Summary of Case History and Current Schedule; Proposed Order

    THEA 
Or TEXAS ot 

JIM MATTOX 

ATTORNEY GENERAL May 22 1989 
dv ded’) 

HAND-DELIVERED 

John D. Neil 
Deputy U. S. District Clerk 
200 East Wall Stree 

  

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

No. MO-88-CA-154 

Dear Mr. Neil: 

Enclosed for filing in the above matter are the original and one 

copy of State Defendants’ Motion for Trial Continuance and a 

proposed Order. 

Sincerely, 

Colma eke 
Renea Hicks 
Special Assistant Attorney General 

P. O. Box 12548, Capitol Station 

Austin, Texas 78711-2543 

(512) 463-2085 

CC: Counsel of record 

512/463-2100 SUPREME COURT BUILDING AUSTIN, TEXAS 7T87I1-20548 

 



  

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

LULAC COUNCIL #4434, et al., 

Plaintiffs, 

Civil Action No. 

MO-88-CA-154 
¥S. 

JIM MATTOX, et al., 

Defendants. LO
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STATE DEFENDANTS' MOTION FOR TRIAL CONTINUANCE 

The State Defendants! move the Court to continue the trial of 

this action on the following grounds: 

lL. 

SUMMARY OF CASE HISTORY AND CURRENT SCHEDULE 
  ; 

The plaintiffs filed this lawsuit less than a year ago, in the 

summer of 1983, Subsequently, the Court stayed further 

proceedings because it appeared that the Supreme Court of the 

United States was going to resolve some of the basic issues in the 

case. The stay was lifted about six months ago, in mid-November, 

1988, when the Supreme Court declined to hear the case which it had 

been thought would be the vehicle for resolving many of this case's 

issues. Ten days ago, on May 12th, the plaintiffs filed their Second 

  

: The State Defendants are the Attorney General of Texas, the Secretary of State 
of Texas, and the thirtcen members of the Judicial Districts Board of Texas. All are 
named in their official capacitics only. Pursuant to Rule 25(d)(1) of thc Federal Rules 

of Civil Proccdurc, two members of the Judicial Districts Board who arc named as 
official-capacity defendants in Plaintiffs’ Sccond Amended Complaint should be 
removed as dcfendants in this case and have substituted in their place as official- 
capacity defendants their two successors on the Board. Michael J. McCormick should 
be substituted for John F. Onion, Jr., and Roger J. Walker should be substituted for 

Charles J. Murray. 

 



Amended Complaint. Under the Court's Order of February 28, 19389, 

discovery closes on June 15th, and trial is scheduled to begin on July 

11th, 

| 11. 

CONTINUANCE REQUEST AND REASONS FOR IT 
  

The State Defendants have concluded that they can neither be 

ready for trial nor adequately present their defense under - the 

existing schedule. This conclusion has been reluctantly reached, but 

is firmly grounded in the realities of this massive case which 

concerns matters of grave import to all the parties. The State 

Defendants are well aware of the Court's interest in the expeditious 

resolution of legal disputes? and, however mealymouthed it may 

sound, have not lightly undertaken the decision to make this motion. 

The reasons that the State Defendants do not believe that the 

plaintiffs will be prejudiced by a continuance are set forth in Part 

III, below, and the time that they think is both appropriate and 

sufficient is discussed in Part IV, below, but the grounds the 

continuance is needed follow immediately below: 

A. Prior setting -- The below-signed lead counsel for the 

State Defendants in this case also is lead counsel for the State of 

Texas in a case styled Texas v. New Mexico, No. 65, Original, which 1s 

an interstate dispute over the apportionment of the waters of the 

Pecos River under the Pecos River Compact. Texas v. New Mexico 

  

2They even are aware of the Court's recent pronouncement of its views at the Fifth 

Circuit Judicial Conference that it does not feel bound to grant even agreed motions 

for continuance. They also are aware, however, that the Court indicated at the samc 

time that it recognized that continuances sometimes were sought on valid grounds 

and warranted.  



  

was filed approximately fifteen years ago and is on the original 

docket of the Supreme Court of the United States. Through an order 

entered on December 22, 1988 (about two months before the current 

schedule was set for this .case), Mr. D. Monte Pascoe, the Supreme 

Court's Special Master in the case, scheduled final tral in Texas v. 

New Mexico for July 17-28, 1989, and August 14-18, 1939, in 

Denver, Colorado. The lead counsel for the interests of the State of 

Texas cannot simultaneously prepare for and try both of these 

important cases.3 Both are complex and require extensive 

preparation. 

