Opposition Brief — Quilter v. Voinovich

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Supreme Court, U.S.

FILED

IN THE

Supreme Court of the United States

aca OCTOBER TERM, 1997

BARNEY QUILTER, et al.,

a" Appellants,

GEORGE V. VOINOVICH,

Governor of the State of Ohio, et al.,

Appellees.

Appeal from the United States District Court

for the Northern District of Ohio

BRIEF IN OPPOSITION TO MOTION TO AFFIRM

PAUL G, HALLINAN

Counsel of Record

THOMAS R. KRAEMER

FARUKI GILLIAM & IRELAND P.L.L.

600 Courthouse Plaza, S.W.

10 North Ludlow Street

Dayton, Ohio 45402

(937) 227-3746

THOMAS I. ATKINS

135 Eastern Parkway

No. 11B(1)

Brooklyn, New York 11238

(718) 638-4153

Attorneys for Appellants

SERED NTRS MN ELL LE AGERE ITO TATE EE, OE LEIS RTE A Tak SEI SFT

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

I. THE COURT SHOULD DENY APPELLEES’

MOTION TO AFFIRM BECAUSE THE IS-

SUES PRESENTED TO AND NECESSARILY

DECIDED BY THE DISTRICT COURT IN-

VOLVE IMPORTANT AND UNRESOLVED

QUESTIONS OF CONSTITUTIONAL LAW,

NOT QUESTIONS OF FACT ......0........ 2

Il. RATHER THAN SUMMARILY AFFIRM THE

DISTRICT COURT’S DECISION ON ISSUES

OF STANDING, THIS COURT SHOULD AD-

DRESS APPELLANTS’ STANDING ARGU-

MENTS AND CLARIFY THE RELATION-

SHIP OF INJURY TO THE BRIGHT-LINE

RULE ANNOUNCED IN UNITED STATES v.

Ill. THE LEGAL AND FACTUAL ASSERTIONS

IN APPELLEES’ MOTION TO AFFIRM ARE

ATED cert esenitin kiemsnpetaniiontdanicdineitinsianianapantes 6

CE be scetipiindrndenctninhdnaaiSicsccpApiiatnabaaacecaactioiatinkh 8

TABLE OF AUTHORITIES

CASES Page

Bush v. Vera, 517 U.S. 952, 116 S. Ct. 1941

CRO ccaccisiisincikedeasis elicited laa alee eee sties 1-2, 3

In re Voinovich, 511. U.S. 1126, 114 S. Ct. 2156

CIOGEY ccciicicctcccnddieneetc daa 1

Mandel v. Bradley, 432 U.S. 178, 97 S. Ct. 2238

5 yp Pes ane rear RUN Sod is A Ra hin age glee Seed etna 5

Quilter v. Voinovich, 912 F. Supp. 1006 (N.D.

Cin SOS i 4,8

Quilter v. Voinovich, 981 F. Supp. 1032 (N.D.

OT AE OG SER OR e 3,7

Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. “1894

Ss ORE aia DA Rs Seca Saha 52S Ree eee 2,3

Shaw v. Reno, 509 U.S. 630, 113 S. Ct. 2816

Bo . | RMP T eH t SEE SHENG FIL ER TA 7

United States v. Hays, 515 U.S. 737, 115 S. Ct.

BOG) CIRNG) aa ee, 5

Voinovich v. Ferguson, 63 Ohio St. 3d 198, 586

Re Be. | RR Md Rony en eee 7

Voinovich v. Quilter, 507 U.S. 146, 113 S. Ct. 1149

CRODD ics oceasptcbiedccd te cea eas 1

Voinovich v. Quilter, U.S. ——, 116 S. Ct

I TD sical es cate 2

STATUTES

GD UI BRA & BTW nvosiccccksctchartndecitn idea teria 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-988

BARNEY QUILTER, et ai.,

“ Appellants,

GEORGE V. VOINOVICH,

Governor of the State of Ohio, et al.,

Appellees.

Appeal from the United States District Court

for the Northern District of Ohio

BRIEF IN OPPOSITION TO MOTION TO AFFIRM

Contrary to Appellees’ assertion at page 1 of their

Motion to Affirm, this is actually the fourth time that this

litigation has been before this Court. However, on each

prior occasion it was the Appellees, not Appellants, who

petitioned this Court to review and reverse the decisions

rendered below.’ Only now, after a newly constituted

1 First, on March 11, March 25, April 1 and May 26, 1992,

Appellees noticed their appeals of various decisions rendered by

the District Court below. This Court delivered its opinion on those

appeals on March 2, 1993. Voinovich v. Quilter, 507 U.S. 146, 113

S. Ct. 1149 (1993). Second, on April 20, 1994, Appellees unsuccess-

fully sought a writ of mandamus in response to the District Court’s

order granting Appellants’ motion for leave to file a second amended

complaint. In re Voinovich, 511 U.S. 1126, 114 S. Ct. 2156 (1994).

