Defendant Judge Wood's Motion to Dismiss the First Amended Complaint of the Legislative Black Caucus and Strike Its Intervention

    PorRTER & CLEMENTS 
FIRST REPUBLICBANK CENTER 

700 LOUISIANA, SUITE 3500 

HOUSTON, TEXAS 77002-2730 
ATTORNEYS 

A PARTNERSHIP INCLUDING 

PROFESSIONAL CORPORATIONS 

  

TELEPHONE (713) 226-0600 

TELECOPIER (713) 228-1331 

TELECOPIER (713) 224-4835 

TELEX 775-348 
EVELYN V. KEYES 

(713) 226-0611 

May 33,1989 

Clerk, U.8. District Court 
P. O. Box 10708 
Midland, Texas 79702 

Re: No. MO088-CA-154; League of United Latin American 
Citizens (LULAC), et al. v. James Mattox, Attorney 
General of Texas, et al.; In the United States District 
Court for the Western District of Texas, Midland-Odessa 

Division 

Dear Sir: 

Enclosed for filing in the above-referenced case is 
Defendant Harris County District Judge Wood's Motion to Dismiss 
the First Amended Complaint of the Legislative Black Caucus and 
Strike Its Intervention. 

A Memorandum in Support of Defendant's Motion will follow on 
Friday, May 5, 1989. 

Please verify filing by placing your stamp in the margin of 
the enclosed extra copy of the Motion and return same to me in 
the enclosed self-addressed stamped envelope. 

By copy of this letter, all counsel are being served a copy 
of this filing by first class United States Mail, postage 

prepaid. 

Sincerely yours, 

Evelyn V. Keyes 

EVK/em 
Enclosures 

cc: Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

 



PorTER & CLEMENTS 

Clerk, U.S. District Court 
May 3, 1989 
Page -2- 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201: NN. St. Mary's, Suite 221 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201: N. St. Mary's, Suite 600 

San Antonio, Texas 78205 

“Mr. Julius Levonne Chambers 
Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 

Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 
Ms. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P. 0. Box 12548 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 So. R.L. Thornton Freeway, Suite 121 
Dallas, Texas 75203 

Mr. Ken Oden 

Travis County Attorney 
P. O.: Box 1748 

Austin, Texas 78767  



    
PorTER & CLEMENTS 

Clerk, U.S. District Court 
May 3, 1989 
Page -3- 

cc: Mr. David R. Richards 
Special Counsel 
600 W. 7th Street 

Austin, Texas 78701 

Mr. Mark H. Dettman 

Attorney at Law 

P.O. Box’ 2559 
Midland, Texas 79702 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

1L.ULAC, et al., 

Plaintiffs, 

Vv. NO. MO-88-CA-154 

MATTOX, et al., 

N
N
W
 

Defendants. 

DEFENDANT HARRIS COUNTY DISTRICT JUDGE WOOD'S 

MOTION TO DISMISS THE FIRST AMENDED COMPLAINT OF THE 

LEGISLATIVE BLACK CAUCUS AND STRIKE ITS INTERVENTION 
  

COMES NOW Defendant Harris County District Judge Sharolyn 

Wood ("Judge Wood") and, pursuant to Federal Rules of Civil 

Procedure 12(b) (1) and 12(h), moves for the dismissal of the 

First Amended Complaint ("Amended Complaint") of the Legislative 

Black Caucus (the "Caucus"). In support of her motion, Judge 

Wood would respectfully show the court the following: 

1. This is a voting rights case. In response to the 

Caucus' oral motion, the Court permitted the Caucus to intervene 

in this case to assert the individual rights of its members, Just 

as it allowed other Plaintiff-Intervenors to intervene to assert 

their own individual rights. At the same time, the Court 

permitted certain Defendant-Intervenors to intervene in this case 

in their individual capacities to assert their rights as voters 

and as federal judges. The Court, however, had previously denied 

Midland County permission to intervene as a Defendant; and it 

subsequently denied Defendant-Intervenors the Travis County 

 



  

Judges permission to modify their plea in intervention to advance 

the official interests of the judges as well as their individual 

interests. 

2. In its original Complaint and Intervention, the Caucus 

named as parties itself as an entity and its individual members. 

