Judge Wood's Opposition to Mexican American Legislative Caucus et al.'s Motion for Leave to File Amicus Brief

    PorRTER & CLEMENTS 
FIRST REPUBLICBANK CENTER 

700 LOUISIANA, SUITE 3500 

HOUSTON, TEXAS 77002-2730 

ATTORNEYS 
  

A PARTNERSHIP INCLUDING 

TELEPHONE (713) 226-0600 PROFESSIONAL CORPORATIONS 

TELECOPIER (713) 228-1331 

TELECOPIER (713) 224-4835 
EVELYN V. KEYES 

TELEX 775-348 
(713) 226-0611 

March 19, 1990 

VIA FEDERAL EXPRESS 
  

Mr. Gilbert F. Ganucheau 

Clerk of the Court 

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 (LULAC) , et al., Plaintiffs- 
Appellees, v. Jim Mattox, Attorney General of the State 
Of Texas, et  al., Defendants, and Harris County 

District Judge Sharolyn Wood, Intervenor-Defendant- 
Appellant; In the United States Court of Appeals for 
the Fifth Circuit (Appeal from No. MO88-CA-154 in the 
United States District Court for the Western District 
of Texas, Midland-Odessa Division) 

Dear Mr. Ganucheau: 

Enclosed ls the original and . 7. copies of Harris County 
District Judge Sharolyn Wood's Opposition to Mexican American 
Legislative Caucus et al.'s Motion for Leave to File Amicus 
Brief. Please verify filing of this document by returning one 
copy file-stamped to me in the envelope provided. 

All counsel are being mailed a copy of this Reply Brief via 
Federal Express mail (unless otherwise indicated below). 

Thank you for your attention to this matter. 

Sincerely “ 

/. lou 

rene V. Keyes 

EVK/cdf 
enclosures  



| ; # 

    
PorTER & CLEMENTS 

Mr. Gilbert F. Ganucheau 

March 19, 1990 

Page -2- 

cc: Mr. David C. Godbey, Jr. 
Mr. Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

Mr. John L. Hill, Jr. (Houston Express Delivery) 
Mr. Andy Taylor - 
Liddell, Sapp, Zivley, Hill & LaBoon 
3300 Texas Commerce Tower 
Houston, Texas 77002 

Mr. Seagal V. Wheatley 
Mr. Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg, Kelleher & Wheatley 
711 Navarro Street, 6th Floor 

San Antonio, Texas 78205 

Mr. Mark H. Dettman 

Attorney at Law 

200 West Wall 

Midland, Texas 79701 

Mr. Gerald H. Goldstein (lst class United States mail) 
Goldstein, Goldstein & Hilley 
29th Floor, Tower Life Bldg. 
San Antonio, Texas 78205 

Mr. Joel H. Pullen (lst class United States mail) 
Kaufman, Becker, Pullen & Reibach 
2300 NCNB Plaza 

300 Convent Street 

San Antonio, Texas 78205 

Mr. R. James George 

Mr. John M. Harmon 
Ms. Margaret H. Tavlor 
Graves, Dougherty, Hearon & Moody 
2300 First RepublicBank Tower 
515 Congress 
Austin, Texas 78767 

 



    
PorTER & CLEMENTS 

Mr. Gilbert F. Ganucheau 

March 19, 1990 

Page -3- 

cc: Mr. William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Ms. Susan Finkelstein 
Attorneys at Law 

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

Ms. Gabrielle K. McDonald 

Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Renea Hicks 
Mr. Javier Guajardo 
Special Asst. Atty. Generals 
Supreme Court Bldg., 7th Floor 
1401 Colorado Street 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, II 

Mullinax, Wells, Baab & Cloutman 

3301 Elm Street 

Dallas, Texas 75226-1637 

Ms. Sherrilyn A. Ifill 

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

New York, New York 10013 

Mr. E. Brice Cunningham (lst class United States mail) 
Attorney at Law 

777 South R.L. Thornton Freeway 
Suite 121 
Dallas, Texas 75203 

Mr. Michael Ramsey (Houston Express Delivery) 
Ramsey & Tyson 

2120 Welch 
Houston, Texas 77019 

 



   
PorTER & CLEMENTS 

Mr. Gilbert F. Ganucheau 

March 19, 1990 

Page -4- 

cc: Mr. Daniel J. Popeo (lst class United States mail) 
Mr. Paul D. Kamenar 

Mr. Alan M. Slobodin 
1705 N. Street, N.W. 

