Defendant-Intervenor Judge Wood's Motion for Certification for Interlocutory Appeal and Motion for Stay

    D a. 

PorRTER & CLEMENTS 
FIRST REPUBLICBANK CENTER 

700 LOUISIANA, SUITE 23500 

HOUSTON. TEXAS 77002-2730 NS, 

  

ATTORNEYS 

A PARTNERSHIP INCLUDING 
TELEPHONE (713! 226-0600 

{ ~ Fa) 
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or ji 
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EVELYN V. KEYES 
TELEX 775-348 

(713) 226-0611 

December 14, 1989 

Mr. John Neil 

Clerk, U.S. District Court 

200 E, Wall 8t., Suite 315 
Midland, Texas 79702 

Re: No. MOB8-CA-154; League of United latin American 
Citizens. {LULAC), et dal. wv, James Mattox, Attorney 
General of Texas, et al.; In the United States District 
Court Zor the Western District of Texas, Midland-Odessa 
Division 

Dear Mr. Neil: 

Enclosed for filing in the above-referenced case is Defen- 
dant-Intervenor Harris County District Judge Sharolyn Wood's 
fotion for Certification for Interlocutory Appeal and Motion for 
Staydned Ghote. 

| 

! 
—- . . \ Please return a fille stamped copy of this document to me in 

the enveloped provided. 

A copy Cf this: Fi J -
 
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3 Q
 

H
 being served on counsel of record 

ena 

EVK/cdf 

enclosures 

cos Mr... William 1. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 

Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

 



  

My~ id 5 John Neil 

December 14, 1989 

Page ~ — — 

Mr. Rolando L. Rios 

Southwest Voter Registration & 
Education Project 

201" N.. St. Mary's, Sulte 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 

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

Mr. Julius Levonne Chambers 

Ms, Sherrilyn A.: Ifill 

NAACP Legal Defense and Educational Fund, 
99 Hudson Street, 16th Floor 

New York, New York 10013 

Ms. Gabrielle XK. McDonald 

Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 

Inc. 

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. .Cloutmani III 

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

3301 Elm Street 

Dallas, Texas 75226-1637 

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

Mr. Robert H. Mow,.Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

 



  

THE UNITED STATES DISTRICT. COURT 

THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

Vo 

JIM MATTOX, Attorney General 
of the State of Texas, et al., NO. MO-88-CA-154 

Defendant-Appellants, 

and 

Harris County District Judge 
SHAROLYN WOOD, 

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Defendant-Appellant. 

DEFENDANT-INTERVENOR HARRIS COUNTY 

DISTRICT JUDGE SHAROLYN WOOD'S MOTION 

FOR CERTIFICATION FOR INTERLOCUTORY APPEAL 

AND MOTION FOR STAY 

  

  

  

  

to THE HONORABLE JUDGE OF SAID COURT: 

| Pursuant to =«Fed.' R. Civ. P. Jb), "Defendant-Intervenor 

Harris County District Judge Sharolvn Wood ("Judge Wood") files 

this Motion requesting that the Court amend its Memorandum 

Opinion and Order of November 8, 1989 ("Opinion"), to include a 

statement certifying this case for interlocutory appeal pursuant 

to 28 U.S5.C.A. § 1292(b) and that it stay all further proceedings 

in this Court pending interlocutory appeal. In support of. hex 

Motion, Judge Wood respectfully shows the Court the following: 

1. Interlocutory appeal of an order not otherwise appealable is 

appropriate under § 1292(b) when the following criteria are met: 

 



  

(1) the order involves a controlling question of law; 

(2) as to which there is substantial ground for difference 
of opinion; and 

(3) an immediate appeal from the order may materially 
advance the ultimate termination of the litigation.— 

The Court's Memorandum Opinion and Order of November 8, 1989, is 

not appealable at this time as of right: since that Order is not a 

final judgment; the Court has merely found liability; it must now 

proceed from the liability phase to the remedy phase of the 

litigation. However, the criteria for certification for inter- 

locutory appeal under § 1292(b) are amply met in this case. 

