Transcript

IN THE SUPREME COURT OF THE UNITED STATES

RALPH HATHORN ET AL., Petitioners v. MRS. BOBBY LOVORN ET AL.

No. 81-451

April 27, 1982

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:10 a.m.

APPEARANCES:

JAMES C. MAYO, ESQ., Louisiville, Miss., on behalf of the Petitioners.

WILLIAM BRADFORD REYNOLDS, ESQ., Washington, D.C., on behalf of the United States as amicus curiae.

LAUREL G. WEIR, ESQ., Philadelphia, Miss., on behalf of the Respondents.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments next in Hathorn against Lovorn.

Mr. Mayo, I think you may proceed whenever you're ready.

ORAL ARGUMENT OF JAMES C. MAYO, ESQ., ON BEHALF OF PETITIONERS

MR. MAYO: Mr. Chief Justice and may it please the Court:

This case is a Section 5 Voting Rights Act case up from the Mississippi Supreme Court. The issue that is before this Court is can the Mississippi Supreme Court order noncompliance with the Voting Rights Act. A submission was made -- and I would add, voluntarily made -- on the basis that we did it on an issue that we raised before the Chancery Court of Winston County and made a submission to the Justice Department under Section 5 of the Act for preclearance on changes in the method and manner of the election of the trustees of the Louisville Municipal Separate School District.

QUESTION: Mr. Mayo, you say the issue is whether the Supreme Court of Mississippi can require noncompliance with the Voting Rights Act. Do you think the opinion of the Supreme Court of Mississippi has ordered noncompliance or has simply refused to order compliance?

MR. MAYO: Well, we were placed under -- we have received this letter from the Justice Department telling us that the changes were legally unenforceable. But the decree, the final decree of the lower court, ordered the election to remain in force subject to compliance with the Act, and the decision of the Mississippi Supreme Court in 52758 advised us and ordered us and mandated us to ignore the lower court, which required compliance with the Voting Rights Act.

QUESTION: Well, where does that leave you? The Supreme Court of Mississippi simply said that the chancellor shouldn't have put in the direction that the election comply with the Voting Rights Act. Do you think that after the decision of the Supreme Court of Mississippi you are no longer free to go into federal court and urge that the federal Voting Rights Act govern?

MR. MAYO: Well, I think our relief under the Voting Rights Act as I understand it is we either obtain approval or resubmit to Justice or we go into the District Court of Columbia, is the way I interpret the Act, Your Honor.

QUESTION: You don't think you could have gone into a federal Court in Mississippi just for a declaration that the Voting Rights Act did cover it or had not been complied with?

MR. MAYO: Not in the face of the fact that we had made the submission to the Justice Department and they had turned us down and said the changes in the election procedure were legally unenforceable.

QUESTION: Or could you have sought an injunction in Mississippi federal Court?

MR. MAYO: Well, once again, under Section 5 there is a three-judge relief that is afforded. But I really feel like, since we had made the submission, that we were limited to two avenues which I have previously stated, either Justice or the D.C. Court in Columbia.

QUESTION: Well, wasn't there a federal case filed?

MR. MAYO: Yes, sir. But the federal case was not -- which federal case? The one filed by the Justice Department? The one filed by the Justice Department was not filed until just prior to this election last December. Now, the original suit was filed in the district court, but because of the existence of the state law the district court judge sent it back to Mississippi, the Mississippi courts, for a definition under Section 37-7-203.

QUESTION: And he dismissed the case?

MR. MAYO: He dismissed the case ultimately, not immediately but ultimately.

QUESTION: He just sent it back for state law construction, didn't he?

MR. MAYO: That's true, yes, sir.

QUESTION: How about the federal issue? What happened to it?

MR. MAYO: Well, the federal issue --

QUESTION: The federal issue would be whether the Voting Rights Act was being complied with.

MR. MAYO: At that time in the district court they filed suit -- it was originally filed in the District Court for the Northern District of Mississippi under the one-person, one-vote rule, which was never reached. It was never addressed. It was not addressed by the Mississippi Supreme Court either.

QUESTION: I see. Well, didn't the Mississippi court say that if -- didn't it recognize that you could still go to federal court?

MR. MAYO: The lower chancery --

QUESTION: You wouldn't be in contempt, would you, if you filed a suit in federal court to enjoin the results of the election?

MR. MAYO: Well, the lower chancery court said that the avenues that were open, in its final hearing before the second appeal or the appeal from which this is, that we either had to go into the D.C. court, we had to go to Justice, or the Respondents had to take an appeal.

The suit was filed by Justice in December, this past December, after the mechanics in the election was pretty far down the road. Just prior to the election they filed in the district court and the district court refused to grant an injunction stopping the election. We had a hearing about the third day of December and the first primary was on December 5th.

QUESTION: Well, what does that -- what if the Government prevails in that suit?

MR. MAYO: Well, they have asked for -- they have asked for an injunction and they contend that we are in violation of the Voting Rights Act.

QUESTION: By doing what the --

MR. MAYO: By having an election in the face that we have been denied preclearance.

QUESTION: And so -- but if they prevail you will be forced to do what you want to do anyway?

MR. MAYO: Well, that may be true. But they have disapproved the scheme that we were mandated to do --

QUESTION: I understand.

MR. MAYO: -- by the Mississippi Supreme Court.

QUESTION: I understand. But you didn't -- you're objecting to what the Supreme Court of Mississippi mandated you to do.

MR. MAYO: Yes, sir.

QUESTION: And so if the United States prevails, you will be relieved of what you wanted to be relieved of in the first place. Is that right or not?

MR. MAYO: I think sooner or later either the district court or the D.C. court or some court will have to ultimately solve the problem, and we will more than likely go into --

QUESTION: But you're asking us to.

