Objections and Brief of Chief Justice Phillips to Joint Motion to Remand for Hearing on Effectuation of Settlement

    JOSEPH D. JAMAIL 

GUS KOLIUS 

DAVID J. BEBOUT 

JANET PIGNATARO EVANS 

FRANK M. STAGGS, JR. 

JAMAIL & KOLIUS 

ATTORNEYS AT LAW 

ONE ALLEN CENTER 

500 DALLAS STREET SUITE 3434 

HOUSTON, TEXAS 77002-4793 

(713) 651-3000 

DAHR JAMAIL 

NAT B. KING 

COUNSEL 
FAX (713) 651-1957 

May 19, 1993 

Hon. Gilbert F. Ganucheau BY HAND DELIVERY 
Clerk, U.S. Court of Appeals 
For the Fifth Circuit 
109 U. S. Court of Appeals Courthouse 
600 Camp Street er 
New Orleans, Losing 70130 

  

  

    
   

Re: League of United Latin American Citizens, et al., Plain s-Appellees, v. 
5; Cause No. 90-8014 Attorney General of Texas, et al., Defendants-Appell 

ifth Circuit. n-the United States Court of Appeals for th 
I ——— 

  

    

  

  

Dear Mr. Ganucheau: 

Enclosed for filing are the originals and twenty copies of the following: 

1. Objections of Thomas R. Phillips, Chief Justice of the Supreme Court of 
Texas, to Joint Motion to Remand for Hearing on Effectuation of 
Settlement; and 

2. Brief of Thomas R. Phillips, Chief Justice of the State of Texas, in Support 
of Objections to Joint Motion to Remand for Hearing on Effectuation of 
Settlement. 

Please acknowledge receipt and filing of these documents by stamping the 
enclosed copy of this letter with the clerk’s stamp showing date and time of filing, and 
returning same to this office. Thank you for your assistance in this matter. 

Respectfully yours, 

Tan Sig 
Frank Staggs 

;jmg 
cc: All counsel of record - Cert./RRR 
\lulac\1367 

 



  

No. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS 
(L.U.L.A.C.), et al. 

Plaintiffs- Appellees, 

V. 

DAN MORALES, et al., 

Defendants-Appellants. 

  

OBJECTIONS OF THOMAS R. PHILLIPS, 
CHIEF JUSTICE OF THE SUPREME COURT OF TEXAS, 

TO JOINT MOTION TO REMAND 
FOR HEARING ON EFFECTUATION OF SETTLEMENT 

Appellant Thomas R. Phillips, Chief Justice of the Supreme Court of Texas, 

respectfully objects to the Joint Motion to Remand for Hearing on Effectuation of 

Settlement filed by the Plaintiffs- Appellees and the Attorney General of the State of 

Texas, purporting to act on behalf of the State of Texas. For the reasons stated herein, 

and in his accompanying Brief in Support of Objections to Joint Motion to Remand for 

Hearing on Effectuation of Settlement, the remand motion should be denied, and the 

case be permitted to proceed on appeal. 

 



OBJECTIONS TO SETTLEMENT AND REMAND 

These objections are filed subject to and without waiver of the Chief 

Justice’s prior postion and contentions regarding liability findings under Section 2 of the 

Voting Rights Act. 42 U.S.C. § 1973 (Supp. 1993). 

2 The Chief Justice of the Supreme Court of Texas objects to the 

"Settlement Agreement" proffered by the Attorney General in the Notice of Action 

Toward Resolution of Appeal and the ensuing Joint Motion to Remand for Hearing on 

Effectuation of Settlement on the following interrelated grounds: 

a. The settlement is ineffective because proper "consent" of the State of 

Texas has not been constitutionally obtained under state law. To the contrary, the 

proposed settlement unnecessarily offends Texas constitutional and statutory 

requirements. 

b. The proposed settlement does not comply with the Voting Rights Act. 

Indeed, the proposal altogether deprives certain subdistricted voters of the right to elect 

judges of particular specialized courts. 

C, A partially agreed remand is improper in the face of substantial objections 

to the proposed settlement. 

d. Since there is no proper consent judgment before the Court, remand for 

the purpose of entering the proposed judgment is improper, and should not be granted 

by this Court.  



  

3. As a named party defendant, head of the Judicial Department of the State 

of Texas, and ex officio chair of the Judicial Districts Board, the Chief Justice has 

standing to make these objections. 

CONCLUSION 

Because the proposed settlement agreement suffers from material infirmities, both 

procedural and substantive, it should be rejected by this Court. Since there is no proper 

consent judgment before the Court, remand for the purpose of entering the proposed 

judgment is improper, and should not be granted by this Court. This action should 

continue to its natural appellate conclusion. To the extent, if any, that Section 2 liability 

is ultimately sustained, remand instructions should be given which display a proper 

deference to Texas’ constitutional system for judicial redistricting within the principles 

of comity and federalism. 

PRAYER 

For the reasons stated herein and the accompanying brief in support of 

objections, which brief and reasons are incorporated herein by referenfce for all 

purposes, and without waiver of any contention heretofore made, Appellant Thomas R. 