B. Recent expansion of the case -- Through their Second 

Amended Complaint, the plaintiffs have significantly expanded this 

lawsuit by adding challenges to the at-large method of electing state 

district judges in Bexar land El Paso Counties.* These are two of the 

largest counties in Texas, and twenty-seven. judges are elected from 

the two counties together. See ihe “Attachment” to this moton 

(which contains a breakdown by county electoral unit of the number 

  

3The lcad counscl has been in that role in the Texas v. New Mexico litigation for 
approximately five years and in this litigation since its inception. Also, he has been 
lead counsel for the state defendants in another case in which a voting rights 
challenge has been lodged against an aspect of the state's method for clecting judges, 
Rangel v. Mattox, Civ. Action No. B-88-053. That case is pending in the United States 
District Court for the Southern District of Texas, Brownsville Division. Trial of that 
case has been completed, but the parties still must submit post-trial briefing, 
probably by carly Junc. Under these circumstances, it scems inappropriate for the 
State to be compelled to find substitute lead counscl in gither case. 

4The district courts in El Paso County itself therctofore had not been under attack. 
Instead, only the three district courts filled by at-large elections in the three-county 
unit comprised of Culberson, El Paso, and Hudspcth counties had been challenged. 

~ 
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of judgeships under challenge, including the numbers up for election 

A 

in 1990 and 1992).5 

As to the judgeships in these two new counties alone, the State 

Defendants could not realistically be expected to complete discovery 

within the month and prepare for trial within the less than two 

months allotted under the current schedule. It is. even: more 

unrealistic for them to be required to do so while they also are trying 

to prepare for the rest of the massive challenge that the plaintiffs 

have lodged to the state's century-old method for selecting its trial 

judiciary. 

C Inadequate time -- Even if lead counsel had no prior 

conflicting setting in a major case and the plaintiffs had not added 

major new challenges to their case, the State Defendants could not be 

ready for trial under ithe current schedule. As shown in the 

Attachment, seventeen electoral units are under attack. They 

comprise virtually all of the major urban areas of this state. Under 

the principle case governing lawsuits such as this one, Thornburg v. 

Gingles, 106 S.Ct. 2752 (1986), each must be analyzed independently. 

In other words, this case really is seventeen consolidated lawsuits, 

any one of which standing alone would be a major one. 

Statistical analyses of massive amounts of data are crucial to 

vote dilution cases under the Gingles legal regime. Moreover, 

knowing the vresults of such analyses often 15s a necessary 

prerequisite to knowing what other evidence or witnesses may be 

  

5 The Attachment's tabulation differs in some respects from the first two columns of 
. - . p . . 

(21 of Plaintiffs’ Sccond Amended Complaint, because it reflects the statutory unit 

which elects the judges listed as challenged in §27 of the complaint. 

i oh  



needed in a case. The principal statistical expert for the State 

Defendants has indicated that he is doubtful that he can complete his 

analyses by the time of trial. Certainly, he will not have completed 

them by the current discovery deadline of June 15th. Thus, if the 

current schedule remains in place, the State Defendants probably will 

be unable to complete work on even a minimal defense. of the 

seventeen challenged systems. They certainly will not be able to 

mount what can be termed a legally adequate defense or one 

appropriate to the gravity and importance of the institution under 

attack. This case, after all, potentially may change the basic system 

of justice that has been in place for nearly a century in one of the 

nation's largest states. The State Defendants urge the Court not to 

force upon them the necessity of mounting a defense that is weak 

only because of inadequate time for preparation. 

By its conduct in facilitating the expeditious trial of the other 

major voting rights challenge to the state judiciary in Rangel wv. 

Mattox in the Southern District of Texas, the state has demonstrated 

that it is not interested in simply delaying the trials of such cases. 

These cases and the rights and institutions they implicate are far too 

important for such gamesmanship. Instead, these cases call for a 

serious, in-depth appraisal of the facts and their relationship to the 

legal merits. The: State Defendants are convinced that such an 

appraisal is impossible under the current schedule. 

111. 

NO HARM TO PLAINTIFES   

Several factors, crucial on the merits of a voting rights case, 

dovetail to illustrate that there is no valid reason from the plaintffs’ 

Ro  



perspective for going forward with the final trial of this case now 

O 

instead of later. 

A. Need for current data -- The Fifth Circuit has made it 

clear that plaintiffs in voting rights suits cannot rely on stale data to 

make their case. Instead, current data must be used before a 

violation may be established. See Houston v. Haley, 3539 F.2d 341, 

344. 346 (3th Cir. 1938) (emphasis must be on present voting age 

populations). The data developed by the United States Bureau of the 

Census in its decennial census typically and traditionally 1s the 

primary source for the basic data in voting rights suits. Data can 

hardly get any more stale than the data the parties would have to 

use if compelled to go forward in July of this year. It would be nine 

and a half years old. 

