Bayoud's Reply to Mattox' Reply to Chapman's Response to Motion to Certify

    LIDDELL, SAPP, ZIVLEY, HILL & LABOON 

A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 

ATTORNEYS 1200 TEXAS COMMERCE TOWER 
TEXAS COMMERCE TOWER 2200 ROSS AVENUE 

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NEW YORK, NEW YORK 10017 (713) 226-1200 TELECOPIER (214) 220-4899 

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nt 

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SUITE 1400 

AUSTIN, TEXAS 7870 

(512) 320-411! 

TELECOPIER (512) 320-4161 

TELECOPIER (713) 223-3717 

March 1, 1990 

VIA FEDERAL EXPRESS 

Gilbert Ganucheau 
Att’n: Eileen Boudin 
Clerk, Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

Re: LULAC v. Mattox, No. 90-8014 
  

Dear Ms. Boudin: 

Enclosed for filing in the above-referenced matter are the 

original and four copies of Secretary of State George Bayoud’s 

Reply to Mattox’ Reply to Chapman’s Response to Motion to Certify. 

Please return one file-stamped copy to us for our files. 

Thank you for your attention to this matter. 

Very truly yours, 

Andy Taylor 

AT/amb 
Enclosures 
cc: All counsel of record 

wat\lclerk.4 

 



  

v 

IN THE UNITED STATES COURT OF APPEALS 
FIPTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

Vv. NO. 90-8014 

JIM MATTOX, et al., 

N
N
N
 

DN
WD
 
W
N
W
 

Defendants-Appellants. 

BAYOUD'S REPLY TO MATTOX' REPLY TO CHAPMAN'S RESPONSE 
TO MOTION TO CERTIFY 
  

  

NOW COMES, George S. Bayoud, Jr., ("Bayoud"), Defendant- 

Appellant herein, and respectfully files this Reply to Attorney 

General Mattox' Reply to Chapman's Response to Motion to Certify, 

and in support thereof, would respectfully show unto the Court as 

follows: 

1. Despite his declarations that this is "far more than a 

petty dispute," (See Mattox' Reply to Bayoud's Response to Motion 

to Certify at 4), the issues urged by the Attorney General in his 

most recent filings certainly pale in importance to the vital 

questions of law this Honorable Court has before it in this case. 

One can only wonder why the Attorney General is so vehemently 

opposed to Secretary Bayoud's desire to voice his own views of the 

law through independent outside counsel as a Constitutional Officer 

of the State of Texas. 

 



  

2. Mr. Mattox conveniently ignores the fact that Defendant- 

Appellant Bayoud has been sued in this case in his official 

capacity as Secretary of State and Chief Elections Officer of the 

State of Texas. Suits against state officials in their official 

capacity to restrain unconstitutional behavior have been held not 

to violate the Eleventh Amendment. Ex Parte Young, 209 U.S. 123 
  

(1907). Although the Attorney General agrees with this premise, 

his most recent filing contends that the State of Texas is 

"undisputedly the real defendant here." See Mattox! Reply To 

Chapman's Response to Motion to Certify at 3. The Attorney General 

is simply wrong on this point. The Eleventh Amendment bars a suit 

against state officials when "the state is the real, substantial 

party in interest." Pennhurst State School & Hospital wv. 
  

Halderman, 465 U.S. 89, 101 (1984) (quoting Ford Motor Co. v. Dept. 
  

  

of Treasury of Indiana, 323 U.S. 459, 464 (1945)). Ex Parte Young 
  

  

does not run afoul of the Eleventh Amendment because it 1s not a 

suit against the state, and the state is not the real party in 

interest: 

The answer to all of this is the same as made in every 
case where an official claims to be acting under the 
authority of the state. The act to be enforced is 
alleged to be unconstitutional; and if it be so, the use 
of the name of the state to enforce an unconstitutional 
act to the injury of complainants is a proceeding without 
the authority of, and one which does not affect, the 
state in its sovereign or governmental capacity. If the 
act which the state attorney general seeks to enforce be 
a violation of the Federal Constitution, the officer, in 

  

  

  

-p = 

 



  

ho + 

proceeding under such enactment, comes into conflict with 
the superior authority of that Constitution, and he is 
in that sense stripped of his official or representative 
character and is subjected in his person to the conse- 
quences of his individual conduct. 

  

  

  

  

Ex parte Young, 209 U.S. 123, 159-160 (1907) (emphasis added). E 
  

parte Young is no authority for Mattox' proposition that a "legal 
  

fiction" exists such that the State of Texas is the real party in 

interest. And it certainly is no authority for the unsupportable 

conclusion by the Attorney General that a state official, sued in 

his official capacity, is forever silenced and prohibited from 

advocating his legal views in that suit. This is particularly true 

when his own counsel refuses to articulate those views to the 

Court, and instead serves up his own views in the litigation 

without regard to whether his client agrees or disagrees with his 

positions. 

Thus, the Attorney General's premise (that is, the State of 

Texas is the real party in interest) is fallacious. It therefore 

follows that his conclusion is equally incorrect. Representation 

of Secretary Bayoud by independent outside counsel in no way 

interferes or usurps the Attorney General's "right" to represent 

the interests of the State of Texas in this suit for the simple 

reason that the State of Texas is not, and could not, be a party 

in this case.- - , 

 



® Fl 

3. The Attorney General has contended in earlier filings 

that this Court's denial of Mattox' Motion to Strike reveals 

nothing about the question of whether Secretary Bayoud is entitled 

to have independent outside counsel. In support of his argument, 

Mr. Mattox contends that this Court's overruling of the Motion was 

obviously based on procedural grounds because a Panel of this Court 

has already ruled that the Attorney General has the exclusive right 

to enforce the State's rights. Mattox' Reply to Motion to Certify 

ac 1-2. 