Phillips, Chief Justice of the State of Texas, respectfully prays that the Court overrule 

the Joint Motion to Remand for Hearing on Effectuation of Settlement filed by the 

Plaintiff- Appellees and the Attorney General of the State of Texas, sustain the objections 

presented to the proposed settlement, and proceed with en banc reconsideration of the 

opinion and order heretofore issued by the panel of this Court. 

 



  

Of counsel: 

JAMAIL & KOLIUS 

Frank Staggs 

Texas Bar No. 19003700 

S.D. Admissions No. 2580 

500 Dallas Street, Suite 3434 
Houston, Texas 77002-4793 

Telephone: (713) 651-3000 
Telecopy: (713) 651-1957 

Respectfully submitted, 

      Texas Bar No. 10536000 

S.D. Tex. Admissions No. 1364 

Independent Counsel for Defendant-Appellant Thomas 
R. Phillips, Chief Justice of the Supreme Court of 
Texas and Chairman of the Judicial Districts Board 

 



  

* 

CERTIFICATE OF SERVICE 

I certify that on the | +h day of May, 1993, I sent a copy of the foregoing 
document by first class United States Mail, Return Receipt Requested, postage prepaid, 
to each of the following: 

Hon. Dan Morales 

Attorney General 

Price Daniel, Sr. Building 

Austin, Texas 78701 

Mr. William L. Garrett 

Garrett, Thompson & Chang 
8300 Douglas 

Suite 800 

Dallas, Texas 75225 

Ms. Cherrilyn A. Ifill 

NAACP Legal Defense & Educational 
Fund, Inc. 

99 Hudson Street, 17th Floor 

New York, New York 10013 

Mr. Rolando Rios 

Suite 1024, Milam Building 

115 E. Travis Street 

San Antonio, Texas 78205 

Ms. Gabrielle K. McDonald 
7800 N. Mopac 

Suite 215 

Austin, Texas 78750 

Mr. Edward B. Cloutman, III 

3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. J. Eugene Clements 

Porter & Clements 

3500 NCNB Center 

P. O. Box 4744 

Houston, Texas 77210-4744 

wicO16\lulac\object.1 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 

1717 Main Street 

Suite 2800 

Dallas, Texas 75201 

Ms. Seagal W. Wheatly 

Wheatly & Sharpe 

Suite 1650, Frost Bank Tower 

100 West Houston 

San Antonio, Texas 78205 

Mr. E. Brice Cunningham 
777 South R. L. Thornton Frwy. 
Suite 121 

Dallas, Texas 75203 

Ms. Jessica Dunsay Silver 

Department of Justice 

P. O. Box 66078 
Washington, D.C. 20035-6078 

Mr. Tom Maness 

Jefferson County Courthouse 

Beaumont, Texas 77701 

Russell W. Miller 

3300 Texas Commerce Tower 

Houston, Texas 77002 

  

   



    

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS 
(L.U.L.A.C.), et al., 

Plainnffs-Appellees, 

V. 

DAN MORALES, et al., 

Defendants-Appellants. 

  

BRIEF OF THOMAS R. PHILLIPS, 
CHIEF JUSTICE OF THE SUPREME COURT OF TEXAS, 

IN SUPPORT OF OBJECTIONS TO JOINT MOTION TO REMAND 
FOR HEARING ON EFFECTUATION OF SETTLEMENT 

  

Joseph D. Jamail 

Independent Counsel for Defendant- 
Appellant Thomas R. Phillips, Chief 
Justice of the Supreme Court of Texas and 
Chairman of the Judicial Districts Board 

Of counsel: 

JAMAIL & KOLIUS 
Frank Staggs 
3434 One Allen Center 
500 Dallas Street 
Houston, Texas 77002-4793 
Telephone: (713) 651-3000 
Telecopy: (713) 651-1957 

May 19, 1993 

 



     
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS 
(L.U.L.A.C.), et al., 

Plaintffs-Appellees, 

v. 

DAN MORALES, et al., 

Defendants-Appellants. 

  

BRIEF OF THOMAS R. PHILLIPS, 
CHIEF JUSTICE OF THE SUPREME COURT OF TEXAS, 

IN SUPPORT OF OBJECTIONS TO JOINT MOTION TO REMAND 
FOR HEARING ON EFFECTUATION OF SETTLEMENT 

  

Joseph D. Jamail 

Independent Counsel for Defendant- 
Appellant Thomas R. Phillips, Chief 
Justice of the Supreme Court of Texas and 
Chairman of the Judicial Districts Board 

Of counsel: 

JAMAIL & KOLIUS 
Frank Staggs 
3434 One Allen Center 
500 Dallas Street 
Houston, Texas 77002-4793 
Telephone: (713) 651-3000 
Telecopy: (713) 651-1957 

May 19, 1993 

 



TABLE OF CONTENTS 
  

Table Of Authorities 

Address To The Court 

Summary 

The Proposed Settlement Unnecessarily 
Contravenes The Texas Constitution 

1. Texas’ constitutional methods of 
effectuating judicial redistricting 
have not been declared invalid 

Principles of comity and federalism 
require deference to Texas 
constitutional requirements 

Texas’ constitutional scheme is bypassed 
by the settlement plan. 