MR. MAYO: Yes, sir. And the reason is because I just do not feel like that the results that were ordered by the Mississippi Supreme Court -- first of all, it's in violation of the Voting Rights Act in my opinion; and secondly, it does not -- the results of the election speak for itself.

Historically in the city of Louisville and in Winston County we have never elected a black person. On the old board we had one black trustee. Mrs. Veterine Williams, who is a Petitioner in this cause, is a black trustee.

QUESTION: Suppose a state is going to implement a change in a voting procedure that has not been cleared, and some private citizen objects to that implementation without clearance and files a suit in the state court saying -- asking the court to enforce the Voting Rights Act. Under the Voting Rights Act is the three-judge court relief the exclusive means of enforcing the Voting Rights Act?

MR. MAYO: As far as the Act itself, I believe the only remedial provision of that statute is the three-judge panel. I think perhaps they've even stripped the district court from that remedial -- I believe it specifically says --

QUESTION: Right. How about a state court?

MR. MAYO: -- a three-judge panel.

I do not believe a state court could usurp the authority vested in the three-judge panel by the statute. But I think that the state courts are subject to the federal law under the supremacy clause of the Constitution, and if an issue comes up on the Voting Rights Act, I think all of the decisions that I read and that I have cited in my brief put the burden on the covered jurisdiction to comply with the Act and to seek the approval.

QUESTION: Mr. Mayo, may I ask you what relief the Government seeks in the federal case that's been filed?

MR. MAYO: At the temporary hearing, they asked to eliminate the runoff procedure. That was the sole issue that was before the District Court for the Northern District of Mississippi, was just eliminate the runoff provision.

QUESTION: So they don't challenge the boundary lines for the five single-member districts?

MR. MAYO: They did not challenge the boundary lines for the five single-member districts.

QUESTION: Mr. Mayo, along the same lines, the Attorney General did not challenge either the order that there be elected a school board member from each of the five districts, right?

MR. MAYO: That is correct.

QUESTION: And your clients are the incumbent board members.

MR. MAYO: Yes, ma'am.

QUESTION: And they didn't want to have this new procedure implemented, I assume.

MR. MAYO: That is correct.

QUESTION: So when the Attorney General came in and filed an objection your clients were pleased, because they didn't want to implement it anyway, right?

MR. MAYO: That is almost correct.

QUESTION: And that's why you didn't go on to federal court, because you didn't want to get this clarified because your clients were content to just have the Attorney General's objection stand, right?

MR. MAYO: Well, immediately after the Attorney General's objections we were taken back into chancery court, and as soon as Judge Love rendered his final decree calling for his decree of election to remain in force subject to the compliance, we were immediately appealed and jurisdiction removed to the Mississippi Supreme Court in 52-758.

QUESTION: May I ask you about the statute that requires the majority vote. That is a separate statute, is it not, from the statute that requires the election of a board member from each separate district?

MR. MAYO: Justice O'Connor, that is 37-7-217.

QUESTION: A separate statute.

MR. MAYO: Yes, ma'am.

QUESTION: So presumably the two are severable, and if the provision for a majority vote is not permitted and people can be elected by a plurality, then under the state law of Mississippi would the separate district election still stand?

MR. MAYO: That issue -- the Supreme Court of Mississippi and the lower court did rule in favor of the runoff, the majority -- I mean, the runoff vote requirement.

QUESTION: Well, what if that runoff vote requirement were stricken? Is it related in any way to the separate district vote provision?

MR. MAYO: Well, the provision of Mississippi law in municipal separate school districts does -- they are related and they do require a runoff.

I was of the opinion that perhaps Justice in filing a suit thought that they might solve a problem and enable blacks to be elected in a plurality type vote. I personally don't agree with that. I don't think that's the proper way to elect --

QUESTION: Well, is the runoff provision severable from the other requirement, the separate election?

MR. MAYO: If you just totally ignore it and it were stricken. But in the provision for the election of trustees in the municipal separate school district statutes, 37-7-203 and 37-7-217, they are related, unless they are stricken by a court. There's no decision that I know of that separates them.

(Pause.)

The facts in this case are really not in dispute in the record as the record speaks at all. Prior to 1960 there were three -- in 1960 we annexed to entire county and the city wanted to maintain control, so three were appointed and two were elected. Of course, the Voting Rights Act was passed in 1965.

In 1964, just prior to it, the legislature passed a local and private bill which said in any [ILLEGIBLE WORD] where 14 and 15 intersect, which is Winston County. [ILLEGIBLE WORD] it was because of Section 90(p) of the Mississippi Constitution and because of another related case involving some of the same language, it was not sought to be put into effect until Petitioners filed a suit, and we were ultimately mandated to do so by the Mississippi Supreme Court.

In anticipation, we submit that all the decisions that I have cited in my brief -- Perkins versus Matthews, Allen versus U.S., and then the most recent one, McDaniel versus Sanchez, which was decided June the 1st, which we incorporated into a petition for rehearing -- require us to make the submission, and we made that submission.

And counsel opposite in his brief asked for the relief to be prospective in nature, but we like the language in Perkins versus Matthews that with a good faith compliance by us with the Act that we feel that the decision of this honorable Court should be remedial or retrospective, because we sought before this Court a stay, both prior to the granting of certiorari and after the granting of certiorari, and before the elections were held and after the elections were held and the trustees adjudicated into office. And this Court on two occasions denied that stay.

So one of the reliefs that we are asking is that the prior election be vacated, the trustees removed from office. And I realize that down the road we will have to comply.

Thank you.

CHIEF JUSTICE BURGER: Mr. Reynolds.