The Caucus has now amended that petition to eliminate its members 

as parties to this action. It now claims -- as it did not before 

-- the right as an entity to assert its own claims and those of 

its members. In other words, it claims the right to intervene in 

its capacity as an organization without involving its members -- 

the very right denied other would-be intervenors in this action. 

For reasons set forth in the accompanying memorandum in support 

of this Motion, incorporated herein by this reference, _1/ the 

Caucus is in no different position from other organizations that 

have sought to intervene in this action in an official capacity 

rather than to assert the individual rights of their members. 

Therefore its amendment of its pleadings to assert its right to 

intervene only in its representative capacity constitutes grounds 

to dismiss its Amended Complaint and strike its intervention in 

this action. 

3. In addition and quite apart from the foregoing ob- 

jection, there are severe jurisdictional objections to the 

  

y/ Which shows the role of the NAACP in NAACP v. Button, 371 US 
  

415 (1963) was quite different from the unincorporated 

Legislative Black Caucus. 

 



  

standing of the Caucus to assert the claims it would assert in 

its Amended Petition. In its original Complaint in Intervention 

("Complaint") the Caucus sought intervention to advance its own 

claims, the individual claims of its members, and the claims of 

the black registered voters of Texas. Complaint in Intervention 

of Black Legislative Caucus at 1-2. The Caucus claimed that its 

intervention in this case was proper because it represented 

individuals whose voting rights under the fourteenth and fif- 

teenth amendments to the United States Constitution and section 2 

of ‘the Voting Rights Act, 42 U.8.C. § 1973, were being denied 

them because the at-large election system for electing state 

district judges in Texas diluted their votes. 

4. In its Amended Complaint the Caucus no longer claims to 

represent the black voters of Texas, but it continues to claim 

the right to assert its interests as an entity and the interests 

of its members. Amended Complaint at 1. At the same time, 

however, its Amended Complaint continues to press the claims of 

all black voters in Texas, not just those black voters who are 

members of the Caucus. The Amended Complaint, therefore, leaves 

the Caucus in the curious position of asserting the voting rights 

of an entity (itself) which has no voting rights; the voting 

rights of its members, who have voting rights in only 6 of Texas' 

254 counties; and the voting rights of black voters throughout 

the state of Texas whom it does not claim to represent. In all 

three guises -- as an organization representing itself, as the 

representative of its members individually, and as the putative 

 



  

representative of the black voters of Texas =-- the Caucus lacks 

standing to assert the claims it has made. 

5 The Caucus lacks standing to assert its claims as an 

entity for the simple reason that entities like the Caucus do not 

vote: people do. Thus, since the Caucus is not engaged as an 

organization in the type of activity at issue in this case ~-- 

voting -- as it would have to be to justify its intervention on 

its own behalf, it lacks standing to assert voting rights claims 

on its own behalf. 

6. The Caucus also lacks standing to assert global vote 

dilution claims on behalf of its members because its members do 

not have the right to assert such claims themselves; the protec- 

tion of voting rights is not germane to the Caucus' purpose; and 

the claims the Caucus asserts and the relief its seeks require 

the participation of individuals in every Texas county. Unique 

among the Plaintiffs and Plaintiff-Intervenors in this cause of 

action, the Caucus expressly claims in its pleadings that the 

entire Texas system for electing state district judges violates 

the rights of all blacks in the State of Texas. By contrast, the 

Plaintiffs and the other Plaintiff-Intervenors have confined 

their complaints to certain "target counties." There are sound 

reasons for such circumspection. Each individual has a right to 

vote for state district judges only within the district in which 

he resides, since his voting rights will be affected by the 

outcome of a voting rights case only insofar as the outcome of 

the case affects his district. Texas district judge election 

 



  

districts are county-wide. Therefore, no individual has standing 

to assert the judicial election voting rights of anyone outside 

of the county in which that individual lives. Despite the 

Caucus' claim to be a statewide organization, the entire list of 

members of the Caucus, set out in the Amended Complaint at pages 

2 through 4, makes it plain that the Caucus has members in only 

five of the other Plaintiffs' target counties (Harris, Jefferson, 

Dallas, Tarrant and Travis) and one county which is not a target 

county (Bexar). Therefore, the Caucus could not have standing to 

represent the interests of black voters in any other county in 

Texas, even if it did have standing to advance the individual 

interests of its members. As it is, however, the Caucus lacks 

even that standing because it is not an organization devoted to 

advancing civil rights, therefore, under the circumstances of 

this case, the Caucus does not have standing to bring suit on 

behalf of its members seeking a declaration that the entire Texas 

state district judge election system is illegal. 