A. The Court's Declaratory Judgment 
Involves Controlling Questions Of Law. 
  

  

2% This case involves a challenge under §2 of the Voting Rights 

Act, 42 U.S.C. §1973, to the existing system of electing state 

  

/ Section 1292(b) provides: 

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When 'aidistrict Judge, in making in.a.civil 
action an order not otherwise appealable under 
this section, shall be of the opinion that such 

order involves a controlling question of law as to 
which there is substantial ground for difference 
of opinion and that an immediate appeal from the 
order may materially advance the ultimate 
termination of the litigation, he shall so state 
in writing in such order. The Court of Appeals 
which would have jurisdiction of an appeal of such 
action may thereupon, in its discretion, permit an 
appeal to be taken from such order, if application 
is made to it within ten days after the entry of 
the ‘order: Provided, however, That application 
for an appeal hereunder shall not stay proceedings 
in the district court unless the district judge or 
the Court of Appeals or a judge thereof shall so 
order. 

{Footnote Cont'd) 

 



  

district Judges from county-wide districts in Texas. In. its 

Opinion, the Court held that the present system violates Section 

2 of the Voting Rights Act by diluting the votes of blacks and/or 

Hispanics in all target counties, including Harris County. 

i, 3 The United States Supreme Court and the Fifth Circuit hold 

that the appropriate test of vote dilution claims under the 

Voting Rights Act is a "totality of the circumstances" test based 

upon a practical, intensely local inquiry peculiarly dependent 

upon the facts of the case. Thornburg. .v. Gingles, 478 U.S. 39, 
  

106 S.Ct .32752, 2781 (1986); Overton v. Citv of Austin, 871 v.24 
  

829%, 532. (Sth Cir." 1989), That test employs as a threshold 

inquiry three factors set forth in Gingles: (1) demonstration by 

the: minority that it islisufficientlyvi large and geographically 

compact to constitute a majority in a single-member district 

(Gingles 1); (2) political cohesiveness of the minority (Gingles 

\ : 2); and "(3) sufficient white "bloc voting to enable the ‘white 

majority usually to ‘defeat the minority's candidate of choice 

(Glngles.3).i" Gcingles, 106 S.Ct. at 2766. These factors are then 

augmented by a searching, ‘practical inguiry into typical local 

  

2 
factors. Gingles, 106 S.Ct. at 3783 wf 

(Footnote Cont'd) 

28 U.8,C.:§ 12924). 

D7 These typical factors in proving vote dilution are ‘often 
referred to as the "Zimmer factors" after the case of Zimmer 

v. -McReithen, 485:F.2d “1297 (53th Cir. 1973), in which they 
  

were first set forth in detail, 

 



  

4. Essentially, the Court rested its declaratory judgment on 

the following conclusions of law: 

T.ti Section 2 jof the Voting Rights Act applies tc the 
judiciary. Opinion at 81 (citing Chisom v. Roemer, 339 
F.2d 1056 (5th Cir. 1988), cert. denied sub nom Chisom 
v. Flwards, 109 :8.Ce. 310 (1989)). 3/ 

  

  

  

2. Section 2 applies equally as well to the election of 
state district. judges who ‘serve as independent 
decision-makers, as it does to the election of appel- 
late judges, who serve in a collegial body; Chisom's 
extension of § 2 to judicial elections was not meant to 
be limited to collegial judicial bodies. Opinion at 81 
and n, 32, 

3. Political cohesiveness of the minority (Gingles 2) and 
the ability of the white majority usually to defeat the 
minority's preferred candidates (Gingles 3) are usually 
established by statistical evidence of racially 
polarized voting. Opinion at 85. 

4. Racial bloc voting can be established by a type of 
abstract statistical inquiry called "bivariate 
regression analysis." Opinion at 8S: n. 4. 

5. Party affiliation is irrelevant under the controlling 
law.': Opinionat 80. 

6. The addition of irrelevant variables to regression and 
statistical analysis distorts the equation and yields 
results that are indisputably incorrect under § 2. 
Opinion at 80. 

7. Unopposed minority candidate election contests and 
white versus white contests are not germane in this 
Circuit to the statistical analysis of Voting Rights 
Act violations. Opinion at 80-81. 

83. The concept of "one man, one vote does not ‘apply to 
Judicial elections. Opinion at 15. 

  

3/ The Court had previously held that the Voting Rights Act is 
constitutional as applied to judicial elections and violates 
neither the principle of separation of powers nor the 
fourteenth amendment guarantee of equal protection of the 
laws. Order entered May 3, 1989. 

 



  

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The eligible pool of minority lawyers, rather than 
eligible "minority voters, .'is- not the appropriate 
reference point for evaluating the extent of electoral 
success. Opinion at 74-75. 

