Amicus Curiae Brief — Landgraf v. USI Film Products

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......20..2...2......-e:csssesseeeeseeeee i

INTEREST OF THE AMICUS CURIAE ...................... 2

IT vevssmnsensepssesnccimnninannan stinieien 8

SUMMARY OF ARGUMENT ~..0000o..oeeeeeceeeeeseseeeee 5

ARGUMENT ....................... ahnneennmpeentenne 7

I. THE PRINCIPLE UPHELD IN BOWEN

REPRESENTS THE CARDINAL RULE OF

STATUTORY CONSTRUCTION GOVERNING

THE RETROACTIVE APPLICATION OF

FEDERAL CIVIL LEGISLATION ..........W....... ; 7

II. BOWEN PRECLUDES THE RETROACTIVE

APPLICATION OF NEW FEDERAL CIVIL

LEGISLATION, SUCH AS THE CIVIL

RIGHTS ACT OF 1991, WHERE NO CON-

GRESSIONAL INTENT IS CLEAR ............. 10

Ill. THE RETROACTIVE APPLICATION OF

LEGISLATION, SUCH AS THE CIVIL

RIGHTS ACT OF 1991, WHICH CREATES

NEW LIABILITIES AND DUTIES BEYOND

RESTORATIVE LAW, RESULTS IN STAG-

GERING REAL WORLD CONSEQUENCES.. 13

CSPI concsasmesernsensecensssvatasennmnsinsednniatiqnapiiastensignes 17

APPENDIX |

Excerpt of Section 1 from H.R. 5 and S. 56 .......... la

ii

TABLE OF AUTHORITIES

CASES Page

Alpo Pet Foods, Inc. v. Ralston Purina Co., 918

ee , , ..sscsumesemnecovonsnee 13

Baynes v. AT&T Technologies, Inc., 976 F.2d 1370

IS Se 13

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) ........... 16

Bowen v. Georgetown University Hospital, 488

I ricceriitnael passim

Bradley v. School Board of the City of Richmond,

TT ce passim

Crown Cork & Seal Co., 255 NLRB 14, 107 LRRM

SE 15

Davis v. Omitowoju, 833 F.2d 1155 (8rd Cir.

EISELE SEE Oe 12

DeVargas v. Mason and Hanger-Silas Mason Co.

Inc., 911 F.2d 1377 (10th Cir. 1990), cert. de-

nied, 111 8S. Ct. 799 (1991) ........... tS eT 12,14

Fray v. Omaha World Herald Co., 960 F.2d 1370

ET 7,8

Gersman v. Group Health Ass’n, 975 F.2d 886

ET 12

Gilberton Coal Co., 291 NLRB 344, 1381 LRRM

1829 (1988), enforced, 888 F.2d 1381 (3rd Cir.

ERAS ESE 2 Ns 16

Johnson v. Uncle Ben’s, Inc., 965 F.2d 1363 (5th

I scnoniauennen fi, 13

Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494

U.S. 827, 110 S. Ct. 1570 (1990) ........0.0000 -passim

Lambott v. United Tribes Educational Technical

Center, 361 N.W.2d 590 (1985) 2.00000. 16

Lehigh Metal Fabricators, 267 NLRB 568, 114

ET LE 15

Lehman v. Burnley, 866 F.2d 33 (2nd Cir. 1989).. 12

Leland v. Federal Ins. Adm’n., 934 F.2d 524 (4th

Cir.), cert. denied, 112 S. Ct. 417 (1991) ........... 12

Luddington v. Indian Bell Telephone, 966 F.2d 225

(7th Cir. 1992), petition for cert. pending, No.

STS SERIES SESS Srna ea cc a a 10,13

Mojica v. Gannett Co., 779 F. Supp. 94 (N.D. IIl.

ESE ET CRES STE Er OSS et 14

iii

TABLE OF AUTHORITIES—Continued

Mozee v. American Commercial Marine Serv. Co.,

963 F.2d 929 (7th Cir.), cert. denied, 118 S. Ct.

5 een

National Woodwork Manufacturers Ass'n v.

OE ee

NLRB v. Burkhart Foam, 848 F.2d 825, (7th Cir.

SRE a ee

NLRB v. Charles D. Bonanno Linen Serv., 782

yg fee

NLRB v. Eleo Manufacturing Co., 227 F.2d 675

(1st Cir. 1955), cert. denied, 350 U.S. 1007

Page

12

11

16

16

IY etnaiseadintasidatanta na siatestiiaantietinareiamematinlataiteeeiens 16

NLRB v. Jarm Enters, 785 F.2d 195 (7th Cir.

EEN 16

NLRB v. Mackay Radio and Telegraph Co., 304

OE 14-15, 16

NLRB v. Remington Rand, Inc., 1380 F.2d 919 (2nd

BR TEI csenicnsenensiststnenienenntncsieniinhesinbeemetentess 16

Pecheur Lozenge Co., 98 NLRB 496, 29 LRRM

1867 (1952), enforced as modified, 209 F.2d 3938,

88 LRRM 2824 (2nd Cir. 1958) —...... 16

Pension Benefit Guaranty Corp. v. R.A. Gray &

Co., 467 U.S. 717 (1984) . pmicinaaaiaattiataaes 8

Plymouth Locomotive Works, 261 NLRB 595, 110

TC 15

Simmons v. A.L. Lockhart, 981 F.2d 1226 (8th

SO TIED ncnihescenditiinentinnrttenncuimnitgtentinmmn tates 12

Society for the Propagation of the Gospel in For-

eign Parts v. Wheeler, (1814) 2 Gall. C.C.

Ee 8

Storey v. Shearson-American Ezp., 928 F.2d 159

(5th Cir. 1991) -...... 12

Trans World Airlines v. Independent Federation

of Flight Attendants, 109 S. Ct. 1225 (1989)... 15

United States v. Northeastern Pharmaceutical &

Chem. Co., Inc., 810 F.2d 726 (8th Cir. 1986),

cert. denied, 484 U.S. ee GO cenereenpeenes 12

U.S. v. Magnolia Petroleum Co., 276 US. 160

STITT conciihlntednenedcintiiiehlietaai ainda imcaanenmtens 9-10

iv

TABLE OF AUTHORITIES—Continued

Page

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1

— 7,8

Vogel v. City of Cincinnati, 959 F.2d 594 (6th

Cir.), cert. denied, 113 S. Ct. 86 (1992) 12

Vulcan-Hart Corp. v. NLRB, 718 F.2d 269 (8th

SIE cecictisiniaeesnsthisinieniaisaninaaieiiiiaiiaintaaineaiiiaitiaiieds 16

Wagner Seed Co. v. Bush, 946 F.2d 918 (D.C. Cir.

1991), cert. denied, 112 S. Ct. 1584 (1992)... 12, 13

Welch v. Henry, 305 U.S. 134 (1988) 00 8

CONSTITUTION

EIS Se TD 8

STATUTES

Ee 2

TS Se Se ee 2

er ee noe ae 15

EEE A Cn RE ae 2

EER a ae ee RE ae 18

Civil Rights Act of 1991, Pub. L. No. 102-166, 105

ne aT passim

I i 11

MISCELLANEOUS

136 Cong. Rec. $16,457 (daily ed. Oct. 22, 1990) _... 10

136 Cong. Rec. $16,589 (daily ed. Oct. 22, 1990) __.. 10

137 Cong. Rec. 815,483, $15,485 (daily ed. Oct. 30,

ES eae ee 11

187 Cong. Rec. $15,472, $15,478 (daily ed. Oct. 30,

ET SERIES SRE se ca a 11

1387 Cong. Rec. $15,485 (daily ed. Oct. 830, 1991) .... 11

Civil Rights Act of 1990: Hearing Before the

Senate Comm. on Labor and Human Resources

on S. 2104, 101st Cong., Ist Sess. (1989) .......... 10

Coil and Weinstein, Past Sins or Future Trans-

gressions: The Debate Over Retroactive Ap-

plication of the 1991 Civil Rights Act, 18 Em-

ployee Relations Law Journal 5 (1992) ............ 18

v

TABLE OF AUTHORITIES—Continued

Page

DeMars, Retrospectivity and Retroactivity of Civil

Legislation Reconsidered, 10 Ohio Northern L.