7. Finally, the Caucus lacks standing to assert the claims 

of all black voters in Texas. The Amended Complaint appears to 

recognize this problem by dropping the Caucus' claim to represent 

all black voters in Texas. However, the substance of the Amended 

Complaint continues to assert blanket claims -- and only blanket 

claims without reference to any particular counties =-- and to 

make it clear that the Caucus' complaint is with the entire Texas 

at-large judicial election system for district judges. There is 

a practical problem of proof regarding such extravagant claims 

 



  

since voting rights cases are highly fact specific. But in the 

jurisdictional context there is a problem which takes priority 

over the practical problem. The Caucus appears to be claiming 

that because its members are black legislators who represent 

black voters it somehow has the derivative authority to assert 

the voting rights of those black voters -- which is false -- and, 

more particularly, to assert the rights of each black voter in 

each district in Texas to complain of Texas' system of electing 

judges. Since, however, the Caucus does not itself represent all 

black voters in Texas, nor does it represent even the voters its 

members represent, and it is not a statewide organization with 

members in every district who will be affected by the outcome of 

this case, the Caucus lacks standing to assert general claims 

that will affect judicial districts in which it has no members -- 

and which may, in fact, have no black citizens at all or only 

black citizens who are happy with the present system. 

8. Under Article III of the United States Constitution as 

interpreted by the United States Supreme Court, standing is a 

jurisdictional question. If the Plaintiff will not be affected 

by the outcome of the case, there is no case or controversy £0 

adjudicate as required by Article III, and the Court therefore 

necessarily lacks jurisdiction over the Plaintiff's abstract 

claim. For the reasons set forth above, this Court lacks 

jurisdiction over the claims brought by the Caucus on its own 

behalf, on behalf of its members, and on behalf of all black 

voters in Texas. 

 



  

WHEREFORE, PREMISES CONSIDERED, Defendant Wood prays the 

Court to dismiss the Amended Complaint in Intervention of the 

Legislative Black Caucus for lack of jurisdiction, to strike the 

intervention of the Caucus, and to grant her such other and 

further relief, in law and in equity, to which she may show 

herself justly entitled. 

Respectfully submitted, 

RE I 
J. Eugene Clements [Ben miss 

Attorney in Charge for Defendan 

Harris County District Judge 

Sharolyn Wood 
700 Louisiana, Suite 3500 

Houston, Texas 77002-2730 

(713) 226-0600 

  

OF COUNSEL: 

PORTER & CLEMENTS 

John E. O'Neill 
Evelyn V. Keyes 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

(713) 226-0600 

 



  

CERTIFICATE OF SERVICE 
  

I hereby certify that on the 20d ay of May, 1989, a true 

and correct copy of the above and foregoing Defendant Harris 

County District Judge Wood's Motion to Dismiss the First Amended 

Complaint of the Legislative Black Caucus and Strike Its Inter- 

vention was served upon counsel of record in this case by first 

class United States mail, postage prepaid, addressed as follows: 

Mr. William L. Garrett 
Ms. Brenda Hull Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 N.:8t. Mary's, Suite 221 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 

Texas Rural Legal Aid, Inc. 
201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 
Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 

99 Hudson Street 

16th Floor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 

Ms. Mary F. Keller, First Assistant Attorney General 

Ms. Renea Hicks, Spec. Assistant Attorney General 

Mr. Javier Guajardo, Spec. Assistant Attorney General 

P. O. Box 12548 
Capitol Station 
Austin, Texas 78701 

 



  

Mr. Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman, P.C. 

3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 
777 So. R.lL.. Thornton FPreeway 
Suite 121 
Dallas, Texas 75203 

Mr. Ken Oden 

Travis County Attorney 
P. OO. Box 1748 

Austin, Texas 78767 

Mr. David R. Richards 
Special Counsel 
600 W. 7th Street 
Austin, Texas 78701 

Mr. Mark H. Dettmann 

Attorney at Law 

P. O. Box 2559 

Midland, Texas 79702 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

Zyclyn V Noo 
Evelyn V. Reyes 
  

WO0002/03/cdf:em