Perschall v. State of Louisiana

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 98-30004
Summary Calendar
____________________

CLEMENT F. PERSCHALL, JR,

Plaintiff-Appellant,

v.

STATE OF LOUISIANA;

Defendant-Appellee

and

RONALD CHISOM; MARIE BOOKMAN; WALTER WILLARD; HENRY
DILLON, III; LOUISIANA VOTER REGISTRATION/EDUCATION
CRUSADE,

Intervenors-Appellees.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
(95-CV-1265-A)
_________________________________________________________________

February 18, 1999

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.

PER CURIAM:*

Plaintiff-appellant Clement F. Perschall, Jr., a practicing

attorney and resident of Orleans Parish, Louisiana, alleges that

1992 Louisiana Acts 512 violates the Louisiana Constitution and

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the Fourteenth Amendment. The district court remanded plaintiff-

appellant’s claims under the Louisiana Constitution to state

court, and the Supreme Court of Louisiana issued an opinion

declaring the act unconstitutional in its entirety. The district

court then dismissed plaintiff-appellant’s remaining claims as

moot. We affirm.

I. BACKGROUND

In 1987, intervenors-appellees (Chisom) filed a complaint on

behalf of a class of approximately 135,000 black registered

voters in Orleans Parish challenging, under Section 2 of the

Voting Rights Act of 1965, 42 U.S.C. § 1973 (1994) (as amended),

the method by which Louisiana Supreme Court justices were

elected. See Chisom v. Edwards, No. 86-4075 (E.D. La.). At the

time, Louisiana law provided that Orleans Parish was in the first

supreme court district; the first district also included St.

Bernard, Plaquemines, and Jefferson parishes and elected two of

the seven supreme court justices. See LA. REV. STAT. ANN. § 13:101

(1983). The remaining five justices were elected in single-

member districts. See id.

Chisom and the State of Louisiana entered into a settlement

agreement, and the district court entered a consent decree on

August 21, 1992. The consent decree was dependent on the

Louisiana legislature enacting legislation that would create an

additional position for a judge on the Louisiana Court of Appeal

who would be assigned to the Louisiana Supreme Court. This

temporary judgeship would expire when a justice took office from

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a newly created seventh district consisting of Orleans Parish;

the justice would take office upon a vacancy in the first

district or after a regular election in the year 2000. The

Louisiana legislature enacted this legislation in June 1992. See

1992 La. Acts 512 (Act 512).

Plaintiff-appellant Clement F. Perschall, Jr. (Perschall)

filed this petition for declaratory judgment against the State of

Louisiana in state court on January 26, 1995. Perschall alleged

that Act 512 violates several provisions of the Louisiana

Constitution and the Fourteenth Amendment. See LA. CONST. art. V,

§ 3 (“The supreme court shall be composed of a chief justice and

six associate justices.”). Louisiana removed Perschall’s

petition to the United States District Court for the Middle

District of Louisiana under 28 U.S.C. § 1441(b), and the case was

transferred to the Eastern District of Louisiana on April 25,

1995.

On July 5, 1995, the district court remanded Perschall’s

state law issues to the state court under the Pullman abstention

doctrine and stayed further proceedings on the single federal

constitutional claim over which it retained jurisdiction.1 The

1
See Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496
(1941). Under the Pullman doctrine,

a federal court may, and ordinarily should, refrain from
deciding a case in which state action is challenged in
federal court as contrary to the federal constitution if
there are unsettled questions of state law that may be
dispositive of the case and avoid the need for deciding the
constitutional question.

17A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 4242 (2d

3
court attempted to clarify the remand on August 3, 1995 by

ordering that the “constitutionality of Act 512 is the sole issue

remanded to the [state court], and . . . this Court retains

jurisdiction over all other issues in this case.”2

The Louisiana Supreme Court exercised supervisory

jurisdiction and granted certiorari, ordering that the entire

case as remanded be brought to the supreme court for decision.

See Perschall v. State of Louisiana, 697 So. 2d 240, 249 (La.

1997). The court found that Act 512 effectively creates an

eighth position on the supreme court in violation of the

Louisiana constitution and declared the act unconstitutional.

See id. at 259-60. The court decided that Act 512 and the Chisom

consent decree “are separate and independent methods by which the

negotiated remedy was implemented” and therefore the court as it

was then composed “shall continue to function as a de jure court

with its actions valid and effectual.”3 Id. at 260. The court

finally rejected Perschall’s argument that its finding of

ed. 1988).