ORAL ARGUMENT OF WILLIAM BRADFORD REYNOLDS, ESQ. ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE

MR. REYNOLDS: Mr. Chief Justice, may it please the Court:

This case is here on a writ of certiorari to the Mississippi Supreme Court to review that court's judgment ordering the election of trustees to the Louisville School District to proceed under changed election procedures without first obtaining preclearance under Section 5 of the Voting Rights Act and notwithstanding an objection to the changed procedures by the Attorney General of the United States.

The ultimate issue is whether the Mississippi court erred in mandating implementation of the voting change in the absence of Section 5 preclearance. Before addressing that question, which we believe requires an affirmative response, Respondents have raised the threshold question whether this Court can properly reach the Section 5 inquiry in light of the procedural history of this case.

Very briefly, that procedural history is that the Louisville School District since 1960 has embraced the whole of Winston County, Mississippi. The school board in 1960 consisted of five trustees, three of whom were appointed by city officials of Louisville and two of whom were elected at large by qualified electors outside of Louisville.

In 1964 the Mississippi legislature enacted legislation applicable to the Louisville School District requiring each of the trustees to be elected from a different one of five supervisory districts. Believing this legislation to be a special law which is prohibited by the Mississippi constitution, the city officials of Louisville did not implement that change in 1964, or indeed thereafter. And in 1975 the Respondents commenced this action in chancery court of Winston County seeking enforcement of the '64 statute.

The chancery court ruled that the statute was indeed a special law which violated the Mississippi constitution and declined to enforce it. An appeal was taken to the Mississippi Supreme Court and that court reversed, concluding that the constitutionality of the '64 statute could be saved without doing violence to legislative intent by removing by court order the phrase limiting the act's applicability only to the Louisville district.

The case was then remanded to the chancery court for further proceedings not inconsistent with that opinion. Petitioners sought rehearing in the Mississippi Supreme Court and raised for the first time on rehearing the question of the applicability of Section 5 of the Voting Rights Act to the '64 statute as modified by the Supreme Court's decision. That rehearing was denied without any mention whatsoever of the Section 5 issue, and this Court denied certiorari.

On remand the chancery Section ordered an election to be held pursuant to the '64 statute, set forth procedures to govern that election, and then entertained the Section 5 question and ruled specifically that the election of all five trustees from supervisor districts was an election change requiring preclearance under Section 5, and then ordered that that change be submitted to the Attorney General of the United States for Section 5 review.

It was submitted. The Attorney General objected to the majority vote requirement in the new election procedures. Following that, the chancery court denied a motion to eliminate or sever the majority vote requirement and simply to allow standing the Mississippi statute relating to election of five trustees. It said it would not -- it could not sever that because the statutory framework in Mississippi required that that particular requirement did indeed apply to the Louisville School District.

And since that couldn't be severed, the chancery court reiterated that the election under the '64 statute was subject to compliance with the Voting Rights Act. That prompted Respondent's second appeal to the Mississippi Supreme Court, and on that second appeal the Mississippi Supreme Court, relying on the law of the case doctrine, reversed as to the part of the decree that required compliance with Section 5.

Now, Respondents' claim is that, as I understand it, is that the first decision of the Mississippi Supreme Court on rehearing was a final judgment on the federal question as to Section 5 applicability at the time that it was rendered and it came to this Court on certiorari, and thus the argument is made that because that was a final judgment at that time and certiorari had been denied, that this Court is precluded now to take up the federal question on the applicability of Section 5.

There is, however, in response to that, there's nothing at all in that first Mississippi decision to suggest that it embraced a final disposition of the Section 5 issue. Indeed, that first decision did not even speak to the Section 5 issue, and that -- the contention that it did dispose of the federal question comes up, if at all, only with respect to the much later reference the second time around by the Mississippi Supreme Court to law of the case.

Our view is that until that second decision, neither the parties, nor indeed the chancery court which on remand reviewed the federal question, or indeed this Court were alerted to the Mississippi Supreme Court's post for characterization of its first ruling. Indeed, that first ruling by its terms was certainly susceptible to the understand by everybody that it was a non-final decision as to Section 5, it didn't speak to it, and that the Section 5 question was one that was available to the parties to litigate in chancery court on remand, which indeed they did.

Surely if the first decision is one that does not by its terms give anybody an indication of finality, the parties cannot be barred from Supreme Court review of the federal question, nor can this Court be estopped from ruling on that issue in the absence of notice that it was indeed a final judgment at the time that it came here the first time.

QUESTION: Mr. Reynolds, that's basically a question of Mississippi law, isn't it, the extent of the application of law of the case or collateral judicial estoppel?

MR. REYNOLDS: Well, the Mississippi law as I understand it on law of the case is that it applies where you have a legal -- a disposition of a legal issue that was finally determined. And what I think -- I think you're right that it is an application of Mississippi law.

But if there is nothing in the first Mississippi opinion at the time that it's rendered, decision at the time it's rendered, to give an indication that there was a final judgment on the merits of the federal question issue at that time, we think that this Court is not precluded nor are the litigants precluded from re-addressing that or addressing that issue when it comes up now on this grant of certiorari.

QUESTION: Well, that wouldn't be true if we were talking about res judicata in many states, would it, where the rule is that anything that was litigated or might have been litigated is barred? And as to stuff that might have been litigated, you would have no notice that the judgment affected that, because the judgment by definition wouldn't speak of it. It hadn't been litigated.

MR. REYNOLDS: Well, I think, though, that in terms of whether or not you had a final judgment at that time that would bar reaching the federal question at this time, that it's different than the res judicata situation. And our view is that the issue on the merits is properly here and that the grant of certiorari was a proper grant.

On the merits, the decision of the Mississippi court I think did mandate that this election go into effect prior to any preclearance. And in doing so, that was error if the change, the voting change in question, was a covered change under the Voting Rights Act. We have briefed the question as to whether it was a covered change.