Rev. 253 (1983) 7,9

Fairness in the Workplace: Restoring the Right

to Strike: Hearing on S. 55 Before the

Subcomm. on Labor of the Senate Comm. on

Labor and Human Resources, 108rd Cong., 1st

CCE 3

H.R. 5, 108d Cong., Ist Sess., § 1, 189 Cong. Rec.

H82 (daily ed. Jan. 5, 1993) 2.0.0... passim

H.R. 4000, The Civil Rights Act of 1990: Joint

Hearing: Before the Comm. on Education and

Labor and the Subcomm. on Civil and Constitu-

tional Rights of the Comm. on the Judiciary,

101st Cong., 2d Sess. (1990) 10

Kahn, Completed Acts, Pending Cases, and Con-

flicting Presumptions: The Retroactive Appli-

cation of Legislation After Bradley, 13 George

Mason Univ. L. Rev. 231 (Winter 1990) ............ 5

Marcus, A Percolating Legal Dispute on Civil

Rights, The Washington Post, April 17, 1992,

8 SE ea eee 4

S. 55, 108d Cong., Ist Sess., §1, 139 Cong. Rec.

$191 (daily ed. Jan. 21, 1993) 0000 passim

Senate Comm. on Education and Labor, Compari-

son of S. 2926 and S. 1958, 74th Cong., 1st Sess.,

21-22 (1935), reprinted in A Legislative History

of the National Labor Reltaions Act, 1935, pp.

1819, 1846 (1985 Reprint, U.S. Government

EE Se eee 15

Smead, The Rule Against Retroactive Legislation:

A Basic Principle of Jurisprudence, 20 Minn. L.

es I CID sieteeriteriierntnsnateesitinestiunicntininetion need passim

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-757

BARBARA LANDGRAF,

» Petitioner,

USI Fi_mM PropuctTs, BONAR PACKAGING, INC.

and QUANTUM CHEMICAL CORPORATION,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

No. 92-938

MAURICE RIVERS and ROBERT C. DAVISON,

7 Petitioners,

ROADWAY ExpPREss, INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF FOR MIDWEST MOTOR EXPRESS, INC.

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

2

INTEREST OF THE AMICUS CURIAE

Midwest Motor Express, Inc. (“Midwest”) is an inter-

state motor carrier of freight located in Bismarck, ND,

operating in nine states. Midwest’s interest stems from

likely legislation pending in Congress that would create

another retroactive application problem identical to the

one under the Civil Rights Act of 1991 now before this

Court. Enactment of such legislation without a clear-cut

prospective effective date would expose Midwest to serious

threat of injury. Therefore, amicus seeks resolution by

this Court of the apparently conflicting precedents on

retroactive application of federal civil legislation.

Since August 12, 1991, Midwest has been engaged in a

labor dispute with the International Brotherhood of Team-

sters, Chauffeurs, Warehousemen and Helpers of Amer-

ica (“Teamsters”), within the meaning of the Norris-

LaGuardia Act (29 U.S.C. § 111(c)), and the National

Labor Relations Act (“NLRA”) (29 U.S.C. § 152(9)),

as applied to the Multiemployer Pension Plan Amend-

ments Act of 1980 (“MPPAA”) (29 U.S.C. § 1398).’

Nevertheless, not unlike the instant appeals under the

Civil Rights Act of 1991, a proposed amendment to the

NLRA threatens to turn Midwest’s past legal actions into

illegal ones—by retroactive application of a new law.

Legislation has been introduced in Congress to amend

the NLRA (H.R. 5 and S. 55) which contains no effective

date concerning when an employer may be prohibited

from hiring permanent replacement workers during eco-

1The Teamsters struck Midwest on August 12, 1991, after

negotiations over a new contract reached an impasse. Following

commencement of the strike, the parties resumed bargaining

with the assistance of a federal mediator, which bargaining has

continued to the date of this brief without settlement. During

the course of this labor dispute, Midwest has continued to oper-

ate only by hiring permanent replacements as it is permitted to

do under current federal law.

3

nomic (wage and benefit) strikes. The relevant identical

language of H.R. 5 and S. 55 is excerpted and attached

as Appendix A. Consequently, if that legislation passes

as currently drafted,’ and if this Court now fails to

resolve the apparent conflict between Bradley v. School

Board of the City of Richmond, 416 U.S. 696 (1974)

and Bowen v. Georgetown University Hospital, 488 U.S.

204 (1988), Midwest expects that controversy and con-

fusion similar to that engendered by the retroactive appli-

cation of the Civil Rights Act of 1991 will occur. Such

confusion is likely to result in serious adverse harm to

Midwest’s business and could subject it to unfair labor

practice charges and/or costly state litigation. See infra

at 13-17. The mere prospect of these occurrences is

jeopardizing Midwest’s ability to remain in business.

Accordingly, amicus has a vital interest in the resolu-

tion of the issues raised in this case. Amicus believes it

will bring insights and information beyond what is pre-

sented by Petitioners and Respondents, which will be

useful to the Court in deciding the issues presented.°

STATEMENT

These cases involve contradictory principles governing

the prospective application of civil laws, which conflict

this Court so far has been reluctant to resolve. Although

the principle of prospectivity dates to the Greeks and

Romans,’ it has not always been followed by this Court.

2 H.R. 5 and S. 55 were introduced in the Senate and the House

of Representatives in January 1993. H.R. 5, 108rd Cong., Ist

Sess., § 1, 189 Cong. Rec. H82, (daily ed. Jan. 5, 1993); S. 55,

108rd Cong., Ist Sess., § 1, 1389 Cong. Rec. 8191, (daily ed. Jan.

21, 1993). House and Senate floor action is eminent, and the

Clinton Administration has endorsed the legislation as drafted.

Fairness in the Workplace: Restoring the Right to Strike: Hear-

ing on S. 55 Before the Subcomm. on Labor of the Senate Comm.

on Labor and Human Resources, 103rd Cong., 1st Sess. (March 80,

1993) (statement of Robert B. Reich, Secretary of Labor).

8 This brief is filed with the written consent of the parties.

The letters of consent have been filed with the Clerk of Court.

* As begins the seminal work on the rule against retroactivity:

“The bias against retroactive laws is an ancient one.” Smead,

4

At the heart of the dispute is this Court’s holding that

a court is to apply the law in effect at the time it makes

its decision, unless doing so would result in “manifest

injustice” or there is statutory direction (or legislative

history) to the contrary. Bradley, 416 U.S. at 711. On

the other hand, this Court more recently reaffirmed that

“(Rjetroactivity is not favored in the law. Thus, con-

gressional enactments and administrative rules will not be

construed to have effect unless their language requires

this result.” Bowen, 488 U.S. at 208.

There is a compelling reason for this Court to clarify

its position and to adopt a bright-line, common-sense rul-

ing based on Bowen. As Justice Scalia urged in Kaiser

Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827,

110 S. Ct. 1570, 1579 (1990) (Scalia, J., concurring),

this Court should overrule Bradley and reaffirm the clear

intent rule, since retroactive application is “never sought

(or defended against) except as a means of ‘affecting

substantial rights and liabilities,” and even procedural

changes applied retroactively alter such rights. Jd. at

1585. Thus, this Court should heed Justice Scalia’s warn-

ing that “manifest injustice” is “just a surrogate for policy

preferences” and that justice can mean “whatever other

policy motivation might make one favor a particular

result.” Jd. at 1587.

Failure to resolve this conflict will lead to continued

examples of congressional recklessness, as demonstrated

by the instant cases under the Civil Rights Act of 1991.°

Midwest contends that the same result will occur in

The Rule Against Retroactive Legislation: A Basic Principle of

Jurisprudence, 20 Minn. L. Rev. 775, 776-85 (1936).