2
Perschall alleges that this second order requires that the
district court consider appropriate remedies after the Louisiana
Supreme Court found Act 512 unconstitutional under state law,
including whether all affected Louisiana Supreme Court decisions
should be vacated. Because we find Perschall does not have a
sufficient personal interest in this claim to avoid mootness, we
need not decide whether his interpretation of the district
court’s order is correct or whether such an interpretation would
be consistent with the Pullman abstention doctrine.

3
Perschall does not challenge the court’s use of the Chisom
consent decree as an independent basis for its composition or for
the validity of its opinions.

4
unconstitutionality renders void all decisions by the court

during the time Act 512 was effective, relying on “long-

established” Louisiana authority. Id. at 260-61.

Following the Louisiana Supreme Court’s decision that Act

512 is unconstitutional, the district court dismissed Perschall’s

remaining claims as moot. See Perschall v. Louisiana, No.

CIV.A.95-1265, 1997 WL 767703 (E.D. La. Dec. 10, 1997). The

district court reasoned that Perschall’s state law claims were

resolved by the Louisiana Supreme Court’s decision, which

obviates consideration of Perschall’s federal constitutional

claims. See id. at *4. The district court found that the

Louisiana Supreme Court had granted Perschall all the relief that

he requested in his petition, and that “any further proceeding

has no possibility of creating any impact on the parties.” Id.

Finally, the district court rejected Perschall’s request that it

consider appropriate general and equitable relief, relying on the

Louisiana Supreme Court’s decision that its actions during the

time Act 512 was effective are valid under well-settled law. See

id. at *5. Perschall timely appeals.

II. DISCUSSION

Perschall argues that the district court erred in dismissing

his claim for mootness because the district court remanded only

the question of whether Act 512 was constitutional and did not

relinquish its jurisdiction to determine an appropriate remedy.

Perschall also argues that the district court did not adjudicate

his federal constitutional claims and that the availability of a

5
remedy under the Fourteenth Amendment is sufficient to prevent

his case from becoming moot. Finally, he argues that the

district court should have found that his claims were not moot

because the controversy is capable of repetition.

A. Perschall’s Claims Are Moot

We review the district court’s determination of mootness de

novo. See Jews for Jesus, Inc. v. Hillsborough County Aviation

Auth., 162 F.3d 627, 629 (11th Cir. 1998); Irish Lesbian & Gay

Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998). It is well-

established that the jurisdiction of federal courts extends only

to actual cases and controversies and that we therefore lack

jurisdiction in cases that become “moot.” See U.S. CONST. art.

III, § 2; Spencer v. Kemna, 118 S. Ct. 978, 983 (1998). We have

stated that “[a] controversy becomes moot where, as a result of

intervening circumstances, there are no longer adverse parties

with sufficient legal interests to maintain the litigation.”

Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153

(5th Cir. 1993). This means that the plaintiff “‘must have

suffered, or be threatened with, an actual injury traceable to

the defendant and likely to be redressed by a favorable judicial

decision.’” Spencer, 118 S. Ct. at 983 (quoting Lewis v.

Continental Bank Corp., 494 U.S. 472, 477 (1990)). If the

plaintiff is “divested of all personal interest in the result” or

the parties do not “maintain a ‘concrete interest in the

outcome,’” a federal court lacks jurisdiction and should dismiss

the claim. Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th

6
Cir. 1998) (quoting Firefighters Local Union No. 1784 v. Stotts,

467 U.S. 561, 571 (1984)).

Perschall fails to demonstrate any concrete interest in this

litigation. In his appellate brief, he argues that the allegedly

unconstitutional composition of the Louisiana Supreme Court

“bears upon [his] ability to practice his livelihood.” Perschall

complains that “as an active legal practitioner, [he] would have

to address the constitutional composition of the Louisiana

Supreme Court with any client he represents before the Court.”

We find this argument unpersuasive. We initially question

Perschall’s perceived need to address the constitutionality of

the supreme court with his clients. The supreme court has

already found that its composition and decisions are valid under

long-standing authority and the Chisom consent decree.

Furthermore, even if Perschall does need to “address the

constitutional composition” with his clients, we find that this

alleged injury does not sufficiently affect his ability to

practice his livelihood to enable him to maintain this action.