We think it's undisputed, first, that there was an election here that was involved. Second, this election change, even though it occurred by legislation prior to '64, did not go into effect until after November of '64, and this Court's decision in Perkins v. Matthews, Justice Brennan's decision, makes it clear that a change which goes into effect after '64 is one that is a covered change notwithstanding that it's pursuant to legislation that was passed prior to '64.

And then the only other question that really relates to whether it's a covered change is whether or not this is a court-ordered change as opposed to a legislative change. I think that on that, first, it's clearly legislative. The Mississippi Supreme Court, when it held the statute constitutional, did so with some modification or redrafting of that statute, but did that after it determined that its change was fully consistent with the legislative intent.

But beyond that, this Court has never held that a court-ordered change by a state court would be immune from preclearance. The most that we have heard is in the East Carroll Parish case that there are some court-ordered changes pursuant to the federal court reapportionment plans that might be immune from Section 5 preclearance.

But as to state court changes, it's never been held that that doctrine would apply, and so even if this were by some stretch to be considered a state court's --I mean, a court-ordered change, it would not be immune from Section 5 review. We think that, given the fact that the question of whether it's a covered change is one that has to be resolved in favor of coverage, that's the extent of the inquiry by the Mississippi court, and if you rule that it is a covered change the Mississippi court was in error to order the election to go into effect prior to preclearance. And we do think that's the effect of the order and it has to be reversed.

QUESTION: Mr. Reynolds, may I ask you a question. Does the record tell us, or if it doesn't can you tell us, what happened at the election? Were there five people elected by majority vote?

MR. REYNOLDS: There were -- well, there was one runoff. There were four -- four people were elected without runoff and in one district there was a runoff and there was an election by majority vote. So that the majority vote requirement did take effect in the past election as to one of the five districts.

QUESTION: Is that what is in issue in the federal case, just that one district?

MR. REYNOLDS: No, the federal case relates to the voting change, not to the past election. And the Attorney General objected to the majority runoff requirement. In fact, he objected before the election to the majority runoff requirement.

QUESTION: But in that litigation, is it not fair to predict that it will not affect four of the people who now hold office, no matter what happens to it?

MR. REYNOLDS: Well, no, I don't think that would be necessarily the case, because all the people that are elected now are being elected from supervisor districts, which is different from the prior arrangement where you had three appointed and two elected, but not elected by any defined supervisor district.

So if you were to set aside the election because it had not been precleared, it would affect all five of them.

QUESTION: Would that mean then that the three people appointed by the city and the two elected from outside the city would then be returned to office?

MR. REYNOLDS: I think that if one were to set aside the election that would, unless there were some other accommodation, that that would probably be the result.

QUESTION: Well, why shouldn't there just be a new election free of the specific thing the Attorney General objected to? Why would you have to go back to the old system?

MR. REYNOLDS: I think that that would be another way that it could be done.

QUESTION: Well, another way, another way. What should a district court do? Hasn't there been a decision lately indicating that perhaps a court shouldn't go any farther in correcting a plan than the extent to which the Attorney General objected?

QUESTION: You just objected to the majority vote, didn't you?

MR. REYNOLDS: That's correct.

QUESTION: You didn't object to the single member districts.

MR. REYNOLDS: That's correct, that's correct.

QUESTION: Well, why would you -- why would you set aside the entire system? You would just say, a new election without a majority vote, and there was no majority vote necessary in some districts.

MR. REYNOLDS: Well, I think that the decision I think you're referring to is Upman.

QUESTION: I think it is.

MR. REYNOLDS: And the question really is whether the objection by the Attorney General as to a submitted plan, if it identifies that portion that is objectionable, whether that would permit preclearance of the rest of the plan. I'm not sure -- I don't believe that the Upman case really decided that issue. The manner that the law now is is that an objection --

QUESTION: You're submitting that if you object to any provision in a new statute the entire statute is suspended?

MR. REYNOLDS: That's right, if the entire statute is objectionable.

QUESTION: That has not been decided. You're quite right, that hasn't been decided. I know that's your submission.

MR. REYNOLDS: Right. No, I don't think that has.

QUESTION: Mr. Reynolds, let me hold you a minute. Tell me again, what is the status of the federal suit in Mississippi?

MR. REYNOLDS: It's actually been held in abeyance. The Government went in for a TRO. The court denied a TRO, and that case is now pending until disposition of this case.

QUESTION: Well, you still have that case available, however this one is decided, do you?

MR. REYNOLDS: That's correct, that is still an available forum to go in and to continue the question of setting aside the election or -- in that case we ask that there be a severability of the majority vote requirement, and I think that that is one way the Court could reach the result.

But I do think that the objection as such would go to the whole plan as submitted, rather than the --

QUESTION: Is that what you're asking be done in the suit presently going on in the federal district court? You're asking the court to just sever the majority vote provision?

MR. REYNOLDS: We asked in the federal district court that the court simply restrain the majority vote requirement, enter a TRO as to the majority vote requirement, and allow the election to proceed, but not with that requirement. And the court responded that it did not feel it had the authority to engage in that kind of judicial legislation of the plan that was submitted and so it declined to do it on a TRO.

QUESTION: The district court declined?

MR. REYNOLDS: The district court, and said at the same time that there was not a sufficient showing of irreparable injury to stop the election. But the request was to ask them simply to stop that portion going into effect that related to the majority vote.

QUESTION: Do you think that request -- do you think the district court's reaction to the request was consistent with Upman?

MR. REYNOLDS: Was consistent with Upman?

QUESTION: Shouldn't it have let the action go ahead, go forward, pursuant to the request without the majority vote requirement?

