Opposition Brief — Foreman v. Dallas County

Supreme Court, U.S.

LY MAR - 8 900

No. 99-1334

CLERK

In The

Supreme Court of the United States

+

B. C. FOREMAN, IDA CLARK, OTIS TARVER,

LOUIS DAVIS, AND MANDY PESINA,

Petitioners,

DALLAS COUNTY, TEXAS; COMMISSIONERS COURT

OF DALLAS COUNTY, TEXAS; LEE F. JACKSON,

DALLAS COUNTY JUDGE; JIM JACKSON, JOHN

WILEY PRICE, MIKE CANTRELL, AND KENNETH

MAYFIELD, DALLAS COUNTY COMMISSIONERS;

AND BRUCE SHERBET, ELECTIONS

ADMINISTRATOR OF DALLAS COUNTY, TEXAS,

Respondents.

°

BRIEF IN OPPOSITION

°

C. Ropert HEATH

Counsel of Record

Lisa R. Eskow

BicKERSTAFF, HEATH, SMILEY, POLLAN,

Kever & McDaniet, L.L.P.

816 Congress Avenue, Suite 1700

Austin, Texas 78701-2443

(512) 472-8021

(512) 320-5638 [Fax]

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Sener We PUN 5 86 oe hE on iii

ON OE We OO es ee. 1

Reasons for Denying the Writ ..................... 2

I.

II.

The Primary Question on Which Foreman Asks

the Court to Grant Certiorari Is Not Presented in

Wee NN a eral rsh ieweink eee ho

A.

Foreman prevailed in the Fifth Circuit on the

catalyst doctrine’s viability post-Farrar.

There is no adverse ruling for this Court to

NN ee bs haiie'n OES 5 4 Coe ea bosc bab eckeccas

The record does not support Foreman’s

attempt to circumvent the absence of adver-

sity by claiming that the Fifth Circuit's

explicit application of the catalyst theory

was, in reality, an implicit rejection of the

Boo cy, Te Ee A) Cy ene

Conspicuously absent from the petition is

any mention of the novel third-party catalyst

theory under which Foreman claims to have

rte ce OE EA PRE IDE OEE

The Facts of this Case Do Not Present the Second

Question on Which Foreman Asks the Court to

Grant Certiorari - Whether Plaintiffs in a Section

5, Voting Rights Act, Enforcement Action Prevail

by Forcing Defendants to Replace an

Unprecleared, Discriminatory Procedure with a

Precleared, Non-Discriminatory One ...........

ii

TABLE OF CONTENTS -— Continued

Page

A. The record contains no determination that

any procedure used by Dallas County in the

appointment of election judges was either

discriminatory or non-discriminatory ...... 13

B. As this Court previously found, the record in

this case is insufficient to establish whether

the October 1996 procedure required pre-

PP ere err e yy egy ee 14

CIO 4. kia o's che ke on bee es coool ee 15

oe men

iii

TABLE OF AUTHORITIES

Page

Cases

Bread Political Action Comm. v. Federal Elec. Comm.,

ag ba we ake kek kee As 60 'sa's esos 7

El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473

eet lc Wew wickin dis hos 0000 nua dae ce kes 6

Farrar v. Hobby, 506 U.S. 103 (1992)......... ai ae We Bh

Foreman v. Dallas County, 521 U.S. 979 (1997)...... 6, 14

Foreman v. Dallas County, 990 F. Supp. 505 (N.D.

CAS ewe it AN hapa he Kew hab os 60.08 a oe,

Friends of the Earth, Inc. v. Laidlaw Envl. Servs, Inc.,

Se Se 4, 12

Hensley v. Eckerhart, 461 U.S. 424 (1983)............. 10

Hewitt v. Helms, 482 U.S. 755 (1987)...... 2, 6, 9, 10, 11

Institutionalized Juveniles v. Secretary of Pub. Wel-

poe, wae wae wer (owe Cie, 1965)... 2... 2.2 cn eee 7, 8

Lopez v. Monterey County, Cal., 519 U.S. 9 (1996)..... 13

Maher v. Gagne, 448 U.S. 122 (1980) ................. 10

New York v. O'Neill, 359 U.S. 1 (1959) ......... ‘£22, 3

Pembroke v. Wood County, 981 F.2d 225 (5th Cir.

