Roy Ferrand et al vs. Tom Schedler, et. al.
Filing
467
ORDER AND REASONS denying 445 Motion to Stay Pending Appeal and to Dispense with Bond. Signed by Judge Jane Triche Milazzo. (ecm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LUTHER SCOTT, ET AL
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CIVIL ACTION NO. 11‐926
Plaintiffs
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SECTION: H
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JUDGE JANE TRICHE MILAZZO
VERSUS
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MAGISTRATE: 2
TOM SCHEDLER, ET AL
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MAG. JOSEPH C. WILKINSON, JR.
Defendants *
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ORDER AND REASONS
The matter before the Court is Defendant Tom Schedler's ("Schedler") Motion for Stay
Pending Appeal and to Dispense with Bond. (Doc. 445.) For the following reasons the Motion is
DENIED.
BACKGROUND
Plaintiffs Roy Ferrand, Luther Scott, Jr. and the Louisiana State Conference of the NAACP1
1
National Association for the Advancement of Colored People
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("LSC NAACP") (collectively, “Plaintiffs”) brought this action on April 19, 2011, for themselves and
on behalf of all other persons similarly situated against Defendants Tom Schedler, in his official
capacity as Louisiana Secretary of State, Ruth Johnson, in her official capacity as Secretary of the
Louisiana Department of Children and Family Services (“DCFS”), and Bruce D. Greenstein, in his
official capacity as Secretary of the Louisiana Department of Health and Hospitals (“DHH”). In their
Complaint, Plaintiffs allege that Defendants have engaged in systemic and ongoing violations of
their obligations under Section 7 of the National Voter Registration Act ("NVRA").2 At the time of
trial, Plaintiff Roy Ferrand had been withdrawn as a Plaintiff. (Doc. 126.) Additionally, Suzy
Sonnier, in her official capacity, was substituted for Ruth Johnson as Defendant. (Doc. 363.)
The matter was tried before the Court, sitting without a jury, from October 15, 2012
through October 17, 2012. On January 22, 2013 the Court issued its Findings of Fact and
Conclusions of Law in accordance with Federal Rules of Civil Procedure 52(a). (Doc. 436.)
Concurrently, the Court issued a Permanent Injunction against all Defendants. (Doc. 437.) The
Court directed that the Defendants to implement such policies, procedures, and directives in order
to achieve compliance with the NVRA by March 15, 2013. (Id.) On February 20, 2013 the Court
granted an extension of time to file the Certification of Compliance until May 14, 2013. (Doc. 444.)
On February 19, 2013 Schedler filed a Notice of Appeal. (Doc. 442.) On February 22, 2013
2
Section 4 of the Act is codified at 42 U.S.C. § 1973gg‐2; Section 7 of the Act is codified at 42
U.S.C. § 1973gg‐5; Section 10 of the Act is codified at 42 U.S.C. § 1973gg‐8.
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Schedler filed a Motion to Stay Pending Appeal. (Doc. 445.) Plaintiffs filed an opposition on March
5, 2013. (Doc. 456.) The Court took the Motion under submission on March 13, 2013.
LEGAL STANDARD
"The standards governing the issuance of stays are well established." Voting for Am., Inc.
v. Andrade, 488 Fed. Appx. 890, 905 (5th Cir. 2012) (Dennis, J. dissenting). Courts have long
recognized four factors to consider when determining whether a stay should be granted: "(1)
whether the stay applicant has made a strong showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay
will substantially injure the other parties interested in the proceeding; and (4) where the public
interest lies." Nken v. Holder, 556 U.S. 418, 434 (2009). "The party requesting a stay bears the
burden of showing that the circumstances justify an exercise of [judicial] discretion." Id. at 433–34
(citations omitted). Ultimately, "a stay is not a matter of right, even if irreparable injury might
otherwise result" Id. (citing Virginian R. Co. v. United States, 272 U.S. 658, 672 (1926)).
LAW AND ANALYSIS
For the reasons that follow this Court does not find that a stay is appropriate in the instant
matter. Accordingly, Schedler's Motion to Stay is denied.
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I.