MR. REYNOLDS: I don't believe Upman really reached that question squarely. I think that one could argue from Upman that the district court might have taken that step, but I don't think Upman really reached that issue. As I understand Upman, Upman said that when the court is redrafting its own reapportionment plan and it has in front of it an objection from the Attorney General that it should -- that only objects to certain features, deference should be paid to the legislative judgment that is made as to the rest of the plan.

And therefore, in its reapportionment activity it should not undertake to redo or redraw those features that are not subject to the objection. And I don't think it really reaches the precise question that you're asking.

CHIEF JUSTICE BURGER: Very well.

Mr. Weir.

ORAL ARGUMENT OF LAUREL G. WEIR, ESQ. ON BEHALF OF RESPONDENTS

MR. WEIR: Mr. Chief Justice and may it please the Court:

We filed this lawsuit in the United States District Court for the North District of Mississippi, Aberdeen, Mississippi, originally by five people representing the citizens of each one of the five supervisor districts of Winston County, Mississippi. We alleged that the one-man, one-vote rule was being violated and we thought there was no doubt but what it was.

It had continuously been done and since even before the Voting Rights Act vast groups of citizens from time to time tried to get that remedied. Even the legislature of the State of Mississippi saw that the one-man, one-vote theory was being violated and they even enacted a statute before the Voting Rights Act took effect.

No one was ever successful in court or in the legislature or anywhere else to get relief. So I filed a suit for the citizens of the county. There are more people living outside the city limits than live inside the city limits. There are vastly more students attending the school system that reside outside of the city limits as compared to inside the city limits.

When we got to the U.S. district court -- this is back about seven years ago, July of 1975, before the people could ever get a hearing in the U.S. district court. The United States district court ruled as a matter of comity that the federal court did have jurisdiction of the matter, true enough, and that there were federal questions raised there, the one-man, one-vote theory undoubtedly and undisputedly being violated.

But he thought that it was better -- and there are many federal decisions to uphold his theory -- that the State of Mississippi in the state courts ought to first be granted the right to pass upon those matters. And he put in his order of July 1, 1975, that he retained jurisdiction and gave the citizens 60 days in which to file a suit in the state court. If they didn't file a suit within 60 days the case was to be dismissed.

In his order he cited four federal decisions. You can read it in the record on pages 80 and 81: Meridian versus Bell Telephone Company -- I have the citation that he gave. It's not in the appendix, it's in the record that's come up from the Mississippi Supreme Court. I have it in the brief. It's on pages -- I just made a note of what page it appeared on. 80 and 81 is where it appears in the record that came up from the state supreme court.

Well, we promptly filed our suit in the state court and we -- they all agreed and we dictated and stipulated into the record that all supervisor districts were in compliance with the Justice Department rules and that all five of the supervisor districts do come into the city limits of the city of Louisville, Mississippi. And it was long after that until any black ever served on the board of trustees for the Louisville Municipal Separate School District.

Mr. Mayo made reference to the fact that one had been appointed. It was only after the state court ordered him to submit the matter to the United States Department of Justice that a black ever served on the school board under the appointed system. They got a white person to resign so they could appoint a black lady to serve as school board trustee.

She's the one and only lady that has ever served under the appointive system on the school board, and that was only recently, after the court ordered that the plan be submitted to the Justice Department. They got a person to resign and then appointed a black. She's out of office now. She got beat in the election, too, like the other four.

All five -- when the people did get a chance to vote and an opportunity to vote, every trustee that was in office ran for reelection also and every one of them got beat in the election, too. And the majority of the people -- like I say, there are more people living outside of the city limits than live inside. There are more people being outside the city limits than inside.

But it was not only white people that were not being permitted to vote. The blacks that lived outside the city limits were deprived of their right to vote. The Indians that lived outside the city limits of Louisville, Mississippi, were being deprived of their right to vote just like the white people. And so, when we filed the lawsuit we filed it as more or less a class action in behalf of reds, blacks, whites, and the concerned citizens.

Then after this matter got back from the Mississippi Supreme Court ruling that the chancellor must have an election -- and they ought to be congratulated on the opinion they wrote in that case, because they called attention to the bench and bar of the federal point that -- and it's in the appendix, their opinion -- that the one-man, one-vote law must be complied with in the state of Mississippi.

However, they said they didn't have to reach that point since there was already a statute that said that they did have to have an election. But if it had not been for the statute they would still have called an election because of the one-man, one-vote theory being violated, in violation of the Constitution of the United States, the state of Mississippi and the laws of the land as announced by this Court.

Now, he brought Mr. Mayo -- and one of the Justices here I believe was concerned about, should they put the old trustees back in office in the event of a reversal. Let me call your attention to this factor: The court ruled that the trustees that were serving were never legal trustees at all, and the court order just provided that they could only continue to serve until they could have the election and the election should be held as soon as possible.

One order on that is in the record on page 97, and there's another order on page 225 of the record that's brought up from the Mississippi Supreme Court, saying that they were never legal trustees. They certainly weren't at that time, and only over our objection they granted them the power to stay in office until the election can be held.

Well, the chancellor, like they say, ordered the matter sent to the Justice Department, the U.S. Attorney General, for his approval or disapproval. That was done on July the 24th, 1979. He did not make any ruling within 60 days one way or the other. The chancellor could have gone ahead and called the election, but he simply wouldn't do it, and it was March 28th, 1980, before the Attorney General ever made any ruling.

And his only objection, by the way, is not to keep down the election; his only objection was that the plurality theory ought to win as compared to the runoff election.

Well, so we go back into court and file a petition with the chancellor saying, all right, we don't care whether they have a plurality election or whether they have a runoff election. That's in the record there on page 249 of the record brought up from the Mississippi Supreme Court. And I believe that petition is printed in the appendix, too.