Washington, D.C. 20036 

Mr. Paul Strohl (lst class United States mail) 
Attorney at Law 

100 Founders Square 
900 Jackson Street 

Dallas, Texas 75202 

Mr. Daniel M. Ogden 
Attorney at Law 

900 Chateau Plaza 
2515 McKinney Avenue 
Dallas, Texas 75201 

Hon. Richard Thornburgh 
Attorney General of the United States 
United States Department of Justice 
Main Justice Building 
10th & Pennsylvania Avenue, N.W. 
Washington, D.C. 20530 

Mr. Orlando Garcia 
200 Navarro, Suite 101 
San Antonio, Texas 78205 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 and 
NO. 80-9003 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, 
COUNCIL NO. 4434, et al., 

Plaintiffs-Respondents, 

versus 

WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE 

OF TEXAS, et al., 

Defendants, 

JUDGE SHAROLYN WOOD, ETC., 

Defendant-Appellant. 

  

Appeal from the United States District Court 
for the Western District of Texas 

Midland Division 

  

HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD'S 
OPPOSITION TO MEXICAN AMERICAN LEGISLATIVE CAUCUS 
ET AL.'S MOTION FOR LEAVE TO FILE AMICUS BRIEF 

  

  

  

TO THE HONORABLE COURT OF APPEALS: 

Appellant/Intervenor/Defendant Harris County District Judge 

Sharolyn Wood ("Judge Wood") files this opposition to the Motion 

for Leave to File Amicus Brief of the Mexican American Legisla- 

tive Caucus ("MALC"), the Black Legislative Caucus ("BLC"), the 

Mexican American Bar Association and the Mexican American Legal 

 



Defense and Educational Fund ("MALDEF") ("Amici") and respectful- 

ly shows the Court the following: 

I. 

AMICI'S BRIEF REPRESENTS AN IMPROPER SECOND BITE OF THE 
APPLE FOR APPELLEES. 

Amici's Motion for Leave to File a Brief Amicus Curiae is 

improper. The brief Amici submitted to this Court actually 

represents a second bite of the apple for Appellees/Plaintiffs in 

the form of an amicus brief submitted to the Court by counsel for 

Appellees. At 32 pages plus attachments, the brief attached to 

Amici's Motion is one and two-thirds the length of amicus briefs 

permitted by this Court under Loc. R. 29.3, and is submitted in 

addition to full-length briefs by Appellees themselves. 

The BLC seeks leave to appear before this Court as an amicus 

after it already was granted leave to intervene into this suit 

below and subsequently sought and obtained leave to withdraw and 

to participate in the remedy phase of this action. Having, 

therefore, voluntarily foregone the opportunity to present 

evidence at +trial, the .BLC nov attempts to alter the record 

before this Court with numerous injections of purported facts 

outside the record. 

In addition, MALDEF, which also lists itself as an amicus, 

1s currently serving as counsel to LULAC, an Appellee in this 

suit, in a suit brought against most of the same Defendants which 

challenges the Texas Court of Criminal Appeals: on grounds 

essentially identical to those alleged in this case. That suit 

was filed December 22, 1990 and is now pending in the United  



  

States District Court for the Southern District of Texas, 

Brownsville Division. MALDEF's attempt to appear before this 

court as an amicus is, therefore, actually an attempt to submit 

evidence and arguments which assume the illegality of Texas' 

Judicial election system in this Court in advance of trial of the 

merits of virtually identical issues in the District Court. 

