Plaintiffs' Response to the Motion to Dismiss or for More Definite Statement of Defendant-Intervenor Wood; Order Denying Motion

    LAW OFFICES OF 

TEXAS RURAL LEGAL AID, INC. 
201 NORTH ST. MARY'S ST.. SUITE 600 

SAN ANTONIO. TEXAS 78205 

(512) 222-2478 

March 29, 1989 

John D. Neil 
Deputy United States Clerk 
200 East Wall Street 
Midland, Texas 79702 

Re: LULAC et al. v Mattox et al. 
Civil Action No. MO-88-CA-154 

Dear Mr. Neil: 

I am enclosing an original and two copies of Plaintiffs’ Response 
to the Motion to Dismiss and for More Definite Statement of the 
Honorable Defendant-Intervenor Wood. Could you please file this 
Response and proposed Order at your convenience? 

Also, I am enclosing a stamped, self-addressed return envelope. 
Could you please filemark one of the copies of these documents and 
return them to me? 

In advance, thank you for your assistance. 

Sin erely yours, 

usan Finkelstein 

Staff Attorney 

    

federal express delivery 
# 2813271974 

xc: Rolando L. Rios 
William Garrett 
Edward Cloutman RRR: P 851 087 039 
E. Brice Cunninghagqm RRR: P 851 087 040 
Sherrilyn Ifill RRR: P 851 087 041 
Renea Hicks RRR: P 851 087 042 
Evelyn V. Keys RRR: P 851 087 043 
Darrell Smith RRR: P 851 087 044 
Michael J. Wood RRR: P 851 087 045 
Mark H. Dettman RRR: P 851 087 046 
Ken Oden RRR: P 851 087 047 
David R. Richards RRR: P 851 087 048 
Robert H. Mow RRR: P 174 358 172 
David Hall 

 



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LULAC, et al., 

Plaintiffs, 

vs. 

NO. MO-88-CA-154 

MATTOX, et al., 

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¥% 

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Defendants. 

PLAINTIFFS’ RESPONSE TO THE MOTION TO DISMISS 
OR FOR MORE DEFINITE STATEMENT i OF DEFENDANT-INTERVENOR WOOD OF HARRIS COUNTY 

TO THE HONORABLE COURT: 

1, This litigation concerns claims that the existing system 
of electing district court judges in various Texas counties 
violates the United States constitution and Section 2 of the Voting 
Rights Act, as amended. 

2. The Honorable Sharolyn Wood, Defendant-Intervenor from 
Harris County, has asked this Court to dismiss this case. 
Alternatively, she has asked this Court +o order that the 
Plaintiffs provide a more definite statement of their claims. 
Plaintiffs respectfully request that the Court deny this Motion. 
Also, they regret that the Court has been bothered by this Motion, 
which they feel has no merit at all. 

 



  

PLAINTIFF LULAC HAS STANDING TO CHALLENGE 
THE ELECTION SYSTEM IN EACH OF THE CHALLENGED COUNTIES 

3 Wood claims that this Court should dismiss Plaintiffs’ 

case in all counties where no Plaintiff resides. This claim is 

improper. 

4. Ironically, Wood does not have standing to raise the 

issue of standing. She has alleged that the Court must dismiss 

this case at least in the counties where no individual plaintiffs 

reside. She resides and presides in Harris County. Individual 

Plaintiffs Plummer and Fuller also reside in Harris County. Wood 

does not have "such a personal stake in the outcome of the 

  

controversy, " Baker v Carr, 369 U.S. 186, 204 (1962), outside of 

Harris County to allow her to challenge Plaintiffs’ claims in other 

geographic areas. 

5, Even if the Court reaches the merits of this claim, it 

should deny Wood’s Motion. The League of United Latin American 

Citizens (LULAC) is a Plaintiff in this case. It is a statewide 

organization with members across the State of Texas. Its members 

are predominantly Hispanic; it also has many black members. Among 

its members are many minority voters who are qualified to vote for 

district court judges in the counties at issue in this case. As 

an organization, LULAC has standing to represent its members. 

NAACP v Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958).   

PLAINTIFFS DO NOT IMPROPERLY RELY UPON 
PROPORTIONALITY 

6. Wood also claims that Plaintiffs improperly rely upon 

 



  

underrepresentation of minorities on the district court bench in 

stating their claims in their First Amended Complaint. This claim 

is also improper. 

y i" As an initial matter, the success or failure of 

minorities to achieve office, one of the Zimmer factors, is an 

element of a voting rights case. 42 U.S.C. Section 1973(b); 

Thornburg v Gingles, 478 U.S. 30, 75 (1986). Also, it is simply 

not correct to state that Plaintiffs rely solely upon percentages 

to state their claims. Plaintiffs’ First Amended Complaint 

specifies the counties at issue in this case and outlines the 

factors that contribute to the violation of Plaintiffs’ right to 

a vote that is not diluted or hampered in violation of the United 

States constitution and the Voting Rights Act. As required by 

Gingles and its progeny, Plaintiffs rely upon the range of factors 

listed in Paragraphs 23-26 of their First Amended Complaint. 