And the petition says that it's immaterial to us, because our interest is the interest in the schools and the children, who are going to teach our children, who are going to be trustees of our schools; and that we also prayed that if the court found it necessary to join the Attorney General in as a party. And he refused to do that.

But we agreed in writing and filed it, we'd go along with the Attorney General's ruling on the plurality on May 15, 1980, when we filed that petition. Well, the chancellor said, I'm not going to let him have the election yet. See, it had been since 1960, been that way; still no election. And now it's gone on up to May 15, 1980. The Attorney General's already ruled.

The chancellor says, still can't get any election, because the Attorney General said a plurality man has to win, the one that gets the most votes at the first election when the first election's held. And the state law says on school districts, municipal school districts, requires a runoff. So due to that conflict, I can't grant your petition to go along with the Attorney General and have the election.

So I had to go back to the Mississippi Supreme Court again with them, and so when we got back up to the Mississippi Supreme Court they required them to hold the election and ordered the first order enforced. And we did finally have the election. They tried to -- and then the Justice Department did come in and file some papers up there at Aberdeen.

QUESTION: Mr. Weir, can I interrupt you at this point?

MR. WEIR: Yes, sir.

QUESTION: On that appeal, can you refresh me? Did the Mississippi Supreme Court pass on the question whether the chancellor was correct in saying that the majority vote requirement could not be severed from the election, or did they just not reach that?

MR. WEIR: No, sir. I'll tell you how that came about. Thank you for raising the question. I was going to call your attention to it.

Of course, they claim in their opinion that, first of all, the case law had already been decided and therefore that issue could not come before the court. But this sentence appears in the opinion of the Mississippi Supreme Court, which you all have up here, if I understand correctly.

QUESTION: This is the latest opinion?

MR. WEIR: That's the last opinion, yes.

"On oral argument both parties agreed to abide by the statutory scheme requiring a runoff election." In other words, nobody has questioned that in this court, no one has raised that issue. The Justice Department hasn't even raised that issue. Mr. Mayo has not raised that issue.

Nobody had raised the issue about whether or not both parties or everybody that was involved in the case agreed that there would be a runoff election. They're bound by it. That question can't even be ruled on by this Court because nobody raised the question. Nobody's raised the point.

Does that answer your question? That's the way they disposed of it.

QUESTION: Well, in a way it does. But you in the trial court had said you were willing to abandon the runoff election.

MR. WEIR: I told him it didn't make us any difference, Judge. See, we had a petition on file, like I say, saying that we don't care whether it's a plurality or a runoff. All we want is an election. We've been deprived of it since 1960.

So that's the way the Mississippi Supreme Court disposed of that issue, though, saying that Mr. Mayo agreed right there in open court that there would be a runoff and that I agreed for the other side there would be a runoff. Nobody disputes that fact.

But also, there was another reason that they ruled maybe in that manner, because of the law of the case theory, which I'm going to get down to argue if I have time to in just a few moments here.

Now, about them knowing about and should have been ready about the Voting Rights Act issue. Their first petition for a writ of certiorari appears in the record on page -- on several pages, especially in the record on page 29.

They first filed a petition for rehearing in the Supreme Court and that was the first time they raised the issue about the Voting Rights Act, the one-man, one-vote theory. Then they argued in the petition for rehearing that was denied by this honorable Court, and the Mississippi Supreme Court called attention to the fact that the petition -- this issue's already been ruled on by this court.

They argued in their petition for certiorari --

QUESTION: We'll resume there at 1:00 o'clock, Mr. Weir.

MR. WEIR: Thank you.

(Whereupon, at 12:00 noon, the argument was recessed, to reconvene at 1:00 p.m. the same day.)

AFTERNOON SESSION

1:00 p.m.

CHIEF JUSTICE BURGER: Mr. Weir, you may continue.

ORAL ARGUMENT OF LAUREL G. WEIR, ESQ. - RESUMED ON BEHALF OF RESPONDENTS

MR. WEIR: Mr. Chief Justice, may it please the Court:

I want to submit that the Attorney General is not a party to this case. He only got in it in the form of amicus curiae. Actually, he got here to the U.S. Supreme Court -- now, he didn't appear in the lower court and according to the Mississippi Supreme Court opinion everybody agreed to the manner of holding the election.

He says in his own brief that his remedy is to file the lawsuit in the district court, have a three-judge federal panel is what it amounts to, and that's on file and active at Aberdeen, Mississippi, in the federal court. And we're not trying to avert the Civil Rights Act or the Voting Rights Act or anything of that nature here.

These people have waited all these years to get an election and just now have accomplished that purpose, and I surely would say that the Court should let them stay in in the event of a reversal, because the other group stayed in much longer without any legal authority at all. At least these people were elected by the voters.

QUESTION: Mr. Weir, you've referred two or three times to this stipulation as to how the election would be held. Now, did you give us a record reference on that?

MR. WEIR: Judge, there's no record reference. You see, in the Mississippi --

QUESTION: You mean there wasn't a record of all the proceedings or stipulations?

MR. WEIR: Well, no, sir. This is just the opinion of the Mississippi Supreme Court.

QUESTION: Well, I know, but is it supported by the record or not? How did they know that?

MR. WEIR: Because it was brought out in oral argument before the court, just like right now. They asked the questions to us.

QUESTION: What did they ask?

MR. WEIR: They asked me if it made me any difference whether the election was by plurality or by runoff, and we told them no.

QUESTION: Oh, so they're referring to a -- they're referring to a stipulation in the Mississippi Supreme Court?

MR. WEIR: Yes, sir.

QUESTION: Oh, I thought you said they were referring to a stipulation in the trial court.

MR. WEIR: No, sir.

QUESTION: No. Oh.

