Correspondence from McDonald to Ifill with Memo Re: Deposition of Chief Justice Phillips - Notes May 25, 1989

    MATTHEWS & BRANSCOMB 
A PROFESSIONAL CORPORATION 

ATTORNEYS AT LAW 

  

S01 CONGRESS AVENUE, SILITE 2050 

IBOO FIRST CITY BANK TOWER AUSTIN, TEXAS 7870 ONE ALAMO CENTER 

CORPUS CHRISTI, TEXAS 78477 TELEPHONE 512-320-5055 SAN ANTONIO, TEXAS 78205 

512-888-9261 TELECOPIER 512-320-5013 512-226-4211 

GABRIELLE K. MCDONALD 

August 1, 1989 

Ms. Sherrilyn A. Ifill 
NAACP IL.egal Defense and 
Educational Fund, Inc. 

Suite 1600 
99 Hudson Street 
New York, New York 10013 

RE: LULAC et al. v, Mattox, et  al.; Our File 
#A12465:0001. 
  

  

Dear Sherrilyn: 

I enclose herewith a copy of the outline that was prepared 
by the law clerk who attended the deposition of Justice Tom 
Phillips. It may be of some assistance to you, along with the 
summary of the deposition which Michael Breck is preparing. Once 
the summary is completed, I will forward a copy to you. 

Please call me if you have any questions. 

Sincerely yours, 

MATTHEWS & BRANSCOMB 

A Professional Corporation 

    

      

   
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Ck e K. McDonald 

6GKMdd:klr 

Encls. 

cc: Michael Breck 

 



  

MEMORANDUM 
  

Gabrielle K. McDonald 

Victoria Garcia 

June 2, 1989 

Deposition of Chief Justice Tom Phillips--Notes May 25, 
1989 

  

11. 

111. 

Stipulation to reserve all objections, except for those as 
to form, responsiveness and privilege, until trial. 

Exhibit 1 is the May 15, 1989, Request to Produce Documents 
at the Deposition. 

A. Justice Phillips has seen Exhibit 1 and discussed it 
with his attorney. 

Discussion of the documents produced for the deposition 
and their classification under the various categories 
listed in Exhibit 1. 

1. Category 1 - Newspaper clippings and speech 
  

entitled "State of the Judiciary." 

Category 2 - The Manual of Judicial Districts. 
  

Category 3 - An incomplete newspaper file on cases   
in other states. 

Category 4 - no documents. 
  

Category 5 - Appendix E of the speech entitled   
"State of the Judiciary." 

a. These are all of the documents Justice 
Phillips has. He has no objections to the 
production Of any of these documents 
(although his attorney, Mr. Hicks, would like 
to reserve objections for the future). 

Other Exhibits were marked. 

A. 

B. 

Exhibit 2 - The "State of the Judiciary" speech. 
  

Exhibit 3 - Profile 1989. 
  

 



  

C. Exhibit 4 - Political parties in the last election. 
  

Iv. Background regarding Thomas R. Phillips 

A. Age 39, white/Anglo, married 13 years. 

B. Austin address: 2505 Jarrett, Austin, Texas (parallel 
to Lamar, off 24th). Doesn't know what Ward it 
pertains to. 

  

C. Houston address: 1817 Sunset, Houston, Texas (near Rice 
University). This is Justice Phillips voting 
residence. 

  

D. History: 

1. Justice Phillips was born in Dallas, and lived 
there while growing up. He moved to Houston in 
1875. 

2. 1975 - 1981: Practiced law in Houston; lived on 
Timmons Lane, near Greenwood Plaza. 

3. 1982 -~- 1984: Residence after marriage was on 
Wroxton Road. 

E. Education: 
  

x. High school: Attended Woodrow Wilson High School 
located on 100 South Blasco Street. Graduated in 
1968 from an . all white class, Stairstep 
integration began in 1969. There were 395 
students in the class. 

  

2. University: Baylor University in Waco. (1968 - 
1971) There were approximately 2% or 3% Blacks in 
graduating class. 

  

a. About 1,500 students graduated per year; 
however, Justice Phillips' summer class had 
only about 100 students. 

b. The percentage amount is just a guess. 