The only support that Perschall identifies for his claim

that the alleged unconstitutional composition of the supreme

court “bears upon [his] ability to practice his livelihood” is

Lakeside Imports, Inc. v. State of Louisiana, 639 So. 2d 253, 255

(La. 1994) (recognizing a fundamental right to pursue a lawful

trade and earn a living without substantial government

interference). In Lakeside Imports, the Louisiana Supreme Court

upheld a Sunday closing law after finding that the plaintiff, an

7
automobile dealer, failed to show that he was deprived of his

right to engage in the sale of new and used cars and trucks and

produced no evidence that he suffered a pecuniary loss by being

forced to close on Sunday. See id. at 255-56. Similarly,

Perschall does not allege that he has suffered a pecuniary loss

as a result of the composition of the supreme court or that its

composition deprives him of his ability to practice law.

Although we have been reluctant to find mootness when attorneys

challenge actions that may adversely affect their reputations,

Perschall alleges no injury to his livelihood in that respect

either. See Dailey, 141 F.3d at 227-29 (finding no mootness

where formerly disbarred attorney is reinstated because the

disbarment may adversely affect her professional career); see

also Agee v. Paramount Communications Inc., 114 F.3d 395, 399 (2d

Cir. 1997) (“[W]e have some concern about the application of the

mootness doctrine to [an attorney] . . . [where] his reputation

-- the basis of the attorney’s livelihood -- is at stake.”). In

short, we find no evidence that Perschall’s practice of law has

been injured in any legally cognizable way, and we therefore

cannot sustain his action on the basis of its alleged bearing on

his ability to practice his livelihood.

Perschall also argues that his right to vote for justices of

the Louisiana Supreme Court is infringed and that he is deprived

a republican form of government4 by the present composition of

4
We note that Perschall’s claim that the composition of the
Louisiana Supreme Court violates his federal constitutional right
to a republican form of government is a political question and

8
the Louisiana Supreme Court. These arguments are insufficient to

avoid a finding of mootness because they are too general and fail

to demonstrate any individualized injury. See Lujan v. Defenders

of Wildlife, 504 U.S. 555, 573-74 (1992) (“We have consistently

held that a plaintiff raising only a generally available

grievance about government -- claiming only harm to his and every

citizen’s interest in proper application of the Constitution and

laws, and seeking relief that no more directly and tangibly

benefits him than it does the public at large -- does not state

an Article III case or controversy.”); Ex parte Levitt, 302 U.S.

633, 634 (1937) (per curiam) (dismissing suit contending that

Justice Black’s appointment to United States Supreme Court

violated the Ineligibility Clause because private individual must

“show that he has sustained or is immediately in danger of

sustaining a direct injury as the result of that action and it is

not sufficient that he has merely a general interest common to

all members of the public”). We therefore agree with the

district court’s conclusion that Perschall’s claims are moot.

B. The Mootness Exception

Perschall argues that this case falls within an exception to

the mootness doctrine for cases that are “capable of repetition,

yet evading review.” Perschall states that he will continue to

have cases in his role as an attorney that may require

appearances before the Louisiana Supreme Court and that he will

therefore nonjusticiable. See Baker v. Carr, 369 U.S. 186, 218-
224 (1962) (citing Luther v. Borden, 48 U.S. (7 How.) 1 (1849)).

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be obliged to assert on behalf of any such client the

unconstitutional composition of the court. Perschall asserts

that each client will have an individual right to litigate this

issue.

The “capable of repetition, yet evading review” exception to

mootness “‘applies only in exceptional situations.’” Spencer,

118 S. Ct. at 988 (quoting City of Los Angeles v. Lyons, 461 U.S.

95, 109 (1983)). The exception requires that (1) the duration of

the challenged action is too short to enable the parties to

litigate fully prior to cessation or expiration, and (2) there is

a reasonable expectation that the same party will again be

subject to the same action. See id.; Henschen v. City of

Houston, 959 F.2d 584, 589 (5th Cir. 1992).

Perschall does not argue, and we find no evidence

suggesting, that the duration of the challenged action here is

always so short as to evade review. Perschall argues that it is

likely that the issue will arise again when he represents clients

before the Louisiana Supreme Court, but does not allege that

there will be no opportunity to litigate fully the composition of

the court at that time. Perschall’s claim is therefore not a

controversy evading review, and the district court correctly

dismissed the claim as moot.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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