I CRG hess a46a sodas evens aces.en ses te0 ees 11

Perkins v. Matthews, 400 U.S. 379 (1971) ............. 13

Rhodes v. Stewart, 488 U.S. 1 (1988).................. 10

S-1 & S-2 v. State Bd. of Educ., 513 U.S. 876 (1994) ..... 3

S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49 (4th Cir.

ik teas shea eahas kebab un eves 3

iv

TABLE OF AUTHORITIES —- Continued

Page

Texas State Teachers Ass'n v. Garland Indep. Sch.

iat. SEP TES. FR AAD ba ci tewcev ens tenatewaxcus 10

Watkins v. Fordyce, 7 F.3d 453 (5th Cir. 1993) ........ 11

STATEMENT OF THE CASE

The recitation of facts in the Fifth Circuit’s opinion

provides an objective and complete statement of the case,

and Dallas County’ believes it is an appropriate summary

on which this Court can rely. The “Statement” in Fore-

man’s? petition is generally accurate; however, some cor-

rection and amplification is necessary.

First, Foreman speaks of the plaintiffs’ goal “to force

[Dallas County] to adopt a racially and ethnically non-

discriminatory . . . method [of appointing election

judges]” and claims that attainment of this goal entitles

him to attorneys’ fees. Pet. at 4; see also Pet. at 2, 5. While

Foreman’s personal goal may have been to have Dallas

County adopt a new procedure for appointing election

judges, that is not what he sought in his lawsuit and is

nowhere reflected in the record. As the Fifth Circuit

stated, this alleged goal was “relief which was never

demanded, or even made clear, in the plaintiff's com-

plaint.” Pet. App. at 12a.

Second, Foreman claims to have prevailed in 1997

when this Court determined that the case had been

improperly dismissed and then remanded for the district

court to address the merits. Pet. at 5. The case, however,

1 Defendants/Respondents Dallas County, the Commi-

ssioners Court of Dallas County, the five members of the

commissioners court, and the Dallas County Elections

Administrator will be referred to collectively as “Dallas

County.”

2 Petitioners/Plaintiffs B. C. Foreman and four other

individuals will be referred to collectively as “Foreman.”

became moot before the three-judge district court could

rule on the merits.3

When the district court considered Foreman’s request

for an award of attorneys’ fees, it relied on Hewitt v.

Helms, 482 U.S. 755, 760 (1987), and held that this Court’s

interlocutory ruling did not confer prevailing party status

on Foreman. Pet. App. at 40a. Foreman did not challenge

that adverse finding by cross-appeal in the Fifth Circuit.

As a result, any claim based on alleged success in the

1997 interlocutory appeal was not presented to the Fifth

Circuit and is not before this Court.

¢

REASONS FOR DENYING THE WRIT

I. The Primary Question on Which Foreman Asks the

Court to Grant Certiorari Is Not Presented in this

Case.

Foreman urges the Court to grant certiorari to resolve

whether Farrar v. Hobby, 506 U.S. 103 (1992), repudiated

the catalyst theory for purposes of awarding attorneys’

fees to prevailing civil rights plaintiffs. See Pet. (“Ques-

tions Presented”). That question, however, is not pre-

sented in this case.

3 The district court dismissed the case “in part as moot and

in part on the merits.” Foreman v. Dallas County, 990 F. Supp. 505,

515 (N.D. Tex. 1998) (three-judge court). The court determined

that the case was moot except for the plaintiffs’ claim for lost

election fees totaling $207. It then determined it had no

authority to award lost election fees and dismissed that portion

of the suit on the merits.

