Texas Responses to Wood's Motions for Fees, to Seal Exhibit, and Stay Mandate, and Motions to Dismiss Wood

    Mr ATTORNEY GENERAL 

OF TEXAS 

November 3, 1990 
JIM MATTOX 

ATTORNEY GENERAL 

VIA FEDERAL EXPRESS 
Gilbert Ganucheau, Clerk 

Fifth Circuit 
600 Camp Street 
New Orleans, Louisiana 70130 

  

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

Dear Mr. Ganucheau: 

Enclosed for filing in the above-referenced matter are the 

original and three copies of the following documents, which for 

administrative convenience and simplicity have been combined in one 

document: (a) Texas's Response to Judge Wood's motionand its 

supplement for attorney fees; (b) Texas's Response to Judge Wood's 

Motions to Seal Exhibit and to Stay the Mandate; (c) Texas's Request 

for Sanctions; (d) Texas's Motion to Dismiss Judge Wood for Lack of 

Standing; and (e) Texas's Motion for Ruling Upon Pending Motions for 

Disqualification /Certification. 

Sincerely, 
il \ 

/ Ns \ A ] 

Special Assistant Attorney General 

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

(512) 463-2085 

Encl. 

cc: Counsel of Record 

S12/A6G3=2100 SUPREME COURT BUILDING AUSTIN, TEXAS 78711-2548  



UNITED STATES COURT OF APPEALS 
FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN 
AMERICAN CITIZENS, et al., 

Plaintiffs-Appellees, 

VS. No. 90-8014 

JIM MATTOX, et al., 
Defendants-Appellants. Co

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TEXAS'S RESPONSES TO WOOD'S MOTIONS (AND SUPPLEMENT) 
FOR ATTORNEYS' FEES, TO SEAL EXHIBIT, AND TO STAY 

MANDATE, AND TEXAS'S REQUEST FOR SANCTIONS AND MOTIONS 
TO DISMISS JUDGE WOOD FOR LACK OF STANDING AND FOR A 

RULING UPON PENDING MOTIONS FOR 
DISQUALIFICATION/CERTIFICATION 

The Attorney General of Texas, on behalf of the State of Texas 

("Texas"), submits the following responses, requests, and motions: 

1. 

RESPONSE TO JUDGE WOOD'S MOTION AND ITS SUPPLEMENT FOR 
ATTORNEY FEES 
  

  

Judge Wood is a party-defendant/appellant in this action in her 

personal capacity only and not in her capacity as a state district judge 

in Harris County. See District Court Order signed on March 1, 1989 

and filed on March 6, 1989. Because of the limited capacity in which 

she appears here, terming her "Judge Wood" misstates her role in this 

case and, at least psychologically, elevates her to an undeserved level 

of distinctiveness in these proceedings. Texas questions whether she 

has any justiciable interest sufficient to give her standing to be a party 

in this case, see Part IV, below; however, assuming that she has a 

legally justiciable interest, it is no more than as one of two possible  



incarnations: either simply another voter opposing the plaintiff 

minority voters; or a self-interested officeholder endeavoring to retain 

the advantages or perquisites of her office. (Thus, self-interest, not 

the "public interest" she belatedly invokes at page 8 of her attorney fee 

motion, is the only legal basis for her presence in this case.) 

Nonetheless, respecting the convention adopted thus far in the case, 

Texas will refer to her as "Judge Wood." 

Stoutly, Judge Wood has defended her assertion that she is not a 

representative of the people of Texas. In its September 28th en banc 

opinion, the Court decided that she was not one. Ironically and 

inconsistently, she now asserts for the first time that, for purposes of 

personally obtaining nearly $400,000 ($396,659.89, to be precise) 

from the state treasury, she all along has been a representative of the 

people of Texas. Further in that connection, she self-aggrandizingly 

claims that she functioned and functions still as the attorney general of 

the state, ousting the Attorney General who is both the elected 

representative of the people of the state and the attorney representing 

the principal prevailing party in this case, the state of Texas. Little 

more needs to be said to reveal why Judge Wood's frivolous effort to 

take nearly half a million dollars from state taxpayers should be 

summarily rejected by the Court, but, because much of her written 

argumentation contains blatantly erroneous and (it must be said) only 

thinly veiled personal attacks on someone who (unlike her) was 

elected to represent the people (all of them) of Texas in court, more 

must be said.  