Plaintiffs are in the process of preparing to try their case based 

upon these factors. Defendant-Intervenor Wood should properly rely 

upon the discovery process to learn the details of Plaintiffs’ 

claims. 

SECTION 2 OF THE VOTING RIGHTS ACT 
APPLIES TO THE JUDICIARY 

8. Defendant-Intervenor Wood incorrectly asserts that 

Section 2 of the Voting Rights Act does not apply to the judiciary. 

As she acknowledges, the Fifth Circuit disagrees with her position. 

Chisom v Edwards, 839 F.2d 1056 (5th Cir.), cert. denied sub. nom.   

  

  

Roemer v Chisom, U.S. (1988). Nonetheless, Wood claims 

 



  

that Section 2 does not apply to judges because l) judges are not 

properly "representatives" covered by the Act and 2) the concept 

of one person one vote does not apply to the judiciary. Chisom 

specifically discusses and discounts these positions. Id. at 1059- 

61. This Court is bound by Chisom, especially because Wood does 

not bring any new analysis to the issue.! 

THE VOTING RIGHTS ACT IS 
CONSTITUTIONAL, EVEN AS APPLIED TO 

THE JUDICIARY 

9. Wood claims that Congress does not have authority to 

enact the Voting Rights Act, at least as applied to the judiciary. 

The overall constitutionality of the Act, of course, is beyond 

question. City of Richmond v United States, 422 U.S. 358, 378   

(1975). Congress also had authority to amend the Act in 1982 to 

reject an intent standard in favor of a results rule. Jones v City 
  

of Lubbock, 727 F.2d 364, 372-5 (5th Cir. 1984). Further, this 

exercise of Congressional authority does not violate principles of 

separation of power, as Wood claims. Id. at 374. 

10. Wood also asserts that the Voting Rights Act is 

unconstitutional as applied to the judiciary because it infuses 

race into a system that is supposed to be color blind. She claims 

that "the Voting Rights Act, as applied to the judiciary, has the 

immediate effect of making judges beholden to the racial bloc 

  

  

'Wood cites Hatten v Rains, 854 F.2d 687 (5th Cir. 1988), as authority for her position that the Voting Rights Act does not apply to the judiciary. Hatten involves a constitutional challenge to the Texas requirement that judges retire at age seventy five. It does not apply here. 

 



  

constituency at whose whim they serve." Brief in Support of Wood's 

Motion to Dismiss at 21. This is not correct. The mere fact of 

an elective system for the judiciary means that judges are 

"beholden" to an electorate. As the system is now, judges are 

"beholden" to the racial bloc that elects them. In the challenged 

counties, it is usually the white majority bloc vote that defeats 

the choice of the minority vote. Gingles, 478 U.S. at 57. It is 

exactly for this reason that Plaintiffs have filed this lawsuit. 

VOTING RIGHTS ACT DOES NOT OFFEND 
EQUAL PROTECTION CLAUSE 

11. Defendant-Intervenor Wood also claims that the Voting 

Rights Act violates her right to equal protection as guaranteed by 

the fourteenth amendment to the United States constitution. As a 

member of a non-protected class, she claims that the Act cannot 

withstand the strict scrutiny test required by constitutional 

analysis. 

12. In Jones v City of Lubbock, supra, the Fifth Circuit   

addressed the authority of Congress to enact the 1982 amendments 

to the Voting Rights Act. When Congress acts pursuant to its 

authority to enforce the civil rights amendments, it has broad 

authority. "Congress heard extensive testimony showing that the 

full exercise of the franchise by American minorities still 

suffered from the effects of electoral systems that hinder minority 

input into the nation’s decision-making.... [and] ... reflected 

upon the propriety of the measure in light of the constitutional 

limits of its enforcement power." Id. at 374-5. Both Congress and 

 



  

the Fifth Circuit determined that Congress had authority under the 

fourteenth and fifteenth amendments to amend the Voting Rights Act. 

Similarly, the original Act has received judicial approval. City 

of Richmond, supra. 

MORE DEFINITE STATEMENT NOT NEEDED 

13. Alternatively, Defendant-Intervenor Wood requests that 

this Court order the Plaintiffs to make a more definite statement 

of their claims. This request is also improper. F.R. Civ. P. 8(a) 

requires that pleadings include "a short and plain statement of the 

claim showing that the pleader is entitled to relief." Plaintiffs’ 

First Amended Complaint complies with this rule because it clearly 

states the basis for Plaintiffs’ claim for relief from this Court. 

It states the geographic areas at issue and applies the Gingles 

theory to this dispute. Wood may properly seek relevant 

inforfmation through the discovery process outlined in F.R.Civ. P 

26 et seq. 

THEREFORE, Plaintiffs respectfully request that the Court deny 

Defendant-Intervenor Wood's Motion to Dismiss and Motion for More 

Definite Statement. 