MR. WEIR: It was while the argument --

QUESTION: Well, what was the response from the other side?

MR. WEIR: It was all right with them to have it either way.

QUESTION: That was their response?

MR. WEIR: Yes, and that's the reason the Supreme Court put it in here. They said: "On oral argument both parties agreed to abide by the statutory scheme requiring a runoff election." Well, I told them it didn't make me any difference in effect.

QUESTION: Well, I don't suppose that the two parties could stipulate their way out of the Voting Rights Act. You don't suggest that, do you?

MR. WEIR: No, sir.

QUESTION: Well, so what is the significance of the stipulation?

MR. WEIR: Well, to show that there's no issue between the parties that's now before this Court as compared to a plurality vote or a runoff election. The parties that were involved in the lawsuit in the lower court, there's no issue between them and can't be an issue because they all agreed to it.

QUESTION: Well, that may be. But how did the case get here, then?

MR. WEIR: Well, that's a good question. They don't state any jurisdictional grounds whatsoever in the petition. And we raised that. They just merely say that the Mississippi Supreme Court ruled against them --

QUESTION: Well, somebody, whoever brought the case here, isn't satisfied with the result below, including not being satisfied, with ignoring the objection to the runoff election.

MR. WEIR: We objected to the jurisdiction, and when they went to write down jurisdiction they merely say one, two sentences: "The decision of the Supreme Court of Mississippi was entered on June 3, 1981, and rehearing denied on July 8, 1981. The petition for a writ of certiorari was filed August 28, 1981, and was granted on December 14, 1981."

That's all the jurisdictional things they allege in their brief.

QUESTION: Well, do you think then that the Petitioners are disavowing their stipulation in the Mississippi Supreme Court?

MR. WEIR: Well, certainly they are, Judge. No doubt about that.

QUESTION: Well, I suppose what they're saying now is, they could say, well, whatever we stipulated to then, the two parties were acting contrary to the federal law.

MR. WEIR: Well, I was going to get down to that, Judge, right shortly.

QUESTION: Okay.

MR. WEIR: You see, the first petition that came here to this Court, they argued the voting rights statute, you see, and it was plainly and clearly printed in there. And I filed an opposition paper to that petition for rehearing. That's in the court record. A copy of both is in there.

And when it got back to the Mississippi Supreme Court, they cited where you all denied certiorari on 441 U.S. 946, but they say it's not your decision that makes the law of the case; it says it's our prior decision that makes the law of the case.

QUESTION: The Supreme Court of Mississippi case?

MR. WEIR: Yes. And there's law to support that proposition in numerous places, but I would like to just say briefly, it was the same people, it was the same law, the same issues that went up both times, you see. And since the law of the case has been established, then they couldn't go back into this federal question of civil rights.

The only way the Attorney General can do that is to go forward with a suit in the federal court at Aberdeen, like he says.

QUESTION: So you're saying that this is just like -- under the state procedural rules, the federal issue had already been disposed of.

MR. WEIR: Right, and at the time of the second hearing --

QUESTION: It's like, if you want to raise a federal issue, some rule that says if you want to raise a federal issue you have to raise it in the trial court first.

MR. WEIR: And if you don't you waive it.

Another case, Rio Grande Railway versus Stringham, said that since the first judgment settled the issue and disposed of the whole case on the merits and directed what judgment should be entered, there was nothing left for the lower court to do, and then that the question sought to be presented -- that there was no need to grant certiorari relief, because the first case -- the first case decided the law of the case.

I have with me a Mississippi Supreme Court decision of Mississippi College versus May holding that on the doctrine of law of the case whatever is once established as controlling legal rule of decision between same parties in the same case the court should not rehear.

Now, a very interesting case that this Court ruled on, Webb versus Webb, 101 Supreme Court 1889, in 1891 -- page 1891. That was a case with a child custody decree in Florida giving the mother custody, one in Georgia giving the father legal custody. So the U.S. Supreme Court granted a writ of certiorari because full faith and credit hadn't been given to the Florida decree, which was obtained first.

When it got up here, though, you said, after looking at the record and seeing that that issue was not raised in the lower court, in the lower state court, then you cannot pass on it, that you have no jurisdiction.

QUESTION: Suppose, Mr. Weir, suppose I did -- and I'm sure you have done -- a thorough research job in the Mississippi cases. Would I find consistently adhered to this law of the case doctrine? Would you think that's a well-established doctrine in Mississippi?

MR. WEIR: In Mississippi, yes, sir. I have a citation in the brief there, I believe --

QUESTION: Well, one of them is Ruling Case Law. You got that in citation?

MR. WEIR: Yes, I got the whole case.

QUESTION: Ruling Case Law? A little old, isn't it?

MR. WEIR: Sir?

QUESTION: It's a little old, isn't it?

MR. WEIR: Well, this particular case was in 1961 --

QUESTION: But this citation I see is Ruling Case Law, and it's in 198 Mississippi that cites it, in your appendix.

MR. WEIR: In the appendix?

QUESTION: Yes. It's the opinion, the first opinion of the court. Is that where the rule of the law comes from?

MR. WEIR: What page, Justice Marshall?

QUESTION: Page 11.

MR. WEIR: Page 11.

QUESTION: Citing from the first opinion that you've been talking about.

MR. WEIR: Well, that was the Mississippi Supreme Court --

QUESTION: That's right.

MR. WEIR: -- that wrote that.

QUESTION: That's where you get this basis?

MR. WEIR: No, sir. Justice Marshall, I'm getting my basis first of all from their last opinion. It's not printed in your appendix there, and it says our --

QUESTION: Does it rely on --

MR. WEIR: Sir?

QUESTION: Does it rely on Ruling Case Law, too?