The Texas Attorney General cannot advocate 
a settlement plan contrary to Texas law 

Texas legislative "approval" was not 
properly obtained 

Overton requires denial of the remand 
motion 

The Proposed Settlement Fails To Comply 
With Section 2 

1. Any remedy must itself satisfy 
Section 2 fully 

2. The settlement plan violates Section 2 

A Partially Agreed Remand Is Improper In View 
Of Substantial Objections 

Conclusion 

PAGE NO. 
  

 



    
IE TE I OU LRN RT SERIE CTE I I CR Vt AE 14 

Prayer ov of ol i ee rip sie als irs ne sas hls oi TS an wile wat A a waa 15 

Appendix A: Limitations On Voter 
Participation dn DallasiCoumy vv. «ois cnr thes i ow es sass ae a we 16 

Appendix B: Limitations On Voter 
Participation In Parrant CouNY . coon, i. Ginnie. riniaie » s/o 2 alias aisniivin bs wlio 17 

Appendix C: Limitations On Voter 
Participation IN TravisiOOUIMIY oo ti. iy, io oh fae 4 cna nttid ov 2 vs sinse in Sm 18 

Appendix D: Limitations On Voter 
Participation IN Bexar COUNLY. os or nr se Sates Pilani nin tal nie Bod aim 19 

i Appendix E: Limitations On Voter 
Participation InMIAIand OOUNY oir. als oo. il Uh van a aes as win alii no aie n 20 

p Certificate Of SEIVICE cour oir slr ses colonials s asin ain as Br als sini Woh ntaince Su a 21 

1 ii 

 



    
TABLE OF AUTHORITIES 
  

  

PAGE NO. 

CASES 

Allen v. Alabama State Board of Education 
816 F.2d 575 (11th Cir. 1987), 
reltg dered, BYTF.20T01L LIB) «iv vv ies Ba vino vans Bataan vw ieia’s 4 

Dillard v. Crenshaw County 
Bl E28 UO 1th Or. 1087). vs sa a re Be ante vi are ss 9 

Edge v. Sumpter County School District 
775 F.2d 1509 (11th Cir. 1985), 
subsequent appeal, 798 F.20 150 C1IBB) . . . «vicis sie vinisin vai’ s 4 onie adn tn a 8,9 

Houston Lawyers Ass'n v. Attorney General of Texas 
111 8.Ct 2376 C1991. or a. i Ri a JS nd 3 

Louisiana v. United States 
380.1).5. 145, 85 8:04. B17 (1965) i... . 5. vos ss Seis vr nd ae aN 9 

Major v. Treen 
574 B.Supp+3254{E.D. La. 1983)... . 3 B.C at a a ae a a 12 

Metropolitan Pittsburgh Crusade for Voters v. 
City of Pittsburgh, Pennsylvania 

680 BE. Supp- 97 (W.D., Pent. - 1988). or. i. ts che oie via ates nn tain a a 13 

Morris v. Gressett 
432 0.5.4491, 99 S.CL 2AIL (1977) oo. . 0. ei sas cin vin vn ain ain 25505 11 

Overton v. City of Austin 
TAB P2A HY (Sh Cir, 1984) ..... .. aiia so oii io ihe amas 2a 5% vida 7, 3,9 

Rogers v. Frito-Lay, Inc. 

611 F.2d 1074 (5th Cir.), cert denied, 449 US. 889 (1980) - . ..... osu vt vin vs 7 

Seastrunk v. Burns 
EE RE a BL a A BT, i VI 3 

Terrazas v. Ramirez 
112 S. W.2d B20 Tex 1000) is ves oe os itis wave nin aon vin warns al aie 6 

iii 

 



Upham v. Seamon 
456 U.S. 37, 102 S.Ct. 1518 (1982), 
reh’g denied, 456 U.S. 938 (1982) 

United States v. City of Miami, Florida 
644 F.2d 435 (5th Cir. 1981) 

United States v. East Baton Rouge Parish School Board 
594 F.2d 56 (5th Cir. 1977) 

White v. Weiser 

412 U. S. 783, 93 S.Ct. 2348 (1973) 

Williams v. City of New Orleans 
729 F.2d 1554 (5th Cir. 1984) 

Wise v. Lipscomb 
437 U.S. 535, 98 S.Ct. 2493 (1978) 

STATUTES AND REGULATIONS 
  

TEX. CONST. 

SECONDARY AUTHORITIES 
  

S.REP. NO. 417 
97th Cong., 2d Sess. 31 (1982), 
reprinted in 1982 U.S. CODE CONG. & AD. NEWS 177, 208  



    

No. 90-8014 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS 

(L.U.L.A.C.), et al. 

Plaintiffs- Appellees, 

V. 

DAN MORALES, et al., 

Defendants-Appellants. 

  

BRIEF OF THOMAS R. PHILLIPS, 

CHIEF JUSTICE OF THE SUPREME COURT OF TEXAS, 

IN SUPPORT OF OBJECTIONS TO JOINT MOTION TO REMAND 

FOR HEARING ON EFFECTUATION OF SETTLEMENT 

Appellant Thomas R. Phillips, Chief Justice of the Supreme Court of Texas, 

respectfully submits this supplemental brief, limited in scope, in support of his objections 

to the Joint Motion to Remand for Hearing on Effectuation of Settlement filed by the 

Plaintiffs-Appellees and the Attorney General of the State of Texas, purporting to act 

on behalf of the State of Texas. For the reasons stated herein, Chief Justice Phillips 

respectfully asks that the joint remand motion be denied, and that the case be 

considered on its merits on appeal. 

