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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

MISSISSIPPI STATE CONFERENCE OF THE NAACP, ET AL.

Plaintiffs,

vs. No. 3:11-cv-159 (DPJ)(FKB)

HALEY BARBOUR, ET AL.,

Defendants,
and

THE APPORTIONMENT AND ELECTIONS COMMITTEE

OF THE MISSISSIPPI HOUSE OF REPRESENTATIVES,

Applicant for Intervention

MEMORANDUM IN SUPPORT
OF THE MOTION TO INTERVENE OF THE
APPORTIONMENT AND ELECTIONS COMMITTEE
OF THE MISSISSIPPI HOUSE OF REPRESENTATIVES

The House Apportionment and Elections Committee passed a proposed plan to

reapportion the Mississippi House of Representatives in the wake of the 2010 census. That

plan was adopted by a majority vote of the House on two separate occasions during the 2011

Regular Session. However, the Senate rejected the plan, deviating from the long-standing

practice and custom in the Mississippi Legislature of each house deferring to the other’s

redistricting plan. Thus, no plan is in place at this time, and this lawsuit was filed to obtain

a court order adopting a plan for use in the 2011 legislative elections.

In 1991, when the Mississippi Legislature’s redistricting plan was rejected by the

United States Department of Justice under Section 5 of the Voting Rights Act, 42 U.S.C §

1973c, the House Apportionment and Elections Committee was granted intervention to

participate in the ensuing federal court lawsuit that sought to adopt a plan for the 1991

legislative elections. See, Watkins v. Mabus, 771 F. Supp. 789, 792-793 (S.D. Miss. 1991)
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(three-judge court) (noting that the Court granted intervention to the House Committee and

other interested parties). Just as intervention was granted to the Committee in that case, it

also should be granted in the present case.

Intervention is sought as of right under Rule 24(a), F.R.Civ.P., and in the alternative,

permissive intervention is requested under Rule 24(b). If the Court chooses to grant

permissive intervention, it may do so without addressing whether intervention exists of right.

Before discussing the issue in more detail, it is important to note at the beginning that

the case law suggests that intervention generally should be allowed for interested parties.

"Any doubt concerning the propriety of intervention should be resolved in favor of the

proposed intervenors because it allows the court to resolve all related disputes in a single

action." FSLIC v. Falls Chase Special Taxing Dist., 983 F.2d 211, 215 (11th Cir. 1993).

This memorandum first discusses the standards for intervention of right and then

discusses permissive intervention.

I. THE STANDARDS FOR INTERVENTION AS OF RIGHT ARE MET IN

THIS CASE.

Rule 24(a)(2) provides:

On timely motion, the Court must permit anyone to intervene who . . . claims an
interest relating to the property or transaction that is the subject of the action, and is
so situated that disposing of the action may as a practical matter impair or impede the
movant's ability to protect its interest, unless existing parties adequately represent that
interest.

The relevant factors are discussed in turn.

Timeliness

This motion is being filed within a week of the filing of the complaint in this case.

See, Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1125-26 (5th Cir.) (motion to intervene

more than a year after the action was commenced was timely when there had been no legally

significant proceedings other than the completion of discovery and motion would not cause

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any delay in the process of the overall litigation), cert. denied, 400 U.S. 878.

Protectable Interests

"[I]n the intervention area, the 'interest' test is primarily a practical guide to disposing

of lawsuits by involving as many apparently concerned persons as is compatible with

efficiency and due process." Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 n.10 (5th Cir.

1992), quoting, Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967). As the Eleventh

Circuit explained in Chiles v. Thornburg, 865 F.2d 1197 (11th Cir. 1989), quoting from Fifth

Circuit cases:

The [intervenors'] interest need not . . . "be of a legal nature identical to that of the
claims asserted in the main action." Diaz, 427 F.2d at 1124. Our inquiry on this issue
"is 'a flexible one, which focuses on the particular facts and circumstances
surrounding each [motion for intervention].'" United States v. Perry County Board
of Education, 567 F.2d 277, 279 (5th Cir. 1978).