It. 

AMICI'S BRIEF ATTEMPTS TO DEFLECT THIS COURT FROM ITS 
PROPER PURPOSE OF ADDRESSING THE LEGAL ISSUES PRESENTED 
BY THIS INTERLOCUTORY APPEAL BY FALSELY IMPLYING THAT 
THE TEXAS LEGISLATURE HAS ALREADY AGREED ON A PLAN FOR 
RESTRUCTURING TEXAS' JUDICIAL ELECTION SYSTEM. 

The BLC's and MALDEF's attempt to short-circuit the judicial 

system by appearing as Amici in this proceding would perhaps have 

merit if Amici sought to contribute to the debate on the merits 

of the District Court's Opinion and declaratory judgment of 

November 8, 1989 (the "Opinion"), which are at issue here. 

However, this is not the case. Amici's brief assumes that the 

District Court's Opinion was correct and then attempts to 

introduce before this Court numerous purported facts from outside 

the record of this case, many of which are patently erroneous, 

none of which were introduced at trial or in any proceeding 

before the District Court where they could be tested by cross- 

examination or by the introduction of contravening evidence, and 

many of which derive from or relate to the Plaintiffs/Appel- 

lees/Mattox's solicitation of support for their proposed Interim 

Remedial Plan submitted to the District Court in this case in 

December 1989. Thus Amici's brief is an attempt to shoulder 

 



  

aside the actual task of this forum--which is to determine 

whether the District Court correctly applied the Voting Rights 

Act in finding illegal vote dilution in the election of state 

district judges in nine target counties in Texas--and to present 

this Court with an argument that appeal of the merits of the 

District Court's decision is futile and that the case would 

actually be moot if this Court would simply step aside and let 

Amici impose their own "remedy" for already adequately proven 

vote dilution--a remedy which they assure the Court the legisla- 

ture has already worked out and is eager to impose. This is an 

entirely improper use of an amicus brief to subvert the appellate 

process. 

Amici's brief improperly and incorrectly attempts to 

convince this Court that a legislative majority is simply 

awaiting its chance to reform the Texas judiciary in the image of 

the Plaintiffs'/Mattox's Interim Remedial Plan introduced to the 

court below by Plaintiffs/Appellees and Attorney General Mattox 

and strenuously objected to by Judge Wood and other Defendants 

(now Appellants) on numerous grounds, not the least of which were 

the blatant constitutional violations in the assignment of 

district judges to legislative districts without any evidence 

that such a step would remedy any perceived vote dilution, and, 

in particular, the assignment of one judge to Republican-majority 

districts and two judges to Democratic-majority districts, a 

feature of the Plan which is unconstitutional on its face. The 

very document Amici now attach to their Motion as Exhibit "A," as 

 



  

"evidence" of such legislative intent was, in fact, presented to 

the District Court by Plaintiffs/Appellees in the course of the 

Plaintiffs' and Mattox's irregular dealing with that court (which 

sought remedial plans from the Plaintiffs, Plaintiff/Intervenors 

and Defendant Mattox without notifying Defendant/Intervenors 

Judge Wood and Judge Harold Entz and without ever holding any 

official proceedings, including any hearing, on any proposed 

remedial plan). 

The document attached to Amici's Motion as Exhibit "A" is an 

entirely political "sense of the legislature" document solicited 

by the Plaintiffs/Appellees and not a binding commitment of 

members of the Texas Legislature to vote for even the Plain- 

tiffs/Mattox's Interim Remedial Plan, much less for a permanent 

radical revision of Texas' system for electing state district 

judges, as Amici would have this Court believe. It references an 

interim ad hoc remedy proposed for nine counties--not for the 

entire state--hastily concocted to address a crisis generated by 

the District Court, and it predates both the District Court's own 

Interim Plan (which adopted the Plaintiff/Mattox Plan in all 

essential particulars but one: it made elections non-partisan) 

and this Court's granting of an interlocutory appeal on the 

merits of the District Court's liability finding. 