4, Again, these contentions are without merit. While it is 

no doubt true that one Panel of this Circuit will not overturn a 

decision by another Panel of this Court on the same legal issue, 

see Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 425-26 
  

(5th Cir. 1987), this rule is subject to at least two (2) excep- 

tions. First, this rule of stare decisis hinges upon the premise 

that this Panel is presented with the same legal issue as was the 
  

earlier Panel. The previous Panel decision which is purportedly 

"binding" on this Panel stems from two cases cited by the Attorney 

General. United States v. Texas, 680 F.2d 356, 368 n.16 (5th Cir. 
  

1982); McGee v. Estelle, 722 F.2d 1206, 1212 n.18 (5th Cir. 1984) 
  

(en banc). These two cases deal with legislatively created state 

agencies and this Court was not considering the Attorney General's  



  

= 

representation of constitutional officers of the State of Texas. 

The obvious distinction is that state agencies created by the Texas 

Legislature can certainly be legislatively required to be represen- 

ted by the Attorney General. The instant case concerns the right 

of a Constitutional Officer of the State of Texas to express his 

views through independent outside counsel. Clearly, this legal 

issue is different from the legal issue decided by the Panel in 
  

those two prior decisions. Second, where intervening Supreme Court 

authority is present, this Court will disagree with a prior Panel 

decision. Montesano, 818 F.2d at 426. Since this issue of law is   

purely a question of state law, then by analogy, where intervening 

Texas Supreme Court authority is present, this Panel can no doubt 

disagree with the rulings of a previous Panel. Intervening Texas 

Supreme Court authority does exist. PUC v. Cofer, 754 S.W.2d 121, 
  

125 (Tex. 1988) (court may deal with attorney general's failure to 

adequately represent state agencies' interests in same manner as 

it deals with other lawyers who practice before it). 

5. As noted in previous filings, this question of state law 

is not determinative of this cause within the meaning of Rule 

  

Although these cases declare that the Attorney General 

has the "exclusive" right to represent legislatively 
created agencies, the Texas Supreme Court has recently 
declared that this right to represent these agencies is 
not exclusive. PUC v. Cofer, 754 S.W.2d 121, 125 (Tex. 
1988). 

  

-_5- 

 



  

114 (a) of the Texas Rules of Civil Procedure. Despite Mr. Mattox!’ 

assertions to the contrary, the test for certification is whether 

the issue may be determinative of whether Section 2 of the Voting 

Rights Act applies to the election of state district judges, 

whether Section 2, as amended, is constitutional, whether plain- 

tiffs proved a Section 2 violation consistent with Thornberqg v. 
  

Gingles, 478 U.S. 30 (1986), and whether the burden of proof is 

constitutional, to name a few. Clearly, the issue of Secretary 

Bayoud's entitlement to independent outside counsel cannot even 

possibly be determinative of these issues. The Secretary should 

merely be regarded as another party. Courts are accustomed to 

dealing with multiple parties and Bayoud disagrees with Mr. Mattox! 

assertion that this Court will become incapacitated by confusion. 

Certification is simply not proper in this case. 

6. Finally, Mr. Mattox' suggestion "that the real issues in 

this case are being fully litigated by the Attorney General on the 

State's behalf," (See Mattox' Reply to Chapman's Response to 

Motion to Certify at 4 n.5), is but one more glaring example of how 

Mr. Mattox, the lawyer, refuses to advocate the views of George 

Bayoud, the client. Even a cursory review of the Brief for State 

Defendants-Appellants and the Brief for Defendant-Appellant Bayoud 

will reveal an inexplicable refusal by the Attorney General to 

fully articulate what Bayoud contends is the most basic issue of 

-— = 

 



  

this appeal--whether Congress intended for Section 2(b) of the 

Voting Rights Act to apply to the election of state judges. ? 

y 5 Secretary Bayoud's views in this case deserve expression. 

After all, he is a Defendant in this lawsuit. 

WHEREFORE, PREMISES CONSIDERED, Defendant George S. Bayoud, 

Jr. respectfully requests that this Honorable Court deny Mr. 

Mattox! Motion to Certify and Alternative Motion to Disqualify 

Messrs. Hill and Taylor, and to grant Secretary Bayoud any and all 

other relief, general or special, to which he may show himself to 

be justly entitled. 

  

Mattox does suggest that Chisom is incorrect in a 
footnote. See Brief for State Defendants-Appellants at 
18 n.9. Devoting twenty-eight (28) words in a footnote 
can hardly constitute a full and complete presentation 
of the most fundamental issue of this appeal. One can 
only wonder whether the Attorney General will ever fully 
advocate the legal position of the Secretary of State of 
Texas. Such refusal only serves to further underscore 
the propriety of Secretary Bayoud's use of independent 
counsel for this appeal. 

-] —- 

 



Respectfully submitted, 

LIDDELL, SAPP, ZIVLEY, HILL 
& LABOON 

oe PT Tag ler 
John L. Hi11, arf 
State Bar No. 00000027 
Andy Taylor 
State Bar No. 19727600 
3300 Texas Commerce Tower 
Houston, Texas 77002 
{713) 226-1200 

  

INDEPENDENT OUTSIDE COUNSEL FOR 
GEORGE S. BAYOUD, JR., SECRETARY 
OF STATE OF TEXAS 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing 

has been served upon all counsel of record by overnight Federal 

Express, on this day of March, 1990. 

Tog l 
Andy Taylor / / 
  

WAT\LULAC.19