Defendant/Appellant Judge Wood's Motion to Divide Time for Oral Argument

    { 

  

PorTER & CLEMENTS 
NCNB CENTER 

700 LOUISIANA, SUITE 3500 ATTORNEYS 
MAILING ADDRESS: 

  

  

A PARTNERSHIP INCLUDING HOUSTON, TEXAS 77002-2730 
PROFESSIONAL CORPORATIONS P.O.BOX 4744 

HOUSTON, TX 77210-4744 

TELEPHONE (713) 226-0600 

EVELYN V. KEYES TELECOPIER (713) 228-1331 

(713) 226-0620 TELEX 775-348 

October 28, 1991 

Mr. Gilbert Ganucheau, Clerk VIA FACIMILE NO. (504) 589-4834 

United States Court of Appeals and 
for the Fifth Circuit VIA FEDERAL EXPRESS 
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, 

Council No. 4434, et al., Plaintiffs-Respondents, v. William P. Clements, 

Governor of the State of Texas, et al., Defendants, Judge Sharolyn Wood, etc. , 

Defendant-Appellant; In the United States Court of Appeals for the Fifth Circuit 

Dear Mr. Ganucheau: 

Enclosed are the original and four copies of Defendant/ Appellant Harris County District 

Judge Sharolyn Wood’s Motion to Divide Time for Oral Argument. 

Please verify filing of this document by placing your file mark in the margin of the extra 
copy provided herewith and return to me for my records. 

All parties are being served with one copy of these documents by first class United States 
mail, postage prepaid. 

Very truly yours, 

Let Vion 
Evelyn V. Keyes 

EVK:eja 

enclosures 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 90-8014 and 
NO. 90-9003 

  

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

Plaintiffs-Appellees, 

versus 

WILLIAM P. CLEMENTS, GOVERNOR OF THE STATE 
OF TEXAS, et al., 

Defendants-Appellants, 

JUDGE SHAROLYN WOOD, 

Defendant-Appellant. 

  

Appeal from the United States District Court 

for the Western District of Texas 

Midland Division 

  

DEFENDANT/APPELLANT HARRIS COUNTY DISTRICT JUDGE 
SHAROLYN WOOD’S MOTION TO DIVIDE TIME FOR ORAL ARGUMENT 

  

COMES NOW Defendant/Appellant Harris County District Judge Sharolyn Wood 

("Judge Wood") and moves the Court to divide the time for Defendants’ oral argument in the 

above referenced case equally among all Defendants as follows: 

State of Texas: 10 minutes 
Judge Wood: 10 minutes 
Judge Entz: 10 minutes 

 



  

This Motion is necessary because counsel for the State initially refused to agree that J udge Wood 

is entitled to any time for oral argument and later advised counsel for Judge Entz that the 

Intervenors could split five of the available 30 minutes any way they wished. 

The Court is undoubtedly aware that this case has unfortunately been marked at all stages 

by efforts by the Assistant Attorney General representing the State of Texas to prevent many 

intervenors from entering this case or from arguing any part of it. Nevertheless, the trial court 

permitted Judge Wood and Judge Entz to intervene; and this Court permitted intervention by the 

Special Counsel for Texas Secretary of State George S. Bayoud, Jr., represented by former 

Texas Attorney General John Hill. All of these Defendants argued their case before this Court 

when it was first before the three-judge panel and subsequently before the Court en banc. 

At en banc argument, Defendant-Intervenors Judge Wood and Judge Entz preserved and 

made the argument which was subsequently accepted by the majority of the en banc Court, 

namely the argument that state district judges are not representatives within the meaning of § 2 

of the Voting Rights Act. Whatever this panel may think of that argument, it obviously 

convinced a majority of this Court of Appeals, and even if one disagreed with the majority 

opinion, effective ethical advocacy required that that argument be presented and defended when 

this case was subsequently argued before the Supreme Court. However, the Assistant Attorney 

General representing the State of Texas refused to agree to share the time allotted for oral 

argument in the Supreme Court with either Judge Wood or J udge Entz and vigorously opposed 

their Motion to Divide the Time for Oral Argument on the ground that only he had the right to 

advance the issues at stake. Judge Wood and Judge Entz withdrew their Joint Motion to Divide 

Oral Argument upon the representation to them by the Clerk of the Supreme Court that because 

 



  

of the position taken by counsel for the State of Texas, the Motion to Divide Time would be 

denied and no one would be permitted to argue for the defense unless J udge Wood and Judge   

Entz withdrew their Motion. Judge Wood and Judge Entz stepped aside, recognizing that the 

State of Texas should not be prevented from presenting any defense at all of the Fifth Circuit 

en banc majority and concurring opinions before the Supreme Court in this important Voting 

Rights Act case. 