 



    
SUMMARY 

This brief does not address issues concerned with the vote dilution liability findings 

under Section 2 of the Voting Rights Act. 42 U.S.C. § 1973 (Supp. 1993). Those issues 

have been addressed in other briefs, and it is not the intent of this party to argue or 

waive those points by this brief. Instead, the singular purpose of this filing is to present 

the reasons for the objections by the Chief Justice of the Supreme Court of Texas to the 

proposed "Settlement Agreement” proffered by the Attorney General in the Notice of 

Action Toward Resolution of Appeal and the ensuing Joint Motion to Remand for 

Hearing on Effectuation of Settlement. 

The Chief Justice urges these objections as a named defendant, as the principal 

official of the Judicial Department of the State of Texas, and as ex officio chairman of 

the Judicial Districts Board of Texas." In summary, he objects to the proposed 

settlement on the following interrelated grounds: 

1. The settlement is ineffective because proper "consent" of the State of 

Texas has not been constitutionally obtained under state law. To the 

  

'! The Chief Justice was named by the Plaintiffs as a state defendant. His standing as 

a party necessary to afford complete relief was thus admitted by the Plaintiffs and 

never challenged by the Attorney General, who would have had the duty to object 

if the Chief Justice was not properly named as a party defendant. 

The Texas Constitution provides for a strict separation of powers among the 
Executive, Legislative and Judicial Departments. TEX. CONST. art. 2 § 1. The 

Chief Justice’s position as head of the Judicial Department of Texas is implicit in the 

constitutional scheme. Compare TEX. CONST. art. 5 § 2 with art. 5 §§ 3 and 31(a). 

His position as chair of the Judicial Districts Board is, however, explicit. Id. art. 5 
§ 7(a(b). 

 



    
contrary, the proposed settlement unnecessarily offends Texas 

constitutional and statutory requirements. 

2. The proposed settlement does not comply with the Voting Rights Act. 

Indeed, the proposal altogether deprives certain subdistricted voters of the 
right to elect judges of particular specialized courts. 

3. A partially agreed remand is improper in the face of substantial objections 

to the proposed settlement. 

Since there is no proper consent judgment before the Court, remand for the purpose of 

entering the proposed judgment is improper, and should not be granted by this Court. 

THE PROPOSED SETTLEMENT UNNECESSARILY 

CONTRAVENES THE TEXAS CONSTITUTION 

1. Texas’ constitutional methods of effectuating judicial redistricting have not 

been declared invalid. In order to understand the purpose and scope of the Chief 

Justice’s objections to the proposed mid-appeal settlement of this case, it is necessary 

to recall that neither Texas’ constitutional provisions for electing the state’s judiciary nor 

its judicial redistricting procedures have been declared unconstitutional. Houston Lawyers 

Ass'n v. Attorney General of Texas, --- U.S. ---, 111 S.Ct. 2376, 2378 (1991). Assuming 

arguendo that Section 2 liability is affirmed on subsequent rehearing or further appeal, 

due deference to state constitutional and statutory requirements must be given in 

devising and implementing an appropriate remedy to the extent adherence to state policy 

does not offend federal constitutional or statutory constraints. White v. Weiser, 412 U.S. 

783, 794-95, 93 S.Ct. 2348, 2354 (1973); Wise v. Lipscomb, 437 U.S. 535, 539-40, 98 

S.Ct. 2493, 2497 (1978); Seastrunk v. Burns, 772 F.2d 143, 151 (5th Cir. 1985). 

 



    
2. Principles of comity and federalism require deference to Texas 

constitutional requirements. Principles of comity and federalism require that the 

imposition of an appropriate Section 2 remedy be as non-intrusive of state policy as 

possible, both in terms of content and procedure, in the absence of a concomitant 

constitutional violation. Upham v. Seamon, 456 U.S. 37, 41-42, 102 S.Ct. 1518, 1521; 

Wise v. Lipscomb, 437 U.S. at 539-40, 98 S.Ct. at 2497; White v. Weiser, 412 U.S. at 794- 

95, 93 S.Ct. at 2354 (stating that in reapportionment cases "whenever adherence to state 

policy does not detract from the requirements of the Federal Constitution, we hold that 

a district court should similarly honor state policies"). The proposed settlement does not 

comply with this mandate. Consent of the State of Texas to the proposed settlement 

plan has not been constitutionally obtained under state law. To the contrary, the 

proposed settlement unnecessarily offends Texas constitutional and statutory 

requirements. 

Although the validity of a settlement is a matter of federal law, the capacity of 

a state agency to act respecting a settlement agreement derives from state law. See Allen 

v., Alabama State Board of Education, 816 F.2d 575, 577 (11th Cir.), reh’g denied, 817 

F.2d 761 (1987). The settlement agreement now before the Court was not devised, and 

cannot be implemented, in accordance with the requirements of the Texas Constitution. 

Rather, the proposed settlement represents nothing less than an attempted end-run 

around state constitutional procedures for judicial redistricting. 