5Only controversy, confusion, and expensive and protracted

litigation has resulted when Congress deliberately leaves the ef-

fective date issue unresolved, as it did in the Civil Rights Act

of 1991. As of mid-1992, 49 federal courts had ruled against retro-

activity and 35 had ruled in favor of it. See Marcus, A Percolating

Legal Dispute on Civil Rights, The Washington Post, April 17,

1992, at A21,

5

federal striker replacement and other legislation, unless

the cardinal rule upheld in Bowen is reaffirmed.

SUMMARY OF ARGUMENT

Respondents ask this Court to affirm the decisions by

the Fifth and Sixth Circuits that the Civil Rights Act of

1991 does not apply retroactively. In support, Midwest

submits that the judicial chaos surrounding the retro-

active application of legislation is the result of a dramatic

departure from the historical rule against retroactivity.

Whether Bradley and Bowen can co-exist on a highly

theoretical basis is, at best, debatable. See infra note 10

and accompanying text. In practice, however, clarifying

the existing confusion necessarily depends on rejecting the

irreconcilable precept which Bradley has been held to

Support that it is not unjust, in most cases, to apply new

civil legislation retroactively.

The Supreme Court must find Bradley is applied

wongly as a “presumption” in favor of retroactivity when-

ever a new liability altering the position of private liti-

gants and parties is involved, whether substantive or pro-

cedural rights are implicated. See Kahn, Completed

Acts, Pending Cases, and Conflicting Presumptions: The

Retroactive Application of Legislation After Bradley, 13

George Mason Univ. L. Rev. 231, 239-40 (Winter 1990).

To this extent, the Supreme Court should overrule Brad-

ley and reaffirm the long-standing rule of statutory con-

struction that federal civil legislation only applies pros-

pectively, unless there is a clear legislative intent to the

contrary. Ambiguity—either intentional or unintentional

—must be resolved in favor of the prospective application

of legislation.

Moreover, Petitioners’ interpretation of Bradley repre-

sents a blatant departure from the fundamental principles

of fairness inherent in the clear intent rule upheld in

Bowen. Accordingly, Petitioners’ analysis stands wholly

outside of the implicit constitutional and relevant policy

factors which this Court must weigh in deciding these

6

cases. Under Petitioners’ view, judicial review, Congress’

role, and fairness each is undermined.

First, Petitioners erroneously assume that Respondents

have acted wrongly in order to argue that Respondents

have no “vested right to do wrong.” Rivers v. Roadway,

Pet. Brf. at 29; Landgraf v. USI Film Products, Pet. Brf.

at 31. Second, Petitioners unpersuasively argue that the

plain meaning of the Civil Rights Act of 1991 demon-

strates a clear congressional intent to apply the law retro-

actively. Third, Petitioners move beyond the pale and

assert that, under Bradley, any law (whether procedural

or substantive) must be presumed retroactive based upon

whatever label, political spin or policy preference the pre-

vailing members of Congress place on the law, regard-

less of its effect on private parties or “what the original

Statute actually meant.” Rivers v. Roadway, Pet. Brf. at

38. In Petitioners’ view, if Congress labels a statute re-

medial or restorative, there is no room for judicial scru-

tiny.” Landgraf v. USI Film Products, Pet. Brf. at 29-33;

Rivers v. Roadway, Pet. Brf. at 35-39. This Court must

reject each of these specious arguments.

Rather than merely a judicial premption useful in in-

terpreting ambiguous legislation, Bowen moreover, repre-

sents the cardinal rule of statutory construction in de-

termining the retroactive application of legislation. By

clarifying Bowen as such, this Court will preserve the

appropriate burdens and roles of the legislature and the

judiciary, including the historical and proper role of judi-

cial review as a check on the power of the legislature

unfairly to render laws retroactive.

® Ironically, the one type of law historically not forbidden by

the American principle of prospectivity was the “curative” law

validating past acts that otherwise would have been void. But

even curative laws that impaired vested rights or otherwise

worked an injustice to parties were condemned by the American

principle. See Smead at 786, n.36.

7

ARGUMENT

I. THE PRINCIPLE UPHELD IN BOWEN REPRE-

SENTS THE CARDINAL RULE OF STATUTORY

CONSTRUCTION GOVERNING THE RETROAC-

TIVE APPLICATION OF FEDERAL CIVIL LEG-

ISLATION

As Justice Scalia’s concurring opinion in Bonjorno re-

veals, the principle that laws and customs should apply

only to future transactions unless expressly stated that

they apply either to past conduct or to pending trans-

actions dates to the Greeks and Roman law. Bon-

jorno, 110 S. Ct. at 1586; Fray v. Omaha World Herald

Co., 960 F.2d 1370, 1374 (8th Cir. 1992). The prin-

ciple, originally one of “natural law” which became a

legal maxim under English law, was applied as a rule of

Statutory construction, and so found its way into Ameri-

can law.’ In the United States, however, largely as a

result of judicial review, this rule of statutory construc-

tion was combined with the concept of “vested rights”

and “justice” to become a part of the concept of justice

and a limitation on legislative power." See Smead at

776-85.

Thus, the American principle of prospectivity has

operated to protect vested rights by invalidating or nar-

rowing the application of statutes that might have applied

retrospectively. These included statutes that expressly

TAs in England, retroactive American laws were held to be

oppressive and unjust, and it was maintained that the essence of

law was that it be a rule for the future. Smead at 780, n. 21.

8In addition to being a rule of statutory construction in Amer-

ican law, the American courts added a judicial limitation on the

constitutional ability of a legislative body to alter pre-enactment

rights and conduct. Judicial scrutiny is an important component

of the American constitutional system which controls legislative

behavior. See, e.g., Usery v. Turner Elkhorn Mining Co., 428

U.S. 1, 14-20 (1976). See also DeMars, Retrospectivity and Retro-

activity of Civil Legislation Reconsidered, 10 Ohio Northern L.

Rev. 253 (1983).

8

were enacted to take effect from a time prior to their

passage, as well as statutes that were to operate from

the time of their passage, but affected vested rights and

past transactions. See Smead at 781-787, n.35. The

fundamental notion has been and should be that, in most

cases, it is unjust to apply new civil legislation retro-

spectively.

The rule against retroactivity thus embodies American

constitutional notions of fairness and due process. Today,

these factors must be considered by Congress and the

courts in determining the validity of civil legislation which

Congress explicitly makes retroactive. See, e.g., Pension

Benefit Guaranty Corp. v. R. A. Gray & Co., 467 USS.

717 (1984) (rejecting a Fifth Amendment due process

challenge to a federal statute that retroactively imposed

liability on employers who withdrew from multiemployer

pension plans); Turner Elkhorn, 428 U.S. 1. There-

®The prohibition included retrospective laws as defined by

Mr. Justice Story in Society for the Propagation of the Gospel in

Foreign Parts v. Wheeler, (1814) 2 Gall. C.C. 105:

.. .. Upon principle, every statute, which takes away or im-

pairs vested rights acquired under existing law, or creates a

new obligation, imposes a new duty, or attaches a new dis-

ability in respect to transactions or considerations already

past, must be deemed retrospective. .. .

10The Supreme Court has found the rational basis standard to

be equivalent to the standard applied in Welch v. Henry, 305 U.S.

134, 147 (1938), where the Court held that a retroactive tax was

constitutional unless its application was so “harsh and oppressive”

as to violate due process. R.A. Gray, 467 U.S. at 738. This standard

requires that there be a rational connection between the legisla-

tion’s purpose and its retroactive effect. It is consistent with the

rule against the retroactive application of legislation where Con-

gressional intent is not explicit or clear. In the latter case, a

statute need not be invalidated, but simply applied prospectively.

Arguably, the Bradley presumption in favor of retroactivity ab-

sent “manifest injustice” arose from cases in which retroactivity

was explicit or clearly intended but “injustice” resulted. See

Bonjorno, 110 S. Ct. at 1584. Theoretically, in this very limited

context, Bradley remains viable. See also Fray, 960 F.2d at 1374

(Bradley did not “silently sweep away the traditional principle’).