Third, on August 17, 1995, Appellees noticed their appeal from the

District Court’s entry of judgment in favor of the Appellants.

This Court subsequently remanded this action for reconsideration

in light of its opinions issued in Bush v. Vera, 517 U.S. 952, 116

panel in the District Court (including one Judge who has

never heard any evidence in this case) voted 2-1 to

reverse the District Court’s prior decision in Appellants’

favor, do Appellees seek summary affirmance and cav-

alierly assert that this case “presents no issue worthy of

plenary review.” Motion to Affirm, p. 1.

The unsettled legal issues before the Court are no less

worthy of its attention now than before, and are even

more worthy due to the District Court’s misguided crea-

tion and application of an erroneous legal standard in an

important area of constitutional law.” The Appellees’

Motion to Affirm therefore should be denied.

I. THE COURT SHOULD DENY APPELLEES’ MO-

TION TO AFFIRM BECAUSE THE ISSUES PRE-

SENTED TO AND NECESSARILY DECIDED BY

THE DISTRICT COURT INVOLVE IMPORTANT

AND UNRESOLVED QUESTIONS OF CONSTITU-

TIONAL LAW, NOT QUESTIONS OF FACT

Appellees’ arguments are noteworthy for their nearly

exclusive emphasis on Appellees’ view of the underlying

facts of this litigation. Given the current procedural

posture, this emphasis is misplaced.

It is undisputed that, acting upon remand from this

Court,* the District Court below did nothing more than

S. Ct. 1941 (1996) and Shaw v. Hunt, 517 U.S. 899, 116 S. Ct.

1894 (1996) (“Shaw II”). Voinovich v. Quilter, —— U.S. :

116 S. Ct. 2542 (1996). Fourth, and finally, this appeal, the first by

Appellants, was noticed to obtain review of the District Court’s

reversal of its prior decision, and the entry of judgment in Appel-

lees’ favor, on remand.

? Jurisdictional Statement, pp. 9-22. Appellees neither attempted

to defend nor even mentioned the new legal standard crafted by

the District Court, but instead limited their argument to a blanket

assertion that the District Court “did not commit any error.” Motion

to Affirm, p. 12 (emphasis omitted). This surprising silence can

only be interpreted as an implicit acknowledgment that the District

Court’s newly-created legal standard is not defensible.

U.S. ——, 116 S. Ct. 2542 (1996).

3 Voinovich v. Quilter,

reconsider its earlier decision (rendered in favor of Ap-

pellants) in view of this Court’s decisions in Bush v.

Vera, 517 U.S. 952, 116 S. Ct. 1941 (1996) and Shaw

v. Hunt, 517 U.S. 899, 116 S. Ct. 1894 (1996) (“Shaw

IT’). The District Court considered no new evidence and

limited its analysis to the legal questions presented:

“Because we focus on application of the legal analy-

sis outlined by the Supreme Court in recent cases, we

will not revisit the facts and procedural history of

this case in detail. ... On remand, we have limited

our consideration to the effect of Bush and Shaw II

on our previous analysis and holding. We have not

considered any new evidence; we therefore readopt

our previous factual findings, as outlined in the

vacated opinion, to the extent that they are findings

of fact and not conclusions of law . . . and to the

extent that they are relevant to the threshold analysis.”

Quilter v. Voinovich, 981 F. Supp. 1032, 1035 (N.D.

Ohio 1997), App. la at la-3a.

Moreover, the opinion below was authored by newly-

appointed Circuit Judge Karen Nelson Moore, who was

assigned to the panel only after the last-evidentiary hear-

ing in this case. As a result, Judge Moore heard no evi-

dence in the case and relied instead upon the District

Court's prior findings of fact.

Since the District Court reached two starkly different

conclusions based upon the same set of facts, its change

of position can be explained only in terms of the legal

implications of this Court’s decisions in Bush and Shaw 11.

Accordingly, in bringing this appeal, Appellants properly

focused their arguments upon the District Court’s inter-

pretation and application of these decisions, not upon the

facts. Jurisdictional Statement, pp. 17-23.