 



    
3. Texas’ constitutional scheme is bypassed by the settlement plan. The state’s 

reapportionment powers are exercised generally by the constitutionally created Judicial 

Districts Board in the interim between regular sessions of the Texas Legislature. TEX 

CONST. art. 5 § 7a(d). If the Legislature fails to reapportion judicial districts following 

each federal census, the task falls to the Judicial Districts Board; if that board fails to 

accomplish a statewide reapportionment, the Legislative Redistricting Board must 

effectuate such judicial redistricting. Id. § 7a(e). Additionally, the Judicial Districts 

Board is primarily setporeitie for local redistricting. Id. § 7a(f). Any redistricting order 

approved by the Judicial Districts Board must be ratified by a majority of each house of 

the Legislature. Id. § 7a(h). 

Thus, except for decennial post-census judicial redistricting by the Texas 

Legislature, the continuing responsibility to engage in judicial redistricting belongs to the 

Judicial Districts Board. Moreover, the Texas Constitution provides that judicial districts 

smaller in size than an entire county may be created only following voter approval of a 

prescribed proposition in a general election. TEX. CONST. art. 5 § 7a(i). 

The Texas Constitution provides no other methods for judicial districting or 

subdistricting, and these methods have not been adjudicated unconstitutional. Yet the 

proposed settlement eschews these constitutional methods of redistricting in favor of 

seeking mere pro forma "approval" of a compromise settlement by the Legislature, 

Governor and Attorney General. 

 



    
4. The Texas Attorney General cannot advocate a settlement plan contrary to 

Texas law. The state Attorney General argues that he has "broad discretion" to effect 

the proposed settlement agreement on behalf of the State of Texas. However, the 

Attorney General’s authority does have statutory and constitutional limitations which 

have been exceeded. Simply put, despite broad discretion, the Attorney General does 

not possess the authority to enter into a compromise settlement agreement which 

patently conflicts with the Texas Constitution or state law. Terrazas v. Ramirez, 829 

S.W.2d 712, 714, 720-22 (Tex. 1991); see TEX. GOV'T CODE § 402.004. 

Rather, the Attorney General is obligated by his oath of office to uphold the 

constitutions of the United States and the State of Texas. TEX. CONST. art. 16 § 1(a). 

As noted above, no provision of the Texas Constitution has been found to be 

unconstitutional. Therefore, unless it is demonstrated that no less intrusive electoral plan 

is possible which both satisfies the Voting Rights Act and complies with the Texas 

Constitution, the Attorney General cannot advocate a settlement which violates the 

Texas Constitution or state law. Nor should a federal court approve such a plan in such 

a Case. 

5. Texas legislative “approval” was not properly obtained. Compounding the 

irregularity of the settlement plan, the method chosen to effectuate the redistricting plan 

by the settlement itself has failed to occur. The agreement provides: 

This Agreement is conditioned upon and shall not take 

effect unless it receives a majority approval of both houses 

of the Texas Legislature. Failure of the Texas Legislature 

 



    
to approve this Agreement renders the Agreement null and 

void and in such event, the Agreement is inadmissible for all 
purposes. 

Proposed Settlement Agreement at p. 2, (1 1, "Preconditions"). The settling parties 

admit that although the Texas House of Representatives approved the proposed 

settlement by majority vote, the Texas Senate "took this step through a majority vote of 

the Senate Committee of the Whole, ...." Joint Motion to Remand for Hearing on 

Effectuation of Settlement at p. 2 q 2. Such action by the Texas Senate is ineffective to 

provide true legislative consent. As this Court noted in Rogers v. Frito-Lay, Inc., 611 

F.2d 1074, 1082 (5th Cir.), cert. denied, 449 U.S. 889 (1980): "[A] committee is not the 

Congress. It cannot create a congressional intent that did not exist, nor amend a statute 

by a report." Even under the proposed settlement mechanics, Texas has not consented 

to the "consent" decree. 

6. Overton requires denial of the remand motion. An issue similar to the one 

now before the Court was presented in Overton v. City of Austin, 748 F.2d 941 (5th Cir. 

1984). In Overton, the district court properly deferred approving a consent decree in a 

Voting Rights Act case pending an evidentiary hearing as to its appropriateness. 748 

F.2d at 952. Although the plaintiffs and the Austin City Council putatively entered into 

a Settlement which it asked the district court to approve, a councilman, represented by 

independent counsel, filed an opposition to the entry of the proposed consent decree. 

The objector asserted, inter alia, that the settlement was "invalid since the city 

defendants did not have the capacity under state law to enter into it," and requested that 

 



    
an evidentiary hearing be conducted before the court ruled on the consent decree. 748 

F.2d at 947. The councilman’s invalidity argument was premised on the fact that the city 

council could not alter the size of or electoral method for the city council under the 

Texas Constitution, but that a referendum was necessary. 748 F.2d at 947 n. S. 

Relying on Williams v. City of New Orleans, 729 F.2d 1554 (5th Cir. 1984), this 

Court noted that the mere presence of the city as a party to the consent decree did not 

"obviate the need for the district court to give careful scrutiny where the decree has the 

potential to affect third parties." Overron, 748 F.2d at 953 n. 12. The councilman’s 

objection warranted judicial review. Id. at 954. Since the Texas constitutional 

requirements for effecting a change in the city’s make-up and electoral system were not 

constitutionally infirm, they could not be sidestepped by a consent decree. Id. at 954- 

57.2 This Court declined to issue the writ of mandamus to the district court, which the 

petitioners had sought to require the district court to immediately approve the consent 

decree.’ 