A. Foreman prevailed in the Fifth Circuit on the

issue of the catalyst doctrine’s viability

post-Farrar. There is no adverse ruling for this

Court to review.

Consistent with the majority of circuits, the Fifth

Circuit assumed the continued vitality of the catalyst

theory post-Farrar. Pet. App. at 10a. The court simply

held that the Foreman plaintiffs failed to prove that they

were prevailing parties under established catalyst theory

standards. See id. (“Assuming, without deciding, that the

catalyst theory still applies in this Circuit, the facts of this

case do not support a finding that plaintiffs were prevail-

ing parties under 42 U.S.C. § 1973l(e).”). Far from render-

ing an opinion that “squarely conflicts with rulings of

most other circuits,” as Foreman would have this Court

believe, Pet. at 14, the Fifth Circuit aligned itself with the

majority of circuits that recognize the catalyst theory as a

viable measure of prevailing party status. In other words,

Foreman prevailed on this threshold legal issue in the Fifth

Circuit. Because Foreman suffered no adverse ruling, the

issue is not presented for review. Anything the Court

could write on the issue would be dicta.

The Fifth Circuit neither caused, nor exacerbated, a

circuit split on the question of whether the catalyst theory

remains viable post-Farrar. The Fourth Circuit remains

the only Circuit to have held that the catalyst theory no

longer exists. See S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49,

51 (4th Cir.) (en banc). This Court denied certiorari in that

case. See S-1 & S-2 v. State Bd. of Educ., 513 U.S. 876 (1994).

Recently, this Court acknowledged that the continued

viability of the catalyst theory remains an open question

post-Farrar. See Friends of the Earth, Inc. v. Laidlaw Envl.

Servs, Inc., ___ U.S. ___, 120 S. Ct. 693, 711 (2000) (citing

circuit decisions addressing the catalyst theory post-Far-

rar).4 The Court declined to resolve the issue in Friends,

explaining that since the district court had neither

awarded nor denied attorneys’ fees “[i]t would be pre-

mature . . . for us to address the continuing validity of the

catalyst theory in the context of this case.” Id. at 711-12.

Even assuming the Court wished to address this question

when next presented, a grant of certiorari in this case

would not accomplish that goal: Foreman, like Friends,

does not present the issue. See id; see also New York v.

O'Neill, 359 U.S. 1, 8 (1959) (stating that issue on which

state supreme court “expressly refrained from ruling”

presented “a hypothetical question which need not now

be considered”). As Foreman is an inappropriate vehicle

for considering the validity of the catalyst theory

post-Farrar, this Court should deny the petition.

* Within Friends’ collection of circuit cases, the Court cited

Foreman and quoted dicta in which the Fifth Circuit expressed

doubts about the catalyst theory. Friends, 120 S. Ct. at 711. The

citation carried a “cf.” (i.e., “compare”) signal to the Fourth

Circuit’s opinion in S-1 & S-2. See id. While dicta in Foreman did

express doubts about the catalyst theory post-Farrar, the Fifth

Circuit expressly declined to repudiate the catalyst theory.

Instead, the court assumed the catalyst theory’s validity and

analyzed plaintiffs’ evidence in light of traditional catalyst

theory principles. See Pet. App. at 10a.

5

B. The record does not support Foreman’s attempt

to circumvent the absence of adversity by

claiming that the Fifth Circuit's explicit appli-

cation of the catalyst theory was, in reality, an

implicit rejection of the doctrine.

Foreman attempts to sidestep the Fifth Circuit’s

assumption of the catalyst theory’s continued viability by

claiming that three elements of the court's reasoning

make it impossible, as a practical matter, for Fifth Circuit

litigants ever to prevail on a catalyst claim. Pet. at 14.

None of Foreman’s three rationales have any merit.