3. Law School: : Harvard Law School, Cambridge, Mass. 
(1971 - 1974) Justice Phillips doesn't recall his 
class rank (at least top one-half (%) of the 
class, no honors.) 

  

a. Doesn't recall what percentage of the class 
was composed of Blacks or minorities 

 



(although he does recall that approximately 
11% were females). 

b. No Black roommates. 

Fraternities /Clubs: 
  

a. Baylor: Belonged to a social service club 
called the Circle K. Doesn't recall how many 
members were Black. 

Harvard: Belonged to an "eating club" (in 
lieu of Fraternity). Doesn't recall how many 
members were Black. 

October 22, 1974 - Admitted to the Bar in Texas. This 
is the only Bar exam Justice Phillips has taken. 
  

Work experience: 
  

1. Briefing Attorney for Associate Justice Rule C. 
Justice, Supreme Court of Texas (one year). 

Baker & Botts in Houston. 

a. On general assignment until 1977 or 1978. 

b. Assigned to the Trial Department until 1981. 

1981 - William P. Clements appointed Justice 
Phillips to the 280th District Court, Harris 
County. 

1988 ~ Chief Justice of the Texas Supreme Court. 
(Appointed by Clements.) 

Political Affiliation 

A. Justice Phillips 1s associated with the Republican 
Party, although he has never registered formally with 
either party in Texas. 

1. Voted in Texas since the age of 21. 

2. Texas has no party registration. You show 
political preference by voting in a primary, 
giving money, and making speeches. 

Justice Phillips was a delegate to the Democratic 
Senatorial Convention in 1976. He never 
participated as a delegate in the Democratic  



  

conventions after 1976, although he voted in the 
Democratic Primaries in 1972, 1974, 1976, 1978 and 
1980 (Both parties have conventions on the same 
days so he had to choose between them). 

Justice Phillips affirms that he doesn't hold 
himself to be Republican. 

Justice Phillips never held a political position 
until 1982, when he was on the ballot for District 
Judge. 

a. In 1982 he ran as a Republican. 

Db. He filed for election subject to the 
Republican Primary. 

Co This was necessary in order to qualify for 
the general election, but he never held a 
press conference officially declaring 
candidacy as a Republican. 

d. Justice Phillips felt he should run as a 
Republican because he was appointed by a 
Republican Governor (although he had applied 
and campaigned for the appointment). 

B. Theory of Party Registration: 

1. Prior to 1982, seldom did more than one person 
file for a position in the Republican primary. 
Because elections were mostly uncontested, you 
only voted in the Republican primaries if you 
wanted to make a statement. 

2. If you wanted to have a larger voice in the 
elections, you voted in the Democratic primaries. 

3. If you were a Republican in Harris County prior to 
1982, you had a difficult time winning. Democrats 
tended to get more votes. 

4. Prior to 1982, therefore, if you were a 
Republican, you were a minority and had a hard 
road to hoe. 

VI. The problems created by partisan elections. 

A. On February 14, 1989, Justice Phillips addressed a 
Joint Session of the House and Senate regarding the 
system of judicial elections in Texas. 

 



  

D. 

Texas is one of eight states with partisan elections. 
Justice Phillips affirms that the system of judicial 
elections in Texas since 1982 has been unacceptable for 
several reasons: 

1. The system doesn't encourage the recruitment or 
retention of candidates dedicated to the promotion 
of responsible decisions. 

2. Running by party labels creates several problems: 

a. The first is that people tend to vote by 
party affiliation and not by qualifications. 

b. The second is that potential parties to a 
lawsuit may begin to worry whether their 
party affiliation will affect the outcome of 
their case. 

i. With regards to this last point, Justice 
Phillips believes that it affects both 
Democrats and Republicans equally; he 
doesn't believe it hurts the Republicans 
more because they are a minority. 

3. The method of gathering and spending money in 
judicial elections undermines the process. 

a. Note: Justice Phillips was the first 
Republican Chief Justice elected in Texas; he 
spent more money then ever in an election in 
the State of Texas. 