Likelihood of Success on the Merits
Schedler argues that there is a likelihood of success on the merits for several reasons: (1)
the injunction is void; (2) the Court's decision represents a novel interpretation of the NVRA which
has not yet been determined by the appellate courts; (3) the Court was incorrect in determining
the Secretary of State's responsibilities under the NVRA; and (4) the Court lacked jurisdiction to
make a determination because the Plaintiffs did not have standing. Plaintiffs oppose Schedler's
arguments stating that: (1) the injunction is proper and in compliance with Federal Rule of
Procedure 65(d); (2) the issues before the Court are not novel; (3) the Court was correct in
determining the responsibilities of the SOS under the clear language of the NVRA; and (4) the Court
was correct in its detailed analysis finding that each Plaintiff had standing. The Court agrees with
Plaintiffs.
First, this Court finds that the Permanent Injunction is in compliance with the Federal Rules
of Civil Procedure. Rule 65 directs that every order granting an injunction must state the reasons
for which it is issued, its terms specifically and describe in reasonable detail the act or acts
restrained or required. Fed. R. Civ. P. 65. The Court concurrently filed the Permanent Injunction
in the instant matter with its Findings of Fact and Conclusions of Law ("Findings"). The Court details
in both the Permanent Injunction and its Findings the reasons why the Permanent Injunction is
issued, states the terms specifically, and described in reasonable detail what the Secretary of State
is required to do. Specifically, the Court made findings that the SOS has not provided consistent
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or correct training materials and training programs, has failed to properly advise agencies in
accordance with the mandates of the NVRA, and has failed to adequately coordinate minimum
voter registration services during remote transactions. The Court prescribes that the SOS must
amend these procedures to be in compliance with the NVRA.
"The requirements of Rule 65(d) are not purely technical, but serve to 'prevent uncertainty
and confusion' by those faced with injunctive orders and to 'avoid the possible founding of a
contempt citation on a decree too vague to be understood,' as well as to facilitate informed and
intelligent appellate review." Islander E. Rental Program v. Barfield, 145 F.3d 359 (5th Cir. 1998)
(quoting Citizen Band Potawatomi Indian Tribe of Okla. v. Okla. Tax Comm'n, 969 F.2d 943, 946 n.
3 (10th Cir. 1992)). "Although the requirements of Rule 65(d) are mandatory, elaborate detail is
unnecessary; we have explained that 'an injunction must simply be framed so that those enjoined
will know what conduct the court has prohibited.'" Islander E. Rental Program, 145 F.3d at 359
(quoting Meyer v. Brown & Root Constr. Co., 661 F.2d 369, 373 (5th Cir. 1981)). While the
Permanent Injunction may not be elaborate, the requirements of Rule 65(d) have been soundly
met.
Schedler's last three arguments concern the Court's factual and legal conclusions detailed
in the Court's Findings. All of these issues have been briefed, argued, addressed, and the Court has
rendered its decision. The Court finds that its findings and analysis are not erroneous and are in
compliance with jurisprudence and the text of the NVRA. This Court found that the SOS failed at
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meeting the requirements of the NVRA and fashioned an appropriate and reasonable remedy.
Simply because the SOS disagrees with this Court does not mean that the SOS is likely to prevail
on the merits at the appellate level.
The Court finds that the SOS has failed at meeting its burden of showing that it is likely to
succeed on the merits. Accordingly, the Court finds that the first factor weighs against the granting
of a stay.
II.
Irreparable Injury to Schedler Absent a Stay
Schedler maintains that he will suffer irreparable injury absent a stay because the
Permanent Injunction leaves him open to contempt charges and continued litigation should his
interpretation fail to correlate to that of the Plaintiffs. Schedler further argues that he will be
injured because he must obtain preclearance of the Court's ruling before engaging in
implementation of the ruling. Plaintiffs disagree with Schedler and maintain that the Permanent
Injunction provides a detailed mechanism to avoid protracted litigation and provides the SOS with
a means to avoid contempt charges. Moreover, Plaintiffs aver that preclearance is not required,
and that if it was Schedler could have petitioned the Court for an extension of its compliance
deadline.