  

Failure of notice and false pretenses 

The first reason that Judge Wood's request to have the Court 

bless her raid of the state treasury must fail is because she never 

pleaded or otherwise raised such a claim before the trial court. In the 

live pleadings on which she went to trial,l Judge Wood specified that 

as a counter-plaintiff against the plaintiffs she was seeking attorney 

fees. See 1 7.5 of Part III (Counterclaim), Wood Second Amended 

Answer. She never made a claim of any kind for any kind of relief 

against the state. She never plead it; she never listed it in her 

proposed pretrial order; she never urged it orally upon the district 

court; and she certainly never breathed even an informal word of it to 

counsel for the state. Thus, the state was left without notice that, 

despite publicly cloaking herself as a personal intervenor whose 

attorneys were selflessly working in her behalf and on behalf of those 

whose personal beliefs accorded with hers, Judge Wood was 

surreptitiously (at least in her privately held, undisclosed view) 

running up the meter against the state while ostensibly being aligned 

with it. 

The state certainly never asked Judge Wood to work for it. 

Instead, under what it now knows were false pretenses of Judge 

Wood's offering cooperation, it worked out an informal arrangement 

whereby Judge Wood would shoulder partial responsibility for 

gathering and presenting the facts concerning Harris County. 

Hindsight is notoriously easy, but here the vision is perfect. There is 

  

A The live pleading was termed Harris County District Judge Sharolyn Wood's 
Second Amended Original Answer and Counterclaim to Plaintiff LULAC, et al. Because 
at this late stage of the appellate proceedings Texas no longer has the paginated record 
on appeal, it is unable to cite the Court to the specific location of trial court filings. 

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absolutely no way that the state would have agreed that, in exchange 

for $400,000 or so, Judge Wood could displace it in gathering some of 

the facts for Harris County in this case. It did the bulk of the critical 

work for Harris County itself anyway (e.g., presenting the principal 

expert witness for the defense in the case and developing all of the 

issues overarching the ten counties under attack); rather than pay 

Judge Wood and her attorneys to do what remained, it simply would 

have undertaken the task itself. 

Rule 8(a)(3) of the Federal Rules of Civil Procedure requires the 

pleader to state the relief she seeks. Rule 8(f) requires that pleadings 

be construed to do "substantial justice." This Court requires a party to 

have raised an issue in the trial court before it may raise it on appeal. 

Thomas v. Capital Security Services, Inc., 836 F.2d 866, 884 n.25 (5th 

Cir. 1988) (en banc). Judge Wood never put Texas on any kind of 

notice through pleading or any other vehicle that she wanted the state 

to pay for her personal intervention. Surely, substantial justice 

requires that she do so instead of secretly clicking on the meter and 

only telling the state about it at a minute before the appellate midnight 

(that is, after an en banc decision and just before issuance of the 

mandate). The matter so obviously never having been raised below, it 

is frivolous to raise it here and now. For this simple, elementary 

reason alone, the claim should be disallowed. 

No statutory basis 

Judge Wood, claiming the status of "prevailing party,” seeks 

recovery under the governing attorney fee statute not from the losing 

party, but from another prevailing party. (Indeed, Judge Wood, 

concerned only with Harris County, is at best a prevailing party in only 

of- 

 



  

part of the entire case but seeks statutory recovery of fees from the 

party which prevailed in all aspects of the case.) To see how far adrift 

she is from governing legal principles, the Court first should judge the 

situation from the hypothetical perspective of what would happen if 

Judge Wood were to seek attorney fees from the losing party plaintiff 

in the case. 