In addition, although Amici present Exhibit "A" as a 

document evidencing a consensus for judicial election restructur- 

ing agreed on by a majority of the Texas Legislature, that 

document is signed by only sixty-five House Members, less than a 

 



  

majority (seventy-six members constituting a majority of the 

House) and by only a bare majority of the Texas Senate. Not only 

is a majority of both houses required to vote out a bill but, 

even more importantly, a two-thirds vote of both houses is 

required to amend the Texas Constitution, as the referenced plan 

would have done. 

Most importantly, it is one thing to say that the Texas 

Legislature, when faced with a judicial mandate to correct a 

crisis of the District Court's making, would agree on the plan 

set out in Exhibit "A"; it is another thing to say this spur of 

the moment ad hoc response to a judicially inspired crisis would 

be the considered plan of the Legislature for the entire State of 

Texas and would be adopted today by the very same legislators who 

signed it in December. Although the Texas Legislature is 

currently in session and has a mandate to address the issue of 

judicial reform, no bill or plan such as is reflected in Exhibit 

"A" has been reported out of any committee. To the contrary, the 

Texas Governor, Lieutenant Governor, and Speaker of the House 

have appointed a Legislative Task Force to meet and devise a plan 

for, restructuring the Texas judicial selection system, should 

such a problem prove ultimately to exist and to require a remedy. 

That Task Force has conducted hearings on judicial reform 

throughout the state. Judge Wood understands that the Task Force 

is scheduled to meet this this Wednesday, March 21, 1990, to 

compile its findings and to determine whether it can generate a 

report. 

 



  

Moreover, as the article from the Houston Chronicle of 
  

Sunday, March 18, 1990, at 3D, ‘cols. 5-6, attached hereto as 

Exhibit "1," shows, the Texas Legislature is still at an impasse 

over how or even whether to revise Texas' judicial election 

system in its current special session. Exhibit 1 therefore 

demonstrates that the matter is not nearly as cut and dried 

Amici's Brief suggests. Judge Wood is continuing her inves- 

tigation of the actual current sense of the Texas Legislature and 

may supplement this opposition to Amici's Motion with the results 

of her investigation. 

111. 

AMICI ATTEMPT TO IMPROPERLY SUBSTITUTE THE ISSUE OF 
REMEDY FOR LIABILITY ISSUES WHICH ARE PROPERLY BEFORE 
THE COURT IN THIS EXPEDITED INTERLOCUTORY APPEAL. 

It is neither timely nor proper for this Circuit to address 

the issue of a possible remedy for a possible problem=--as Amici 

would have this Court do--before (a) it has determined the merits 

of Plaintiffs'/Appellees' claims of vote dilution and settled the 

difficult and contentious issues of law involved in this case, 

and (b), assuming that the District Court's interpretation and 

application of the law should be upheld (which is by no means 

certain), allowing the Texas Legislature time to act to devise a 

remedy of its own after the final determination of liability and 

before the Courts address that problem. 

This case was certified for immediate interlocutory appeal 

on the stated grounds that it involves controlling issues of law 

as to which there is substantial ground for differences of 

- 7 

 



  

opinion. Amici attempt simply to sweep aside the grave issues of 

constitutional and statutory significance in this case, take 

Defendants/Appellants' liability for illegal vote dilution as a 

given, and present judicial reform as a fait accompli in the 
  

Texas legislature. It is a perversion of the legal process to 

address a proposed "remedy" for what may, on review, turn out 

never to have been a violation before addressing the unsettled 

issues of law presented by this interlocutory appeal. 

