate ethical values concerning the availability of
professional services. ;

Armstrong v. McAlpin, 606 F.2d 28, 32 (1979), rev'd on other
grounds, 625 F.2d 433.

17

is the Government for its efforts to affect the selection
of opposing counsel, if any, should be based upon com-
pelling law and facts. However, the Government was
“not ... able to find a judicial or administrative prece-
dent under § 207(a) that presents facts similar to those
here.” Memorandum by Leon Ulman for Drew S. Days,
III (Mar. 4, 1980).

A. Disqualification Under DR 9-101(B) Was Improper
Because The 1970 Matter Was Different From That
Which Is At Issue In The Present Litigation.

In 1970, while Mr. Leonard served as Assistant At-
torney General for Civil Rights, Mississippi, pursuant to
section 5 of the Voting Rights Act, 42 U.S.C. § 1973c,
sought preclearance of House Bills 362 and 363 for
changes in the electoral system. The Government con-
tended that this “initial” submission was “virtually iden-
tical” to the legislation at issue in this case, and that
because of this “virtual” identity, Mr. Leonard should
be disqualified. Motion for Order Disqualifying Counsel
at 1. The 1979 open primary bill is not, however, the
same statute nor does it call into question the same fac-
tual issues as the 1970 submission. It was passed by a
different legislature, in a state that has changed socially,
politically, demographically, and economically since 1970,
when the legislation considered by Mr. Leonard was
submitted.**

16 Times (and places and minds) do change. For example, the
Government in Mississippi I recognized the significance of the
passage of time.

While census figures are a useful index in considering whether
a reapportionment plan dilutes black voting strength, such data
should not be used to the exclusion of other factors, especially
where, as here, eight years have elapsed since the 1970 census
was taken and factors such as popuiation shifts which have
occurred since 1970, the size of the district, as well as the
relative political abilities of the black or white voters included

18

Canon 9, on which the district court based its dis-
qualification order,” counsels the attorney to “avoid even
the appearance of professional impropriety.” Disciplin-
ary Rule 9-101(B) states that “[a] lawyer shall not
accept private employment in a matter in which he had
substantial responsibility while he was a public em-
ployee.” The ABA’s interpretation of “matter” is impor-
tant when considering whether the “matter” before this
Court is the same as the “matter” before Mr. Leonard
while he was an Assistant Attorney General.

Although a precise definition of “matter” as used
in the Disciplinary Rule is difficult to formulate, the
term seems to contemplate a discrete and isolatable
transaction or set of transactions between identifi-
able parties. Perhaps the scope of the term “matter”
may be indicated by examples. The same lawsuit
or litigation is the same matter. The same issue of
fact involving the same parties and the same situa-
tion or conduct is the same matter. By contrast,
work as a government employee in drafting, enfore-
ing or interpreting government or agency procedures,
regulations, or laws, or in briefing abstract princi-
ples of law, does not disqualify the lawyer under
DR 9-101(B) from subsequent private employment
involving the same regulations, procedures, or points

in the district are all critical in considering whether the reap-

portionment “designedly or otherwise” dilutes black voting

str-r gth.
Defendant’s Proposed Findings of Fact and Conclusions of Law
| 27, at 22-23, Mississippi I, attached as Exhibit 6 to Opposition
Memorandum; see Control Data Corp. v. IBM Corp., 318 F.Supp.
145, 147 (D.Minn.), aff'd, 430 F.2d i277 (8th Cir. 1970) (passage
of 15 years has changed focus of industry from tabulation to com-
puters, making prior government action in current private antitrust
suits against the same defendant different matters).

17The Government also sought disqualification under Depart-
ment of Justice Standards of Conduct, 28 C.F.R. § 45.735-7(a)
(1979), and Canon 4 of the ABA Code.

19

of law; the same “matter” is not involved because
there is lacking the discrete, identifiable transactions
or conduct involving a particular situation and spe-
cific parties.

ABA Formal Opinion 342 at 6 (emphasis added).