MR. WEIR: Yes, sir. That's what it says, that under the circumstances they have no right to alter in any respects something that has already been ruled on.

A real quick one here would be the case, the Cardinal case from Louisiana says that the Supreme Court will not decide federal constitutional issues raised before it for the first time on review of state court actions.

There is another case that's real short here I had to bring to the Court's attention. I believe it's called the Bloeth case. I don't see it right -- I don't see it right handy here, but that was a case where the bill of penalty had been ordered and so the U.S. Supreme Court ruled that even so, since the issue was not raised in the lower court, it couldn't be raised here.

Herndon versus Georgia is another case holding -- see, the question of how to appeal to the U.S. Supreme Court becomes significant here, because on appeal it said, we found it unnecessary to review the points made since this Court is without jurisdiction for the reason that no federal question was seasonably raised in the court below or passed upon by that court.

None was in this last decision. That had already been decided by the Mississippi Supreme Court, and on you all's refusal to grant the petition for certiorari, and that issue was raised before this Court --

QUESTION: Well then, I take it that on the law of the case rationale the stipulation in the oral argument in the most recent appearance before the Supreme Court was irrelevant?

MR. WEIR: It perhaps was.

QUESTION: Well, it really had no significance if the law of the case -- that's an independent state ground, I take it, you're insisting on.

MR. WEIR: Yes. I didn't write the opinion.

QUESTION: I understand that, but you certainly have called our attention to the stipulation several times, which really isn't -- in itself is not dispositive. You have to get to the law of the case doctrine.

MR. WEIR: The law of the case is what disposes of this case, plus another factor: The Attorney General can't overturned a Supreme Court decision. If he has anything to say about it, his way to say it is to file suit in a federal court and get a three-judge panel, and that's what he's done. He admits that in his brief.

QUESTION: Well, it isn't a question -- if the issue were here, it wouldn't be a question of the Attorney General overturning anything. It would be a question of whether the Supreme Court of Mississippi had complied with the federal law.

But you say the issue can't even be brought here because of the law of the case.

MR. WEIR: Yes, sir, and because it was disposed of in the first decision.

QUESTION: I understand.

MR. WEIR: And this very Court heard it and it was certainly raised in the petition that was filed up here, and I filed an answer to it in opposition to it, and this Court refused to grant the writ of certiorari. And these questions were clearly raised.

You know, there's some interesting things in this particular statute. It reads, "If any government agent desires to have an election district changed" or something. It doesn't say what if a citizen calls on the city or the government and claims they're not obeying the federal law. That's interesting.

Also it's interesting, in the Government's brief the fact that he alleges on page 18 there in his footnote -- that was very interesting -- that the latest federal regulations do not say whether or not a decision of a supreme court of a state of the United States can or cannot be binding in reference to the Voting Rights Act. We hadn't briefed that point ourselves, but I do point out that this is pointed out by the Justice Department here.

So first of all, the law of the case was established at the time the case was first before the Mississippi Supreme Court and so on.

And I enjoyed being with you gentlemen and Mrs. O'Connor.

CHIEF JUSTICE BURGER: Thank you, counsel.

Do you have anything further?

REBUTTAL ARGUMENT OF JAMES C. MAYO, ESQ. ON BEHALF OF PETITIONERS

MR. MAYO: May it please the Court, Mr. Chief Justice --

CHIEF JUSTICE BURGER: Two minutes.

MR. MAYO: I'd like to correct an error in one question that Mr. Justice Stevens asked about the election. There was a runoff in four of the five. The elections were December the 5th and December the 19th. There was a runoff election in four. In district number two there was an exact tie, and by special order the two candidates agreed to have a runoff election on December the 19th. And I wanted to correct that.

QUESTION: Could I ask you, what is your answer to law of the case position, just briefly?

MR. MAYO: I would say that the law of the case doctrine is not applicable to Section 5 and Section 5 compliance.

QUESTION: Do you think the Mississippi Supreme Court, not in its last opinion but in the opinion before this, that it decided the Section 5 question?

MR. MAYO: No, sir, they did not decide it. In 49-446, the first opinion, they did not decide the Section 5. What we did was no different than what the attorneys did in McDaniel versus Sanchez. When we were ordered to do something different, then we had to raise Section 5 or at least call it to the court's attention.

And I don't believe that there's a competent attorney in the United States of America representing a covered jurisdiction that would advise his clients, in the face of a disapproval from the Justice Department of the United States when a submission had been made, to go ahead and have an election, regardless of whether it's a plurality or a runoff.

QUESTION: You certainly felt obligated to come here.

MR. MAYO: Yes, sir. And that is the -- to me that is the key issue, regardless of all the other things that have been argued. That March 28th letter said don't have the election.

QUESTION: Suppose whatever Section 5 issue is presented here had been presented in the earlier appeal. Suppose it had and it had been decided adversely to you. Petition for certiorari denied, and suppose there is a law of the case doctrine in Mississippi.

MR. MAYO: Well, of course it would be error for the state court to do that.

QUESTION: Yes.

MR. MAYO: If it had been decided by the Mississippi Supreme Court, even though it was an error, that issue would have been before the court in 49-446, but it was not.

QUESTION: But could the state legitimately refuse -- could the state supreme court legitimately refuse to address the question again in this latest appeal?

MR. MAYO: I do not believe so, and one of the reasons I have for that --

QUESTION: It said it did.

MR. MAYO: I like the language of Judge Love when he ordered compliance with Section 5. He said: "The purpose of the Voting Rights Act is to protect people not before the court." And that's in the record at pages 90 and 91.

Thank you very much.

CHIEF JUSTICE BURGER: Thank you, counsel. The case is submitted.

(Whereupon, at 1:18 p.m. the case in the above-entitled matter was submitted. )