9

fore, when Congress makes a statute expressly retroac-

tive, presumably it has reviewed these considerations and

has resolved the inherent tensions involving fundamental

fairness.

Accordingly, it is incongruous to suggest that legisla-

tion not explicitly made retroactive should be presumed

to be retroactive, and then reviewed perfunctorily based

upon a standard (such as Petitioners’ conclusory reme-

dial scheme), that ignores the fundamental issue of fair-

ness which is the cornerstone of the historical rule of

statutory construction against retroactivity. See DeMars

at 264-272 (because the vested rights—remedial scheme

approach utilizes analytically conclusive terms, it does not

lead a court to consider the question of fairness which is

also basic to the issue of statutory retrospectivity).

In particular, as with the Civil Rights Act of 1991,

where Congress considered and rejected explicit retroac-

tive application and failed to reach a consensus on its in-

tent, after reviewing the requisite constitutional considera-

tions, no finding of retroactivity is justified or should be

compelled. See infra at 10-12.

Therefore, Midwest submits that the rule reiterated

in Bowen is not only that prospectively must be up-

held in the absence of clear intent, but further, that

prospectivity must govern in determining clear intent when

retroactivity is not explicit. Thus, to the extent that

Bradley establishes a presumption in favor of retroactiv-

ity in the absence of clear intent or in determining clear

intent, Bradley is wrong and should be overruled.

Accordingly, Midwest urges this Court te find that the

cardinal rule of statutory construction in determining the

retroactive application of federal civil legislation is the

principle (and not merely the “presumption”) that leg-

islation must be applied prospectively, unless Congress

specifically provides to the contrary. See Smead at 781

n.22; U.S. v. Magnolia Petroleum Co., 276 U.S. 160,

162 (1928) (“statutes are not to be given retroactive

10

effect or construed to change the status of claims fixed

in accordance with earlier provisions unless the legisla-

tive purpose to do so plainly appears”). But see Lud-

dington v. Indiana Bell Telephone, 966 F.2d 225, 228

(7th Cir. 1992), petition for cert. pending, No. 92-977

(dictum) (prospectivity “is resolved, but not all the way”

because we are “speaking only of a presumption” against

retroactivity). Only in concert with this paramount rule,

can ancillary rules of construction utilized by the courts

to determine statutory meaning and legislative intent (i.c.,

plain meaning) effectively operate without injury to the

historical notions of fairness and justice upon which the

principle is based.

Il. BOWEN PRECLUDES THE RETROACTIVE AP-

PLICATION OF NEW FEDERAL CIVIL LEGISLA-

TION, SUCH AS THE CIVIL RIGHTS ACT OF 1991,

WHERE NO CONGRESSIONAL INTENT IS CLEAR

The express retroactive provisions of the Civil Rights

Act of 1990 stirred much debate and disagreement as

Congress grappled with concerns of fairness and consti-

tutionality." President Bush vetoed the 1990 act,” and

Congress failed to override the veto. 136 Cong. Rec.

$16,589 (daily ed. Oct. 22, 1990). In 1991, the bill's

sponsors dropped the express retroactive provisions in

order to gain acceptance and, instead, inserted language

providing that “the amendments made by this Act shall

11 See, e.g., H.R. 4000, The Civil Rights Act of 1990; Joint Hear-

ing: Before the Comm. on Education and Labor and the Sub-

comm. on Civil and Constitutional Rights of the Comm. on the

Judiciary, 101st Cong., 2d Sess. (1990); Civil Rights Act of

1990: Hearing Before the Senate Comm. on Labor and Human

Resources on S. 2104, 101st Cong., 1st Sess. (1989).

12 President’s Message to the Senate Returning Without Ap-

proval the Civil Rights Act of 1990, 26 Weekly Comp. Pres. Doe.

1632-84 (Oct. 22, 1990), reprinted in 136 Cong. Rec. $16,457,

$16,458 (daily ed. Oct. 24, 1990).

11

take effect upon enactment.” § 402 (a), 105 Stat.

1099. Arguably, this language explicitly states that the

Act applies prospectively. Alternatively, the inference of

Congress’ action is that prospectivity is intended. See

e.g., National Woodwork Manufacturers Ass'n v. NLRB,

386 U.S. 612, 640 (1967).

Because of its contradictory legislative history, how-

ever, the 1991 provision leaves open whether the law

applies retroactively to cases pending on the date of enact-

ment or whether the law applies only prospectively to

future cases."* Clearly, the Act was passed without

agreement on the issue, and apparently various mem-

bers of Congress hoped this Court would resolve the

known conflicting legal authorities in Bradley and Bowen

in their favor. Congress thereby intentionally left its

meaning unresolved. Thus, Petitioners’ argument that the

plain meaning of the Civil Rights Act of 1991 compels

retroactivity fails. See Johnson v. Uncle Ben’s, Inc., 965

F.2d 1363, 1372-1373 (Sth Cir. 1992).

In Bonjorno, the Supreme Court simply reaffirmed that

“where the congressional intent is clear, it governs.”

Bonjorno, 110 S. Ct. at 1577. But enactment of an

ambiguous statute such as the Civil Rights Act of 1991,

On November 21, 1991, President Bush signed the Civil Rights

Act of 1991. Pub. L. No. 102-166, 105 Stat. 1071 (1991). In

ada..ion to reversing several Supreme Court decisions, the Act

made substantial substantive and procedural changes including

changes in adjudicator (jury) and damages (compensatory and

punitive damages) .

™ See 137 Cong. Rec. $15,483, $15,485 (daily ed. Oct. 30, 1991)

(interpretive memorandum submitted by Sen. Danforth, the bill’s

Republican sponsor, arguing against retroactivity); 187 Cong.

Rec. $15,472, $15,478 (daily ed. Oct. 30, 1991) (interpretive

memorandum submitted by Sen. Dole arguing against retroac-

tivity) ; 137 Cong. Rec. $15,485 (daily ed. October 30, 1991) (in-

terpretive memorandum by Sen. Kennedy, the bill’s Democratic

sponsor, arguing for retroactivity by characterizing the law as a

“restoration of a prior rule”). Notably, no sponsor characterized

the legislation as merely procedural or remedial.

12

or a silent statute such as the proposed federal striker

replacement legislation, can defy any meaningful attempt

to discern congressional intent. Under these circum-

stances, the historical constitutional underpinnings of

American law require that Bowen prevail as the cardinal

rule of statutory coustruction, not merely as “presump-

tion” to be utilized in deciding among competing policy

considerations. In effect, reaffirming the Bowen clear

intent rule would ensure that, in the future, Congress will

deliberate and provide clear intent on the retroactive appli-

cation of any legislation that contains potential constitu-

tional and fairness concerns.” Therefore, because noth-

ing in the Civil Rights Act of 1991, or its legislative his-

tory, expresses a clear congressional mandate requiring

retroactive application, the statute must not apply to pend-

ing cases.”°

15 While the clear intent rule does not require that Congress

make explicit its intent to apply a statute retroactively, it does

require that Congress make its intent clear. Bonjorno, 110 S. Ct.

at 1577. Hence, the cardinal rule against retroactivity may be

superseded only by express statutory language or by implication

when the statute “requires” it, ie., when limiting the statute to

prospective application would render it completely ineffective by

defeating its entire purpose. See e.g., United States v. Northeastern

Pharmaceutical & Chem. Co., Inc., 810 F.2d 726, 733 (8th Cir.

1986), cert. denied, 484 U.S. 848 (1987) (in order to be effective,

CERCLA had to reach past conduct).

16 Not surprisingly, the large majority of circuit courts have

applied the Bowen “presumption” against retroactivity finding no

clear expression of legislative intent to the contrary. See Lehman

v. Burnley, 866 F.2d 33, 37 (2nd Cir. 1989); Davis v. Omitowoju,

833 F.2d 1155, 1170-1171 (3rd Cir. 1989); Leland v. Federal Ins.

Adm’n., 934 F.2d 524, 528-529 (4th Cir.), cert. denied, 112 S. Ct.