Appellees’ misplaced emphasis on the facts of this case,

and their conspicuous failure to address the District

Court’s newly-created legal standard, reveals the fatal flaw

in their position: rather than argue that the District Court

should be summarily affirmed because it correctly decided

the legal issues before it, Appellees insist that regardless

of the District Court’s (erroneous) interpretation of the

law, this Court should summarily affirm its decision be-

cause Appellees believe they should win on the facts

anyway.

This argument is unpersuasive not only because the

facts were not contested in the proceedings on remand,

but also because there is no reason to believe tha he

facts necessarily dictate any result in Appellees’ or

when the proper legal standard is applied. Indeed, prior

to this Court’s decisions in Shaw II and Bush, it was the

Appellants who prevailed on the facts ‘—and those facts

have not changed since the last decision of the District

Court was rendered before remand. As demonstrated by

the District Court’s contrary decision reached upon the

same set of facts after remand, the dispositive issues be-

fore the Court go to the legal standards that should be

applied to the facts, not to the facts themselves. If the

District Court erred in applying its newly-created legal

standard—and, remarkably, Appellees do not contest Ap-

pellants’ arguments in this regard—then there is no guar-

antee that application of the correct legal standard will

favor Appellees.

Thus, Appellees are not seeking a summary affirmance

of the District Court’s application of existing law to the

facts of this case—the precise issue presented to and

necessarily decided by that Court. Instead, they ask this

Court to apply Appellees’ generalized assessment of Bush

and Shaw II to Appellees’ view of the facts of this case,

without briefing, oral argument or a written opinion, and

to conclude that if the District Court had applied the cor-

rect legal standard (whatever that may be), then the

Appellees would have prevailed.

* Quilter v. Voinovich, 912 F. Supp. 1006 (N.D. Ohio 1995),

App. 63a.

This Court should decline Appellees’ invitation to deter-

mine and apply important and uncertain issues of consti-

tutional law without briefing, oral argument, or an opinion

explaining its decision. Given that both sides have pre-

vailed at some point in the District Court based upon the

same set of facts, it is apparent that it is this Court’s

opinions in Bush and Shaw II, rather than Appellees’

revisionist rendition of the facts of this case, that should

be dispositive. Accordingly, notwithstanding the limited

precedent that would be set by a summary affirmance,°

such an affirmance reasonably might be interpreted as

concluding that the District Court correctly created and

applied a new legal standard, because the “precise issue[ ]

presented and necessarily decided”, Mandel v. Bradley,

432 US. 173, 176, 97 S. Ct. 2238, 2240 (1977), was

the effect of this Court’s decisions in Bush and Shaw II.

The likelihood that a summary affirmance upon the facts

will be misinterpreted in this manner by apportioning

bodies, courts and commentators, warrants the denial of

Appellees’ Motion to Affirm.

Il. RATHER THAN SUMMARILY AFFIRM THE

DISTRICT COURT’S DECISION ON ISSUES OF

STANDING, THIS COURT SHOULD ADDRESS

APPELLANTS’ STANDING ARGUMENTS AND

CLARIFY THE RELATIONSHIP OF INJURY TO

THE BRIGHT-LINE RULE ANNOUNCED IN

UNITED STATES v. HAYS

Contrary to the Appellees’ assertions,° Appellants have

not attempted to avoid this Court’s bright-line standing

rule announced in United States v. Hays, 515 U.S. 737,

745, 115 S. Ct. 2431, 2436 (1995). Jurisdictional State-

5 “Because a summary affirmance is an affirmance of the judgment”

only, the rationale of the affirmance may not be gleaned solely from

the opinion below.” Mandel v. Bradley, 482 U.S. 173, 176, 97 S. Ct.

2238, 2240 (1977). Summary affirmances do, however, “prevent

lower courts from coming to opposite conclusions on the precise

issues presented and necessarily decided.” Jd.

8 Motion to Affirm, p. 26.

ment. p. 25. Instead, after acknowledging the existence

of *_. bright-line standing rule, Appellants offered specific

reasons why this Court should reconsider that rule and, in

particular, why it should clarify the relationship between

the bright-line rule and the constitutional injury that under-

lies standing in this area. 7d. at 24-25.

Given the concern expressed by a number of com-

mentators who have pointed out conceptual difficulties

with the existing bright-line standing rule, id. at 25, re-

consideration of this rule will provide this Court with an

opportunity to clarify the theory behind it, and thereby

to provide a conceptual framework for lower courts to

apply when addressing new issues in the area of standing.

