Judge Woods Opposition to Motion of Plaintiffs/Appellees and Plaintiffs/Intervenors/Appellees for Remand to District Court

    PorRTER & CLEMENTS 
NCNB CENTER 

700 LOUISIANA, SUITE 3500 
ATTORNEYS 

MAILING ADDRESS: 

IS” - 30 HOUSTON, TEXAS 77002-27 PO GOL 4744 

HOUSTON, TX 77210-4744 

A PARTNERSHIP INCLUDING 

PROFESSIONAL CORPORATIONS 
  

TELEPHONE (713) 226-0600 

EVELYN V. KEYES TELECOPIER (713) 228-1331 

713) 226-0620 TELEX 775-348 

August 1, 1991 

Mr. Gilbert Ganucheau, Clerk 
United States Court of Appeals 
for the Fifth Circuit 
100 U.S. Court of Appeals Courthouse 
600 Camp Street 

New Orleans, Louisiana 70130 

Re: No. 90-8014 and No. 90-9003; League of United Latin 
American Citizens, Council No. 4434, et al., Plaintiffs- 
Respondents, v. William P. Clements, Governor of the 

State of Texas, et al., Defendants, Judge Sharolyn Wood, 
etc., Defendant-Appellant; In the United States Court of 
Appeals for the Fifth Circuit 

Dear Mr. Ganucheau: 

Enclosed is the original and twenty-oneo copies of Harris 
County District Judge Sharolyn Woods Opposition to Motion of 
Plaintiffs/ Appellees and Plaintiffs/Intervenors/Appellees for 
Remand to District Court. 

Please verify filing of this document by placing your file 
mark in the margin of the extra copy provided herewith and return 
to me for my records. 

All parties are being served with a copy of these documents by 
first class United States mail, postage prepaid. 

Very truly yours, 

Loon Vos 
Evelyn V. Keye 

EVK/cdf 
enclosures  



    PorTER & CLEMENTS 

Mr. Gilbert Ganucheau 

August 1, 1991 
Page -2~- 

cc: Mr. Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002 

Mr. David C. Godbey, Jr. 
Mr. Robert H. Mow, Jr. 

Hughes & Luce 

2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

Mr. Seagal V. Wheatley 
Mr. Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg, Kelleher & Wheatley 

711 Navarro Street, 6th Floor 

San Antonio, Texas 78205 

Mr. William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas, #800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Attorney at Law 
201 N. St. Mary’s St., #521 
San Antonio, Texas 78250 

Ms. Susan Finkelstein 
Attorney at Law 
201 N, St. Mary’s St., #624 
San Antonio, Texas 78250 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., #2050 
Austin, Texas 78701 

Mr. Renea Hicks 
Mr. Javier Guajardo 
Special Asst. Atty. Generals 
P. O. Box 12548 

Capitol Station 
Austin, Texas 78711 

 



    PorTER & CLEMENTS 

Mr. Gilbert Ganucheau 
August 1, 1991 
Page -3- 

cc: Mr. Edward B..Cloutman, II 

Cloutman, Albright & Bower 
3301 Elm Street 

Dallas, Texas 75226-1637 

Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and 

Education Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

 



  

UNITED STATES COURT OF APPEALS 

FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiffs-Appellees, 

¥. No. 90-8014 

JIM MATTOX, et al. 

Defendants-Appellants. LO
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On
 

HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOODS OPPOSITION TO 
MOTION OF PLAINTIFFS/APPELLEES AND 
PLAINTIFFS/INTERVENORS/APPELLEES 
FOR REMAND TO DISTRICT COURT 

Defendant/ Appellant Harris County District Judge Sharolyn Wood ("Judge Wood") files 

this Opposition to Motion of Plaintiff’s/Appellee’s and Plaintiff’s/Intervenor’s/Appellee’s for 

Remand to District Court and, in opposition to that Motion, shows the following: 

1. Plaintiff’s/Appellant’s Motion assumes, incorrectly, that in reversing the Fifth 

Circuit’s en banc holding that §2 of the Voting Rights Act does not apply to state district judges, 

the Supreme Court automatically affirmed the district court’s holding. There is no basis for such 

a supposition in either the Supreme Court opinion or in the Fifth Circuit’s en banc and panel 

opinions. To the exact contrary, the Supreme Court stated, "We granted certiorari in these cases 