417 (1991); Storey v. Shearson-American Exp., $28 F.2d 159, 161-

162 (5th Cir. 1991); Vogel v. City of Cincinnati, 959 F.2d 594,

597-598 (6th Cir. 1992); Mozee v. American Commercial Marine

Serv. Co., 963 F.2d 929, 936 (7th Cir.), cert. denied, 113 S. Ct. 207

(1992) ; Simmons v. A.L. Lockhart, 931 F.2d 1226, 1230 (8th Cir.

1991); DeVargas v. Mason and Hanger-Silas Mason Co. Inc., 911

F.2d 1877, 1392 (10th Cir. 1989), cert. denied, 111 S. Ct. 799

(1991) ; Gersman v. Group Health Ass'n, 975 F.2d 886, 900 (D.C.

Cir. 1992); Wagner Seed Co. v. Bush, 946 F.2d 918, 924 (D.C.

13

III. THE RETROACTIVE APPLICATION OF LEGISLA-

TION, SUCH AS THE CIVIL RIGHTS ACT OF 1991,

WHICH CREATES NEW LIABILITIES AND DU-

TIES BEYOND RESTORATIVE LAW, RESULTS

IN STAGGERING REAL WORLD CONSEQUENCES

The Civil Rights Act of 1991 significantly expands

both 42 U.S.C. Section 1981 and Title VII | the Civil

Rights Act of 1964 to include new causes of action as

well as new classes of plaintiffs. The enhanced remedies

for intentional discrimination under Title VII in effect

create new liabilities for sexual harassment in situations

that do not involve tangible job detriments, such as “hos-

tile environment” cases in which the plaintiff suffered no

specific adverse employment action that resulted in eco-

nomic harm. Monetary damages were never available be-

fore in such cases under Section 1981 or Title VII.

Rights under Section 1981 are extended to post-formation

contractual relationships. In effect, conduct insufficient

to impose liability on employers before the Act was

passed, may now be enough to result in a finding of dis-

crimination against those same employers. Coil and

Weinstein, Past Sins or Future Transgressions: The De-

baie Over Retroactive Application of the 1991 Civil

Rights Act, 18 Employee Relations Law Journal 5, 6

(1992); see e.g., Baynes v. AT&T Technologies, Inc.,

976 F.2d 1370, 1374-1375 (1922); Luddington, 966

F.2d at 229.

Nevertheless, Petitioners argue that the Civil Rights

Act of 1991 affects only procedure or remedies, and thus

should be applied retroactively." In addition to preclud-

ing a meaningful analysis of fairness, a key problem with

this approach is that the label applied to a particular

Cir. 1991), cert. denied, 112 S. Ct. 1584 (1992); Alpo Pet Foods,

Ine. v. Ralston Purina Co., 913 F.2d 918, 922-923 (Fed. Cir. 1990).

If Congress had, in fact, intended only to restore prior law

or to provide remedial rights that did mot create new liabilities,

Midwest submits it could have written language to achieve that

limited result, See Johnson, 965 F.2d 1363,

14

change may not reflect whether the change alters Sub-

stantive rights or conduct. The label becomes a pol-

icy” tool for proponents of retroactive legislation. See

Bonjorno, 110 S. Ct. at 1585.

Petitioners also argue that, because one purpose of

the Civil Rights Act of 1991 was Congress’ intent to

overturn recent Supreme Court decisions on discreet em-

ployment law issues, retroactivity must be presumed. See

Rivers v. Roadway, Pet. Brf. at 35-39. While a few

courts, grappling with the conflict between Bradley and

Bowen, have held that retroactive application of a new

law is appropriate where Congress clearly intended to

overrule recent case law and restore the law to its former

state, other courts reject this approach as too speculative.

See Mojica v. Gannett Co., 779 F. Supp. 94, 97 (N.D.

Ill. 1991) (retroactive application of the Civil Rights

Act of 1991 upheld in part on the basis that the Act was

meant to “restore” prior law); but see DeVargas, 911

F.2d at 1387. By reaffrming Bowen as the cardinal rule

of statutory construction against retroactivity, this Court

would eliminate the expansive dangers inherent in Peti-

tioners’ approach. Only prospective application of a new

law would be appropriate, absent a clear congressional

intent to apply a statute retroactively in order to restore

recent prior law.

The potential unfair application of likely federal striker

replactment legislation to Midwest’s ongoing labor dis-

pute starkly demonstrates the absurdity of Petitioners

position. Under Petitioners’ interpretation of Bradley,

the mere conclusory characterization (albeit erroneous )

of federal striker replacement legislation as “restorative

would result in the retroactive application of legislation

to Midwest."

18 Proponents of H.R. 5 and S. 55 are characterizing the legis-

lation as “restorative law” designed to overturn the Supreme

Court’s decisions in NLRB v. Mackay Radio and Telegraph Co.,

15

This result could require the National Labor Relations

Board (“NLRB”’) to find that Midwest retroactively com-

mitted an unfair labor practice by hiring some permanent

replacements after August 12, 1991 under the newly

amended law.'* See Attachment A for proposed language

of H.R. 5 and S. 55 adding 29 U.S.C. § 158(a)(6).

Moreover, such a result could turn the current labor

dispute on its head by converting the Teamsters strike

against Midwest from an economic strike into an unfair

304 U.S. 333 (1938), and Trans World Airlines v. Independent

Federation of Flight Attendants, 109 S. Ct. 1225 (1989). See

note 2 supra, at 3. The legislative history of the NLRA conclu-

sively refutes this position and demonstrates that the changes

sought by H.R. 5 and S. 55 would alter the long-standing legal

right of an employer to permanently replace economic strikers af-

firmed under the NLRA. The legislative history of the Wagner

Act of 1935 (the original NLRA) preserved the right of an

employer to hire replacements, whether permanent or temporary.

Although the Wagner Act did not address the issue directly, a U.S.

Senate Education and Labor Committee memorandum regarding

the Wagner bill states:

[The bill] provides that the labor dispute shall be “current,”

and the employer is free to hasten its end by hiring a new

permanent crew of workers and running the plant on a normal

basis .... The broader definition of “employee” in [the bill]

does not lead to the conclusion that no strike may be lost or ~

that an employer may not hire new workers, temporary or

permanent, at will.

See Senate Comm. on Education and Labor, Comparison of S. 2926

and S. 1958, 74th Cong., 1st Sess. 21-22 (1935), reprinted in A

Legislative History of the National Labor Relations Act, 1935, pp.

1319, 1346 (1985 Reprint, U.S. Government Printing Office).

* Ironically, while the Board may not issue a complaint based

upon conduct occurring more than six months before filing and

service of the charge (29 U.S.C. § 160(b)), the six month limita-

tions period does not begin to run until] the party adversely af-

fected receives actual or constructive notice of the unfair labor

practice. See Lehigh Metal Fabricators, 267 NLRB 568, 114

LRRM 1064 (1983); Plymouth Locomative Works, 261 NLRB

595, 110 LRRM 1155 (1982); Crown Cork & Seal Co., 255 NLRB

14, 107 LRRM 1195 (1981). .