Specific: to Harris County, the Court held: 

10, 

11. 

32. 

13, 

14. 

The » data set’ relied upon by Plaintiffs' expert 
Dr. Richard Engstrom to analyze Harris County 
elections, consisting in 1980 census counts of total 
black population by precinct and computer printouts of 
1982, 1984, 1986, and 1988 precinct voter registration 
estimates supplied Dr. Engstrom by Dr. Richard Murray, 
a non-testifying expert (Opinion at 22), which had been 
written over, struck Jout: ior crossed through, and 
contained pencil notations and other marks was reliable 
data on which to base statistical analysis of racially 
polarized voting and racial bloc voting. Opinion at 
27. 

Testimony from Plaintiff's expert, Dr. Engstrom, that 
(1) primary’ elections in Harris County need not be 
addressed because they do filter out the candidate of 
choice of black voters; (2) that uncontested races do 
not assist researchers in their analysis; (3) that the 
appropriate comparison in Voting Rights cases is black 
and non-black; (4) that, although not controlled for, 
the votes of Asian-Americans would be included in the 
percentages of non-black votes; and (5) that the range 
of absentee votes in Harris County never rose above 
13.6% was adequate to address Defendant Wood's concerns 
about absentee voting, the influx of Vietnamese 
population into Harris County and traditionally black 
precincts and failure of Dr. Engstrom'’s analysis to 
reflect black candidate successes in primary elections 
and uncontested races. Opinion at 27. 

Dr. Engstrom's testimony regarding correlation and 
regression analysis of 17 selected races proves that 
white bloc "voting: exists. in Harris County "and is 
sufficiently strong generally to defeat the choice of 
the black community. Opinion at 28-30. 

The testimony of Judge Wood's witness, Judge Mark 
Davidson, that race and ethnicity are irrelevant to 

voting behavior as it relates to +the judiciary in 
Harris County, while credible, is irrelevant under 
controlling daw, Opinion at‘ 31. 

Defendant Wood's contention that black preferred 
candidates lost their judicial races because of failure 
to win the Harris County bar or preference poll or 

 



obtain the Gay Political Caucus endorsement is legally 
incompetent. Opinion at 31. 

De The questions of law listed above are controlling in that 

they provide the conceptual basis for the Court's determination 

that the present system of electing state district judges dilutes 

the votes of minorities in the targeted counties, and, in 

particular, in Harris County, in violation of § 2 of the Voting 

Rights Act. 

B. There Are Substantial Grounds For Difference 
Of Opinion To The Controlling Law. 
  

  

6. In sum, the¢controlling conclusions of law raise at. least 

the following questions of law for which there are substantial 

grounds for difference of opinion: 

1. Whether § 2" of the Voting Rights Act applies to the 
judiciary; and, if so, whether it is constitutional? 

Whether § 2 applies to independent overlapping county- 
wide election districts? 

Whether Gingles 2 and 3 are proved by abstract statis- 
tical inquiry with all other inquiry being irrelevant? 

Whether unopposed election contests and white versus 
white contests are germane to the statistical analysis 
of vote dilution claims? 

Whether the concept of one-man, one-vote applies to 
judicial elections? 

Whether the eligible pool of minority lawyers or that 
of minority voters is the appropriate reference point 
for measuring minority success in judicial elections? 

Whether ‘the court's holding that illegal vote dilution 
exists. in Harris County, Texas judicial. races is 
clearly erroneous? 

jy As the Court acknowledged in its Opinion, "This area of law 

is’ not "an icy certainty.’ Opinion: at 93. Indeed, the Court  



  

implies that the questions involved are "difficult legal 

questions" on which "the most distinguished experts" may dis- 

agree. Opinion at 93 (quoting Chief Judge Charles Evans Hughes 

1936 address to the American Law Institute). Clearly, the Court 

acknowledges by its language that there is substantial ground for 

difference of opinion as to that law. 

C. An Immediate Appeal Will Materially Advance 
The Ultimate Termination Of This Litigation. 
  

  

8. Interlocutory appeal would very materially advance the 

ultimate determination of this litigation with potentially great 

savings of expense and disruption for both the parties and the 

people of Texas as: a . whole. As, a result of: the Court!s 

declaratory judgment in this case, all further elections for 

state district judge in the target counties are subject to 

immediate injunction; and the Court has indicated that it will 

qonsidex such an injunction. Opinion at: 93, “Moreover,. in the 

femedy phase "the parties ‘and. the State will inevitably be 

subjected to an immensely expensive and protracted process which 

will predictably be enormously disruptive of the Texas electoral 

process, and of the stability of the state judicial system. 

os. Federal law requires that the state legislature must first 

be given a reasonable opportunity to redress the violations. 