First, Foreman maintains that the district court’s dis-

allowance of relief based on receipt of a temporary

restraining order eviscerates the catalyst theory, since in

many cases a TRO encourages defendants to alter their

conduct. Pet. at 15. Nothing in the Fifth Circuit's opinion,

however, suggests that a plaintiff who is the beneficiary

of a temporary restraining order cannot prevail as a cata-

lyst. Indeed, neither the court of appeals-nor the district

court considered the temporary restraining order to be

part of Foreman’s catalyst claim. Instead, both assessed

whether the temporary restraining order obtained by

Foreman was equivalent to relief from an enforceable

judgment. Pet. App. at 14a-15a, 38a-39a. Because the

court of appeals’ discussion of Foreman’s temporary

restraining order had nothing to do with the catalyst

theory, the opinion will have no effect on the availability

of that theory in other cases where plaintiffs argue that a

temporary restraining order was a catalyst for obtaining

non-judicial relief. That question was never addressed by

the Fifth Circuit and is not properly before this Court.

Second, Foreman argues that the court of appeals

was too strict in requiring him to show, as a condition of

prevailing party status, that the relief he claims to have

received was the same relief sought in the lawsuit. Pet. at

16-18. Foreman’s argument is irrelevant, however,

because the court of appeals “assume[d] that the plain-

tiffs did obtain some relief.” Pet. App. at 12a. Despite that

assumption, the Court still found that Foreman was not a

catalyst, because “there is insufficient evidence of a

causal connection between the plaintiffs’ individual suit

and the Texas legislature’s decision to revamp the

appointment procedure.” Id. Foreman’s argument suffers

from the same problem that plagues his petition overall:

the Fifth Circuit determined as a matter of fact, not law,

that his lawsuit did not catalyze the legislature’s action.

Because Foreman was not a catalyst in fact, the catalyst

legal issues he invites the Court to address are not pre-

sented.

Foreman also claims that he obtained sufficient relief

to “prevail” because this Court’s decision in the inter-

locutory appeal, Foreman v. Dallas County, 521 U.S. 979

(1997), represents success on the merits of his claim. Pet.

at 17. The district court, relying on Hewitt v. Helms, 482

U.S. 755, 760 (1987), held otherwise and refused to award

fees on that basis. Pet. App. at 40a. Foreman did not

cross-appeal that ruling and thus has waived the issue.

Because Foreman never challenged the district court's

refusal to award fees on the basis of the 1997 interlocu-

tory appeal in the Fifth Circuit, that issue cannot be

raised in this Court. See El Paso Natural Gas Co. v.

Neztsosie, 526 U.S. 473, ___, 119 S. Ct. 1430, 1434-36 (1999).

Third, Foreman claims that the court of appeals’ fail-

ure to give conclusive effect to affidavits of individual

legislators made it “impossible - as a matter of law — to

demonstrate the motive of a legislature in passing a law

that mooted a civil-rights suit... .” Pet. at 18. Foreman’s

complaint, though, is that the court of appeals applied

the unexceptional and firmly established evidentiary

principle that individual members of the legislature may

not competently testify to the intent or motive of the

entire legislative body. See Bread Political Action Comm. v.

Federal Elec. Comm., 455 U.S. 577, 582 n.3 (1982). That

principle is eminently correct, because an individual leg-

islator has no personal knowledge of the motive of the

entire legislature, which in Texas consists of 181 mem-

bers. If that were not the rule, courts would be in the

position of deciding questions of statutory interpretation

by relying on legislators’ after-the-fact statements about

the legislative body’s motive or intent.

Foreman’s claim that proof of causation will no

longer be possible in cases involving a legislative remedy

is hyperbole of the most extreme sort. Of course, there

will be ways to prove causation in appropriate cases.

Plaintiffs might rely on the chronology of events. The

language of the statute might refer to the lawsuit or

contain wording that comes from the suit. In some cases,

the legislative record may reflect that the defendants,

under the pressure of the lawsuit, came to the legislature

and sought a change in the law. See e.g., Institutionalized

Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 917 (3rd

Cir. 1985). There are countless other types of evidence

that might point to a causal connection between the law-

suit and the passage of legislation.