The law of voter discrimination cases, which requires a 

bifurcated trial "with both a liability and remedy phase, is 

well-established. See, e.g. Wise v. Lipscomb, 437 U.S. 545, 98 
  

S.Ct. 2493 (1978); Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 
  

1988). The District Court below attempted to subvert the orderly 

progress of such causes of action by hastily imposing its own 

"Interim" Plan--which would have effectively dismantled Texas' 

judicial election system in the nine target counties--without a 

hearing and without providing the Texas Legislature time to 

devise its own remedy should one be warranted. At the same time, 

the District Court certified this case for interlocutory appeal 

on controlling issues of law. This Court properly enjoined the 

District Court's premature imposition of its own remedy plan and 

stayed all further proceedings in that court pending inter- 

locutory review of the merits of the substantial issues of law 

raised by the District Court's Opinion. Thus this case has never 

left the liability phase, and Amici's attempt once more to divert 

the Court's attention from the substantial contested issues of 

 



  

law before it and to inject numerous purported facts from outside 

the record into this case to bolster its own claims that all that 

is necessary is for this Court to step aside and allow the 

Legislature to go about enacting Amici's own ready remedy into 

law is wholly improper. 

IV. 

JUDICIAL ECONOMY REQUIRES THAT THE ISSUES OF LAW 
PRESENTED BY THIS INTERLOCUTORY APPEAL BE RESOLVED TO 
AVOID PIECEMEAL LITIGATION. 

If Amici were to succeed in placing the remedy cart before 

the liability horse and deflecting the attention of this Court 

from the legal issues before it, the State of Texas and the 

federal courts would be assured of a spate of piecemeal attacks 

on the Texas judiciary brought with the design of forcing radical 

restructuring of the entire state judicial election system--all 

in the absence of any meaningful appellate review of the grave 

legal issues raised by application of the Voting Rights Act to 

the judiciary in this case. Already both the instant case and 

Rangel v. Mattox, No. 89-6226, are before this Court on virtually   

identical issues, and the Plaintiffs/Appellees and Amici continue 

both to bring and to threaten piecemeal litigation against 

selected Texas courts. Any successful effort by Amici to deter 

this Court from its proper course would thwart the sound policy 

of judicial economy and would ensure both an immense expenditure 

of legal resources and immense and prolonged uncertainty in 

Texas' judicial selection system. 

 



  

WHEREFORE, premises considered, Appellant Harris County 

District Judge Sharolyn Wood requests that the Court deny Amici 

Mexican American Legislative Caucus et al.'s Motion for Leave to 

File a Brief Amicus Curiae. 
  

Respectfully submitted, 

PORTER & CLEMENTS 

By: 2 ln ion 
J. Efigene Clements © 
Evelyn V. Keyes 

3500 NCNB Center 

P.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

  

ATTORNEYS FOR APPELLANT/ 
DEFENDANT /INTERVENOR HARRIS 
COUNTY DISTRICT JUDGE SHAROLYN 
WOOD 

OF COUNSEL: 

Darrell Smith 

Attorney at Law 

10999 Interstate Hwy. 10, #905 
San Antonio, Texas 78230 

(512) 641-9944 

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 19th day of March, 1990, 2 true 
and correct copies of the above and foregoing document were 
served on counsel of record in this case by Federal Express mail, 
unless otherwise indicated, addressed as follows: 

Mr. David C. Godbey, Jr. 

Mr. Bobert H. Mow, Jr. 

Hughes & Luce 

2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

Mr. John L. Hill, Jr. (Houston Express Delivery) 
Mr. Andy Taylor 
Liddell, Sapp, Z2ivley, Hill & LaBoon 

3300 Texas Commerce Tower 

Houston, Texas 77002 

Mr. Seagal V. Wheatley 
Mr. Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg, Kelleher & Wheatley 
711 Navarro Street, 6th Floor 
San Antonio, Texas 78205 

Mr. Mark H. Dettmann 

Attorney at Law 

200 West Wall 

Midland, Texas 79701 

Mr. Gerald H. Goldstein (1st class United States mail) 
Goldstein, Goldstein & Hilley 
29th Floor, Tower Life Bldg. 

