Response of Plaintiff-Intervenor-Appellees to Judge Entz's Opposition to Joint Motion to Remand; Motion for Leave to File

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May 28, 1993 

Eileen C. Boudoin 
Office of the Clerk 
United States Court of Appeals for the Fifth Circuit 
600 Camp Street 

New Orleans, LA 70130 

Re: No. 90-8014 - LULAC vs. CLEMENTS 

Dear Ms. Boudoin: 

Enclosed please find the original and copies of a motion for leave to file and the 
response of plaintiff-intervenor-appellees to Judge Entz’s Opposition to Joint Motion to 
Remand. 

Thank you for your attention to this matter. 

Very truly yours, 

| J 

ll 
Charles Stephen Ralston AL 
   

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IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), COUNCIL #4434, 
et al., 

Plaintiffs-Appellees, 

HOUSTON LAWYERS ASSOCIATION, 

et al., 

Plaintiff-Intervenor- 

Appellees, 

DAN MORALES, et al., 

State Defendants- 

Appellants, 
JUDGE SHAROLYN WOOD AND 

JUDGE F. HAROLD ENTZ, 

Defendant-Intervenor- 

Appellant. 

  

Appeal from the United States District Court for the Western 
District of Texas, Midland-Odessa Division 

  

RESPONSE OF PLAINTIFF-INTERVENOR-APPELLEES TO JUDGE ENTZ’S 
OPPOSITION TO JOINT MOTION TO REMAND 

The Houston Lawyers’ Association, Plaintiff-Intervenor-Appellees, in this action wish to 

respond briefly to the opposition of Judge Entz to the Joint Motion to Remand this matter to the 

District Court in order to consider the proposed settlement achieved by the plaintiffs and the state 

defendants. 

1. Contrary to the arguments made in Part II. of Judge Entz’s opposition, settlement of this 

case by the plaintiffs and the state defendants is not inconsistent in any way with the decision of 

 



the Supreme Court in Local Number 93, International Association of Firefighters v. City of Cleveland, 

478 U.S. 501 (1986). To the contrary, Local 93 supports the position of the plaintiffs and the state 

defendants that this case should be remanded for consideration of the proposed settlement. That 

decision squarely holds that intervening parties could not prevent entry of a settlement that does 

not infringe in any way on the legal rights of the intervenors. This is precisely such a case. Despite 

the pretensions of the defendant-intervenors, they have been allowed to intervene only in their 

individual capacities as sitting state court judges. They do not now, nor have they ever, represented 

the State of Texas. Therefore, they can object to the settlement decree only to the extent that they 

decree might affect their own rights as individual judges; that is, only to the extent that the decree 

would impact on their ability to be reelected in future elections. As we have pointed out, the 

settlement decree does not affect in any way the method by which Judges Entz and Wood will be 

elected. They will still run at-large from the county as a whole in precisely the same way as they 

have in the past. Neither Judge Entz nor Judge Wood have standing, any more than any other 

random citizen of Texas, to demand that this Court render a decision on the merits of this case 

once the plaintiffs and the State of Texas have agreed to settle the underlying dispute in a way that 

does not affect their rights as individual officer holders. 

2. Much of the opposition of Judge Entz relates to questions set out in Part III relates to 

questions of state law and the process that was used to arrive at the settlement that should be heard 

and decided by the district court in the first instance. Again, much of Judge Entz’s arguments are 

based on the wholly erroneous assumption that he possesses standing to argue the merits of the 

lawsuit as somehow being a spokesperson for the State. However, the State of Texas, speaking 

through its duly authorized representatives, has decided that it is in its interest to settle the 

litigation, and any questions relating to the fairness or equity of the settlement should be addressed 

in the appropriate forum, the United States District Court where the case originated. 

3. The Introduction to Judge Entz’s opposition is based on the wholly false notion that to  



  

settle a law suit is somehow to surrender and therefore should be disapproved. This false 

conception of the role of settlement in federal court actions permeates the rest of the document. 

Directly contrary to Judge Entz’s views are a series of decisions of the United Supreme Court that 

have reiterated again and again that settlements are favored in the law, and that the federal courts 

should support settlements in every possible way. These decisions are not limited to Title VII 

actions, but arise in a variety of civil rights contexts. Thus, the Suptems Court has recently held 

that a local governmental entity can settle a prison case for relief beyond that required by the 

Constitution. Rufo v. Inmates of Suffolk County Jail, 112 S. Ct. 748 (1992). See also, Marek v. 

Chesny, 473 U.S. 1 (1985)(Rule 68’s policy of encouraging settlements applies fully to civil rights 

cases); Evans v. Jeff D, 475 U.S. 717 (1986)(settlements of civil rights cases is to be encouraged); 

Carson v. American Brands, Inc., 450 U.S. 79, 88 (1981)(refusal of district court to enter a 

L settlement an appealable order because, inter alia, the order might have the "serious, perhaps 

irreparable, consequence™ of denying the parties their right to compromise their dispute on 

mutually agreeable terms). 