The purpose of DR 9-101(B), as interpreted by the
Second Circuit and the ABA’s Committee on Profes-
sional Ethics, is

“(to avoid] the manifest possibility that ... [a for-
mer Government lawyer’s] action as a public legal
official might be influenced (or open to the charge
that it had been influenced) by the hope of later
being employed privately to uphold or upset what he
had done.”’
General Motors Corp. v. New York, 501 F.2d 639, 649
(2d Cir. 1974), quoting ABA Comm. on Professional
Ethics, Opinions, No. 37, at 124 (1931) (emphasis
added). Here, however, Mr. Leonard neither approved
nor disapproved of Mississippi’s 1970 submission and
there is nothing—no prior opinion—for him to “uphold
or upset.”

Beyond that, the ABA has cautioned against disquali-
fication based upon a literal reading of Canon 9 stating
that it is “too vague .. . to be useful.” Formal Opinion
342 at 5 n.17; see Westinghouse Electric Corp. v. Rio
Algom, Ltd., 448 F.Supp. 1284, 1804 (N.D.IIl.), modified,
580 F.2d 1311, rei’d on other grounds, 588 F.2d 221 (7th
Cir.), cert. denied, 489 U.S. 955 (1978). Similarly, the
Canon and accompanying Disciplinary Rules should not
become “a convenient tool for disqualification when the
facts simply do not fit within the rubric of other specific
ethical and disciplinary rules.” International Electronics
Corp. v. Flanzer, 527 F.2d 1288, 1295 (2d Cir. 1975).
“(When there is no claim that the trial will be tainted,
appearance of impropriety is simply too slender a reed on
which to rest a disqualification order except in the rarest
cases.” Board of Education v. Nyquist, 590 F.2d 1241,

20

1247 (2d Cir. 1979) ; Society for Good Will to Retarded
Children, Inc. v. Carey, 466 F.Supp. 722, 725 (E.D.N.Y.
1979). “[{A]bsent a threat of taint to the trial, . . . pos-
sible ethical violations are generally better addressed by
the ‘comprehensive disciplinary machinery’ of the state
and federal bar.” Armstrong v. McAlpin, 625 F.2d at
446, quoting Board of Education v. Nyquist, 590 F.2d at
1246.**

Most importantly, there can be no taint, or appearance
of it, arising from Mr. Leonard’s conduct because confi-
dentiality and secrecy were not and are not involved.”

The district court ordered that documents relating to
the 1970 submission be produced as is proper in a section
5 proceeding. The policy of open government, see NLRB
vy. Robbins Tire & Rubber Co., 487 U.S. 214, 220-21
(1978); Freedom of Information Act, 5 U.S.C. § 552;
Government in Sunshine Act, 5 U.S.C. § 552b, is all im-
portant when the Government seeks to enforce section 5
of the Voting Rights Act against a state.”

18 The en banc court noted in Armstrong that the Reporter for
the ABA committee that drafted the ABA Code had recently writ-
ten that the Code’s Disciplinary Rules “were drafted for use in dis-
ciplinary proceedings and were not intended to be used as rules
governing disqualification motions.” Armstrong v. McAlpin, 625
F.2d at 446 n.26, citing Sutton, How Vulnerable Is the Code of
Professional Responsibility?, 57 N.C.L. Rev. 497, 514-16 (1979).

19 There is no evidence, nor is there even a direct allegation, of
Mr. Leonard’s access to any secrets or confidences. Disqualification
should not be permitted “based upon speculation or suspicion that
confidential information may have been obtained during the course
of a... lawyer’s association” with his former employer. Redd v.
Shell Oil Co., [1974-2] Trade Cas. {| 75,392, at 98,278 (D.Utah 1974),
rev'd on other grounds, 518 F.2d 311 (10th Cir. 1975); see Bonus
Oil Co. v. American Petrofina Co., [1975-1] Trade Cas. {| 60,315, at
66,266-67 (D.Neb. 1975).

