Order Denying Judge Wood's Motion to Dismiss

    id 

FILED 
AY o 3 1989 

U. S. DISTRICT COURT. 
UNITED STATES DISTRICT COURT (CLERK'S OFFICE 

FOR THE WESTERN DISTRICT OF TEXAS BY. + 123; Yo béeb +r «DEPUTY 
MIDLAND-ODESSA DIVISION 

INLAC, 7 AL. ) 
) 

v. ) MO-88-CA-154 
) 

MATTOX, ET AL., ) 

ORDER 
  

Came on this day to be heard Defendant Harris County 

District Judge Sharolyn Wood's ("Judge Wood") Motion to Dismiss, 

or in the alternative, For More Definite Statement in the above- 

captioned cause pursuant to Rule 12(b) (1), 12(b) (6), 1l2(e) and 

12(h) of the Federal Rules of Civil Procedure. Upon 

consideration of the Motion, briefs, responses, and arguments of 

the parties, it is the opinion of this Court that said Motion 

should be DENIED. 

FACTUAL BACKGROUND 
  

The present case concerns claims that the existing system 

of electing state district judges in various Texas counties 

violates the United States Capstitution and Section 2 of the 

Voting Rights Act, as amended in 1982, 42 U.S.C. Section 1973. 

This suit originally targeted forty-seven (47) counties. 

Plaintiffs' Complaint at 4-6.1 Plaintiffs subsequently reached 
  

1 plaintiff's initial contention was that the targeted 
counties contained sufficiently compact and politically cohesive 
black or Hispanic or combined black and Hispanic minorities so 

1 

 



  

an oral agreement with Defendants to limit to fifteen the number 

of targeted counties.? 

STANDARD ON 12(B) (1) 
  

Rule 12(b) (1) provides that the court shall dismiss a 

claim over which it lacks jurisdiction. Judge Wood argues that 

all of the Plaintiffs3 in this case reside in only three of the 

target counties.? Therefore, Defendant Wood argues that 

Plaintiff's have no standing to claim that they have been denied 

any right to participate fully in the election of state district 

judges in the remaining twelve counties. This Court disagrees. 

The League of United Latin American Citizens ("LULAC") is 
  

that at least one single member, black, Hispanic, or combined 
majority judicial district could be drawn in each targeted county 
or prescribed set of counties. Complaint at 4-7. 

2 The Court approved this stipulation on oral Motion on 
February 27, 1989. The targeted counties include: 

Harris, Dallas, Ector, McLennan, Tarrant, Midland, 
Travis, Jefferson, Galveston, Lubbock, Fort Worth, 
Smith, Culberson, El Paso, and Hudspeth. 

3 Plaintiff's in this cause of action are the League of 
United Latin American Citizeng~{"LULAC"), a statewide Mexican 
American organization; two of its local councils, No. 4434 and 
No. 4451; three individual members of LULAC, Aquilla Watson, 
Christina Morena and Matthew Plummer; the Houston Lawyers' 
Association; the Black Legislative Caucus; three named 
individual residents of Dallas County, Jesse Oliver, Fred Tinsley 
and Joan Winn White; and other individual Plaintiffs of Harris 
County Alice Bonner, Weldon Berry, Francis Williams, Rev. William 
Lawson, Deloyd Parker and Bennie McGinty. 

4 Midland, Harris and Dallas County. 

2 

 



  

a Plaintiff in this case. LULAC is a statewide organization with 

members across the State of Texas. Its members are predominately 

Hispanic; it also has many black members. Among its members are 

many minority voters who are qualified to vote for state 

district court judges in the counties in issue in this case. 

This Court is of the opinion that as an organization, LULAC has 

standing to represent its members. NAACP v. Alabama ex rel. 
  

Patterson, 357 U.S. 449, 459 (1958). 
  

STANDARD ON 12 (b) (6) MOTION 
  

When passing on a motion to dismiss under Rule 12(b) (6) 

the District Court should take the pleadings as true and view 

them in the light most favorable to Plaintiff. Jamieson By and 
  

Through Jamieson v. Shaw, 772 F.2d 1205, 1207 n. 1 (5th Cir.   