 



  

In short, none of the objections raised by Judge Entz are sufficient to justify the denial of 

the motion to remand this case to the district court for a hearing on the proposed settlement of this 

case. 

Respectfully submitted, 7 
\ \ 

\ i / , W, \ 4 

A: ELAINE R. JONES 
CHARLES STEPHEN RALSTON 

SHERRILYN A. IFILL 

99 Hudson Street, 

16th Floor 

New York, N.Y. 10013 

{ 

GABRIELLE K. McDONALD 

Law Office of Arthur 

L. Walker, Jr. 

7800 N. Mopac 
Suite 215 

Austin, TX 78750 
512-346-6801 

 



  

CERTIFICATE OF SERVICE 

I hereby certify that on this 28th day of May, 1993 a copies of the foregoing response to 

Judge Entz’s Opposition to Joint Motion to Remand was mailed to counsel of record in this case 

by first class United States mail, postage pre-paid, as follows: 

William L. Garrett 
Brenda Hall Thompson 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, TX 75225 

Rolando L. Rios 

The Law Office of Rolando 

L. Rios 

Milam Building, Suite 1034 115 E. Travis 

Street 

San Antonio, TX 78205 

Edward B. Cloutman, III 

Cloutman, Albright & Bower 
3301 Elm Street 

Dallas, TX 75226-1637 

J. Eugene Clements 
John E. O'Neill 

Evelyn V. Keyes 
Porter & Clements 

700 Louisiana, Suite 3500 

Houston, TX 7002-2730 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, TX 77002 

John L. Hill, Jr. 

Liddell, Sapp, Zivley, 
Hill & LaBoon 

3300 Texas Commerce Tower 

Houston, TX 77002 

David R. Richards 

Special Counsel 
900 West Avenue 

Austin, TX 78701-2228 

Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, TX 75201 

Gabrielle K. McDonald 

Law Office of Arthur 

L. Walker, Jr. 

7800 N. Mopac 
Suite 215 

Austin, TX 78750 

Dan Morales 

Will Pryor 
Mary F. Keller 
Renea Hicks 
Javier Guajardo 
Attorney General’s Office 
Price Daniel Sr. 

Office Building 
209 W. 14th Street 
Austin, TX 78701-2548 

Seagal V. Wheatley 
Donald R. Philbin, Jr. 

Oppenheimer, Rosenberg, 
Kelleher & Wheatley, Inc. 

711 Navarro, Sixth Floor 

San Antonio, TX 78205 

 



  

E. Brice Cunningham 
777 South R.L. Thornton Freeway 
Suite 121 
Dallas, TX 75203 

Darrell Smith 

10999 Interstate Highway 10 
Suite 905 

San Antonio, TX 78230 

Walter L. Irvin 
5787 South Hampton Road 
Suite 210, Lock Box 122 
Dallas, TX 75232-2255 

Ken Oden 
Travis County Attorney 
P.O. Box 1748 
Austin, TX 78767 

3 

Tom Rugg 
Jefferson County 

Courthouse 
Beaumont, TX 77701 

Jessica Dunsay Silver, Esq. 

Mark Gross, Esq. 

c/o Attorney General of the 
United States 

United States Department 
of Justice 

Main Justice Building 
10th & Pennsylvania 

Avenue, N.W. 

Washington, D.C. 20530 

  

Nr ~~ Charles Stephen Ralston 
Attorney for Plaintiffs-Appellees 

 



  

IN THE 

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN 
CITIZENS (LULAC), COUNCIL #4434, 
et al., 

Plaintiffs- Appellees, 

HOUSTON LAWYERS ASSOCIATION, 

et al., 
Plaintiff-Intervenor- 

Appellees, 

DAN MORALES, et al., 

State Defendants- 

Appellants, 
JUDGE SHAROLYN WOOD AND 

JUDGE F. HAROLD ENTZ, 

Defendant-Intervenor- 

Appellant. 

  

Appeal from the United States District Court for the Western 
District of Texas, Midland-Odessa Division 

  

MOTION FOR LEAVE TO FILE RESPONSE OF 
PLAINTIFF-INTERVENOR-APPELLEES TO 

JUDGE ENTZ’S OPPOSITION TO JOINT MOTION TO REMAND 

The Houston Lawyers’ Association, Plaintiff-Intervenor-Appellees, in this action moves the 

Court for leave to file the Court for leave to file the accompanying Response to Judge Entz’s 

Opposition to Joint Motion to Remand. In support of the motion they would show the following: 

1. Judge Entz’s Opposition was received by counsel for plaintiff-intervenor-appellees on 

May 19, shortly before the argument date of May 24, and when lead appellate counsel, Sherrilyn 

Ifill, was required to travel to Oklahoma on another case on short notice. Therefore, Ms. Ifill 

 



  

requested leave to file a response post-argument. Ms. Ifill received word from the clerk’s office that 

the request had been granted and that she was given five days to file the response. She assumed 

that this five days did not include the weekend, in accord with the Federal Rules of Appellate 

Procedure. 