20 The Act is an anomaly in our political process which the Su-
preme Court has characterized as both “unusual” and “severe.”
Morris v. Gressette, 432 U.S. 491, 501 (1977), citing Allen v. State

21

B. Even If The 1970 And 1979 Submissions Involve The
Same Matter, The Government Waived Its Right To
Disqualification.

The Government knew by 1976, at the latest, that Mr.
Leonard represented Mississippi in this “matter.” The
Government noted in its Reply Brief in Mississippi I that
one of the issues in that case “dates back at least to the
time when plaintiff’s present counsel, Mr. Jerris Leonard,
was the Assistant Attorney General for Civil Rights.”
Reply Brief for the United States at 8 n.7, Mississippi I,
attached as Exhibit 7 to Opposition Memorandum. Yet,
although the same “matter”—vote dilution—involved in
the 1970 submission, in Mississippi I, and in this case
was at issue, the Government did not challenge Mr. Leon-
ard’s qualification.”* It never challenged Mr. Leonard’s
qualification in either Mississippi I or in Connor v.
Finch,”

Additionally, on the day (April 12, 1979) of the sub-
mission that is the subject matter of this case, the Gov-
ernment knew that Mr. Leonard was “counsel for the
legislature.” Allain Affidavit at 2. Over a year ago, on
June 11, 1°79, Assistant Attorney General Days inter-

Board of Elections, 393 U.S. 544, 556 (1969). It infringes upon
each affected state’s “separate and independent existence.” Na-
tional League of Cities v. Usery, 426 U.S. 833, 851 (1976), quoting
Coyle v. Smith, 221 U.S. 559, 580 (1911).

21 The Government first presented its reasons for seeking Mr.
Leonard’s disqualification to Mr. Leonard on March 6, 1980. Memo-
randum in Support of United States’ Motion for Order Disguali-
fying Counsel at 1 n.1. Even this is almost one year after the
Department of Justice had notice that Mr. Leonard represented
the State regarding the statute now before the district court in
this case.

22 The Government was an intervenor in Connor v. Finch, 431
U.S. 407. Because the same parties and the same “dilution” issue
in this case were also present in Connor, the Government, if it had
an objection, should have objected in Connor.

es

7%

22

posed an objection to the implementation of the 1979
open primary bill in Mississippi. At no point in that
letter did Assistant Attorney General Days raise any
objection to Mr. Leonard’s representation of the State
in this “matter.” See Exhibit 4 to Opposition Memoran-
dum. It was only after Mr. Leonard, acting as special
counsel for the State, filed the present lawsuit on Decem-
ber 27, 1979, and after Mississippi, represented by Mr.
Leonard had been successful in Mississippi I (on June 1,
1979), that the Department of Justice decided to seek
Mr. Leonard’s disqualification.

In Mississippi I, “matters” common to this case which
pertain to the implementation of the 1979 legislation
were litigated, especially the dilution of black voting
strength 2* and the electability of black candidates,™ bloc
voting, the history of racial discrimination in Missis-
sippi,2* impediments to the electoral process,” the open-
ness of the political system, and a myriad of other
related issues.

23 Compare Brief for the United States at 29, Mississippi I, at-
tached as Exhibit 8 to Opposition Memorandum and Defendants-
Intervenors’ Proposed Findings of Fact and Conclusions of Law at
3, Mississippi I, attached as Exhibit 9 to Opposition Memorandum,
with Memorandum of Law (unidentified but provided in response.
to Mr. Leonard’s Motion to Compel Production of Documents) at 1,
attached as Exhibit 10 to Opposition Memorandum.

24 Compare Exhibit 8 to Opposition Memorandum at 13-14 with
Memorandum from Gerald W. Jones to Jerris Leonard at 5-6 (Sept.
15, 1970), attached as Exhibit 11 to Opposition Memorandum.

25 Compare Exhibit 8 to Opposition Memorandum at 12 with Ex-
hibit 11 to Opposition Memorandum at 5.

26 Compare Exhibit 8 to Opposition Memorandum at 1-3 with
Memorandum from Jim Turner to Mr. Leonard at 1-3 (Sept. 17,
1970), attached as Exhibit 12 to Opposition Memorandum.