1985) [citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)]. The   

purpose of a motion under Rule 12(b) (6) is to test the formal 

sufficiency of the statement of the claim for relief. Thus, the 

provision must be read in conjunction with Rule 8(a), which sets 

forth the requirements for pleaéing a claim in Federal Court and 

calls for a "short and plain statement of the claim showing that 

the pleader is entitled to relief." Only when the pleading fails 

to meet this liberal standard is it subject to dismissal under 

Rule 12(b) (6). 

The test most often employed to determine the sufficiency 

 



  

of the complaint was set out in the leading case of Conley Vv. 
  

gibson, 355 U.S. 41, 78 'S.Ct. 99, 2 L.EA.24 80 (1957), 

in which the Supreme Court stated that: 

"in appraising the sufficiency of the complaint 
we follow, of course, the accepted rule that a 
complaint should not be dismissed for failure to 
state a claim unless it appears beyond doubt that 
the plaintiff can prove no set of facts in support 
of his claim which would entitle him to relief." 

The question therefore is whether in the light most 

favorable to Plaintiff, and with every doubt resolved in his 

behalf, the complaint states any valid claim for relief. Keating 

Y. Shell chem. Co., 810 F.24 328 (5th Cir. 1980). This Court is 
  

of the opinion that it does. 

Judge Wood contends that Plaintiffs' Complaint alleges an 

impermissible claim for voter dilution based upon lack of 

proportional representation. While this Court agrees that the 

Voting Rights Act and authority in this Circuit preclude such a 

claim, the Court is not of the opinion that Plaintiffs rely on 

  

such a claim. 42 U.S.C. Section 1973(b) (Supp. 1988); Seastruck 

¥Y. Burns, 772 F.24 143, 153 (8th Cir. 1985). 
A 

—— 

While Plaintiffs may infer through the use of percentages 

  

that minorities have achieved public office with much less 

success than the white majority, the Court is not persuaded that 

such allegations exclusively state a claim for proportional 

representation. In fact, "[tlhe extent to which members of a 

protected class have been elected to public office ... is one 

4 

 



circumstance which may be considered ..." to establish a 

violation of Section 2 of the Voting Rights Act, as amended in 

1982. 42 U.S.C. Section 1973(b) (Supp. 1988); Thornburg V. 
  

Gingles, 478 U.S. 30, 48, 106 S.Ct. 2752, 92 L.Ed.2d 25, 45n.15 

(1986). 

This Court is of the opinion that Plaintiffs have pled all 

the facts essential to establish a claim of voter dilution. 

Thornburg v. Gingles, 478 U.S. 30, "48-52, 106 S.Ct. 2752, 92 
  

L.Ed.2d 25, 45-47 (1986). Plaintiffs indicated in their First 

Amended Complaint ("Amended Complaint") that the use of a 

multimember electoral structure operates to minimize or cancel 

out the ability of its minority members to elect their preferred 

candidates. Amended Complaint at para. 26. As necessary 

preconditions to such a claim, Plaintiffs have alleged that the 

minority group is sufficiently large and geographically compact 

to constitute a majority in a single member district. Amended 

Complaint. at para. 13, 15, 17 .& 23. The minority group is 

politically cohesive (Amended Complaint at para. 24), the white 

majority sufficiently votes as="a bloc to enable it, absent 

special circumstances, usually to defeat the minority's preferred 

candidate (Amended Complaint at para. 25). The detailed factual 

basis for these claims is left to the discovery phase of this 

litigation. 

Defendant Wood next argues that the plain meaning of the  



word "representatives," as it is found in Section 2 of the Voting 

Rights Act, compels the conclusion that judges are not 

representatives. Judge Wood acknowledges that the Fifth Circuit 

has held that Section 2 does apply to judges. Chisom v. Edwards, 
  

839 F.2d 1056 (5th Cir.), cert. denied sub nom Roemer v. Chisom, 
  

U.S. vr 109 S.Ct. 390 (1988). Defendant Wood requests 

that this Court hold that Chisom's equation of judges as   

representatives is not relevant to the present case. This Court 

does not choose to do so. 