16

labor practice strike. See NLRB v. Burkart Foam, 848

F.2d 825 (7th Cir. 1988); NLRB v. Jarm Enters, 785

F.2d 195 (7th Cir. 1986); NLRB v. Charles D. Bonanno

Linen Serv., 782 F.2d 7 (1st Cir. 1986); Vulcan-Hart

Corp. v. NLRB, 718 F.2d 269 (8th Cir. 1983). The

most significant aspect of an unfair labor practice strike

is that strikers are entitled to reinstatement to their for-

mer positions upon an unconditional offer to return to

work. Pecheur Lozenge Co., 98 NLRB 496, 29 LRRM

1367 (1952), enforced as modified, 209 F.2d 393, 33

LRRM 2324 (2nd Cir. 1953). In effect, the economic

strikers would be entitled to reinstatement if the NLRB

were to find that Midwest commited an unfair labor prac-

tice which had the effect of prolonging the economic

strike (i.e., that hiring permanent replacements presump-

tively prolonged Midwest’s strike). See Vulcan-Hart

Corp., 718 F.2d 269; Gilberton Coal Co., 291 NLRB

344, 131 LRRM 1329 (1988), enforced, 888 F.2d 1381

(3rd Cir. 1989). These strikers would have to be re-

instated even though Midwest hired permanent replace-

ments. See Mackay, 304 US. 333.

Moreover, Midwest would be required to terminate its

current permanent replacements, even though they were

legally hired. See NLRB v. Elco Manufacturing Co.,

227 F.2d 675 (ist Cir. 1955), cert. denied, 350 U5.

1007 (1956); NLRB v. Remington Rand, Inc., 130 F.2d

919 (2nd Cir. 1942). Midwest’s picture could become

even more oppressive because the terminated permancot

replacement workers could sue Midwest for breach of

contract and misrepresentation .n North Dakota state

court upon their discharge to make room for reinstate-

ment of the economic strikers. See Belknap, Inc. v. Hale,

463 U.S. 491 (1983).” The weight of such multiple

2 The Supreme Court of North Dakota has upheld similar breach

of contract suits. See Lambott v. United Tribes Educational Tech-

nical Center, 361 N.W.2d 590 (1985).

ee ee

17

litigation alone could force Midwest o i

ut of business. In-

deed, the real world consequences to Midwest of apply-

ing federal striker replacement legislation retroactively

under Bradley based upon mere labels could be staggering.

. Therefore, it is in determining a gressi

intent that judicial review and the sciasisie al oe

embodied in the rule of statutory construction against

retroactivity become imperative. Petitioners segregate

this critical analysis entirely from the determination of

the plain meaning” and “clear intent” of the statute by

misinterpreting Bradley to require the retroactive appli-

‘cane 7 new federal civil legislation which is labeled

ural” or “restorative”. i

this argument is untenable. a

CONCLUSION

Because of the conflicting principle in B

retroactivity is not unjust and rs cane oy My

open for Congress to pass federal civil legislation (such

as the Civil Rights Act of 1991 and the proposed federal

striker replacement legislation), without resolving its a

plicability to current disputes. While such a state of

confusion may enable Congress to pass controversial leg-

islation, it improperly allows Congress to shift the burden

of deciding the issue of retroactivity onto private litigants

and the courts at an exorbitant cost.

Therefore, this Court should guide the

and restore judicial order and ce, 1 ee pA

Congress to provide clear intent, and should preserve the

important, long-standing origins and purpose of the cardi-

nal rule of statutory construction against retroactivity.

The Court would accomplish all of these objectives by

reaffirming Bowen and overruling Bradley. Absent ex-

= retroactive language or clear congressional intent,

oe must apply only prospectively. This is the

ght-line, common-sense rule needed to restore funda-

mental fairness to the concept of retroactivity.

6

district which had 26.7 percent African-American voting

age population.” Senate District 40 is 34.5 percent

African-American VAP and included much of Representa-

tive Jones’ House District.”

Testimony at trial forecast that District 40 would elect

an African-American Senator.’ Based on the evidence,

the district court found as a fact that Senate District 40

“performs as a third African-American district without

adversely affecting Hispanics in the Dade County area.”

J.S. App. 66a.

In the November 1992 elections, Senate District 40,

which the district court termed “a strong African-American

influence district,” J.S. App. 64a, did, in fact, elect an

African-American Senator, Daryl Jones."

SUMMARY OF ARGUMENT

In this consolidated appeal of three separate lawsuits,

not a single party challenges the district court’s findings

of a Section 2 violation in the Senate districts in Dade

County with respect to African-American plaintiffs. These

issues are not before the Court and, in any event, the

findings were not clearly erroneous.

8 Id.

97d,

Testimony of Leon Russell, first vice president of the Florida

State Conference of NAACP Branches. Vol. UI Tr. 136 (Daryl

Jones, an African-American, will win Senate District 40); testi-

mony of Representative Willie Logan, Chairman of the Florida

Caucus of Black State Legislators, Vol. III Tr. 147.

' Although the November 1992 election results occurred post-

trial and therefore are not in the trial record, this Court can take

judicial notice of the certified copy of relevant pages from Elections

1992; State of Florida Official General Election Returns: Nov. 8,

1992, Fla. Dept. of State, Div. of Elections (hereinafter “1992

Official General Election Returns”) which is attached as an Appen-

dix to this brief. Brown v. Piper, 91 U.S. 87, 42 (1875) (judicial

notice taken of the election of senators).

7

Failure to conduct a remedy hearing was error. The

limited evidence of remedy at the liability trial was not

sufficient to permit the court below to throw up its hands

and declare that no remedy was possible. If, after a full

remedial hearing, it appears that complete relief can be

only accorded to one minority group, it should be that

minority group which the court below finds to be the most

historically disadvantaged in the affected political unit,

here African-Americans in the Dade County area.

The proceedings in the Florida Supreme Court were

expressly “without prejudice” to later assertion of Voting

Rights Act claims that the state court’s limited review

neither resolved nor provided opportunity to resolve. Ques-

tions about “influence” districts, citizen voting age popu-

lation (CVAP) and sustained electoral success necessary

to prove a defense of proportional representation under

Thornburg v. Gingles, 478 U.S. 30 (1986), are not neces-

sary to the decision by the Court and, if reached, do not

in any event affect the liability determination in favor of

African-American plaintiffs arising out of the Senate dis-

tricts in Dade County.

ARGUMENT

I. THE DISTRICT COURT CORRECTLY FOUND LIA-

BILITY UNDER SECTION 2 OF THE VOTING

RIGHTS ACT IN FAVOR OF AFRICAN-AMERICAN

PLAINTIFFS.

Although there was initial confusion in the district court

about its liability holding, this confusion was dispelled

by the court’s opinion. J.S. App. 72a. As clarified, the

district court found violations of Section 2 of the Voting

Rights Act with respect to the Senate districts in Dade

County, but on the record before it declined to order a

remedy.

As to the determination of liability to African-American

plaintiffs under Section 2 of the Voting Rights Act, the

court below was clearly correct and amply supported by

8

the record.'* None of the consolidated appeals before

this Court challenges those findings of fact or that con-

clusion of law.

To the extent that several amici’ contend that proof

of the three threshold Gingles factors does not conclu-

sively establish a Section 2 violation, this argument mis-

states the district court’s holding “that the plaintiffs have

satisfied each of the three elements Gingles requires and

that when considered together with the Senate factors,

the ‘totality of circumstances’ show that with respect to

Florida’s Senate plan, Hispanic and African-American

vote dilution exists in Dade County in violation of § 2

of the Voting Rights Act.” J.S. App. 30a (emphasis

supplied). Even more to the point, amici may not raise

questions not presented by the parties. United Parcel

Service, Inc. Vv. Mitchell, 451 U.S. 56, 60 n.1 (1981),

Bell v. Wolfish, 441 U.S. 520, 532 n.13 (1979). Since

none of the parties has challenged the findings of Section

2 violations with respect to vote dilution of African-

Americans in Senate districts, the amici may not do so."

There was initial confusion below about the proper

interplay of liability and remedy in the context of mul-

tiple—and perhaps competing—Section 2 claims in a con-

solidated lawsuit. Ultimately, the district court got it

right—a plaintiff does not carry the burden in its liability

case to prove the efficacy of any particular remedy. Noth-

ing in the language of the Voting Rights Act of 1965 as

amended,”* the Senate report explaining the 1982 amend-

12 See the United States’ brief, at 6-7.

'S Brief amicus curiae of Anti-Defamation League of B’Nai

B’rith at 10 et seq.; Brief amici curiae of the American Jewish

Congress et al. at 41.