27 Compare Exhibit 8 to Opposition Memorandum at 13-14 with
Exhibit 11 to Opposition Memorandum at 8.

28 Compare Exhibit 7 to Opposition Memorandum at 12-16 with
Exhibit 12 to Opposition Memorandum at 2-3.

23

A motion to disqualify “should be made with prompt-
ness and reasonable diligence once the facts are known.”
Milone v. English, 306 F.2d 814, 818 (D.C.Cir. 1962) ;
see Marco v. Dulles, 169 F.Supp. 622, 682 (S.D.N.Y.
1959) (“A party making . .. a motion [to disqualify]
should do so with reasonable diligence and promptness
after the facts have become known to it.”). “This know-
ing inaction and calculated lying in wait, taken with
the hope of upsetting a future adverse decision of the
Commission, constituted a waiver of appellant’s rights.”
International Paper Co. v. FPC, 488 F.2d 1849, 1357
(2d Cir.), cert. denied, 404 U.S. 827 (1971).

In this case, the span of time is great—10 years—and
the present case does not, as discussed in Section A above,
concern the same matter as dealt with by Mr. Leonard
during his tenure at the Department of Justice a decade
ago. Even if it did, however, the Department of Justice
did not act with “reasonable diligence” in seeking Mr.
Leonard’s disqualification. This Court should note prob-
able jurisdiction to decide among other questions whether
the Government, having slept on its rights, can thereafter
expose a litigant to the costs and hardships of counsel
disqualification.”

29 As an intended consequence of disqualification, the cost and
hardship to the State will be substantial. See Allain Affidavit at 3. .

As an unintended consequence of disqualification, a precedent
has been established, that, if followed, could deprive the civil rights
movement, now and in the future, of some of its most knowledge-
able and experienced attorneys.

- Many a lawyer who has served with the government has an
advantage when he enters private practice because he has ac-
quired a working knowledge of the department in which he is
employed, has learned the procedures, the governing substan-
tive and statutory law and is to a greater or lesser degree an
expert in the field in which he was engaged.

ABA Formal Opinion 342 at 6 n.21; see Kesselhart v. United States,
555 F.2d 791, 798 (Ct.Cl. 1977) (“Attorneys having both private

’*

24

and Government experience are often better qualified to be of value
to courts, as their officers, and to their clients, public and private,
than those having one or the other experience alone.”). This is
certainly true for Assistant Attorneys General for the Civil Rights
Division—past and present. For example, civil rights legal organi-
zations are routinely involved in the litigation of matters in which
the Department of Justice has been involved. These organizations
have as members of their boards and as their past chairmen at
least three former Assistant Attorneys General for Civil Rights.

The Government’s attempt to disqualify Mr. Leonard’s entire firm
may have another substantial, perhaps unforeseen, effect. “An
overly strict approach to disqualification of the former government
attorney and especially to disqualification of his firm impairs the
client’s choice of counsel and can impair the government’s ability
to attract non-career attorneys.” Armstrong v. McAlpin, 606 F.2d
at 32.

If service with the government will tend to sterilize an attorney
in too large an area of law for too long a time, or will prevent
him from engaging in practice of the very speciality for which
the government sought his service—nd if that sterilization
will spread to the firm with which he becomes associated—the
sacrifices of entering government service will be too great for
most men to make. As for those men willing to make these
sacrifices, not only will they and their firms suffer a restricted
practice thereafter, but clients will find it difficult to obtain
counsel, particularly in those specialties and suits dealing with
the government .

United States v. Standard Oil Co. (New Jersey), 186 F.Supp. 345,
363 (S.D.N.Y. 1955) (footnote omitted) ; see Kaufman, The Former
Government Attorney and the Canons of states Ethics, 70
Harv. L. Rev. 657, 668 (1957).

To avoid an attack upon him, and injury to his client and his
law firm, the erection of a “Chinese Wall” to screen Mr. Leonard
from further participation in this litigation was proposed. “Vir-
tually all of the ethical problems that occasion the imputed dis-
qualification of the firm will be solved by adequate screening. Nor
should there remain an ‘appearance’ of impropriety, since the rele-
vant kind of appearance is one that a reasonable person, informed
of the facts, would suspect.” Lacovara, Restricting the Private
Practice of Former Government Lawyers, 20 Ariz. L. Rev. 369, 399
(1978).

