Motion to Certify Liability Determination for Appeal Pursuant to 28 U.S.C. 1292(b); Proposed Order

    Soe 

THE ATTORNEY GENERAL 
Or TEXAS 

JIM MATTOX 

ATTORNEY GENERAL December 13 1989 
y 

U.S. District Clerk 

P.O. Box 10708 

Midland, Texas 79702 

Re: LULAC #4434, et al. v. Mattox, et al., 

Civil Action No. MO-88-CA-154 

_ Dear Sir or Madam: 

Enclosed for filing in the above-referenced matter 
original and one copy of the State Defendants’ Motion to Certify 

Liability Determination for Appeal Pursuant to 28 U.S.C. § 
and a proposed Order. 

Sincerely, 

Olrnech 
Renea Hicks 

Special Assistant Attorney General 

P.O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

(512) 463-2085 

CC: Counsel of Record 

512/463-2100 SUPREME COURT BUILDING AUSTIN, TEXAS 7871i-2548 

 



  

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF TEXAS 
MIDLAND/ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 
Plaintiffs, 

Civil Action No. 

MO-88-CA-154 

VS. 

JIM MATTOX, et al., 

Defendants. CO
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CO
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LO
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LO
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MOTION TO CERTIFY LIABILITY DETERMINATION 
FOR APPEAL PURSUANT TO 28 U.S.C. § 1292(b) 

The State Defendants hereby move the Court to certify is 

determination in this cause that there is liability under Section 2 of the 

Voting Rights Act, embodied in the Court's "Memorandum Opinion And 

Order" of November 8, 1989, as modified by the Court's Order of November 

27, 1989 (hereinafter collectively referred to as the "Decision of November 

8th"), for immediate appeal to the United States Court of Appeals for the 

Fifth Circuit. The grounds follow: 

1. State Defendants, through this motion, seek certification for 

interlocutory appellate review of the Decision of November 8th insofar as 

it finds a violation of Section 2 of the Voting Rights Act.! The Decision of 

November 8th involves several controlling questions of law as to which 

  

: Out of an abundance of caution, the State Defendants must treat the Decision of 
November 8th as a final appealable order, thereby necessitating the filing of a 
protective Notice of Appeal by December 27, 1989. The reason for a protective appeal 
is the uncertainty created by the Fifth Circuit's recitation without critical comment 
of a federal district court's view that a decision such as the Decision of November 8th 
is a final appealable order. See McMillan v. Escambia County, 638 F.2d 1239, 1240 n.l 
(5th Cir.), cert. dismissed, 453 U.S. 946 (1981). But cf. Burns v. Richardson, 384 U.S. 73, 
82 n.11 (1966) (indicating that a liability determination in a voting rights case is 
merged with later orders). Nothing in the filing of such a protective appeal as of 
right should be viewed as a recession from the relief sought in this motion. 

 



  

there is a substantial ground for difference of opinion, and an immediate 

appeal from the decision may materially advance the ultimate termination 

of this litigation. 

2. The overarching, controlling question of law is whether the 

current system for electing state district judges in the nine counties 

involved in this lawsuit violates Section 2 of the Voting Rights Act. If it 

does not, then no remedy phase can ensue in this case; if it does, then, of 

course, a remedy phase is necessary. 

3. There is a substantial ground for difference of opinion about 

whether the current system for electing state district judges in the nine 

counties involved in this lawsuit violates Section 2 of the Voting Rights Act. 

Among the difficult legal and factual issues underlying the Court's 

determination of liability under Section 2 (and about which there is a 

substantial ground for difference of opinion) are the following: (a) 

whether, under Chisom v. Roemer, 839 F.2d 1056 (Sth Cir. 1988), cert. 

denied sub nom. Chisom v. Edwards, 109 S.Ct. 310 (1989), Section 2 applies 

to Texas state district judges who function as sole, independent 

decisionmakers; (b) whether the legal principles established Whitcomb v. 

Chavis, 403 U.S. 124 (1971), remain applicable in Section 2 vote dilution 

cases, thereby requiring consideration of partisan voting patterns as 

descriptors of voter preferences and electoral outcomes; (c) whether, in 

addition to the factors of the race (and the political party, see | 3(b), 

above) of the candidate and voter, any other factors such as legal ability of 

the judicial candidates are relevant in applying the third Thornburg v. 

Gingles, 478 U.S. 30 (1986) ("Gingles"), factor or whether, instead, nothing 

is relevant other than the outcome of the electoral contest, the race of the 

candidate and voters, and the degree of racial polarization in voting as 

2. 

 



  

determined through either regression analysis or homogeneous precinct 

analysis; (d) whether, in partisan elections, comparisons of voting patterns 

where minority candidates oppose each other or Anglo candidates oppose 

each other are relevant in applying either the second or third Gingles 

factor; (e) whether and when races involving non-judicial elections can be 

analyzed in determining whether polarized voting exists in partisan 

elections; and (f) whether the relevant pool for assessing adequacy of 

minority representation on the state district court benches in the nine 

counties involved in this lawsuit is that of eligible voters or eligible 

lawyers. 

4. Permitting an immediate appeal of the Section 2 liability 

determination embodied in Decision of November 8th may materially 

advance the termination of this litigation. If the State Defendants are 

successful on appeal, the litigation will be terminated, and no remed, 

phase need be conducted. Permitting the appeal of this issue now, rather 

than awaiting the outcome of the remedy phase of the case, 1s likely to 

conserve substantial amounts of judicial and other resources and avoid 

fruitless litigation. It is certain to do so if the State Defendants prevail on 

appeal. Even if the Court procecds with the remedy phase of the case 

notwithstanding the appeal, but see § 5, below, and even if an interim 

remedy is fashioned for the 1990 elections, the appellate process 1s likely 

to be completed before the implementation of a permanent remedy. Thus, 

permitting the appeal to proceed now likely will permit the Court to 

receive the views of the appellate courts before implementation of a 

permanent remedial plan, even if part or all of the Court's liability 

determination is upheld. These views could aid the Court in fashioning 

permanent relief. 