865 F.2d at 1214. The goal of Rule 24 is to allow all persons whose rights will be affected

to participate in the litigation:

As a general rule, a person cannot be deprived of his or her legal rights in a

proceeding to which such person is neither a party nor summoned to appear in the
legal proceeding. See, e.g., Martin v. Wilks, ___ U.S. ___, 109 S.Ct. 2180, 2185, 104
L.Ed.2d 835 (1989) (citing Chase National Bank v. Norwalk, 291 U.S. 431, 441, 54
S.Ct. 475, 479, 78 L.Ed. 894 (1934)). The need to settle claims among a disparate
group of affected persons militates in favor of intervention.

Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990).

The Committee was involved in the legislative process regarding redistricting for the

House. The Committee’s chairman was involved in the construction of the plan that passed

the House. The Committee has an interest in the outcome of this litigation, which will

determine the plan that is used for the 2011 legislative elections.

Courts routinely have allowed intervention and participation by entities and

officeholders when their districts are at issue in litigation. See, e.g., Hastert v. Board of

Elections, 777 F.Supp. 634, 639 (N.D. Ill. 1991) (three-judge court) (intervention allowed

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for incumbent members of Congress in lawsuit regarding congressional redistricting plan);

Nash v. Blunt, 140 F.R.D. 400 (W.D. Mo. 1992) (three-judge court) (certain members of

state house of representatives allowed to intervene in litigation challenging the redistricting

plan for house members; court's decision notes that such intervention is generally permitted

in voting rights cases); Smith v. Clinton, 687 F.Supp. 1310, 1313 (E.D. Ark. 1988) (three-

judge court), aff'd mem., 488 U.S. 988 (1988) (in action challenging legislative election

district, "[i]t was open to members of the Legislature to intervene and become parties, if they

wished to do so."); LULAC v. Clements, 999 F.2d 831, 837 (5th Cir. 1993), cert. denied, 114

S.Ct. 878 (1994) (intervention allowed for incumbent judges in challenge to judicial election

districts); Clark v. Edwards, 725 F.Supp. 285, 287 (M.D. La. 1988) (intervention allowed for

organization of incumbent judges in challenge to judicial election districts); Williams v. State

Board of Elections, 696 F.Supp. 1563, 1570-1573 (N.D. Ill. 1988) (sitting judges in challenge

to judicial election districts not only had right to intervene, but were indispensable parties);

Pitts v. Carter, 380 F.Supp. 4, 6 (N.D. Ga. 1974) (incumbent county commissioners allowed

to intervene in case regarding election of county commissioners); Kelly v. Bumpers, 340

F.Supp. 568, 570 (E.D. Ark. 1972 (three-judge court), aff'd mem., 413 U.S. 901 (1973)

(incumbent state senator allowed to intervene in case challenging legislative districting plan);

David v. Cahill, 342 F.Supp. 463, 4654 (D.N.J. 1972) (three-judge court) (incumbent

member of Congress allowed to intervene in suit regarding congressional districting plan);

Skolnick v. State Electoral Board of Illinois, 336 F.Supp. 839, 842 (N.D. Ill. 1971) (three-

judge court) (incumbent members of Congress allowed intervention in congressional

redistricting case).

Also, as mentioned earlier, intervention was granted to the Committee in 1991 in the

Watkins case, which involved a situation similar to this one.

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The foregoing indicates that the Committee’s interest is sufficient to allow

intervention.

Impeding The Applicant's Ability To Protect The Interests

In Chiles, the Court said: "The nature of the [applicants'] interest and the effect that

the disposition of the lawsuit will have on their ability to protect that interest are closely

related issues." 865 F.2d at 1214. As the Court explained in the context of the issues in

Chiles, where the stare decisis effect of a case will later prevent the applicant from

relitigating the issues, intervention of right may well be warranted:

Where a party seeking to intervene in an action claims an interest in the . . . very

transaction that is the subject of the main action, the potential stare decisis effect may
supply that practical disadvantage which warrants intervention as of right. The
[applicants'] ability to litigate the government's [activities] in a separate lawsuit might
be an exercise in futility if the instant lawsuit was decided in favor of the government.

Id. (citation omitted).

Similarly, the applicant here likely will be bound by the result of this litigation.

Accordingly, the disposition of this action may, as a practical matter, impair or impede its

ability to protect its interests.

Inadequate Representation By Existing Parties

The applicant’s interests may well be sufficiently represented by the existing parties,

but that is not knowable at this point. In most of the voting rights cases cited earlier, both

plaintiffs and defendants were litigating their respective positions. Yet the courts generally

have allowed intervention in such circumstances. As the three-judge court noted in Nash v.