In this case, the Fifth Circuit looked at all the evi-

dence in the record, including the House Elections Com-

mittee Report showing that the committee was working -

prior to the filing of the lawsuit — to introduce the legisla-

tion Foreman claims his suit catalyzed. The court con-

cluded on the basis of this record that it was clear error to

find a causal link between the lawsuit and the statutory

change. The bottom line is that this case was decided on

its facts, and the hypothetical legal issues Foreman

invites this Court to consider are not presented for

review.

C. Conspicuously absent from the petition is any

mention of the novel third-party catalyst theory

under which Foreman claims to have prevailed.

Foreman suggests that the Fifth Circuit, although

purporting to apply catalyst theory standards, “over-

turned the fee award in a manner that will ensure that no

plaintiff in the Fifth Circuit will ever succeed in obtaining

fees on the basis of the catalyst theory.” Pet. at 14. No

such thing occurred. The Fifth Circuit faithfully applied

established catalyst theory principles. The problem was

that Foreman did not assert established catalyst theory

grounds. Rather, Foreman claimed prevailing party status

under an expansive, “third-party catalyst” theory that

neither the Fifth Circuit, nor any other circuit, appears to

have ever recognized.5 Even if the legal issue of the

5 Although not cited to the Fifth Circuit, a Third Circuit

opinion referenced in Foreman’s Petition to this Court involves

a catalyst claim premised on legislative action — albeit under

very different circumstances. Pet. at 19 (citing Institutionalized

continued viability of the catalyst doctrine were pre-

sented in this case, the uniqueness and novelty of Fore-

man’s third-party catalyst claim would make this an

inappropriate vehicle for addressing general principles of

catalyst doctrine.

Foreman did not, and could not, claim that Dallas

County voluntarily provided relief under the pressure of

the lawsuit, as contemplated in a traditional catalyst the-

ory scenario. See Hewitt v. Helms, 482 U.S. 755, 761 (1987)

(stating that plaintiffs could establish prevailing party

status where a defendant voluntarily acting “under the

pressure of the lawsuit” informally provides the relief

sought). Instead, Foreman claimed that the lawsuit

prompted a third-party, the Texas Legislature, to amend

the Election Code in a manner that caused all 254 coun-

ties throughout Texas, including Dallas County, to adopt

election judge appointment procedures that were favor-

able to petitioners. Not surprisingly, Foreman could pro-

vide the Fifth Circuit no authority to support his

Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897 (3d Cir. 1985)).

Unlike Foreman, the Third Circuit case presented a situation in

which a state agency defendant actively worked with the state

legislature to achieve passage of legislation that provided

plaintiffs relief; furthermore, plaintiffs’ counsel drafted part of

the legislation. See 758 F.2d at 917. Explicitly highlighting the

unusual nature of these circumstances, the Third Circuit

determined that the passage of legislation was fairly

attributable to the state defendant, whose direct cooperation

and involvement with the legislature provided relief. Id. The

Third Circuit recognized, however, that the defendant’s

challenge to the notion of third-party-relief “is not unreasonable

and may, in fact, preclude recovery of fees in some other

context.” Id.

10

proposed expansion of catalyst theory principles to

encompass this sort of indirect, third-party relief.

The petition contains a lengthy, but immaterial, anal-

ysis of five pre-Farrar decisions that Foreman claims sup-

port a fee award in this case. Pet. at 22-25 (discussing

Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489

U.S. 782 (1989); Rhodes v. Stewart, 488 U.S. 1 (1988);

Hewitt, 482 U.S. 755; Hensley v. Eckerhart, 461 U.S. 424

(1983); Maher v. Gagne, 448 U.S. 122 (1980)). Not one of

these decisions even remotely contemplates a third-party

catalyst situation. In fact, neither Garland nor Rhodes dis-

cusses the implications of non-judicial relief, since plain-

tiffs in both cases won favorable judgments. Finally, to

the extent Hewitt, Hensley, and Maher consider non-judi-

cial relief as a basis for determining prevailing party

Status, they do so solely with respect to relief provided by

a defendant acting under pressure of the lawsuit. See

Hewitt, 482 U.S. at 761; Hensley, 461 U.S. at 439 n.15;

Maher, 448 U.S. at 129-30.