San Antonio, Texas 78205 

Mr. Joel H. Pullen (lst class United States mail) 
Kaufman, Becker, Pullen & Reibach 

2300 NCNB Plaza 

300 Convent Street 

San Antonio, Texas 78205 

Mr. R. James George 

Mr. John M. Harmon 

Ms. Margaret H. Taylor 

Graves, Dougherty, Hearon & Moody 

2300 First RepublicBank Tower 
515 Congress 

Austin, Texas 78767 

 



  

Mr. William L. Garrett 

Garrett, Thompson & Chang 
8300 Douglas, Suite 800 

Dallas, Texas 75225 

Mr. Rolando L. Rios 

Ms. Susan Finkelstein 

Attorneys at Law 

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

Ms. Gabrielle K. McDonald 

Matthews & Branscomb 

301 Congress Ave., Suite 2050 

Austin, Texas 78701 

Mr. Renea Hicks 

Mr. Javier Guajardo 

Special Asst. Atty. Generals 
Supreme Court Bldg., 7th Floor 

1401 Colorado Street 

Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, II 

Mullinax, Wells, Baab & Cloutman 

3301 Elm Street 

Dallas, Texas 75226-1637 

Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street, 16th Floor 

New York, New York 10013 

Mr. E. Brice Cunningham (lst class United States mail) 
Attorney at Law 

777 South R.L. Thornton Freeway 
Suite 121 

Dallas, Texas 75203 

Mr. Michael Ramsey (Houston Express Delivery) 

Ramsey & Tyson 

2120 Welch 

Houston, Texas 77019 

Mr. Daniel J. Popeo (lst class United States mail) 

Mr. Paul D. Kamenar 

Mr. Alan M. Slobodin 

1705 N. Street, N.W. 

Washington, D.C. 20036 

 



  

Mr. Paul Strohl (1st class United States mail) 
Attorney at Law 

100 Founders Square 

900 Jackson Street 
Dallas, Texas 75202 

Mr. Daniel M. Ogden 

Attorney at Law 

900 Chateau Plaza 

2515 McKinney Avenue 
Dallas, Texas 75201 

Hon. Richard Thornburgh 

Attorney General of the United States 
United States Department of Justice 
Main Justice Building 

10th & Pennsylvania Avenue, N.W. 
Washington, D.C. 20530 

Mr. Orlando Garcia 

200 Navarro, Suite 101 

San Antonio, Texas 78205 

  

Evelyn V. Keyes /Z 

WO006 /07 /cdf 

“313 

 



  

Sunday, March 18, 1990 Houston Chronicle 3D 
  

  

admunistrators time to plan for use 
of the money,” Clements’ press sec- 
retary, Rossanna Salazar, said. 

A judicial quagmire 
State lawmakers are more than 

halfway through their 30-day special 
session with no noticeable progress 
on judicial selection, the second issue 
for which Gov. Bill Clements sum- 
moned them to Austin. 
The Senate State Affairs Commit- 

tee heard several bills proposing 
various solutions last week. But Sen. 
John Montford, D-Lubbock, the 
chairman said: “I can't tell you that 
anything is coming together. I have- n't seen the glue jar yet.” 
  

nly EXHIBIT 

Montford said if no consensus is 
reached by Tuesday, he plans to “lay 
the plans out and vote on them all, up 
or down.” : 

There is more disagreement on 
judicial selection than there is on 
school finance reform. And, unlike 
the lawsuit over school finance, 
which the state lost before the Texas 
Supreme Court, there is no firm 
deadline for a resolution on how to 
select judges. rat 

The state has lost two judicial 
selection lawsuits in federal district 
court, but higher courts haven’t been. 
heard from yet. A 

Compiled by Houston Chronicle 
Austin Bureau.