Under Christiansburg Garment Co. v. EEOC, 434 U.S. 412 

(1978), the losing plaintiff is not liable to a prevailing defendant for 

attorney fees unless a court finds that the plaintiff's claim was 

"frivolous, unreasonable, or groundless|.]" 434 U.S. at 422. This very 

high hurdle against the availability of fees for victorious defendants is 

even higher for victorious intervening defendants such as Judge Wood: 

"[although] intervenors may be considered as prevailing parties . . . we 

do not believe Congress intended that such an award be nearly as 

automatic as it is for a party prevailing in its own right." Donnell v. 

United States, 682 F.2d 240, 246 (D.C. Cir. 1982). The state is at a 

loss to see any way (even assuming the law permitted such a showing) 

that Judge Wood might show that Texas's successful defense of the 

electoral system at issue in this case(and, therefore, its prevailing 

party status) is beyond even frivolous, unreasonable, or groundless. 

Besides, Independent Federation of Flight Attendants v. Zipes, 

109 S.Ct. 2732 (1989) ("Zipes"), shows why the state as the 

completely prevailing party cannot be liable for attorney fees to the at 

best partially prevailing Judge Wood. Zipes repeats earlier cases’ 

emphasis on the "crucial connection between liability for violation of 

federal law and liability for attorney's fees under federal fee-shifting 

statutes.” 109 S.Ct. at 2737. It reiterates that they place to look for 

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recovery of attorney fees is "to the losing party." Id. (citing Kentucky 

v. Graham, 473 U.S. 159 (1985)). If Judge Wood indeed has any party 

to which to turn to recover fees, it certainly is not the victorious state. 

Judge Wood seeks to evade the law's clear direction by claiming 

that Zipes means that defendant-intervenors should be treated in civil 

rights proceedings more like plaintiffs than defendants. Zipes does 

not say that. It merely adds protection from attorney fee claims for 

innocent defendant-intervenors. It does not in any way try to ease 

their access to such fees when they prevail in some fashion. It is clear 

that, in a kind of exchange for receiving more protection from fee 

awards, they also have less access to them (in a setting in which 

access for prevailing defendants already is exceedingly difficult). Zipes 

does not aid Judge Wood's position at all; it obliterates it. 

Likewise, Posada v. Lamb County, 716 F.2d 1066 (5th Cir. 1983) 

("Posada"), does not help Judge Wood; it harms her. Posada 

establishes, as Judge Wood acknowledges, a "rigorous test" to 

determine whether an intervenor can receive attorney fees for 

participation on the side of a governmental unit. What Judge Wood 

fails to acknowledge is that this rigorous test must be satisfied before 

the defendant-intervenor may obtain fees from the losing party. 

There simply is no legal basis for Judge Wood's claim. It is as 

baseless a claim as can be imagined, and it obviously should be 

rejected. 

False legal and factual premises 

Judge Wood attempts to bolster her effort by belittling the 

efforts of the Attorney General while transforming her own largely 

duplicative efforts into the determinative ones in the case. Lest her 

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inflammatory effort even momentarily divert the Court from legal 

reality, some response seems necessary. Because Judge Wood's 

exertions are largely irrelevant and baseless diversions, because the 

mischaracterizations underlying them so permeate her assertions, and 

because the time for response is so short, only the more flagrant 

examples will be addressed. 