 



  

5, The State Defendants recognize that certifying an order for 

immediate interlocutory appeal does not automatically stay proceedings in 

the district court but that, under section 1292(b), the Court may stay those 

proceedings. In the in-chambers conference held on December 11, 1989, 

the Court informed the parties that, even if it grants this motion, it would 

not stay the remedy proceedings. The proposed Order accompanying this 

motion leaves the stay option open. Ultimately, if this motion is granted 

and interim relief is fashioned for the 1990 elections, some or all the 

parties likely will seek a stay of the implementation of the interim 

remedy. If the Court is disinclined to grant such a stay, as foreshadowed 

in the December 11th conference, a ruling to this effect in conjunction with 

the ruling on this motion might obviate the necessity under Rule 8(a) of 

the Federal Rules of Appellate Procedure of further stay motions being 

submitted to and ruled upon by this Court before submission to the Fifth 

Circuit. The time periods involved in this lawsuit and the judicial elections 

it affects are such that expedition of the process concerning stays might 

benefit all parties and prove economical to the Court.2 

Based upon the foregoing matters, the State Defendants urge the 

Court to grant this motion and enter an order amending the Decision of 

November 8th by adding a provision certifying it for immediate 

interlocutory appellate review. 

  

2 The State Defendants’ comments should not be construed to mean that they 
view a stay by this Court of any remedial order to be inappropriate. The comments 
are only a recognition of what appears to be the reality. 

4. 

 



  

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 

  

Fir istant Attorney General 
- 7} 

tas 
Anelen. <A /D 

RENEA HICKS 3 
Special Assistant Attorney General 

JAVIER GUAJARDO 
Assistant Attorney General 

P. O. Box 12548, Capitol Station 

Austin, Texas 78711-25483 

(512) 463-2085 

Attorneys For State Defendants 

CERTIFICATE OF SERVICE 

I certify that on this 13th day of December, 1989, I sent a copy of 

the foregoing document by first class United States mail, postage prepaid, 

to each of the following: William L. Garrett, Garrett, Thompson & Chang, 

8300 Douglas, Suite 800, Dallas, Texas 75225; Rolando Rios, Southwest 

Voter Registration & Education Project, 201 N. St. Mary's, Suite 521, San 

Antonio, Texas 78205; Sherrilyn A. Ifill, NAACP legal Defense and 

Educational Fund, Inc., 99 Hudson Street, 16th Floor, New York, New York 

10013; Gabrielle K. McDonald, 301 Congress Avenue, Suite 2050, Austin, 

Texas 78701; Edward B. Cloutman, III, Mullinax, Wells, Baab & Cloutman, 

P.C.., 3301 Elm Street, Dallas, Texas 75226-1637; J. Eugene Clements, Porter 

& Clements, 700 Louisiana, Suite 3500, Houston, Texas 77002-2730; and 

Robert H. Mow, Jr.,, Hughes & Luce, 28300 Momentum Place, 1717 Main 

Street, Dallas, Texast 75201. J 

(—) oes a) 
LS 

3 ery 

  

    
- Pr 
Renea Hicks 

“5 

 



  

* » 
UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 
MIDLAND/ODESSA DIVISION 

LULAC COUNCIL #4434, et al., § 

Plaintiffs, § 

8 
VS. § Civil Action No. 

§ MO-88-CA-154 

JIM MATTOX, et al., § 

Defendants. § 

ORDER 

On this day came before the Court the State Defendants’ Motion to 

Certify Liability Determination for Appeal Pursuant to 28 U.S.C. § 1292(b). 

After giving due consideration to the motion, the Court finds that the 

motion is well taken. Accordingly, it is hereby 

ORDERED that the State Defendants’ Motion to Certify Liability 

Determination for Appeal Pursuant to 28 U.S.C. § 1292(b) 1s GRANTED. It is 

FURTHER ORDERED that the Court's decision in this case dated November 8, 

1989, (as modified by the Court's Order of November 27, 1989) and 

"ne entitled ""Memorandum Opinion And Order,” 1s hereby amended by adding 

the following section on page 94: 

CERTIFICATION FOR INTERLOCUTORY APPEAL 

The foregoing findings, conclusions, and other matters 
concerning the State Defendants’ liability under Section 2 of the 

Voting Rights Act involves a controlling question of law as to 
which there are substantial grounds for differences of opinion. 

The overarching question of law in this litigation 1s whether the 

system of electing state district judges in the nine counties in 

this suit violates Section 2 of the Voting Rights Act by illegally 
diluting minority voting strength. There 1s a substantial 

 



. » 
ground for difference of opinion as to whether the Court's 

decision that it does (and, therefore, that liability attaches) is a 

correct application of the facts to the law. An immediate 

appeal from this order (and its liability determination) may 
materially advance the ultimate termination of this litigation. 

Therefore, pursuant to 28 U.S.C. § 1292(b), the Court certifies 

this order for immediate interlocutory appeal. Further 

proceedings before this Court (are)/(are not) stayed until 
disposition of the appeal. The Court (will)/(will not) entertain 

further motions to stay the remedial phase of this case. 

  

The State Defendants must file their application for interlocutory 

appeal with the United States Court of Appeals for the Fifth Circuit within 

ten days after the entry of this Order. 

SIGNED and ENTERED this ___ day of December, 1989. 

  

UNITED STATES DISTRICT JUDGE 

2