The Court finds Schedler's arguments unavailing. The Permanent Injunction clearly
describes procedures whereby no Defendant will not be caught in contempt charges or continuing
litigation. Additionally, the Court finds that even if preclearance is required under Section Five of
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the Voting Rights Act, an exception applies here. See Lopez v. Monterey County, 525 U.S. 266, 286
(1999) ("[t]his Court has created an exception to the preclearance requirement in certain cases
involving federally court‐ordered voting changes. As a general rule, voting changes crafted wholly
by a federal district court in the first instance do not require preclearance."). Moreover, if the SOS
wanted to seek preclearance, regardless of the exception provided to it, certainly the Court would
consider any Motion requesting a continuation of the deadline provided by the Court.
The Court finds that the SOS has failed at meeting its burden of showing that it will suffer
irreparable injury if a stay is not granted. Accordingly, the Court finds that the first factor weighs
against the granting of a stay.
III.
Substantial Injury to Plaintiffs and Other Defendants
Schedler argues that Luther Scott and the LSC NAACP will not be injured by the issuance of
the stay. Schedler also notes that the other Defendants, DCFS and DHH, are not appealing the
Court's Injunction and will not be injured by granting a stay as to the SOS. Defendants argue that
the Court has found that the SOS is responsible for coordinating and for compliance for the State
of Louisiana under the NVRA. Accordingly, without this meaningful oversight in place there will be
injury to both Plaintiffs.
The Court agrees with the Plaintiffs. The SOS is responsible for coordinating Section 7 of
the NVRA for the State of Louisiana. The Court has recently rendered a decision regarding the
requirements of Section 7 of the NVRA. In accordance with its ruling, the Court issued the
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Permanent Injunction. Just as DCFS and DHH have taken, and continue to take, meaningful and
important steps to comply with the Court's orders and the mandates of the NVRA, it is imperative
that the SOS do the same. The Court finds that both Scott and the LSC NAACP will be injured if
there fails to be a compliant SOS. Moreover, the Court finds that the Defendants will be injured
if the coordinator of the NVRA responsibilities is not participating in the same meaningful steps
that they have already undertaken.
Accordingly, the SOS has failed to meet its burden of showing that there will be little to no
substantial injury to Plaintiffs or the other Defendants. As such, this factor weighs against granting
a stay.
IV.
Public Interest
Schedler argues that requiring optional voter registration agencies to offer voter
registration services with every remote transaction will erect barriers to participation in voter
registration. Specifically, Schedler avers that optional voter registration agencies do not have
enough funding to properly conduct remote voter registration. Plaintiffs contend, however, that
the public interest would be greatly served by not granting a stay. Moreover, the Plaintiffs
correctly point out that the Court's ruling will have no impact on voluntary voter registration
programs operated by optional voter registration agencies.
Schedler's brief misinterprets both the law and this Court's ruling. First, the requirements
of Subsection (a)6) do not apply to all voter registration agencies, but only mandatory voter
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registration agencies. See 42 U.S.C. § 1973gg‐5(a)(6). In accordance with the clear text of the
NVRA, this Court has also held that the requirements of Subsection (a)(6) only apply to voter
registration agencies that provide "service or assistance." See Ferrand v. Schedler, No. 11‐926,
2012 WL 1570094, at *8‐9 (E.D. La. May 3, 2012) (holding that the voter registration requirements
of subsection (a)(6) do not apply to all voter registration agencies).
Schedler's arguments are without merit and are an attempt to misconstrue the Court's
ruling in an effort to obtain a stay. Accordingly, the SOS fails at meeting his burden that the public
interest would be best served by the granting of a stay. This factor weighs in favor of denying a
stay.
V.
Conclusion
A review of the record and the parties' arguments leads the Court to conclude that Schedler
has failed at meeting his burden to warrant the stay. Specifically, Schedler has failed to meet any
one of the four criterion necessary for a stay pending appeal. See Arnold v. Garlock, Inc., 278 F.3d
426, 438–39 (5th Cir. 2001) (the movant bears the burden of establishing each of the four
prerequisites). Accordingly, the Court denies the Motion to Stay.
CONCLUSION
For the foregoing reasons, the Motion to Stay filed by Schedler is DENIED.
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New Orleans, Louisiana on this 25th day of April, 2013.
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JANE TRICHE MILAZZO
UNITED STATES DISTRICT COURT JUDGE
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