25
CONCLUSION

For the foregoing reasons this Court should note prob-
able jurisdiction of this appeal.

Respectfully submitted,

/s/ Charles Morgan, Jr.

CHARLES MORGAN, JR.
EDWARD ASHWORTH
PAMELA 8S. HOROWITZ

MORGAN ASSOCIATES,
CHARTERED

1899 L Street, N.W.

Washington, D.C. 20036

(202) 466-7000

Attorneys for Appellant

Dated: January 14, 1981

CERTIFICATE OF SERVICE

I hereby certify that on the 14th day of January, 1981,
I caused three copies of Appellant’s Jurisdictional State-
ment to be deposited in the mail, first-class postage pre-
paid, to:

Solicitor General
Department of Justice
Washington, D.C. 20530

/s/ Edward Ashworth
EDWARD ASHWORTH

APPENDIX

A-1
APPENDIX

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action 79-3469

STATE OF MISSISSIPPI,
Plaintiff
V.

UNITED STATES OF AMERICA and
BENJAMIN R. CIVILETTI,
Defendants

MEMORANDUM OPINION

Before the Court is Defendants’ Motion to Disqualify
Counsel Jerris Leonard in the above captioned Voting
Rights Act litigation. The facts may be summarized as
follows:

In 1970 Mississippi attempted to enact an “open pri-
mary” voting system. In this system, all voters would
select the candidates for the general election in one pri-
mary. If a candidate received a majority of the votes in
the primary, only his or her name would appear on the
ballot in the general election. If no majority was attained,
only the two candidates receiving the greatest number of
votes would be placed on the ballot.

Mississippi’s 1970 legislation was submitted to the Jus-
tice Department for preclearance pursuant to Section 5
of the Voting Rights Act. The Assistant Attorney Gen-
eral in charge of the Civil Rights Division, Jerris
Leonard, although charged with Section 5 preclearance
responsibility, refused to object to or approve the open
primary legislation. Subsequently, suit was brought in

A-2

Mississippi to enjoin the state from employing the open
primary system. Evers v. State Bd. of Election Comm.,
327 F.Supp. 640 (S.D. Miss. 1971). That Court held
that until either the Attorney General of the United
States or the United States District Court for the Dis-
trict of Columbia approved the open primary system, it
could not be effectuated. Mississippi’s appeal to the Su-
preme Court was dismissed for procedural reasons.

In 1971 Leonard left the Justice Department. In 1974
Mississippi re-submitted the open primary plan to the
Department of Justice. Assistant Attorney General Pot-
tinger denied Section 5 preclearance. A new open pri-
mary plan was submitted to the Attorney General in 1979,
and has been rejected by the Justice Department. Missis-
sippi then commenced this litigation, seeking Section 5
preclearance of the new open primary legislation.

Former Justice Department Attorney Jerris Leonard
is currently retained by the State of Mississippi to repre-
sent the State in this action. The Justice Department
contends that it is unethical for Leonard to represent
Mississippi because of his participation in the Depart-
ment’s review of the 1970 open primary legislation. It
has therefore moved to disqualify Leonard and his law
firm from further participation in the instant case.

Canon 9 of the Code of Professional Responsibility
states that “[a] lawyer should avoid even the appearance
of professional impropriety.” Disciplinary Rule 9-101(B)
provides that “[a] lawyer shall not accept private em-
ployment in a matter in which he had substantial respon-
sibility while he was a public employee.” To apply DR 9-
101(B) to litigation before it, the Court must address the
relationship between the attorney whose conduct is ques-
tioned, his opponent, and the cause of action before the
Court. If the attorney was formerly employed by his
opponent, and the litigation consists of a matter in which
that attorney participated personally and substantially.

A-3

then the appearance of impropriety is manifest. Thus,
three questions of fact must be addressed in the instant
case, to wit: (1) was Leonard formerly employed by the
Department of Justice; (2) did he participate personally
and substantially in the Department’s review of the 1970
open primary legislation; and (3) is the 1970 legislation
the same “matter” as the 1979 open primary legislation
before the Court?