Claiming (falsely) that her actions were "essential to the 

appeall,]" see Wood Attorney Fee Motion, at 6, Judge Wood baldly 

states that "[t]he State filed a late notice of appeall,]" id. Indisputably, 

the state's Notice of Appeal filed on January 11, 1990, was timely, the 

injunction having been entered only nine days earlier. Moreover, it is 

worth noting that the State filed an appeal of the underlying liability 

order of November 8, 1989, on December 21, 1989, well before any 

other party to the case.?2 It is thus silly (there is no other pertinent 

word) for Judge Wood to feign being aghast (as she does in her 

attorney fee motion at page 6 and in her supporting brief at page 11) 

at the fact that the state never filed a petition for interlocutory review 

in this case. None was needed, and doing so would merely have 

burdened this Court with further needless paperwork. Castigating the 

state for not wasting the Court's time exemplifies what is going on in 

Judge Wood's attorney fee motion. A simple, unadorned notice of 

appeal sufficed to bring all the issues (both as to liability and remedy) 

before this Court. The state brought these issues separately before this 

  

2 In a pending case in which the state managed to get the case before the Court 
without Judge Wood's assistance, Rangel v. Mattox, Nos. 89-2868 and 89-6226, the state 
has argued for the proposition that a voting rights liability order is an appealable final 
order. See Rangel State Appellants’ Brief, at 15-17. 

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Court through the December 21st and January 11th notices of appeal 

together or through the January 11th notice alone. 

These same facts from the pleading record in this case show the 

utter baselessness and falsity of Judge Wood's statement on page 9 of 

her attorney fee brief that "this case would never have been appealed . 

. ." had it not been for her actions. The state appealed before she did. 

There is not a single document in the record of this case indicating 

either a retreat from that appeal or that the state was not going to 

maintain the appeal of the entire case before this Court.3 

Finally, Judge Wood's overstated elevated view of her value to the 

case finds its concrete expression in her references to her post- 

argument brief on the relationship of Section 2 and Section 5 of the 

Voting Rights Act. Unmentioned by Judge Wood is the fact that the 

attorney for the state addressed the relationship, largely in response 

to questions from Judge Higginbotham, during oral argument before 

the panel in the case. Churning more paper after the argument 

seemed inadvisable to the state, which felt the issue had been 

confronted and adequately addressed at the argument. 

Conclusion: Unnecessary disputes 
  

That matters such as those just discussed even have to be 

addressed before this Court is regrettable and more than a little 

dispiriting. To have won an important case before this Court and then 

be forced to confront the question of whether it was won with the 

proper spirit is something the chief legal officer of the state should 

  

3 Indeed, in October, 1988, well before Judge Wood even became involved in any 
way in this case, Texas had filed an amicus brief on behalf of six states, urging the 
Supreme Court of the United States to grant certiorari in Chisom v. Edwards and adopt 
the legal principle ultimately adopted by this Court two years later, on September 28th. 

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not be forced to do. Exultation in victory is a matter of ego, not justice 

or law. The state should not be forced to cough up $400,000 for 

Judge Wood and her attorneys because its elected Attorney General 

does not have the attitude they want him to have. The duties of his 

office require a broader view than they must have as private citizens. 

II. 

RESPONSE TO JUDGE WOOD'S MOTIONS TO SEAL EXHIBIT AND TO 
STAY THE MANDATE 
  

  

Whether the Court further stays the issuance of the mandate in 

this case is a matter of no significance to Texas, beyond its request 

that the Court also act upon the request and motions referenced in 

Parts III-V, below. Assuming that Judge Wood's attorney fee motion is 

denied, Texas is indifferent to whether the Court denies Judge Wood's 

motion to seal an exhibit or simply rules it moot. If, however, the 

Court (in what the state can only view as unthinkable result) permits 

Judge Wood to recover as a prevailing party against another prevailing 

party (that is, the state), then Texas urges the Court to rule that Judge 

Wood's exhibit cannot be sealed but instead must be disclosed to the 

parties in the case. Governing attorney fee law requires the 

maintenance of contemporaneous (and adequate) time records, and it 

further requires that those against whom fees are sought have a right 

to review those records. Thus, it is an elemental proposition that, if 

the issue goes that far, Texas must be given access to Judge Wood's 

attorney's time sheets. Her request that they be sealed is utterly 

frivolous.4 

  

4 The importance of giving the state access to the time sheets is exemplified by the 
time sheets that were included for one of Judge Wood's attorneys in the supplement to 
the motion. A cursory review of the time sheets reveals that the attorney seeks to 

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III. 