  

Justice Phillips' position is that the system must be 
changed. 

i. 55% of all judges are initially appointed to 
office. 43% of all judges, regardless of whether 
they were elected or appointed, have never been 
opposed in an election. 

a. There is less democracy in a judicial 
election because it is not as contested as a 
general election. The pool of eligible 
candidates is also much smaller. 

b. Justice Phillips therefore feels that 
retention would be more democratic. 

Article V, § 7A(1) 

 



  

VII. 

i. In 1985, for the first time, the Texas Legislature 
approved an Amendment to the Constitution stating 
that District Judges could not be elected from 
districts smaller than a county. 

a. Mr. Hicks objects "at this point that any 
interpretation of State Law would be 
privileged. 

2. History: Senator Craig Washington proposed a bill 
in the Senate in 1985 to allow for smaller 
districts. The bill went to the House; Lee 
Jackson (now a Judge) was in the Committee. The 
result of the House effort was Article V, § 7A. 

a. Justice Phillips was not aware of this 
legislative history. 

In March, 1989, Justice Phillips, Sen. Caperton, Rep. 
Gibson, and three (3) faculty members from Baylor University 
(Mike Morrison, David Givens and Mike (Justice Phillips 
could not recall the last name) visited the Department of 
Justice in Washington, D.C. 

A. Justice Phillips went in his official capacity as Chief 
Justice of the Texas Supreme Court; he considered he 
had the authority to "discuss" the change. 

B. Other legislative members had visited the Department of 
Justice in 1988. 

C. Justice Phillips agreed to find out the names of the 
people he met with in the Justice Department. 

D. The purpose of the visit was to promote the Retention 
Bill as a substitute for the mechanism under Article V, 
§ 7A. The delegation attempted to solve the problems 
created by the Justice Department's pre-clearance 
regulation under Section 5 of the Voting Rights Bill 
(The Department must pre-clear legislative action 
before a constitutional amendment can go to the 
voters). 

E. The Justice Department said that minority participation 
would have to be present in order to ensure that the 
Retention Bill didn't dilute their rights. 

P. Bottom line: The Justice Department's role is to 
  

ensure that no changes dilute the minority vote. They 
will therefore look closely at minority involvement 
and support for the Retention Bill. 

 



  

VIII. Phillips first got his idea for the Retention System in 
Louisiana. This system was composed of sub-districts with 
different nominating panels. 

A. Justice Phillips feels the retention system would more 
broadly reflect the composition of the community. 

1. Justice Phillips expects that an all Black or 
Hispanic selection panel is more likely to forward 
the names of minorities to the Governor for 
appointment. 

B. Justice Phillips has never made a detailed Study of 
Retention elections. However, he cannot recall there 
ever being a claim of bias in the elections. 

1. He doesn't think the elections would become 
racially polarized because of the history in other 
cases. 

C. Retention System vs. A "smaller-than-county" district 
system. 

1. Phillip's concern with the latter is that judges 
from these small districts would be rendering 
decisions affecting the whole county and, even the 
whole State. 

2. However the "smaller-than-county" districts might 
benefit minorities. 

IX. Discrimination in Texas 

A. Justice Phillips is aware of the history of 
discrimination in Texas and Harris County. 

1. Justice Phillips discussed his knowledge of Black 
city councilmen (e.g. Anthony Hall, Judson 
Robertson), Black senators, representatives and 
judges. 

2. These officials are elected either entirely by 
single member districts, or a combination of 
single member districts in an election at large. 

X. Justice Phillips got 60% of the vote in the county; he is 
not sure if he won the City of Houston. 

A. In this last campaign he didn't go to the Fifth Ward in 
Houston. He didn't go to the Fourth or the Third Wards 
either. 

 



  

XI. Justice Phillips discussed the following prominent 
officials: 

A. 

B. 

I. 

J. 

Andrew Jefferson 

James Muldrill - appointed to his position; the County 
Commissioners Court selected him. Lost in 1982 when he 

had to run for election. 

Henry Doyle - appointed; won the election because his 
opponent failed to meet the qualifications for filing. 