For similar reasons, the pending remand motion should be denied. 

  

> This Court’s analyses found in footnotes 17, 18 and 19 of the Overton opinion are 
particularly instructive in this regard. 

Under ordinary circumstances, an evidentiary hearing is necessary on remand for 

entry of an appropriate remedy in a Voting Rights Act case. Cf. Edge v. Sumpter 

County School District, 775 F.2d 1509, 1510 (11th Cir. 1985), subsequent appeal, 798 
F.2d 150 (1986). The settling parties’ remand request contains no provision for such 

an evidentiary procedure, but clearly seeks to have the compromise plan rubber- 
stamped at a pro forma hearing. 

 



THE PROPOSED SETTLEMENT FAILS 

TO COMPLY WITH SECTION 2 

1. Any remedy must itself satisfy Section 2 fully. Implementation of the 

proposed settlement plan not only unnecessarily intrudes upon Texas constitutional and 

statutory requirements, it also fails to comply with the Voting Rights Act itself. It is 

axiomatic that a judicial remedy in a Section 2 case must reach the nature and scope of 

the violation found. Upham v. Seamon, 456 U.S. at 42-43; Louisiana v. United States, 

380 U.S. 145, 154, 85 S.Ct. 817, 822 (1965). Not only must a proposed remedy be 

reasonable, Overton v. City of Austin, 748 F.2d at 952-53, and complete, Dillard v. 

Crenshaw County, 831 F.2d 246, 249, 253 (11th Cir. 1987), it must itself comply with 

Section 2. See Edge v. Sumpter County School District, 775 F.2d 1509, 1510 (11th Cir. 

1985), subsequent appeal, 798 F.2d 150 (1986). 

2. The settlement plan violates Section 2. The proposed settlement in question 

does not pass muster. In fact, vote dilution in some counties is increased to up to as 

much as 100% as to certain types of courts. Careful analysis of the proposed consent 

decree uncovers a fundamental flaw in the subdistricting plan which deprives many of the 

affected voters of the right to even vote for judges of certain specialized courts. The 

  

* Compare SREP. No. 417, 97th Cong., 2d Sess. 31 (1982), reprinted in 1982 

U.S.CODE CONG. & AD.NEWS 177, 208 ("The court should exercise its traditional 
equity powers to fashion the relief so that it completely remedies the prior dilution 

of minority voting strength and fully provides equal opportunity for minority citizens 

to participate and to elect candidates of their choice."). 

9  



      

  

settlement’s fundamental flaw is particularly illustrated by the subdistricting proposals for 

Dallas, Tarrant, Midland and Bexar Counties.’ 

Dallas district courts are functionally divided into four specialized fields (i.e., 

courts which exercise primary jurisdiction in particular types of cases): civil, criminal, 

family and juvenile. Voters in each of the subdistricts are allowed to vote for only two 

benches, meaning that voters can elect only up to two out of four subdistricted 

specialized benches. The "two-out-of-four cafeteria” type option foisted on the Dallas 

County voters is not obviated by further allowing the voters to select five benches at- 

large, since the five benches exempted from the redistricting proposal comprise three 

criminal and two family courts. 

In essence, a significant number of Dallas voters (whether majority or minority) 

are effectively denied the opportunity to vote in races for up to two out of four 

specialized benches. Specifically, Dallas voters in House Districts ("HD") 99, 100, 102- 

107, 109, 110, 112, and 114 cannot elect juvenile court district judges; voters in HD 108 

and 113 cannot vote in civil or juvenile bench races; and voters in HD 101 are denied 

the right to vote in races for at least one civil court bench. Only the voters in HD 111 

have an opportunity to vote in races involving all four types of specialized courts. 

Likewise, voters in two proposed Tarrant County subdistricts cannot vote for a 

family court judge. Tarrant County voters in one subdistrict are deprived of the right to 

  

> For the Court’s convenience, Appendices A through E illustrate the limited "menu 

options" arbitrarily assigned to voter groups in Dallas, Tarrant, Travis, Bexar, and 

Midland Counties. 

10 

 



    

vote for a criminal court judge. Similarly, in Midland County, the voters in one newly 

created subdistrict vote for the family court bench, but cannot vote for either of the two 

courts with "general" jurisdiction; concomitantly, the voters in the two subdistricts with 

the right to vote in races for judges with "general" jurisdiction cannot vote in the 

specialized family court election. 

In Bexar County, only the voters in HD 120 may vote in the juvenile court race, 

while forfeiting the right to vote in a criminal court race. The voters in HD 116 lose the 

right to vote for a criminal court judge; voters in HD 117 vote only in criminal court 

races. HD 122 and 125 voters elect only civil court judges. Finally, voters in ten 

subdistricts cannot vote for a juvenile court judge. Other irregularities and anomalies as 

well.® 

Such infirm results are particularly astounding as a remedy in a vote dilution case! 