™ Although the brief of the American Jewish Congress does

not list a “Question Presented,” it is apparent from topic heading

III B and its entire argument that it is directly attacking this

Court’s plurality opinion in Thornburg v. Gingles, supra.

19 42 U.S.C. §§ 1978 et seq.

9

ments,’® or this Court’s decision in Thornburg v. Gingles,

supra, imposes that additional burden on plaintiffs—or

even contemplates it.

Such a result would be bad law and worse policy. If

plaintiffs were required to prove remedy as an additional

element of the liability case, it would contravene in large

part this Court’s prior holdings that the State must be

given the first opportunity to submit a plan that remedies

a Section 2 violation.'’ Sound considerations of the proper

boundaries between legislative and judicial branches vest

in the legislature the duty to choose among competing

political values in drawing boundaries not otherwise re-

quired to redress legal violations. Moreover, as a practical

matter, it is usually the State in the first instance that

has access to superior data and computer technology to

draw political boundaries to redress legal violations.

Accordingly, the liability determination should be

affirmed.

Il. REMEDIAL PROCEEDINGS WERE NECESSARY.

The district court did not hold a remedial hearing on

the Senate districts.’* Instead, it relied upon some of the

evidence that had been introduced at the liability stage

in order to support its conclusion in regard to remedy.

The error here is manifest. If courts could dispense at

will with remedial proceedings, particularly without ad-

vance notice to the parties, the liability phases of these

already-complicated redistricting proceedings would be

turned into a jumble of confusing evidence, as parties

tried to make certain that they anticipated and dealt with

every possible remedy in the event the court decided to

forego the second stage.

—

16S Rep. No. 417, 97th Cong., 2d Sess. (1982).

17 Connor Vv. Finch, 431 U.S. 407, 414-15 (1977); Chapman Vv.

Meier, 420 U.S. 1, 27 (1975); Wise v. Lipscomb, 437 U.S. 535,

540 (1978) (opinion of White, J.).

18]t held a short, same-day non-evidentiary proceeding on the

House remedy.

10

There are valid reasons for a two-stage approach to

redistricting. First, neither the courts nor the parties

should have to spend valuable resources dealing with

remedies unless it is clear—and the courts have already

held—that there is liability. This necessarily means a

two-stage process.

Second, although new evidence will undoubtedly be

introduced, the parties at the remedial proceeding should

also be able to build upon, explain or rebut the evidence

relating to remedy tangentially introduced at the liability

stage. This is not possible if the liability stage is on-going

at the time the remedial evidence is submitted.

Third, holding a separate remedial hearing will give the

parties time to develop and present various workable plans

that the courts can then consider in light of the entire

record. The problems inherent in the alternative approach

are apparent from the instant record: during the liability

stage, after a very short time to think about the matter,

the NAACP representative was not able to construct a

plan that he thought would accommodate both the His-

panic and African-American interests. This dilemma may

have been subsequently solved, however, after more re-

flection and computer work-time could be devoted to the

task. All of this confusion could easily have been avoided

if the district court had made clear from the outset that

remedies would not be addressed until after liability had

been either proved or disproved.

The district court’s remedial conclusion, although de-

fensible if in the expedited context of a motion for pre-

liminary injunction, is particularly suspect here where the

court below denied a same-day motion for reconsidera-

tion that presented it with the very 4-3 plan that the

court had found was not possible. JA 482. In truth,

the 4-3 plan in all likelihood would have been proved

possible and in any event should have been the subject

of remedial proceedings.

In closing argument, counsel for the NAACP suggested

the appropriate remedial course for the district court to

follow:

11

Now, for the sake of argument, assuming that this

Court actually is faced with two viable claims in

South Florida, how is this Court to resolve that prob-

_lem? Of course, in an ideal world, the Court could

simply order the drawing of four majority Hispanic

districts and three majority black districts for the

Senate. /f it is possible to accomplish that solution,

the NAACP supports that solution. NAACP does

not seek to come into this Court and advance a claim

on behalf of its members at the expense of another

minority group.

1 Bg * *

On the other hand, what happens if this Court ulti-

mately concludes that a 4 3 solution for the Senate

in South Florida is not possible? What if there really

are two viable and competing and mutually exclusive

claims? And I submit to Your Honor that the solu-

tion at that point is to in effect give the edge to the

minority group that has demonstrated historically the

greatest difficulty in achieving political empowerment

in South Florida. And I submit to Your Honor that

the record is clear that that is African-Americans.

From the Congressional trial this Court has before

it Census data that is replete with evidence that in

South Florida, in areas of jobs and housing and edu-

cation and health care, blacks are very, very seriously

disadvantaged and comparably more disadvantaged

than are Hispanic groups. The record also is replete

with evidence that the Hispanic population in South

Florida is growing much more rapidly than the black

population of South Florida, thereby making it ever

more difficult for blacks to elect their candidates of

choice. [JA 475-76 (emphasis supplied). ]

This is still the NAACP position: if a plan can be

devised, as here, where both minority groups can be ac-

commodated, that should be done; but in a situation

where the two plans really are mutually exclusive, the

advantage should be given to the historically most dis-

advantaged of the two groups, which in this case was the

12

African-American group. This approach provides a bright-

line test that the NAACP respectfully commends to this

Court as preferable to the district court’s conclusion of

violations for which there is no remedy.

The NAACP is not seeking in this Court an outcome

as appellee that “would result in greater relief than was

awarded . . . by the District Court.” Barry v. Varchi,

443 U.S. 55, 69 n.1 (1979). As explained by the court

below, J.S. App. 65a, the State plan created, in effect, a

third African-American district in Senate District 40 that

subsequently elected African-American Daryl Jones in

November 1992.

In any event, while this Court certainly can provide

guidance to the district court on the subject of mutually-

exclusive remedies, we submit that the entire subject of

remedies should be decided in the first instance by the dis-

trict court at a remedial hearing after all parties are

given an opportunity to appear and be heard.

Ill. THIS COURT NEED NOT REACH ANY HYPO-

THETICAL QUESTION ABOUT “INFLUENCE”

DISTRICTS.

As noted above, in November 1992 the voters of

Florida Senate District 40 elected Daryl Jones, an

African-American, to the State Senate.’ Florida Senate

District 40 is thus more than an “influence” district. The

court below correctly found as a fact that African-

Americans could elect a candidate of their choice in that

district. It is a district today represented by an African-

American Senator.

In light of this electoral development. the NAACP

respectfully suggests that this case is not an appropriate

vehicle for abstract speculation about “influence” districts.

The entire discussion by the United States at pages 16-18

19 Appendix at 3a.

13

of its brief, therefore, need not be addressed.” Here, as

in Voinovich,” Growe™ and Gingles,” hypothetical ques-

tions about influence districts can be preserved for

another day and a proper case where they are directly

presented.

IV. THE DISTRICT COURT PROPERLY DEFERRED

JURISDICTION UNDER GROWE vy. EMISON UN-

TIL STATE PROCEEDINGS WERE CONCLUDED.

Anticipating this Court’s decision in Growe v. Emison,

supra, the district court stayed this action until the con-

clusion of all state proceedings. The district court was

clearly correct.

Any suggestion that the NAACP and others might be

barred by res judicata or collateral estoppel by virtue of

the Florida Supreme Court's proceedings misconstrues

the limited review by that court. There was no full and

fair opportunity to litigate the NAACP’s Voting Rights

Act claims in the two proceedings there. Allen v. Mc-

Curry, 449 U.S. 90 (1980). Indeed, as outlined below,

the Florida Supreme Court said so expressly.

The proceedings in the Florida Supreme Court were

original actions, by the state attorney general, pursuant

to article III, section 16(c) of the Florida Constitution.

