Lucas v. McKeithen

United States Court of Appeals,

Fifth Circuit.

No. 95-30877

Summary Calendar.

Robert LUCAS, et al., Plaintiffs,

and

Reginald B. Ware, Sr.; Jesse Carroll Knight, Sr., Reverend,
Plaintiffs-Appellees,

v.

Fox McKEITHEN; Richard Ieyoub; Edwin Edwards; East Carroll
Parish School Board; Bossier Parish School Board; DeSoto Parish
School Board; Iberville Parish School Board; St. Mary Parish
School Board; West Carroll Parish School Board; all Defendants,
Defendants,

v.

Reynold MINSKY; Jack Hamilton; Grady Brown; Amos Amacker, II;
Harvey Howington; Lonnie Batton; James Thom, IV; Thomas Parker;
Charles Crawford, Movants-Appellants.

Dec. 4, 1996.

Appeal from the United States District Court for the Middle
District of Louisiana.

Before POLITZ, Chief Judge, and JOLLY and DeMOSS, Circuit Judges.

POLITZ, Chief Judge:

Reynold Minsky, Jack Hamilton, Grady Brown, Amos Amacker II,

Harvey Howington, James Thom IV, Thomas Parker, Lonnie Batton, and

Charles Crawford appeal the district court's denial of their motion

to intervene as of right and motion for permissive intervention.

We affirm the denial of intervention as of right and dismiss the

appeal of the permissive intervention ruling.

Background

1
 In July 1994 a group of African-American voters brought this

action against the school boards of East Carroll Parish, Iberville

Parish, Bossier Parish, DeSoto Parish, St. Mary Parish, and West

Carroll Parish, as well as the Secretary of State, the Attorney

General, and the Governor of the State of Louisiana, seeking

compliance with the Voting Rights Act of 19651 and the fourteenth

amendment's one person, one vote guaranty. The plaintiffs promptly

moved the district court to adopt an interim redistricting plan for

each defendant parish for the fall 1994 school board elections.

During a hearing in August 1994, the plaintiffs offered interim

plans that met federal requirements but split some election

precincts. East Carroll Parish School Board submitted an

alternative, Plan 6, which did not call for precinct splitting.2

The state defendants objected to plaintiffs' plans because state

law generally prohibits the splitting of precincts.3

On August 16, 1994 the district court approved an election

plan for St. Mary Parish that split precincts, but did not adopt

the plaintiffs' plan for East Carroll Parish. Rather, on August

23, 1994, the district court adopted Plan 6 as an interim plan for

East Carroll Parish so that elections could proceed, but ordered

the East Carroll Parish School Board to adopt, after the elections,

a permanent reapportionment plan that complied with the

1
42 U.S.C. §§ 1973, 1973c, 1983.
2
Plan 6 had not been precleared by the Department of Justice
as required by section 5 of the Voting Rights Act.
3
See La.R.S. 17:71.3 (West 1982 & Supp.1996).

2
Constitution and the Voting Rights Act.

Elections were held under Plan 6 in the fall of 1994. After

public hearings, in January 1995 the newly elected school board

adopted a permanent redistricting plan, Plan L. Plan L provides

for the splitting of some existing parish precincts.

The Department of Justice precleared Plan L in May 1995. The

plaintiffs then moved the district court to schedule elections

under Plan L for the fall of 1995. The state defendants objected

to Plan L because: (1) the hand-drawn maps and manually calculated

statistics provided by the School Board were inadequate for the

state defendants to ascertain precisely the location of the

district lines; and (2) because Plan L called for the splitting of

precincts. Because of these objections the district court withheld

ruling on the plaintiffs' motion and ordered them to assist the

state in interpreting the School Board's material. The plaintiffs

complied and assisted in the preparation of computerized maps: The

state agreed that the materials were sufficient to ascertain the

voting lines and the School Board resubmitted the material to the

Department of Justice, which issued a no-objection letter on August

14, 1995.

On July 27, 1995 appellants, a group of white voters in East

Carroll Parish, sought to intervene to challenge Plan L largely

because it called for splitting some precincts. After a hearing

the district court denied the motion as untimely and scheduled the

elections. The proposed intervenors then filed a second motion to

intervene claiming that it was timely because the computerized maps

3
had been sent recently to the Department of Justice to confirm

section 5 preclearance.4 The district court again denied the

motion. The proposed intervenors timely appealed.

Analysis

The denial of a motion to intervene as of right is an

appealable final order under 28 U.S.C. § 1291.5 We have only

provisional appellate jurisdiction to review the denial of a motion

for permissive intervention.6

Intervention is governed by Rule 24 of the Federal Rules of

Civil Procedure. A non-party seeking to intervene has available

two avenues under this Rule: section (a) provides for intervention

as of right and section (b) provides for permissive intervention.

The proposed intervenors moved for both intervention as of right

and permissive intervention. We review the district court's

decision concerning the former de novo and the latter for a clear

abuse of discretion.7

A motion to intervene must be timely.8 We review a district

4
The proposed intervenors alternatively sought to intervene
for purpose of appeal only. We assume, per arguendo, that our
Rules provide for such intervention but we do not decide that issue
today.
5
Edwards v. City of Houston, 78 F.3d 983 (5th Cir.1996) (en
banc ).
6
Id. If there was no abuse of discretion we have no
jurisdiction and must dismiss the appeal.
7
Id.
8
Fed.R.Civ.P. 24(a) and (b).

4
court's timeliness determination for an abuse of discretion.9

Timeliness is to be determined from all of the circumstances.

There are four pertinent factors: (1) the length of time during

which the proposed intervenors actually knew or reasonably should

have known of their interest in the case; (2) the extent of the

prejudice that the existing parties may suffer as a result of the

proposed intervenors' failure to apply for intervention as soon as

they actually knew or reasonably should have known of their

interest in the case; (3) the extent of the prejudice that the

proposed intervenors may suffer if the motion is denied; and (4)

the existence of unusual circumstances militating for or against

the determination that the motion is timely.10

The district court did not abuse its discretion in ruling

that the motions to intervene were untimely. First, the proposed

intervenors knew or should have known about their interest in this

suit for more than a year before seeking to intervene. Precinct

splitting was at issue as early as the plaintiffs' motion to adopt

interim plans. Second, the existing parties would have been

prejudiced by the inordinate delay; to permit intervention at the

eleventh hour would have resulted in revisiting of issues

previously addressed at length by the parties while elections would

be further delayed. Third, the proposed intervenors were not

prejudiced by the district court's ruling because the state

defendants previously had advanced the arguments they sought to

9
Edwards.
10
Id.

5
advance. Finally, there are no unusual circumstances that militate

against a finding of untimeliness.

The district court's order denying intervention as of right is

AFFIRMED and the appeal of the district court's order denying

permissive intervention is DISMISSED.

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