It is no argument that the terms of the proposed settlement require Section 5 

preclearance before the settlement can become effective. See Proposed Settlement 

Agreement at p. 2, (1 3, "Preconditions"). Preclearance of a reapportionment plan does 

not preclude private litigation attacking it. United States v. East Baton Rouge Parish 

School Board, 594 F.2d 56, 59 n. 9 (5th Cir. 1977). Because of differing criteria 

preclearance often has no probative value in judicial proceedings. See Morris v. Gressett, 

  

® Jefferson County voters in HD 19 and 21 vote for a total of three civil court judges, 
one criminal court judge and one family court judge, while the voters in HD 22 may 
vote for one family court judge, two civil court judges and two criminal court judges. 
While Travis County voters in two subdistricts will be unable to vote for judges with 

primary jurisdiction over criminal cases, they may find some consolation in knowing 
that they can vote for a bench with "general jurisdiction." 

11 

 



432 U.S. 491, 506-07, 97 S.Ct. 2411, 2421-22 (1977); Major v. Treen, 574 F. Supp. 325 

(E.D. La. 1983). 

A PARTIALLY AGREED REMAND IS IMPROPER 

IN VIEW OF SUBSTANTIAL OBJECTIONS 

An additional procedural reason prevents an agreed remand before the appellate 

process is completed: not all the parties have asked for remand but some have in fact 

objected to such a procedure. 

In United States v. City of Miami, Florida, 664 F.2d 435 (5th Cir. 1981), a Title 

VII civil rights case, this Court was called upon to examine the circumstances under 

which, and the procedure by which, a court may enter a consent decree in a multiparty 

suit when some, but not all, of the litigants agree to the decree and parts, but not all, 

of the decree affect the rights of an objecting party. The Court held: 

We conclude that a decree disposing of some of the issues 

between some of the parties may be based on the consent 

of the parties who are affected by it but that, to the extent 

the decree affects other parties or other issues, its validity 

must be tested by the same standards that are applicable in 

any other adversary proceeding. Most parts of the decree 

entered by the trial court in this Title VII case pass the 

requisite muster, and we affirm them; however, because a 

part of the decree, entered without a trial, affects the rights 

of an objecting party, we limit its effect as to that party and 

remand for trial of the complaint insofar as a remedy is 
sought against that party. 

664 F.2d at 436. The Court recognized that in multiparty litigation, two parties may 

resolve all issues that do not affect a third party. 664 F.2d at 440. Such an agreement 

is not the equivalent of a judicial decision on the merits, however: 

12  



    
It is not the result of a judicial determination after the 

annealment of the adversary process and a judge’s reflection 

about the ultimate merits of conflicting claims. It does not 
determine right and wrong in the initial dispute. Forged by 

the parties as a compromise between their views, it 
embodies primarily the results of negotiation rather than 
adjudication. 

Id. (citation omitted). 

Although reaffirming in principle approval of compromise and settlement of 

litigation as a favored method of resolving litigation, 664 F.2d at 439, the Court 

nonetheless stated that a judgment is not just an "inter partes contract" nor is a court 

reduced to the function of a recorder of contracts. 664 F.2d at 440-41. Rather, 

[i]n assessing the propriety of giving judicial imprimatur to 

the consent decree, the court must also consider the nature 

of the litigation and the purposes to be served by the 

decree. If the suit seeks to enforce a statute, the decree 

must be consistent with the public objectives sought to be 
attained by Congress. [Citations omitted.] 

664 F.2d at 441.7 Likewise, a consent decree cannot circumvent the rights of objecting 

parties who raise legitimate questions in opposition to the decree. 664 F.2d at 442. 

CONCLUSION 

Just prior to en banc reargument of this case, the settling parties, over the 

objection of the Chief Justice, asked that this case be forthwith remanded to the district 

  

7 Thus, even if no party objected, a court would still have the authority to reject a 

proposed settlement of a case brought under the Voting Rights Act. Metropolitan 

Pittsburgh Crusade for Voters v. City of Pittsburgh, Pennsylvania, 686 F. Supp. 97, 102 
(W.D. Penn. 1988). 

13 

 



court for "effectuation” of their compromise judicial redistricting plan, which purports 

to compromise all issues raised by the Plaintiffs. 

Chief Justice Phillips raises his objections not to obstruct, but to see that the 

Texas Constitution and state laws are not wantonly or unnecessarily jettisoned by 

settlement. The Attorney General’s position in this case does not obviate the need to 

make a judicial examination of the proposed settlement to assure that it is a proper 

remedy which does not unduly intrude upon or offend state policy. Truly, the haste with 

which the compromise plan was assembled has led to significant problems which compel 

judicial vigilance. 

The serious defects in the plan which have been pointed out underscore that the 

compromise plan was not well thought out but rather hastily developed to pretermit en 

banc review of this case. In view of the procedural and substantive defects presented by 

the proposed settlement, a proper "consent" decree is not even before the Court which 

would permit remand at this time. 

RELIEF SOUGHT 

Remand is not proper at this time. The Court should hear oral argument en banc 

and render the appropriate decision, letting the adversarial system work its way. To the 

extent, if any, that Section 2 liability is ultimately sustained, remand instructions should 

be given which display a proper deference to Texas’ constitutional system for judicial 

redistricting within the principles of comity and federalism, and otherwise allow Texas  



    
officials and citizens the initial opportunity to correct any infirmatives ultimately 

established. 