REQUEST FOR SANCTIONS 

Concurring and dissenting in part to a recent Supreme Court 

decision on Rule 11, Justice Stevens noted his distaste for the current 

fashion of attorneys seeking sanctions against opposing attorneys: 

[M]ost lawyers are wise enough to know that 
their most precious asset is their professional 
reputation. Filing unmeritorious pleadings 
inevitably tarnishes that asset. 

Cooter & Gell v. Hartmarx Corp., 110 S.Ct. 2447, 2464-65 (1990). In 

their collective eighteen years of licensed experience as lawyers, the 

two undersigned attorneys have been of like mind with Justice 

Stevens and never sought sanctions against another attorney or party. 

It is only with great reluctance (felt even as this is being written) that 

they seek limited sanctions against the attorneys for Judge Wood for 

attorney fees occasioned by their frivolous, vexatious attorney fee 

request in this case. 

The sanctions should be imposed under the authority granted 

the Court by 28 U.S.C. § 1927 which states in pertinent part: 

Any attorney or other person . . . who so 
multiplies the proceedings in any case 
unreasonably and vexatiously may be required 
by the court to satisfy personally the excess . . . 
attorneys' fees reasonably incurred because of 
such conduct. 

Judge Wood's attorneys never filed anything in the district court 

even remotely hinting at their claim that they wished to try to recover 

  

charge the state $150 an hour for functioning primarily as a paralegal in the case. For 
example (in an entry dated 2-21-89), he seeks $225 for driving from the Midland airport 
to the federal courthouse and filing some pleadings. It took him an hour and a half to 
get them, "review" them, and file them. In another entry (dated 8-14-89), he seeks $180 
for, among other things, "jury selection" in this non-jury case. 

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attorney fees against, of all things, the prevailing party in this lawsuit. 

They have pointed to no statute, common law tradition, or case 

authority interpreting either which even remotely suggests that there 

is a legal basis for such a claim. Furthermore, in their belated filing, 

they have seriously mischaracterized the efforts of the chief legal 

officer of the state of Texas. The distasteful battle being fought 

through this response and initiated by Judge Wood's attorney fee filing 

is wholly unnecessary and undeserving of the important values at stake 

on the merits of this case. Judge Wood's attorneys should have to pay 

for wasting the Court's and others time and resources on such a 

baseless claim as they now have asserted. 

The question of the amount of attorney fees which they should 

pay should be determined by the district court upon remand by this 

Court. The district court, after all, is the appropriate fact finder on 

these issues. See Familias Unidas v. Briscoe, 619 F.2d 391, 406-07 

(5th Cir. 1980). 

IV. 

MOTION TO DISMISS JUDGE WOOD FOR LACK OF STANDING 
  

In the personal capacity in which she has intervened as a 

defendant, Judge Wood has no justiciable interest in this case. In an 

interlocutory appeal from an earlier district court intervention ruling 

in this case, the Court held that state district judges in their official 

capacities have no justiciable interest in this case. LULAC Council No. 

4434 v. Clements, 884 F.2d 185, 188 (5th Cir. 1989) ("LULAC I"). The 

Court did not answer whether state district judges in their individual 

capacities have a justiciable interest in this case, saying only that they 

"arguably" do. Id. 

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Although Texas never opposed personal capacity intervention by 

those many district judges seeking it in this case, its view then and its 

view now (formally expressed for the first time due to the assertion of 

an attorney fee claim against it) is that they lack the requisite 

justiciable interest to have standing to participate. Those persons 

holding judicial office have no personal role to play in the creation or 

maintenance of the challenged system of electing trial judges in Texas. 

They are on a footing no different than every other citizen of Texas 

insofar as the system's maintenance is concerned. Their interest in 

holding their jobs or in maintaining a certain system of justice is no 

greater in a legal sense than every other Texas citizen. 