Thus, the Court should decline Appellees’ request for

summary affirmance of the District Court’s ruling in regard

to issues of standing.

Ill. THE LEGAL AND FACTUAL ASSERTIONS IN

APPELLEES’ MOTION TO AFFIRM ARE UN-

RELIABLE

In the course of disposing of Appellees’ Motion to

Affirm, this Court should be aware that certain of the

factual and legal statements in that Motion are inaccurate.

The five items addressed below do not constitute a com-

prehensive listing of such errors, but they are indicative

of the unreliable character of the Motion to Affirm.

First, Appellees claim that Appellants have “falsely

asserted” that their original complaint alleged “ ‘that the

Board’s conscious use of race in redistricting violated the

Voting Rights Act . . ., and the Fourteenth and Fifteenth

Amendments to the United States Constitution.’” Motion

to Affirm, p. 3 n.3 (quoting Jurisdictional Statement,

p. 4). In fact, Appellants’ original complaint did plead

violations of the Voting Rights Act, 42 U.S.C. § 1973,

and the Fourteenth and Fifteenth Amendments of the

United States Constitution, and it specifically alleged:

“Under the pretense of complying with the Voting Rights

Act, the Defendants drew legislative boundary lines on a

race-conscious basis... .” D.1, € 32 (emphasis added).

Thus, Appellants have objected to the Appellees’ conscious

use of race throughout this litigation, even though they

did not amend their complaint to assert a Shaw claim

until after that kind of claim was first articulated in this

Court’s decision in Shaw v. Reno, 509 U.S. 630, 113

S. Ct. 2816 (1993).

Second, in regard to Appellees’ insistence that Tilling’s

notes are irrelevant because his model plan was never

adopted, Motion to Affirm, pp. 7-8, 18-19, the District

Court below adopted findings of fact to the contrary.’

Third, in regard to Appellees’ suggestion that the Dis-

trict Court issued its opinion on August 11, 1995 “not-

withstanding Appellees’ prior perfection of their appeal to

this Court,” Motion to Affirm, p. 9, this appeal was pre-

mature because the District Court had not yet entered final

judgment. Jurisdictional Statement, p. 6. Thus, that

appeal had not been properly “perfected.”

Fourth, in regard to Appellees’ argument that a decision

issued by the Ohio Supreme Court conclusively proves

that the challenged redistricting plan comports with the

requirements of the Ohio Constitution, Motion to Affirm,

pp. 4-5, 16 n.15, that Court’s short per curiam opinion

addressed only Senate District 32, which is not one of the

districts challenged in this litigation. Voinovich v. Fergu-

son, 63 Ohio St. 3d 198, 200, 586 N.E.2d 1020, 1021

(1992). Indeed, the District Court expressly held that

this Ohio Supreme Court opinion “neither precludes this

court’s consideration of the defendants’ attention to tradi-

tional districting principles with regard to HD 31, HD 39,

HD 44, and HD 49, nor mandates a particular finding by

this court.” Quilter, 981 F. Supp. at 1047, App. 1a at 29a.

Finally, in regard to Appellees’ lengthy discussion of the

so-called Bennett letter, Motion to Affirm, p. 20 & n.18,

7™“'W Je readopt the description of Tilling’s notes and the finding

that they are ‘probative’ of the defendants’ consideration of race,

but we do not adopt the characterization of that consideration as

‘predominant’ under the now-relevant Supreme Court standards.”

Quilter, 981 F. Supp. at 1035, App. la at 3a.

Appellants merely noted without comment that in his dis-

senting opinion, Judge Nathaniel R. Jones pointed to this

letter as constituting direct evidence supporting the Appel-

lants’ position. Jurisdictional Statement, p. 23 n.28. For

the reasons stated earlier in this brief, Appellants have

declined to argue the facts and instead have properly

focused their arguments on the proper legal standard to

be applied to uncontested findings of fact.

CONCLUSION

For the reasons set forth above and in Appellants’

Jurisdictional Statement, this Court should either:

(1) summarily reverse the judgment below and remand

for entry of judgment in Appellants’ favor in accordance

with the District Court’s prior opinion in Quilter v. Voino-

vich, 912 F. Supp. 1006 (N.D. Ohio 1995), App. 63a; or

(2) note probable jurisdiction and reverse the decision

of the District Court.

Respectfully submitted,

PAUL G. HALLINAN