It is uncontroverted that Leonard was employed by the
Justice Department in 1970. It is also uncontroverted
that Leonard was delegated the responsibility of scruti-
nizing the 1970 open primary legislation for possible
Section 5 violations. While there may be occasions where
responsibility qua responsibility does not reflect personal
and substantial participation, this litigation is not such
an instance. Leonard not only made the decision not to
object to or approve the 1970 legislation, he also rejected
the recommendation of his aides in arriving at his deci-
sion. It is clear from the documentation presented to the
Court that Leonard was intimately involved in the De-
partment’s review of the 1970 open primary legislation.

To ascertain whether the 1979 and 1970 Acts are the
same matter for DR 9-101(B) analysis, the Court must
compare those Acts in the context of this litigation. The
Justice Department denied—and Plaintiff is seeking—
preclearance pursuant to Section 5 of the Voting Rights
Act. The major impediment to such preclearance is the
attempted implementation of an open primary system.
The primary purpose of both Acts is the implementation
of such a system, and the ultimate resolution of this case
is contingent upon our analysis of this system. While
Plaintiff has cited numerous differences between the two
Acts, these differences involve mere technicalities that
have thus far gone unchallenged by the Justice Depart-
ment. These dissimilarities cannot obscure the major
purpose of both Acts—to institute an open primary sys-

A-4

tem in Mississippi. In the attempted effectuation of this
purpose, the Acts are identical. Because the Acts are
identical in this respect, and because the open primary
system must be scrutinized in light of Section 5, the two
Acts must be considered the same matter for DR 9-
101(B) analysis.

It is thus apparent that Jerris Leonard participated
personally and substantially in the matter before the
Court while he was employed by the Department of
Justice. DR 9-101(B) therefore precludes further par-
ticipation in this action by Leonard or any member of
his law firm. An appropriate Order follows this Opinion.

/s/ Carl McGowan
CARL McGOWAN
United States Circuit Judge

/s/ Aubrey E. Robinson, Jr.
AUBREY E. ROBINSON, JR.
United States District Judge

/s/ John Garrett Penn
JOHN GARRETT PENN
United States District Judge

DATE: September 29, 1980

A-5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action 79-3469

STATE OF MISSISSIPPI,
Plaintiff
Vv.

UNITED STATES OF AMERICA and
BENJAMIN R. CIVILETTI,
Defendants
ORDER

Upon consideration of Defendants’ Motion to Disqualify
Counsel, the Opposition thereto, the entire record herein
and the Memorandum Opinion filed this date, it is by the
Court this 29th day of September, 1980,

ORDERED, that neither Jerris Leonard nor any mem-
ber of his law firm may represent the State of Mississippi
in this litigation.

/s/ Carl McGowan
CARL MCGOWAN
United States Circuit Judge

/s/ Aubrey E. Robinson, Jr.
AUBREY E. ROBINSON, JR.
United States District Judge

/s/ John Garrett Penn
JOHN GARRETT PENN
United States District Judge

A-6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 79-3469

STATE OF MISSISSIPPI,
Plaintiff
Vv.

UNITED STATES OF AMERICA and
BENJAMIN R. CIVILETTI,
Defendants.

NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES

Notice is hereby given that The State of Mississippi,
the plaintiff above named, hereby appeals to the Supreme
Court of the United States from the final order dis-
qualifying its counsel, entered in this action on Septem-
ber 29, 1980.

This appeal is taken pursuant to 28 U.S.C. § 1253.

/s/ Ronald A. Goodbread
RONALD A. GOODBREAD, ESQUIRE
Special Counsel for the
State of Mississippi

LEONARD, COHEN, GETTINGS &
SHER

1700 Pennsylvania Ave., N.W.

Suite 550

Washington, D.C. 20006

(202) 872-1095

DATE: October 28, 1980

A-7
CERTIFICATE OF SERVICE

This is to certify, that I have this day mailed, postage
pre-paid a copy of the attached notice of appeal to the
Supreme Court of the United States to:

Paul F. Hancock, Esquire
Civil Rights Division
Department of Justice
Washington, D.C. 20530

October 28, 1980

/s/ Ronald A. Guodbread
RONALD A. GOODBREAD

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1153%3A1. Public record. Not legal advice.