2. Upon returning to her office on May 25, the day after the en banc argument herein, Ms. 

Ifill read the letter from the clerk’s office, which had arrived on May 24 while she was in New 

Orleans, and discovered that the five days did include the weekend, and that the response was due 

in the court by the same day, May 25, 1993. She phoned the clerk and was told that she could 

request additional time. In the meantime, because of other scheduling problems, Ms. Ifill requested 

the undersigned counsel, Charles Stephen Ralston, if he could prepare the response. Mr. Ralston 

agreed, but since he was in the midst of preparing a petition for a writ of certiorari that was due 

in the United States Supreme Court on Thursday, May 27, he was unable to prepare the response 

until May 28, 1993. 

3. Consideration of the enclosed response will not delay the disposition of this appeal. 

WHEREFORE, for the foregoing reasons, it is prayed that the enclosed response be filed 

in this case. 

7 A) 
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/ LAR ¢ Ay ” D / ri : Lo of X.; ve / 
A A - V gull a lid 

“ELAINE R. JONES 

CHARLES STEPHEN RALSTON 

SHERRILYN A. IFILL 

99 Hudson Street, 

16th Floor 

New York, N.Y. 10013 

Respectfully submitted, 
Fi 

    

  

GABRIELLE K. McDONALD 

Law Office of Arthur 

L. Walker, Jr. 

7800 N. Mopac 
Suite 215 

Austin, TX 78750 
512-346-6801 

 



CERTIFICATE OF SERVICE 

I hereby certify that on this 28th day of May, 1993 a copies of the foregoing motion for 

leave to file response to Judge Entz’s Opposition to Joint Motion to Remand was mailed to counsel 

of record in this case by first class United States mail, postage pre-paid, as follows: 

William L. Garrett 
Brenda Hall Thompson 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, TX 75225 

Rolando L. Rios 

The Law Office of Rolando 

L. Rios 

Milam Building, Suite 1034 115 E. Travis 

Street ; 

San Antonio, TX 78205 

Edward B. Cloutman, III 

Cloutman, Albright & Bower 

3301 Elm Street 

Dallas, TX 75226-1637 

J. Eugene Clements 
John E. O’Neill 

Evelyn V. Keyes 
Porter & Clements 

700 Louisiana, Suite 3500 

Houston, TX 7002-2730 

Michael J. Wood 

Attorney at Law 
440 Louisiana, Suite 200 

Houston, TX 77002 

John L. Hill, Jr. 

Liddell, Sapp, Zivley, 
Hill & LaBoon 

3300 Texas Commerce Tower 

Houston, TX 77002 

David R. Richards 

Special Counsel 
900 West Avenue 

Austin, TX 78701-2228 

Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, TX 75201 

Gabrielle K. McDonald 

Law Office of Arthur 

L. Walker, Jr. 

7800 N. Mopac 
Suite 215 

Austin, TX 78750 

Dan Morales 
Will Pryor 
Mary F. Keller 

Renea Hicks 

Javier Guajardo 
Attorney General's Office 
Price Daniel Sr. 

Office Building 
209 W. 14th Street 
Austin, TX 78701-2548 

Seagal V. Wheatley 
Donald R. Philbin, Jr. 

Oppenheimer, Rosenberg, 
Kelleher & Wheatley, Inc. 

711 Navarro, Sixth Floor 

San Antonio, TX 78205  



  

E. Brice Cunningham 
777 South R.L. Thornton Freeway 
Suite 121 
Dallas, TX 75203 

Darrell Smith 

10999 Interstate Highway 10 
Suite 905 

San Antonio, TX 78230 

Walter L. Irvin 

5787 South Hampton Road 
Suite 210, Lock Box 122 
Dallas, TX 75232-2255 

Ken Oden 
Travis County Attorney 
P.O. Box 1748 
Austin, TX 78767 

Tom Rugg 
Jefferson County 

Courthouse 

Beaumont, TX 77701 

Jessica Dunsay Silver, Esq. 
Mark Gross, Esq. 
c/o Attorney General of the 

United States 

United States Department 
of Justice 

Main Justice Building 
10th & Pennsylvania 

Avenue, N.W. 

Washington, D.C. 20530 

  

  

Charles Stephen Ralston 
Attorney for Plaintiffs-Appellees