Respectfully submitted: 

GARRETT, THOMPSON & CHANG 
ATTORNEYS AT LAW 
A Partnership of Professional 
Corporations 
William L. Garrett 
Brenda Hull Thompson 
8300 Douglas #800 
Dallas, Texas 75225 
(214)369-1952 
LEAD COUNSEL 

6 

 



  

ROLANDO L. RIOS 

ATTORNEY AT LAW 

201 N. St. Mary's #521 
San Antonio, Texas 78205 
(512)222-2102 

SUSAN FINKELSTEIN 

STAFF ATTORNEY 

TEXAS RURAL LEGAL AID, INC. 
201 N. St. Mary's #600 
San Antonio, Texas 78205 
(512)222-2478 

r— 

SUSAN FINKELSTEIN 

“ Bar No. 07015500 

  

CERTIFICATE OF SERVICE 
  

I, Susan Finkelstein, do hereby certify that a true and 

correct copy of Plaintiffs’ Response to the Motion to Dismiss and 

for More Definite Statement of Defendant-Intervenor Wood of Harris 

County and accompanying proposed Order has been mailed via 

certified mail with correct postage to: 

ATTORNEY REPRESENTING 

Plaintiff - Intervenors 
  

Edward B. Cloutman, III Jesse Oliver 
MULLINAX, WELLS, BAAB & Joan Winn White 

CLOUTMAN, P. C. Fred Tinsley 
3301 Elm 
Dallas, TX 75226-9222 
214/939-9222 FAX: 214/939-9229 

E. Brice Cunningham Jesse Oliver 
Attorney at Law Joan Winn White 777 S. R. L. Thornton Fwy, Suite 121 Fred Tinsley 
Dallas, TX 75203 
214/428-3793 

 



  

Julius Levonne Chambers 
Sherrilyn A. Ifill 
NAACP Legal Defense & Educational 

Fund, Inc. 
99 Hudson St., 16th floor 
New York, NY 10013 
212/219-1900 

Gabrielle K. McDonald 
MATTHEWS & BRANSCOMB 

301 Congress Ave., Suite 2050 
Austin, TX 78701 
512/320-5055 

Defendants 

Jim Mattox 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Attorney General’s Office 
P. O. Box 12548 
Austin, TX 78711 
512/463-2085 

Defendant - Intervenors 
  

J. Eugene Clements 
E. O'Neill 
Evelyn V. Keys 
PORTER & CLEMENTS 
700 Louisiana, Suite 3500 
Houston, TX 77002-2730 
713/226-0600 

Darrell Smith 
Attorney at Law 
10999 Interstate Highway 10, 
Suite 905 
San Antonio, TX 78230 
512/641-9944 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, TX 77002 
713/228-5105 

Houston Lawyers Assn. 
Francis Williams 
Rev. William Lawson 

Houston Lawyers Assn. 
Francis Williams 
Rev. William Lawson 
Texas Legislative 

Black Caucus 

All Defendants 

Judge Sharolyn Wood 
of Harris County 

Judge Sharolyn Wood 
of Harris County 

Judge Sharolyn Wood 
of Harris County 

 



  

Mark H. Dettman Midland County & 
County Attorney District Judges 
P. O. Box 2559 
Midland, TX 79702 
915/688-1084 

Ken Oden Travis County District 
Travis County Attorney Judges 
P. O. Box 1748 
Austin, TX 78767 
512/473-9415 

David R. Richards Travis County District 
Special Counsel Judges 
600 W. 7th St. 
Austin, TX 78701 

Robert H. Mow, Jr. Judge Harold Entz 
HUGHES & LUCE of Dallas County 
2800 Momentum Place 

1717 Main St. 
Dallas, TX 75201 
214/939-5500 

each at the correct address on this 29th day of March, 1989. 

ve Re 
  

/ FTTORNEY FOR PLAINTIFF 

 



  

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LULAC, et al., 

Plaintiffs, 

VS. NO. MO-88-CA-154 

MATTOX, et al., 

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¥ 

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Defendants. 

ORDER DENYING MOTION TO DISMISS 
OR FOR MORE DEFINITE STATEMENT 

OF THE HONORABLE DEFENDANT-INTERVENOR WOOD 

l. Defendant-Intervenor Wood requests that the Court dismiss 

this case or, alternatively, order that the Plaintiffs replead. 

She makes several claims. First, she asserts that the Plaintiffs 

do not have standing to make claims in counties where no individual 

Plaintiff resides. Second, she claims that Plaintiffs improperly 

rely upon underrepresentation of minorities on the district court 

bench. Third, she claims that the Voting Rights Act does not apply 

to the judiciary. Finally, she asserts that the Act is 

unconstitutional as applied to th= judiciary. 

2. The Court has considered all matters of record, including 

the Plaintiffs’ Response to Wood’s Motion. It is DENIED. 

Signed and entered this day of + 1989 
  

at Midland, Texas. 

  

UNITED STATES DISTRICT JUDGE