Once having secured the sole opportunity to argue before the Supreme Court, however, 

counsel for the State of Texas not only refused to defend the majority opinion of the Fifth 

Circuit en banc court, he specifically repudiated that opinion at oral argument, expressly voicing 

his personal disagreement with the Defendant-Intervenors and with the Fifth Circuit majority. 

Relevant pages of the official transcript from the oral argument in this case before the Supreme 

Court on April 22, 1991 are attached as Exhibit "A." Not surprisingly, the Supreme Court 

reversed the majority en banc decision of this Court, which had found no defenders among the 

parties who were permitted to present oral arguments. Thus, counsel for the State of Texas 

commandeered the only opportunity to speak, and then scuttled the majority opinion of this 

Court, which, at that point, only he could defend. 

Once again, on specific instructions from the Supreme Court, this Court is presented with 

issues vital to determining the scope of § 2 of the Voting Rights Act. Judge Wood has 

developed crucial issues in her briefs on remand which have been addressed by the State of 

Texas only tangentially or not at all. For example, Judge Wood has set forth a method echoed 

nowhere else in any Defendant’s pleadings for determining when claimed vote dilution is illegal 

and remediable under § 2 of the Voting Rights Act, together with a standard of proof of illegal 

 



  

vote dilution in judicial races. It does not seem unreasonable that J udge Wood's counsel present 

this argument to the Court, and it is quite clear from the abundant history of this case that 

counsel for the State of Texas will once again refuse to argue any position advanced by Judge 

Wood and any position which she deems protective of her interests. 

While Judge Wood continues to recognize the right and necessity that the State of Texas 

make its argument through its own counsel, both justice and equity require that she and Judge 

Entz be permitted equal time to do the same. The alternative is not only that the Intervenor’s 

arguments will not be heard or defended; they are also subject to unilateral repudiation by the 

State’s counsel. This has happened once. The Court ought not in justice permit it to happen 

again. 

WHEREFORE, for the foregoing reasons, Judge Wood respectfully requests that the 

Court divide oral argument for the Defendants in the above-referenced case equally among the 

State of Texas (10 minutes), Judge Wood (10 minutes), and Judge Entz (10 minutes). 

Respectfully submitted, 

PORTER & CLEMENTS 

en oi BE 
\| I. Eugene Clements 

Evelyn V. Keyes 
3500 NCNB Center 
P.O. Box 4744 
Houston, Texas 77210-4744 

Phone: (713) 226-0600 

Fax: (713) 228-1331 

  

   
  

  

ATTORNEYS FOR DEFENDANT/ 
APPELLANT JUDGE WOOD 

 



CERTIFICATE OF SERVICE 
  

I certify that on this 28th day of October, 1991, 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 75226; 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; Robert H. Mow, Jr., Hughes & 

Luce, 2800 Momentum Place, 1717 Main Street, Dallas, Texas 75201; Walter L. Irvin, 5787 

South Hampton Road, Suite 210, Lock Box 122, Dallas, Texas 75232-2255; Susan Finkelstein, 

Texas Rural Legal Aid, Inc., 201 N. St. Mary’s #600, San Antonio, Texas 78205; Renea Hicks, 

Special Assistant Attorney General, P. O. Box 12548, Capitol Station, Austin, Texas 78711- 

2548; and Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., 711 
Navarro, Sixth Floor, San Antonio, Texas 78205. 

nila J, 2 ol 
Evelyn W Keyes 
  

 



Ee OFFICIAL TRANSCRIPT 

PROCEEDINGS BEFORE 

THE SUPREME COURT 

  

OF THE 

UNITED STATES 
CAPTION: HOUSTON LAWYERS' ASSOCIATION, ET AL., Petitionars 

v. ATTORNEY GENERAL OF TEXAS, ET AL.; 
and 
LEAGUE OF UNITED LATIN AMERICAN CITIZENS, ET AL., 
Petitioners v. ATTORNEY GENERAL OF TEXAS, ET AL. CASE NO: 90-813 and 90-974 

PLACE: Washington, D. C. 

