Judge Wood's Response to Plaintiffs' Motion to Dismiss

    ATTORNEYS 

A PARTNERSHIP INCLUDING 

PROFESSIONAL CORPORATIONS 

EVELYN V. KEYES 

(713) 226-061 

PorTER & CLEMENTS 
FIRST REPUBLICBANK CENTER 

700 LOUISIANA, SUITE 3500 

HOUSTON, TEXAS 77002-2730 

  

TELEPHONE (713) 226-0600 

TELECOPIER (713) 228-1331 

TELECOPIER (713) 224-4835 

TELEX 775-348 

January 9, 1990 

VIA FEDERAL EXPRESS 
  

Mr. Gilbert F. Ganucheau a 
Clerk of the Court 

100 U.S. Court of Appeals Courthouse 
600 Camp Street 
New Orleans, Louisiana 70130 

Re: League of United Latin American Citizens (LULAC), et 
al., Plaintiffs-Appellees, v. Jim Mattox, Attorney 
General of the State of Texas, et al., Defendants, and 

Harris County District Judge Sharolyn Wood, 
Intervenor-Defendant—-Appellant; In the United States 
Court of Appeals for the Fifth Circuit (Appeal from 
No. MO88-CA-154 in the United States District Court for 
the Western District of Texas, Midland-Odessa Division) 

Dear Mr. Ganucheau: 

Enclosed for filing in the above-referenced case is the 
original and three copies of Judge Wood's Response to Plaintiffs’ 
Motion to Dismiss. 

Please verify receipt of this document in your usual manner. 

All counsel are being served with a copy of this filing by 
first class United States' mail, postage prepaid. 

Thank you for your attention to this matter. 

EVK/cdf 
enclosures 

Sincerely yours, 

Evelyn V. Keyes 

 



    

PorTER & CLEMENTS 

Mr. Gilbert F. Ganucheau 

January +9, 1990 
Page ~2~- 

CC. Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
203 MN. St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 
Texas Rural Legal Aid, Inc. 
201:N, .St. Mary's, . 8uite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 

Ms. Sherrilyn A. Ifill 
NAACP Legal Defense and Educational Fund, Inc. 

99 Hudson Street 

6th PFPloor 

New York, New York 10013 

Ms. Gabrielle K. McDonald 

Matthews & Branscomb 

301 Congress Ave., Suite 2050 
Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 
Mr. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P. O. Box 12548 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 

Mullinax, Wells, Baab & Cloutman, P.C. 

3301 Elm Street 

Dallas, Texas 75226-1637 

 



    
PorRTER & CLEMENTS 

Mr. Gilbert F. Ganucheau 
January 9, 1990 
Page -3- 

cc: Mr, E, Brice Cunningham 
777.80. R,L.. Thornton ¥Frwy., Suite 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

Mr. John L. Hill, Cr. 

Liddell, Sapp, Zivley, Hill & LaBoon 
3500 Texas Commerce Tower 

Houston, Texas 77002-3095 

WOOO05/F/cdf 

 



i " * 

  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

NO. 
  

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

versus 

JIM MATTOX, Attorney General of the State of Texas, et al., 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

JUDGE WOOD'S RESPONSE TO PLAINTIFFS' MOTION TO DISMISS 

  

PORTER & CLEMENTS 

J. Eugene Clements 

Evelyn V. Keyes 

3500 NCNB Center 

P.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR HARRIS COUNTY 

DISTRICT JUDGE SHAROLYN WOOD 

 



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

  

  

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

versus 

JIM MATTOX, Attorney General of the State of Texas, et al., 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

JUDGE WOOD'S RESPONSE TO PLAINTIFFS' MOTION TO DISMISS 

  

TO THE HONORABLE COURT OF APPEALS: 

Defendant-Intervenor-Appellant Harris County District Judge 

Sharolyn Wood ("Judge Wood") files this Response to the Joint 

Motion of Plaintiff-Appellees and Dallas Plaintiff-Intervenor- 

Appellees to Dismiss for Want of Jurisdiction Requests for Stay 

of Entz and Wood ("Plaintiffs' Motion") and in support thereof 

respectfully shows the Court the following: 

gE. The Plaintiffs’ Motion is «their third attempt to 

protest the standing of Judge Wood in this case. The Plaintiffs 

objected to Judge Wood's Motion to Intervene on standing grounds.  



  

® » 

Plaintiffs' Response to Harris County District Judge Sharolyn 

Wood's Motion to Intervene, filed February 23, 1989. Neverthe- 

less the district court permitted toc her intervene. Order 

entered March 1, 1989. The Plaintiffs again protested her 

standing on the eve of trial in a Motion to Reconsider Interven- 

tion by District Judges in Their Individual Capacities, filed 

August 16, 1989, and were rebuffed by the district court. They 

now come before this Court attempting to persuade it that somehow 

Judge Wood, a sitting Harris County District Judge and voter and 

a Defendant-Intervenor in this case for the last six months-- 

indeed the only party to present a defense of Texas' constitu- 

tional and statutory system of electing state district judges in 

Harris County--has no standing to defend this case. 

gh Judge Wood's standing has been thoroughly adjudicated 

before. It is also fully supported by relevant law. LULAC, 

Council Number 4434 v. Clements, 884 F.2d 185, 188 (5th Cir. 
  