That section mandates a judgment by the Florida Su-

preme Court within thirty days regarding the validity of

*° The NAACP also agrees with the United States’ earlier brief

in opposition to motion to dismiss or affirm, No. 92-767 at pp. 9-10,

that “[t\he difficult questions concerning the definition and legal

status of influence districts in Section 2 litigation were not fully

developed in this litigation . . .” and with its suggestion that “[t]he

need to address those questions can be obviated by remanding the

case to the district court for appropriate remedial! proceedings.”

Id. at 10.

21 Voinovich V. Quilter, 113 S.Ct. 1149, 1157-58 (1998).

22 Growe V. Emison, 113 S.Ct. 1075, 1084 n.5 (1998).

*3 Gingles, 478 U.S. at 46-47 n.12.

14

a reapportionment plan. In its May 13, 1992 decision,

the Florida Supreme Court acknowledged:

At the same time, it is impossible for us to conduct

the complete factual analysis contemplated by the

Voting Rights Act, as interpreted in Thornburg v.

Gingles, within the time constraints of article III, sec-

tion 16(c). . . . Any decision which requires con-

sideration of facts that are unavailable in our analy-

sis will have to be resolved in subsequent litigation,

as explained later in this opinion. [/n re Constitution-

ality of Senate Joint Resolution 2G, Special Appor-

tionment Session 1992, 597 So. 2d 276, 282 (Fla.

1992 ).]

The court’s holding was specifically “without prejudice

to the right of any protestor to question the validity of the

plan by filing a petition in this Court alleging how the

plan violates the Voting Rights Act.” /d. at 285-86. This

“without prejudice” language means that there was no

adjudication on the merits of the Voting Rights Act is-

sues and thus no res judicata effect, as this Court has

recognized. Cooter & Gell v. Hartmarx Corp., 496 U.S.

384, 396 (1990). The NAACP chose to litigate in fed-

eral court, which had concurrent jurisdiction. J.S. App.

16a.

Subsequently. when the United States Department of

Justice did not preclear Florida’s reapportionment under

Section 5 of the Voting Rights Act and the Florida leg-

islature reached impasse, the Florida Supreme Court,

pursuant to the Florida Constitution, adopted a revised

Florida reapportionment plan that resolved the Section 5

objections. The limited nature of the second Florida Su-

preme Court proceeding was emphasized by its Chief

Justice, who stressed that “this Court’s review in the

present proceeding is limited in scope to DOJ’s section 5

preclearance inquiry. . . .” In re Constitutionality of

Senate Joint Resolution 2G, Special Apportionment Ses-

sion 1992, 601 So. 2d 543, 548 (1992) (Shaw, C.J.,

specially concurring ).

15

Neither res judicata nor collateral estoppel is therefore

applicable here.

Vv. PROPORTIONAL REPRESENTATION IS NOT AN

ABSOLUTE DEFENSE.

Proportional representation is neither an absolute floor

nor an absolute ceiling under Section 2 of the Voting

Rights Act. The Act itself expressly disclaims that pro-

portional representation is any type of floor for equal

political opportunity for minorities. 42 U.S.C. § 1973(b).

Neither is proportional representation, without evidence

of sustained electoral success, a ceiling on equal political

opportunity. This Court so held in Thornburg v. Gingles,

478 U.S. at 77 (opinion of Brennan, J.); id. at 102

(O'Connor, J., concurring in judgment) (“I agree with

Justice Brennan that consistent and sustained success by

candidates preferred by minority voters is presumptively

inconsistent with the existence of a § 2 violation”) (em-

phasis supplied ).

The statutory test under Section 2(b) requires exam-

ination of the “totality of the circumstances.” As this

Court stated in Gingles:

Section 2(b) provides that “[t]he extent to which

members of a protected class have been elected to of-

fice . . . is One circumstance which may be consid-

ered.” 42 U.S.C. $ 1973(b). The Senate Committee

Report also identifies the extent to which minority

candidates have succeeded as a pertinent factor. S.

Rep. at 29. However, the Senate Report expressly

States that “the election of a few minority candidates

does not ‘necessarily foreclose the possibility of dilu-

tion of the black vote,” noting that if it did, “the

possibility exists that the majority citizens might

evade [$ 2] by manipulating the election of a ‘safe’

minority candidate.” /d., at 29, n. 115 [citations

omitted]. The Senate Committee decided, instead, to

““‘require an independent consideration of the rec-

cord,’”’ S.Rep. 29, n. 115. The Senate Report also

16

emphasizes that the question whether “the political

processes are ‘equally open’ depends upon a search-

ing practical evaluation of the ‘past and present real-

ity.” Jd., at 30 (footnote omitted). Thus, the lan-

guage of § 2 and its legislative history plainly demon-

Strate that proof that some minority candidates have

been elected does not foreclose a $2 claim. [478

U.S. at 75.]

Applying the “totality of circumstances” test, this Court

in Gingles held that sustained electoral success in the last

six elections that resulted in proportional representation

of African-American residents in House District 23 was a

successful defense negating any allegation of unequal op-

portunity to elect representatives of choice by African-

Americans. /d. at 77. This Court rejected the conten-

tion of appellants “that if a racial minority gains pro-

portional or nearly proportional representation in a single

election, that fact alone precludes, as a matter of law,

finding a § 2 violation.” Jd. at 75 (emphasis supplied).

Similarly here, in the absence of a showing of sustained

electoral success, proportional representation is but one

factor in the totality of circumstances to be taken into

account. The court below considered the evidence, gave

it proper weight and committed no error.”

Since proportional representation is not an absolute de-

fense but only one of several factors in the “totality of

circumstances”, issues as to its measurement (i.e., total

population, VAP or CVAP) take on less importance in

this case and may well vary from case to case depending

on local circumstances. The measurement issue was left

open by this Court in Growe v. Emison, 113 S.Ct. at

1083 n.4.

24 The court considered evidence both statewide and with respect

to the Dade County area. Both are part of the “totality of circum-

stances”; House appellants unduly emphasize County statistics alone.

With respect to African-Americans, the court below made extensive

statewide findings about past discrimination in Florida against

African-Americans. See, e.g., J.'S. App. 53a-54a.

17

In this case, the district court made detailed findings

of fact about the use of VAP,* the need for a Hispanic

supermajority VAP to take into account lower citizen and

registration rates,” and the use of a lower majority VAP

for African-Americans reflecting recent increases in

African-American turnout and voter registration.”” The

court, noting the unavailability of CVAP data, heard tes-

timony of estimates of noncitizenship among Hispanics,

found certain estimates to be unreliable,** and relied in-

stead on an analysis of past election results by Dr. Licht-

man to estimate noncitizen rates.*”

In short, the district court did precisely what this Court,

in Gingles, indicated had to be done. It made careful

factual findings about the impact of non-citizenship.

There is no need for this Court to reach, much less re-

verse, those findings.

25 J.S. App. 31a et seq.

26 1.8. App. 32a et seq.

27 J.A. App. 39a-40a.

28 J.S. App. 74a (Vinson, J., concurring).

2° J.S. App. 75a (Vinson, J., concurring).

18

CONCLUSION

The NAACP respectfully submits, for the reasons set

forth above, that the liability findings of the district court

should be affirmed, the permanent remedial plan should

be vacated and remanded for a full evidentiary hearing,

and this Court should not reach or decide hypothetical

issues about influence districts and CVAP.

Respectfully submitted,

DENNIS COURTLAND HAYES E. BARRETT PRETTYMAN, JR.

WILLIE ABRAMS JOHN C. KEENEY, JR.

NAACP SPECIAL CONTRIBUTION (Counsel of Record)

FUND HOGAN & HARTSON

4805 Mount Hope Drive 555 Thirteenth Street, N.W.

Baltimore, Maryland 21215 Washington, D.C. 20004-1109

(410) 358-8900 (202) 637-5600

HARRY L. LAMB, JR. CHARLES G. BURR

Perry & LAMB, P.A. 442 W. Kennedy Boulevard

605 E. Robinson Street Suite 300

Orlando, Florida 32801 Tampa, Florida 33606

(407) 422-5758 (813) 253-2010

Counsel for Appellee

Florida State Conference of NAACP Branches