DATE: - April 22, 1991 

PAGES 1-58 

ALDERSON REPORTING COMPANY 

Ull 14TH STREET. N.W. 

WASHINGTGN. DC. 20005-5650 

202 289-2260 

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IN THE SUPREME COURT OF THE UNITED STATES 

HOUSTON LAWYERS’ ASSOCIATION, 

ET AL., H 

Petitioners | t 

v. : No. 90-813 
ATTORNEY GENERAL OF TEXAS, : 

ET AL.; 3 

ang i. : 
LEAGUE OF UNITED LATIN : 

AMERICAN CITIZENS, ET AL., 3 

Petitioners 3 

Vv. : No. 90-974 

ATTORNEY GENERAL OF TEXAS, 3 

ET AL. | : 

- ele wT Te Te X 

Washington, D.C. 

Monday, April 22, 1991 

The above-entitled matter came on for oral . 

argument before the Supreme Court of the United States at 

11:04 a. sf 
APPEARANCES: 

JULIUS L. CHAMBERS, ESQ., New York, New York; on behalf 

of the Petitioners. 

RENEA HICKS, ESQ., Special Assistant Attorney General of 

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ALDERSON REPORTING COMPANY, INC. 
1111 FOURTEENTH STREET, N.W. 

SUITS 400 
WASHINGTCN, D.C. 2000S 

(202)289-2260 
(800) POR DEPO 

 



Texas, Austin, Texas; on behalf of the Respondents. 
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3 

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ALDERSON REPORTING COMPANY, INC. 
1111 FOURTEENTH ST=7=m 1 

* SUITE 
WASHINGTON, 0.C. 20005 

(202)289-2260 
(800) FOR DEPO  



  

he was in -- suggesting a remand, that he was suggesting a 
remand as to reconsider coverage. 

| MR. CHAMBERS: If -- you can read in the brief, 
he suggests that State interest may trump the interest of 
minorities in being able to participate in the electoral 
process. 

1, QUESTION: Well, that may be in using the 
totality of the circumstances to decide whether there’s 
been a violation. 

MR. CHAMBERS: That's correct, Your Honor, but 

again I was Suggesting that that State interest has to be 
weighed as part of the tenuousness factor in the -- in the 
cause analysis of the seven factors. 

Your Honor, I would like to reserve some time 

for rebuttal, 

Lam? QUESTION: Very well, Mr. Chambers. 

Mr. Hicks, we’ll hear now from you. 

ORAL ARGUMENT OF RENEA RICKS 

ON BEHALF OF THE RESPONDENTS 

MR. HICKS: Mr. Chief Justice, and may it please 
the Court; pin 

| I wish to address both the question of coverage 
and the question of the inapplicability, not an exemption, 
but the inapplicability of vote dilution at-large 

challenges to trial judges, the solo decision makers. And 

27 

ALDERSON REPORTING COMPANY 1v~, 1111 FOURTEENTH STREET, N.V. 
SUITE 400 

‘ WASHINGTON, D.C. 2000S 
(202)289-2260 
 



  

I first want to address the question of coverage. 

Much to the chagrin of much of the Texas 
judiciary, many of the people that have intervened on zy 
case, I do not -- I anticipate Mr. Pugh == I do not adopt 
the theory of noncoverage that Louisiana has adopted or 
that the Fifth Circuit adopted. We argued below that the 
plain Statement principle was the way to approach it. The 
problem is not that "representative" clearly excludes 

judges. It’s that the use of the word "representative" 
doesn’t clearly include them. There is ambiguity there. 

There is also some ambiguity I believe in the 

question of whether section 2(a) of the Voting Rights Act 
covers intentional discrimination. I think it was Justice 
Scalia, but I’m not sure who pointed out, that the 

language certainly doesn’t say anything about intent. The 
language of section 2(a) only talks about results. And I 
don’t believe there's the slightest indication that 
Congress meant to do away with the intent standard in 
1982. But it appears that they did. of course, there is 
the protection of the Constitution there. It's been there 
since 1870 or 1868, depending on whether You use the 
Fifteenth Amendment or ‘the Pourteenth Amendment. 

But nonetheless there may not be an intent 
standard in section 2 anymore if you read the language 

Yiterally. If You choose not to read the -- 

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ALDERSON REPORTING COMPANY, INC. 
1111 TQURTEzZNTH STRILT, HH. 