The Fifth Circuit in Chisom considered the distinction 

drawn between representatives and judges in Wells v. Edwards, 347 
  

FP. Supp. 453 (M.D. La. 1972), aff'd, 40S U.S. 1095, 93 8.ct. 904 

(1973), and held that the distinction drawn in Wells does not 

apply to Voting Rights Act cases where racial discrimination, 

rather than proportional representation, is the principal issue. 

Chisom, 839 F.2d at 1061. This Court is of the opinion that the 

facts pled in the present case charge racial discrimination and 

not proportional representation. Amended Complaint at para. 28 

& 29. al 

Finally, Defendant Wood argues that the Voting Rights Act 

as amended in 1982 is unconstitutional as applied to the 

Judiciary based upon the doctrine of separation of powers and the 

equal protection clause of the Fourteenth Amendment. 

This Court is of the opinion that the exercise of  



Congressional authority to amend the Voting Rights Act does not 

violate the principles of separation of powers. Jones v. City of 
  

Lubbock, . 727 F.2d 364, 372-74 (5th Cir. 1984). "So long as 

Congress adopts lawful and rational means to enforce the 

constitution, the separation of powers doctrine requires that the 

judiciary, rather than Congress, must defer." Id. at 374. 

Congress had authority to amend the Act in 1982 and determine 

that a "results" test was necessary to enforce the Fourteenth and 

Fifteenth Amendments. Jones, 727 F.2d at 375. 

Nor is the Court of the opinion that Section 2 as amended 

violates the equal protection clause. The Voting Rights Act was 

enacted to remedy the widespread, deliberate denial of the 

Fifteenth Amendment rights of minority citizens which prevailed 

throughout the country. South Carolina v. Katzenbach, 383 U.S. 
  

301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). "The essence of a 

Section 2 claim is that a certain electoral law, practice or 

structure interacts with social and historical conditions to 

cause an inequality in the opportunities enjoyed by black and 

white voters to elect thei¥ preferred representatives." 

  

Thornburg v. Gingles, 478 U.S. 30, 47 (1986). The Court in Jones 

Vv. City of Lubbock recognized that "Congress heard extensive   

testimony showing that the full exercise of the franchise by 

American minorities still suffered from the effects of electoral 

systems that hinder minority input into the nation's decision  



  

making.” Jones, 727 F.24 at 374. "Congress reflected upon the 

propriety of [the amendment to Section 2 of the Act] in light of 

the constitutional limits on its enforcement power," Id. at 375, 

and concluded that the then present constitutional jurisprudence 

did not adequately protect minority voting rights. Accordingly, 

the following Order is appropriate. 

IT IS ORDERED that Defendant's Motion to Dismiss the 

above-captioned cause for lack of subject matter jurisdiction is 

hereby DENIED. 

IT IS FURTHER ORDERED that Defendant's Motion to Dismiss 

for failure to state a claim is hereby DENIED. 

IT IS FURTHER ORDERED that Plaintiffs' file any Amendment 

to their pleadings by May 12, 1989 and serve a copy upon 

Defendant state officials by one day express mail service so that 

it is received by them on May 12, 1989. 

IT IS FURTHER ORDERED that Defendant state officials file 

any motions to dismiss and/or for summary judgment and 

accompanying briefs on the issue of standing or any other issue 

by May 22, 1989. — 

be ik 
SIGNED AND ENTERED this _/~—day of May, 1989. 

Se il ya fon 
  

Lucius D. Bunton 

Chief Judge 

 



  

7:88—cv-00154 

Sherrilyn Ifill, Esq. 
Matthews & Branscomb 

no pro hac vice 
99 Hudson St., 16th Floor 
New York, NY 10013 

Sin