The defendant in this case was Dallas County, not the

Texas Legislature or State of Texas. No state law or state

action was challenged. No judgment could have beer

entered against the Legislature or the State, since neither

was a party to the suit. In short, the Texas Legislature was

under no pressure whatsoever from Foreman’s lawsuit.

As such, the facts of this case do not comport with the

pre-Farrar decisions contemplating prevailing party sta-

tus on the basis of voluntary actions taken by a defendant

under pressure of the lawsuit. Nothing about the Fifth

Circuit’s opinion engaged, much less contravened, any of

the pre-Farrar decisions cited in the Petition. The Court

11

should decline Foreman’s invitation to render an advi-

sory opinion concerning legal questions on which the

Fifth Circuit never ruled.

Far from restricting, much less eviscerating, the cata-

lyst theory, the Fifth Circuit assumed that even Foreman’s

novel third-party catalyst theory might succeed under

appropriate facts. The court determined, however, that

the facts here did not prove that Foreman’s lawsuit

caused the third-party Texas Legislature to indirectly pro-

vide the relief sought in the lawsuit. See Pet. App. at 12a.

(“[E]ven if we assume that the plaintiffs did obtain some

relief, there is insufficient evidence of a causal connection

between the plaintiffs’ individual suit and the Texas legis-

lature’s decision to revamp the appointment pro-

cedure.”). The Fifth Circuit’s rejection of Foreman’s

unprecedented spin on the catalyst theory says nothing

about the continued availability of traditional catalyst

theory principles to prevailing parties who do obtain

relief under pressure of the lawsuit. See Hewitt, 482 U.S.

at 761. In fact, at least twice since Farrar, the Fifth Circuit

has awarded fees to plaintiffs on a catalyst theory basis.

See Watkins v. Fordyce, 7 F.3d 453 (5th Cir. 1993); Pembroke

© The court noted that “it will be a rare case indeed where a

defendant is made to pay attorney’s fees for relief that was

secured from an independent third-party who was never a party

to the lawsuit.” Pet. App. at 12a. Nonetheless, the court did

consider plaintiffs’ third-party catalyst claim, analyzing: first,

whether plaintiffs had, in fact, obtained from the third-party

Texas Legislature the relief sought in the lawsuit; and, second,

whether the plaintiffs’ lawsuit had caused the Texas Legislature

to act as it did. See id. The court ultimately determined that

plaintiffs failed to prove either of these two requisite elements

under the catalyst theory. See id. at 12a-14a.

12

v. Wood County, 981 F.2d 225 (5th Cir. 1993). What Foreman

demonstrates, if anything, is the Fifth Circuit's willing-

ness to consider even new twists on the catalyst theory

post-Farrar. On the facts of this case, however, the court

was not persuaded to stretch the catalyst theory to

encompass the type of indirect relief Foreman claimed he

obtained from the third-party Texas Legislature, as

opposed to the defendant, Dallas County.

At base, Foreman quibbles with the Fifth Circuit’s

view of the facts. Foreman has not identified any aspect

of the Fifth Circuit’s holding that causes or exacerbates a

circuit conflict or in any way diminishes the availability

of the catalyst theory to plaintiffs who informally obtain

relief from the defendant - or, for that matter, a third

party — who acts under pressure of the lawsuit. Foreman

may wish to pique the Court’s interest by bootstrapping

intriguing questions of law onto the Fifth Circuit’s explic-

itly fact-based opinion. The Court should not be misled:

Foreman simply does not present these questions. Because

the Fifth Circuit never held that the catalyst theory is a

dead letter, nor that a third-party catalyst theory fails as a

matter of law, these issues are not before the Court. It

would be premature for the Court to address such hypo-

thetical legal questions in the context of the Fifth Circuit’s

purely fact-oriented opinion. Cf. Friends, ___ U.S. __, 120

S. Ct. at 711-12; O'Neill, 359 U.S. at 8.

13

II. The Facts of this Case Do Not Present the Second

Question on Which Foreman Asks the Court to

Grant Certiorari - Whether Plaintiffs in a Section 5,

Voting Rights Act, Enforcement Action Prevail by

Forcing Defendants to Replace an Unprecleared,

Discriminatory Procedure with a Precleared, Non-

Discriminatory One.

A. The record contains no determination that any

procedure used by Dallas County in the

appointment of election judges was either dis-

criminatory or non-discriminatory.

As its second “question presented,” Foreman asks if

plaintiffs prevail in a section 5 enforcement action when

they force defendants to replace a racially discriminatory

voting procedure with a non-discriminatory procedure.

This question, like others raised by Foreman, is not pre-

sented by the facts of this case.

No court ever determined that the procedure

adopted by Dallas County in October 1996 and chal-

lenged by Foreman in this lawsuit was racially or eth-

nically discriminatory. Nor did any court determine that

the procedure adopted in compliance with the 1997 legis-

lation was non-discriminatory. This suit was an enforce-

ment action under section 5 of the Voting Rights Act, 42

U.S.C. § 1973c. Section 5 enforcement courts have

extremely limited jurisdiction, and the issue of whether

the voting procedure is, or is not, discriminatory is

expressly foreclosed. See Lopez v. Monterey County, Cal.,

519 U.S. 9, 23 (1996); Perkins v. Matthews, 400 U.S. 379, 385

(1971). The district court here quite properly did not

address that issue. Were this Court to grant Foreman’s

petition, there would be no lower court finding to review

14

for purposes of answering the question Foreman poses.

Any opinion this Court might issue would be an advisory

opinion on a hypothetical set of facts.

B. As this Court previously found, the record in

this case is insufficient to establish whether the

October 1996 procedure required preclearance.

Foreman’s second question implicitly and improperly

assumes that Dallas County’s October 1996 election pro-

cedure required preclearance. However, preclearance

would be required only if Dallas County’s October 1996

practice differed from the one in effect on November 1,

1972. See Foreman v. Dallas County, 521 U.S. 979, 980-81

(1997); Pet. App. at 32a. This Court has already deter-

mined that “the record is silent as to the procedure used

by Dallas County for appointing election judges as of

November 1, 1972, [and thus] we cannot make a final

determination here as to whether preclearance is in fact

required.” Id. 521 U.S. at 981; Pet App. at 33a. On remand,

the case was dismissed, primarily on grounds of moot-

ness; thus, no finding was made on that question. See

Foreman, 990 F. Supp. at 509 n.10. There has never been a

factual determination whether the October 1996 election

procedure was the same as the procedure in effect on

November 1, 1972.

Absent a determination that preclearance was, in

fact, required, there is no ruling in this case that permits

the Court to address Foreman’s second “question pre-

sented.” The hypothetical issue of whether a section 5

plaintiff who forces a defendant to replace a procedure

that required, but never obtained, preclearance with a

nr eee ee en ee ee

15

precleared procedure is not presented on the facts of

Foreman’s case. The Court should deny the petition. See

New York v. O'Neill, 359 U.S. 1, 8 (1959).

¢

CONCLUSION

For these reasons, the Court should deny the petition

for a writ of certiorari.

Respectfully submitted,

C. Rosert HEATH

Counsel of Record

Lisa R. Eskow

BickersTAFrr, HEATH, SMILEY, POLLAN,

Kever & McDaniet, L.L.P.

816 Congress Avenue, Suite 1700

Austin, Texas 78701-2443

(512) 472-8021

(512) 320-5638 [Fax]

Counsel for Respondents