Precedent in this circuit answers the question that the Court did 

not need to answer in LULAC I. In Chancery Clerk of Chickasaw 

County v. Wallace, 646 F.2d 151, 159-60 (5th Cir. 1981), the Court 

held that the named defendant judges had no personal stake in the 

outcome of the case challenging the Mississippi's method of 

involuntary mental health commitments. Because of this lack of a 

personal stake, the judges lacked the standing to be defendants and 

were improper parties to the lawsuit. The identical situation obtains 

here and requires that Judge Wood be dismissed from this action for 

lack of standing. Cf. Diamond v. Charles, 476 U.S. 54, 63-65 (1986) 

(defendant-intervenor cannot ride "piggyback" on state's undoubted 

standing). 

Judge Wood has said and the Court has held that she is not a 

representative. She therefore should not be treated as though she 

Were one. 

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V. 

MOTION FOR RULING UPON PENDING MOTIONS FOR 
DISQUALIFICATION /CERTIFICATION 

It is an assumption, but probably a safe one, that Judge Wood 

  

would not have felt emboldened to lodge such a baseless claim as she 

has lodged for attorney fees had the Court acted under prevailing Fifth 

Circuit and Supreme Court law and granted the state's pending 

motions to disqualify certain self-ordained "independent" counsel for 

certain state officials in their official capacities (or, alternatively, to 

have certified the question to the Supreme Court of Texas). The Court 

entered an order that it was carrying those motions with the case, but 

it never has ruled upon them. 

They do not present a minor matter, and the Court's failure to 

act upon them or, indeed, ever to have written anything on the subject 

in this case is not a matter of no import simply because the Court has 

been silent on the topic. Notwithstanding clear and unquestioned 

authority to the contrary, the Court's imprimatur has been silently 

placed on the unilateral usurpation of the authority of the state's chief 

elected official by other state officials in conjunction with private, 

unelected attorneys who lack any state constitutional basis for 

representing the state. It is predictable that the silent message will 

not go unnoticed. Much mischief can be worked if the upcoming 

round of redistricting following the 1990 Census results in litigation 

and every potentially interested state official feels free to choose his or 

her own private, unelected attorney to press his or her own 

idiosyncratic views of the law and facts upon the federal courts. Such 

views ultimately may be pressed anyway, but neither federalism nor  



the Texas Constitution permits them to be pressed under the banner 

of the State of Texas. 

Both because the motions on their own merits in this case raise 

fundamental, important issues and because of the future mischief that 

might be worked from their being ignored, Texas urges the Court to 

act upon those motions and grant them. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

/ 

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IN = WG 
  

RENEA HICKS 
Special Assistant Attorney General 
First Assistant Attorney General 

77 

i Z RE, Soa Ce a / 21 . 
< { 

  

JAVIER GUAJARD 
Assistant Attorney General 

" P. 0. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2085 

CERTIFICATE OF SERVICE 

I certify that on this 3rd day of November, 1990, 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 75225; 
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. 

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Cloutman, III, Mullinax, Wells, Baab & Cloutman, P.C., 3301 Elm 
Street, Dallas, Texas 75226-1637; J. Eugene Clements, Porter & 
Clements, 700 Louisiana, Suite 3500, Houston, Texas 77002-2730; 
Robert H. Mow, Jr., Hughes & Luce, 2800 Momentum Place, 1717 
Main Street, Dallas, Texas 75201; John L. Hill, Jr., Liddell, Sapp, 
Zivley, Hill & LaBoon, 3300 Texas Commerce Tower, Houston, Texas 
77002 ; 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; 
and Seagal V. Wheatley, Oppenheimer, Rosenberg, Kelleher & 
Wheatley, Inc., 711 Navarro, Sixth Floor; Antonio, Texas 78205. 

Renca Hicks yi 

  

  

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