PRAYER 

For the reasons stated, and without waiver of any contention heretofore made, 

Appellant Thomas R. Phillips, Chief Justice of the Supreme Court of Texas, respectfully 

prays that the Court overrule the Joint Motion to Remand for Hearing on Effectuation 

of Settlement filed by the Plaintiff- Appellees and the Attorney General of the State of 

Texas, sustain the objections presented to the proposed settlement, and proceed with en 

banc reconsideration of the opinion and order heretofore issued by the panel of this 

  

Court. 

Respectfully submitted, 

FET 2) 
a 

Joseph D. Jamail V 

Independent Counsel for Defendant-Appellant Thomas 

R. Phillips, Chief Justice of the Supreme Court of 

Texas and Chairman of the Judicial Districts Board 

Of counsel: 

JAMAIL & KOLIUS 
Frank Staggs 

500 Dallas Street, Suite 3434 

Houston, Texas 77002-4793 

Telephone: (713) 651-3000 

Telecopy: (713) 651-1957 

15 

 



   

  

APPENDIX A 

LIMITATIONS ON VOTER PARTICIPATION IN DALLAS COUNTY 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

  

              

99 X X X 

100 X X X 

101 X X X 

102 X X X 

103 X X X 

104 X X X 

105 X X X 

106 X X X 

107 X X X 

108 X X 

109 X X X 

110 X X X 

111 X X X X 

112 X X X 

113 X X 

114 X X X 

X = Voters in proposed subdistrict may vote in one or more 

elections for judges whose courts have specialized preference 
jurisdiction in the designated area. 

16 

  

 



APPENDIX B 

LIMITATIONS ON VOTER PARTICIPATION IN TARRANT COUNTY 
  

  

  

  

  

  

  

  

  

  

  

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E
e
 

eR
 

ER
 

Ee
l 

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X = Voters in proposed subdistrict may vote in one or more 

elections for judges whose courts have specialized preference 

jurisdiction in the designated area. 

 



    
APPENDIX C 

LIMITATIONS ON VOTER PARTICIPATION IN TRAVIS COUNTY 
  

  

  

  

  

  

  

  

            
  

1 X X 

2 X X 

3 X X 

4 X X 

5 X X 

X = Voters in proposed subdistrict may vote in one or more 

elections for judges whose courts have specialized preference 

jurisdiction in the designated area. 

18 

 



    
APPENDIX D 

LIMITATIONS ON VOTER PARTICIPATION IN BEXAR COUNTY 
  

  

  

  

  

  

  

  

  

  

  

  

  

  

                

116 X 

117 X 

118 X 

119 X 

120 X 

121 X 

123 X 

124 X 

125 

X = Voters in proposed subdistrict may vote in one or more 

elections for judges whose courts have specialized preference 
jurisdiction in the designated area. 

19 

i 

t 

I 

i 

t 

I 

i 
X 

t X 
X 

I x 
1 122 X 

X 

| X 
X 

i 

i 

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APPENDIX E 

LIMITATIONS ON VOTER PARTICIPATION IN MIDLAND COUNTY 
  

  
  

  

  

  

  

            

3 X 

4 X 

X = Voters in proposed subdistrict may vote in one or more 

elections for judges whose courts have specialized preference 
jurisdiction in the designated area. 

20 

 



    
CERTIFICATE OF SERVICE 

I certify that on the 9th day of May, 1993, I sent a copy of the foregoing 
document by first class United States Mail, Return Receipt Requested, postage prepaid, 
to each of the following: 

Hon. Dan Morales 

Attorney General 
Price Daniel, Sr. Building 

Austin, Texas 78701 

Mr. William L. Garrett 

Garrett, Thompson & Chang 
8300 Douglas 

Suite 800 

Dallas, Texas 75225 

Ms. Cherrilyn A. Ifill 

NAACP Legal Defense & Educational 

Fund, Inc. 

99 Hudson Street, 17th Floor 

New York, New York 10013 

Mr. Rolando Rios 

Suite 1024, Milam Building 

115 E. Travis Street 

San Antonio, Texas 78205 

Ms. Gabrielle K. McDonald 

7800 N. Mopac 

Suite 215 

Austin, Texas 78750 

Mr. Edward B. Cloutman, III 

3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. J. Eugene Clements 

Porter & Clements 

3500 NCNB Center 

P. O. Box 4744 

Houston, Texas 77210-4744 

w:\c016\lulac\brief.4 

21 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 

1717 Main Street 

Suite 2800 

Dallas, Texas 75201 

Ms. Seagal W. Wheatly 
Wheatly & Sharpe 
Suite 1650, Frost Bank Tower 

100 West Houston 

San Antonio, Texas 78205 

Mr. E. Brice Cunningham 

777 South R. L. Thornton Frwy. 

Suite 121 

Dallas, Texas 75203 

Ms. Jessica Dunsay Silver 
Department of Justice 

P. O. Box 66078 
Washington, D.C. 20035-6078 

Mr. Tom Maness 

Jefferson County Courthouse 
Beaumont, Texas 77701 

Russell W. Miller 

3300 Texas Commerce Tower 

Houston, Texas 77002 

  

{3 D. Jamaif /