Bonnie Fitch - Chosen by the County Commissioners; lost 
her position when she ran in the general election. 

Frances Wilson - Chosen by the County Commissioners; 
lost her position when she ran in the general election. 

Weldon Berry - Represented the NAACP in a desegregation 
case. 

Ken Hoyt - Black representative; appointed; ran and 
lost in 1982; ran again and won because he refused to 
put his face on the ballot (the mailouts sent out by 
the Republicans). 

Carolyn Hobson 

Carol Walker 

Tom Royt - Has been appointed all the time. 

XII. If 43% of all judges are not opposed, why are all the Black 
judges opposed? 

A. Justice Phillips replied that Harris County has the 
highest rate of opposition in the state because there 
is greatest chance for either party to win. 

1. The 43% figure refers to the entire state, which 
includes rural districts. Further, the 43% figure 
is not dispositive of the fact that Blacks do not 
meet this level of an opposition. This 43% figure 
is based on Exhibit E to his speech on the state 
of the judiciary. 

XIII. Demographics and Precinct Returns 

A. Harris County includes Pasadena and West University, 
where there are few Blacks. Justice Phillips is not 
sure of the demographics of Pasadena. 

 



Justice Phillips has never studied precinct returns 
(except for the case of Carnegie v. Price, [sic] 
Briscoe and O'Connor) but would guess that Blacks tend 
to do better where there is a high concentration of 
votes. 

1. The victory of Briscoe over Carnegie taught 
Justice Phillips that the best thing to have in a 
judicial race is a familiar name. While this is 
not true for the more high profile campaigns (for 
example, Governor), it is true of judicial 
elections. 

a. Justice Phillips is not sure of how Harris 
County falls into this scheme. He has only 
studied two races, and they tend to go 
against the theory discussed above, although 
he suspects that they are aberrations. 

Justice Phillips' position is that the present system is 
untenable. He believes that the retention system will 
increase the chances of minorities to serve on the bench. 
He won't admit that Republicans would be classified as a 
minority, because he wants to eliminate parties altogether. 

Justice Phillips hopes that in 1993 party labels will be 
eliminated. He hopes legislative action will be taken 
through a special session, either convened of the Governor's 
own will or pursuant to an Order by a Federal Judge. 

Justice Phillips has served on the Judicial District Board 
since he became Chief Justice in 1988. The Board consists 
of 12 members, including one public member from Tyler. 

A. The Judicial District Board is bound to districts of at 

least one county. Any alternative plan has to be 
submitted from the outside in order to be considered. 

Actions taken by the Board: 
  

1. 1987 - The Judicial District Board merely moved 
rural districts to be sure that all judges sat 
within one administrative region. 

1988 - No submissions were made to the Legislature 
by the Board due to the proximity of the census. 

1989 - Nothing has been submitted to the 
Legislature to date.  



  

Co Co Raymond Judice is the head of the Court 
Administration (he is a former judge from Houston). 

XVII. There is no public policy reason to maintain the 
present system. How about as it relates to Harris County? 

A. 

XVIII. 

The larger the county and the more judges the people 
have to vote for, the more rational the argument that 
they run by party labels. If party labels were not the 
case, it would be extremely expensive to run a 
county-wide election. 

1. This one vote in Harris County - approximately 15% 
of all voters in Harris County will vote for 
people of both parties in a judicial race. 

2. Justice Phillips believes that the polarization is 
according to party lines, as opposed to racial 
lines. He does not believe that the percentage 
swing vote would be this small for Blacks and 
other minorities. 

The Profile 1989 clips are newspaper clippings which 
refer to Justice Phillips and his role in the judicial 
selection process. 

The problem with the 280th being selected from Galina 
Park: Justice Phillips believes that although a 
congressman should be district oriented, a district 
judge should not. The reason is that judges make 
decisions for entire counties, not particular 
districts. 

Justice Phillips does not believe he could be elected 
in Galina Park as a Republican; however, he isn't sure 
if his failure to win the votes would be because he is 
white. 

88VADbo: LJP 
07/13/89-1