Should it reach consensus on a plan it must submit that plan to 

the Justice Department under §5 of the Voting Rights act. The 

Justice Department has previously indicated in a similar case 

that it will approve no judicial redistricting plans until 1990 

census data is available. Any remedy devised by the legislature 

 



  

will also require a constitutional amendment which must be 

approved by the voters of the State of Texas, who only four vears 

ago overwhelmingly approved an amendment +o the Texas constitu- 

tion forbidding the creation of judicial districts smaller than a 

county without majority approval. 

10. Failing a legislative remedy, as seems all too predictable, 

the Court must devise its own remedy. At the trial of this case 

there was little if any testimony or evidence relating to sucha 

remedy. For example, 1f the Court were to impose a remedy 

requiring the election of state district judges from legislative 

districts in the affected counties, there is no evidence that 

such Judicial districts would satisfy the Gingles criteria, nor 

is there any evidence as to the population or racial makeup of 

such potential districts. Even such evidence as was introduced 

at trial regarding demographics - which was never related to 

legislative districts - is entirely extrapolated from 1980 census 

data and is thus ten years out of date. Moreover, in Harris 

County, ‘there is no reason to order single member ‘districts for 

any areas of the county. other ‘than. black areas 'in that no 

evidence of vote dilution was presented on behalf of anyone other 

than blacks. Any such Court-imposed remedy will have 

far-reaching implications for the future of the state judiciary 

and will necessarily lack voter approval and indeed, voter input. 

It will also result in tremendous upheaval in the administration 

Of justice and expense to the State and ultimately to the 

citizens themselves. The impact of any such plan on numerous 

 



  

laws affected by judicial redistricting on racial lines--such as 

venue and jurisdiction--is entirely unpredictable. 

11. During all of the time spent in devising and implementing a 

remedy for the vote dilution found by the Court in its Opinion 

and Order, the ultimate resolution of the controlling questions 

of law in the case must remain in doubt with the attendant 

possibility that the massive litigation, disruption, expense, and 

instability incurred will all have been for naught should the 

appellate court ultimately reverse the district court on the 

merits of this case. There can be no: doubt, therefore, that a 

swift decision on the troublesome questions of law in this 

exceptionally complex and important case will very materially 

advance the ultimate termination of this litigation in the manner 

which is most just, orderly, efficient, and sound. 

WHEREFORE, for the foregoing reasons, Defendant-Intervenor 

farris County District Judge Sharolyn Wood requests that the 

Conte amend its Memorandum and Order of November 8, 1989, ‘hy 

including a statement certifying this case for immediate 

interlocutory appeal pursuant to 28 U.S.C. § 1292(b), that it 

devise no remedy for vote dilution and that it impose a stay on 

 



  

all further proceedings in this Court pending interlocutory 

appeal. 

Respectfully submitted, 

PORTER & CLEMENTS 

7 

[[Egens Flensnis 7 
0 Louisiana, Suite 3500 naka, / 

Houston, Texas 77002-2730 
(713) 226-0600 Kee ce. 

Ce) 

ATTORNEY FOR HARRIS COUNTY rd 
DISTRICT JUDGE SHAROLYN WOOD 

B 
  

y: 

7 

OF COUNSEL: 

PORTER & CLEMENTS 

Evelyn V. Keyes 

700 Louisiana, Suite 3500 

Houston, Texas 77002-2730 

1713) 226-0600 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, Texas 77002 

{713) 228-5105 

CERTIFICATE OF SERVICE 
  

I hereby certify that on the l4thiday. of December, 1989, a 
true and correct copy of the above and foregoing Defendant- 
intervenor Harris County District Judge Sharolyn Wood's Motion 
for Certification for Interlocutory Appeal and Motion for Stay 
was. mailed to ‘counsel ‘of record in ‘this case by first class 
United States mail, postage prepaid, addressed as follows: 

Mr, William L. Garrett 
Ms. Brenda Hall 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. St. Mary's, Suite 521 
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 

i6th 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 
Mr. 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.L. Thornton Freeway 
Sulte 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

fold fo, / a”) 
Evelyn V./Keyes 
  

WO004:47:br