[Houston Lawyers’ Association, et al. v. Attorney General of Texas and League of United Latin 

American Citizens, et al. v. Attorney General of Texas, et al. and League of United Latin 

American Citizens, et al. v. Attorney General of Texas, et al.] and in Chisom v. Roemer . . . for 

the limited purpose of considering the scope of the coverage of §2." Slip Op. at 5 (emphasis   

added). The Court expressly stated, "We deliberately avoid any evaluation of the merits of the 

concerns expressed in Judge Higginbotham’s concurring opinion because we believe they are 

matters that are relevant either to an analysis of the totality of the circumstances that must be 

 



  

considered in an application of the results test embodied in §2, as amended, or to a consideration 

of possible remedies in the event a violation is proved, but not to the threshold question of the 

Act’s coverage." Slip Op. at 6. The Supreme Court stated that it was remanding this case to 

this Court to reconsider in light of its holding that "§2 of the Voting Rights Act applies to claims 

of vote dilution in judicial elections . . . and because the concerns expressed by Judge 

Higginbotham in distinguishing elections of Texas district court judges from elections of supreme 

court justices relate to the question whether a vote dilution violation may be found or remedied 

rather than whether such a challenge may be brought." Slip Op. at 7-8. This is a clear mandate 

for this Court to reconsider the issues raised in this case, given the applicability of §2 to judicial 

elections, to determine whether a vote dilution violation may be found on the merits and whether 

a violation, if found, may be remedied. It would be improper for the Court to remand this case 

to the district court for construction of a "remedy" without first making the determinations 

enjoined on this Court by the Supreme Court. 

2. Both the panel opinion and the en banc opinion of this Court recognized that 

determinative issues remained to be decided by this Court in the event that the Supreme Court 

should find that §2 of the Voting Rights Act applied to judges. In his Fifth Circuit en banc 

concurrence, Judge Higginbotham wrote, 

Finally, defendants attack the findings below as well as the ordered 

remedy. In addition to quarrels with the sufficiency of proof that the votes of 
minorities were diluted, defendants argue that the findings are flawed by the 

erroneous legal conclusion that the contribution of partisan voting to election 

outcomes is not relevant. 

We . . . are persuaded that §2(b) will not support this attack upon the 

county-wide election of trial judges. Because we would decide the case on this 
ground, we do not reach defendants’ other contentions. 

 



  

902 F.2d 239, 256 (5th Cir. 1990) (en banc); see also, panel Slip Op. at 4. This Court has thus 

recognized that if the Supreme Court held (as it now has) that §2 applied to state district judge 

elections determinative legal and factual proof issues would remain to be decided. The Supreme 

Court’s holding puts those same issues once again squarely before the Court. 

3. The issues of standard of proof, sufficiency of proof, and remedy alluded to by 

Judge Higginbotham in his en banc opinion and in his majority panel opinion have all been 

briefed and argued before this Court. They are determinative of the case. They show 

conclusively that Plaintiffs/ Appellants cannot prove, or in any case have failed to prove, a vote 

dilution violation of §2 in state district judge elections in any target county in Texas. The Court 

should therefore reverse the district court judgment and render judgment for defendants on the 

merits for the reasons stated in the briefs and arguments already before the Court. 

4. If, however, the Court decides to schedule additional briefing or oral argument 

on the issues before it, counsel for Judge Wood requests the opportunity to be heard. 

Respectfully submitted, 

fr   

imc ices ee —— 

J. Eugene Clements 

PORTER & CLEMENTS 

“3500 NCNB Center 
700 Louisiana Street 

Houston, Texas 77002-2730 

Telephone: (713) 226-0600 

Facsimile: (713) 228-1331 

  

  

Attorneys of Record for Respondent 

Harris County District Judge Sharolyn Wood 

 



  

Of Counsel. 

Evelyn V. Keyes 
PORTER & CLEMENTS 

700 Louisiana, Suite 3500 

Houston, Texas 77002-2730 

Telephone: (713) 226-0600 

Facsimile: (713) 228-1331 

Michael J. Wood 

440 Louisiana, Suite 200 

Houston, Texas 77002 

Telephone: (713) 228-5101 

Facsimile: (713) 223-9133 

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