Blunt, 140 F.R.D. 400 (W.D. Mo. 1992) (three-judge court), it is often presumed in

redistricting cases that the interests of proposed intevenors are not adequately represented by

the existing parties. 140 F.R.D. at 403. While this is contrary to the presumption in other

sorts of cases, it makes good sense in redistricting cases, where a variety of interests are at

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issue, not all of which are shared by the existing parties.

Before going further, it is important to note that the United States Supreme Court has

made it clear that the inadequate representation requirement "is satisfied if the [proposed

intervenor] shows that representation of his interest 'may be' inadequate" and "the burden of

making that showing should be treated as minimal." Trbovich v. United Mine Workers, 404

U.S. 528, 538 n.10 (1972) (emphasis added).

As the court explained in Chiles, even where proposed intervenors and parties share

the same ultimate objective and similar interests, the "representation" may not be "adequate"

for Rule 24 purposes. "The fact that the interests are similar does not mean the approaches

to litigation will be the same." 865 F.2d at 1214. This is particularly true in the context of

challenges to election systems, as explained by the court in Meek:

The intervenors sought to advance their own interests in achieving the greatest
possible participation in the political process. [The county], on the other hand, was
required to balance a range of interests likely to diverge from those of the intervenors.

985 F.2d at 1478.

At any rate, the potential divergence of interests among parties in redistricting cases --

even those who seek the same ultimate result -- is sufficient to generally allow intervention,

and certainly is sufficient in this case. As the three-judge court explained in the redistricting

context in Nash v. Blunt:

Allowance of intervention does not require a finding that the intervenors' interests
have not been and will not be adequately represented by the [existing parties].
Intervention is allowed when this "may" happen. Trbovich v. United Mine Workers,
404 U.S. 528, 538 n.10 (1972).

140 F.R.D. at 403-404. The Nash court then went on to note that intervention is rarely

denied in such situations in redistricting cases. Id. at 404.

It should be pointed out here that the applicant here does not intend to duplicate the

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efforts of the other parties in this case. However, the applicant does bring a perspective that

hopefully will aid in the disposition of the case.

II. EVEN IF INTERVENTION OF RIGHT IS NOT GRANTED, PERMISSIVE

INTERVENTION IS APPROPRIATE.

Rule 24(b) provides: "On timely motion, the court may permit anyone to intervene

who. . . has a claim or defense that shares with the main action a common question of law

or fact." Clearly, that standard is met here. As noted previously, the application here is

timely. Moreover, the applicant has an interest in the plan that is used for the 2011 election,

which is the subject of this lawsuit. The applicants' claim and the main action have,

therefore, a question of law or fact in common.

Further, the intervention will not prejudice the existing parties. Accordingly, even if

the Court concludes that the prerequisites for intervention of right have not been met, or if

the Court decides not to address that issue in favor of permissive intervention, it is clear for

all of the reasons stated in this memorandum that intervention is appropriate, and the

applicants should be granted permissive intervention under Rule 24(b).

Respectfully submitted,
s/Robert B. McDuff
ROBERT B. MCDUFF
Miss. Bar No. 2532
767 North Congress Street
Jackson, Mississippi 39202
(601) 969-0802
rbm@mcdufflaw.com

Counsel for Applicant for Intervention

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CERTIFICATE OF SERVICE

I hereby certify that on March 23, 2011, I electronically filed the foregoing Memorandum in

Support of the Motion to Intervene of the Apportionment and Elections Committee of the Mississippi

House of Representatives with the Clerk of the Court using the ECF system which sent notification

to the following:

Carroll Edward Rhodes

LAW OFFICES OF CARROLL RHODES
P. O. Box 588
Hazlehurst, MS 39083

Michael B. Wallace
WISE CARTER CHILD & CARAWAY
P.O. Box 651
Jackson, MS 39205-0651

I certify that a copy of the foregoing has also been delivered via electronic mail to the

following:

Harold Pizzetta
Chief, Civil Litigation Division
Office of the Attorney General
P.O. Box 220
Jackson, MS 39205

Samuel Begley
Begley Law Firm
P.O. Box 287
Jackson, MS 39205
Counsel for Defendant Mississippi Democratic Executive Committee

This 23rd day of March, 2011.

s/Robert B. McDuff
Counsel for the Applicant for Intervention