SUITE 402 
WASHINGTON, D.C. 2000S 

(202)289-2260 

 



  

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MR. HICKS: Well, that would be closer. I think 

I WIRE lose that case, but they didn’t have it in mind -- 

A TE QUESTION: So you think "representative" is 

capable of covering judges (inaudible) -- 

MR. HICKS: 1It‘s capable of it. I don’t think 

common people think of judges as representatives. I don’t 

think a lot of informed scholars think of judges as 

representatives. I don’t think judges think of themselves 

a8 representatives. I agree that under some -- 

Jeffersonian democracy theory that they’re representative 

of the people. I don’t question that at all. 

oe" oursrion: Jacksonian democracy. 

MR. HICKS: Is it Jacksonian? Well -- 

'(Laughter.) 

MR. HICKS: I'm talking about the idea of what a 
representative is. 

Elin aes QUESTION: Jefferson was not at all in favor of 

electing judges. Jackson was. 

(Laughter. 

MR. HICKS: Thank you. I didn’t read my amicus 

briefs as well as I should have. : 

A \fmp~7 QUESTION: Their names both begin with J, 

though. | 

MR. HICKS: Yes. 

(Laughter. 

45 

ALDERSON REPORTING COMPANY, INC. 
1 PAINS ENTH aTnone. NW. 

NLT Sy 
WASHINGTON, D.C. 2000S 

(202)289-2260 
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* * 

MR. HICKS: I actually was thinking about what 1 said and I did mean Jeffersonian because the idea of 
anybody that’s elected is a representative in some sense -=- that kind of theory. But at the normal common parlance does not speak of judges as Iepresentatives. The courts 
-- lower courts have -- have in a sense stumbled across 
that when they refer to Judges as not being 
representatives. And so -- 

hHIT¥ QUESTION: That's 21) Vw, Y ww YOU 'wmit take te you -- then you aren‘t defending the Judgment -- You're 
defending the judgment of the Fifth Cirouts but not its 
reasoning. Is that it? 

MR. HICKS: That's Correct. We made this 
argument that I’m making now below. I have to say I don’t think it was as sophisticated as it is now -- 
NTE QUESTION: We agreed to view -- what you’re 

really saying is that there’s a different standard for 
judging Coverage than the Pifth Circuit used. 

MR. HICXS: Yes. 

LA QUESTION: So we would have to remand.-_ 
: MR. HICKS: +X don’t understand. This -- this is a legal question, not a factual question. I believe 

ultimately if you disagree with Me, You must remand. But I don’t believe on the question of Coverage you must 
remand. I -< I think this Court is quite capable of 

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ALDERSON REPORTING CoOMm~ 
ciotldo SUITE 400 WASHINGTON, D.C. 20005 (202)289-2260 
 



  

1 (Laughter.) 

2 MR. HICXS: Okay. 

3 STV“ QUESTION: Or a closer case, what if Mobile 
4 instead of having a three-member commission, say, it 

S changed to a single mayor -- or single administrator and 
6 there were all sorts of good government reasons for doing 
7 it. It would be exempt from the act. 

8 MR. HICKS: Well, they wouldn’t be exempt from 
9 the act. 

10 Sve? QUESTION: Exempt from section ie 

11 MR. HICKS: They would be exempt from an at- 
12 large vote dilution -- not they. 

13 grees QUESTION: Yes. : 
! 14 MR. HICKS: A challenge there later would be 

15 exempt from an at-large vote dilution challenge. There 
16 would be other avenues of attack. 

17 scars QUESTION: But always based on intent. 

18 MR. HICKS: Well, I don’t know if they all would 
19 have to based on the intent. Footnotes 10 and 12 of 
20 Thornburg v. Gingles -- in those footnotes, this Court 
21 said there are a host.of other section 2 kinds of 
22 challenges: 1In at-large vote dilution challenges it may 
23 be available. And I'l not creative enough -- I’ve gotten 
24 into the mindset of being a defendant in this -- these 
25 cases now, so I'm having a hard time thinking. 

) : 53 

ALDERSON REPORTING COMPANY, INC. 
1111 POURTEENTH STREET, N.W. 

SUITE 400 . WASHINGTON, D.C. 20005 
(202)289-2260 
(800) FOR DEPO