B. Opportunity J for submission of remedial plan -- Voting 

rights cases occur in two phases. First, the question of liability 1s 

tried. Only when liability -- that is, illegal vote dilution -- 1s found 

does the Court then proceed to the remedial phase.6 Between a 

finding of liability and the entry of a remedial decree, the Court must 

offer the liable party an opportunity to submit a plan which will 

remedy the violation. See, e.g., McDaniel v. Sanchez, 452 U.5. 130 

(1981). The Court's consideration of such a remedial plan by the 

appropriate legislative body must be preceded by the legislauve 

  

6 Actually, under the Gingles analysis, aspects of remedy also must be at lcast 
preliminarily addresses during the liability phase. For example, one of the threshold 
criteria that thc plaintiffs must cstablish is that the minority volers in a given 
jurisdiction are sufficiently concentrated geographically that a single-member 
district could be drawn that would offer them a reasonable opportunity to clect a 
candidate of their choice. If the minority voters are too dispersed geographically, 
they cannot prevail on a vote dilution claim. In the instant case, that situation very 
well may prevail, cspecially in some of the countics containing few judicial districts. 

6 -  



body's obtaining preclearance of its plan from either the United 

  

States Department of Justice or a federal district court in Washington, 

D.C. Campos v. City of Baytown, 840 F.2d 1240, 1250 (5th Cir. 1988). 

Moreover, it now appears that the Court may not approve any such 

remedial legislative plan unless “it. was. adopted by the state 

legislative body consistently with governing state law. LULAC vv. 

Midland Independent School District, 829 F.2d 546 (5th Cir. 1987) 

(en banc). 

This governing law has certain practical implications for the 

scheduling of the liability phase of this trial. Any legislative change 

in the current system for electing state district judges, including the 

creation of single member districts within counties, must ultimately 

be accomplished by the state legislature through a constitutional 

amendment. Thus, assuming the worst from the state's perspective - 

- that is, that liability is found -- the earliest that the Court could 

reasonably expect the state to return with a plan promulgated 

consistently with state law would be the November following the 

finding of liability. 

Under the current trial schedule, that means that the Court 

would have to rule on the liability issues early enough after the July 

trial to allow the Governor of the state to call a special session of the 

legislature to devise a plan, which then would be submitted to the 

voters in November and subsequently to this Court. Then, a remedial 

plan -- either the state's or the Court's -- would be put into place.” 

  

7 This scenario assumes that there is no interlocutory appeal sought or permitted of 
the liability determinations and that there is no stay sought or obtained of the [inal 
decree. 

 



  

While it may be ideally possible to complete this required 

process in time to reconfigure the 1990 judicial elections, for which 

the statutory filing date is January 2, 1990, it appears to be unlikely. 

[t also appears inadvisable because a new electoral system would 

have been put in place and elections would have occurred using 

completely outmoded census data. 

C Chisom II's admonition -- Even if the Court 1s inclined to 

hew to the current schedule despite the above-discussed time 

pressures, and even if liability is found and a single-member 

electoral system imposed for the 1990 elections despite clearly 

moribund data, the major disruption of the state's judicial machinery 

would have occurred for only one election -- that is, the one in the 

fall of 1990. Close on the heels of this major disruption would be 

another one occasioned by the judicial redistricting that would 

inevitably ensue from the presentation in early 1991 of the 1990 

census data. It is already clear (at least qualitatively) that there will 

have been massive population shifts in Texas between the 1980 

census and the 1990 census. Assuming that some or all of the 

targeted judicial districts will be carved into single member districts, 

it is predictable they will have to be substantially re-carved for the 

1992 elections. 

A more destabilizing effect on the state's judicial system cannot 

be imagined than to go through two massive upheavals In two 

succeeding ‘elections. The Fifth Circuit has directed the district courts 

to avoid exactly such disruptive intrusions upon state judicial 

institutions. See Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 1988) 

 



("Chisom II") (noting, among other things, that "[t]he core value of the 

law and its implementing judicial system is stdbility..."). 

Here, the prospects of such cascading disruptions need not be 

raised. Under the governing procedural framework of voting rights 

Jaw, it is unrealistic, both legally and practically, for the plaintiffs to 

expect that the 1990 judicial elections be affected by their lawsuit. 

Thus, they should not be harmed by the trial continuance which the 

State Defendants seek here. 

IV. 

TIMING OF TRIAL 
  

As demonstrated in Part 11.A, above, at a minimum, the State 

Defendants need to have this trial continued until some reasonable 

time after their lead counsel completes his work in the trial of Texas 

v. New Mexico. They request that trial begin no earlier than the 

beginning of October, 1989. Anything earlier would effectively 

preclude their lead counsel from participating in pretrial discovery in 

any detail. 

Beyond that request on timing, the State Defendants are of the 

view that the matters discussed in Part III, above, demonstrate that 

the scheduling of the ‘trial of this action. should be keyed 10 

completing everything in it, including both the liability and (if 

necessary) remedy phases, in time to have any required new 

electoral systems in place in advance of the qualifying date for the 

1992 judicial elections, which would be in early 1992, Under this 

approach to timing, the case could be tried using fresh 1990 census 

data, and a regular session of the state legislature in 1991 could  



address any state remedial plans that might be required as a result 

of liability determinations.® 

CONCLUSION 
  

The State Defendants urge the Court to grant this motion. 

Respectfully submitted, 

JIM MATTOX 

Attorney General of Texas 

MARY F. KELLER 

First Assistant Attorney General 

} 

ods id 4. h_ 
RENEA HICKS 

Special Assistant Attorney General 

  

JAVIER GUAJARDO 

Assistant Attorney General 

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

(512) 463-2085 

ATTORNEYS FOR STATE 
DEFENDANTS 

CERTIFICATE OF SERVICE 

I certify that on this 22nd day of May, 1989, I sent a copy of 

the foregoing State Defendants’ Motion for Trial Continuance by first 

class United States mail, postage prepaid, to each of the following: 
William L. Garrett, Garrett, Thompson & Chang, 8300 Douglas, Suite 

  

8 Analyscs also could be conducted of 1990 judicial elections. Furthermore, the Court 
could schedule the trial so that introduction of the 1990 census data could be 
accomplished in an expeditious, supplemental hearing. 

210  



  

800, Dallas, Texas 75225; Sherrilyn A. Ifill, NAACP Legal Defense and 

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

York 10013:. Gabrielle K. McDonald, 301 Congréss Avenue, Suite 2050, 

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

& Cloutman, P.C., 3301 Elm Street, Dallas, Texas 75220-1637; J. 

Eugene Clements, Porter & Clements, 700 Louisiana, Suite 3500, 

IJouston, Texas 77002-2730; and Robert H. Mow, Jr., Hughes & Luce, 

2800 Momentum Place, 1717 Main Street, Dallas, Texas 75201. 

i) 

ol + clo 
  

Renea Hicks 

>
 
>
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‘11- 

 



  

  

  

  

  

"HMEN 

COUNTY Total Judges Total Judges Total Judges 

UNITS Elected ('90) Elected ('92) Elected 

Harris 34 (3B; 2H) 25 (1H) 59 (3B; 3H) 

Dallas 26 (1B; IH) 10 (IB) 36 (2B; 1H) 

Tarrant 11 (2D) 12 23° 38) 

Bexar 10 (2H) QO (3H) 19 (5H) 

Travis 6 7 13 

El Paso 5 (3H) 3. (2H) $$: (5H) 

Jefferson 6 2 8 

Galveston 3 2 5 

Lubbock 2 2 | 4 

Ector 3 1 4 

McLennan ; 2 2 4 

Smith $3 1 3 

Culberson, El Paso, & 
Hudspeth ¢ 1 3 

Fort Bend 2 1 3 

Midland 1 2 3 

Crosby & Lubbock 0 ] ] 

Smith & Wood 0 1 ] 

TOTALS 115 (6B; 8H) 82 (1B; 6H) 197 (7B; 14H) 

Note: "B" means Black, and "/{" means Hispanic. 

SOURCES: 927 of Plaintiffs’ Second Amended Complaint; Tex.Gov. Code Ann.; and the fiscal 
ycar 1988 report for the Texas Judicial System. 

 



UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 
MIDLAND-ODESSA DIVISION 

LULAC COUNCIL #4434, et al., 
Plaintiffs, 

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 

for Trial Continuance. After giving due consideration to the matters 

raised by that motion, and responses to it, the Court 1s of the opinion 

that it is well-founded and that a continuance of the trial in this 

4 

action is warranted. ‘Therefore, it is hereby 

ORDERED that State Defendants’ Motion for Continuance is 

GRANTED. The Court's scheduling order of February 28, 1989, is 

vacated, and a new one entered. Following a conference with the 

attorneys, the Court will enter a new scheduling order, but, in any 

event, trial will be scheduled to commence no earlier than October 3, 

1939. 

SIGNED and ENTERED this ___ day of May, 1989. 

  

UNITED STATES DISTRICT JUDGE