1989) ("In an individual capacity, elected judges arguably have 

personal interests in their office or equitable interests in the 

remedy fashioned by the court'); williams v. State Board of 
  

Elections, 6986. F.Supp. 1563, 1572 (M.D. 111. 1988) (Sitting   

elected judges have at the very least a colorable claim to their 

office and may have any equitable interest in the timing and 

nature of the relief ordered by the court); Tarrant County Vv.   

Ashmore, 635 S.W.2d 417, 422 '(Tex.) cert. denied,: 459 U.S. 1038,   

103 S.Ct. "452. (1982) ("[AIn officer's interest in his elected 

position, though not 'property' in the conventional sense, is a 

 



  

recognizable interest for purposes of procedural due process 

analysis."). The Plaintiffs have been made thoroughly aware of 

all of these authorities in previous filings in this case; the 

question of Judge Wood's standing has previously been adjudicated 

on the basis of these claims; and the Court should find that the 

Plaintiffs are estopped from once again raising the issue of 

Judge Wood's standing. 

3. In addition, on its face, the Plaintiffs' claim that 

Judge Wood lacks a ‘justifiable interest ‘in a case which has 

declared Texas' system for electing state district judges illegal 

under the Voting Rights Act land ‘in which the district court has 

imposed an Interim Plan which abolishes that system in anticipa- 

tion of a second, permanent remedial plan yet to be devised, is 

absurd. The Plaintiffs' arguments seem to be intended to imply 

that only sitting state district court judges whose terms expire 

in 1990 have standing ‘to seek "a stay of .the district court's 

Interim Plan. They claim that since Judge Wood's term does not 

expire in 1990 she lacks a personal stake in the outcome of the 

controversy over the Interim Plan. Plaintiffs' Motion at 3. 

4. Judge Wood's Emergency Application for Stay indicates 

numerous ways 1in which the outcome of this case--including the 

Interim Plan--affects her. Not the least of these is that the 

Interim Plan effectively destroys the judicial system under which 

she was elected and holds office. In addition, the Interim Plan 

denies Judge Wood equal protection as a Harris County voter since 

she 1s a resident of a legislative district which under the Plan 

 



  

is unconstitutionally assigned one judge, in contrast to other 

(minority/majority) legislative districts, which are assigned two 

judges. Furthermore, as Judge Wood pointed out in her Applica- 

tion for i Stay, the Interim Plan drastically alters the 

administration of the federal district courts, beginning in 1991, 

before the end of Judge Wood's term, . Judge Wood, as a sitting 

district judge, is a member of the Harris County Board of Judges 

and, as such, will be drastically affected by these changes. 

Moreover, the jurisdictional, venue, and jury questions raised by 

the Interim Plan and pointed out in Judge Wood's Application for 

Stay will all seriously affect her both as a judge and as a 

potential litigant “in. state district court. The foregoing 

considerations are by no means intended to be exhaustive of the 

numerous ways in which Judge Wood is affected by the Interim 

Plan. However, they should serve to point out to the Court that 

Judge Wood's stake in this litigation is more than merely 

academic and that she has indicated that stake in her plead- 

ings. : 

Bs The Plaintiffs state in their Motion that, 

"This Court has found that district court judges do not 

have any place in this litigation in their official 

capacities; if they have any standing at all, it is 
only as individuals." 

  

1 Judge Wood would also call to the Court's attention the Motion for Leave 

to File Brief of Amicus Curiae (FRAP 29) on the Issue of Emergency Stay, 

filed January 8, 1990, by 27 of the 36 incumbent Harris County state 

district judges, who are standing for election in 1990, urging the Court 

to grant Judge Wood's Emergency Application for Stay. See Brief of 

Amicus Curiae at 1. 

 



  

Motion at 2, n. 1: (citing LULAC v. Clements, 853 F.2d 185 (5th 
  

Cir. 15889)). This reading of LULAC v. Clements ‘is incorrect and   

misleading. In LULAC v. Clements, this Court held that ‘state 
  

district judges could not intervene in a redistricting case in 

their official capacities as of right because judges play no part 

in creating or revising the election scheme and therefore fail to 

meet the "real party in interest" test. Id. at 188. However, 

the Court reiterated the Fifth Circuit's long-held standard for 

permissive intervention, namely, "whether the intervenors are 

adequately represented by other parties and whether they are 

likely to contribute significantly to the development of the 

underlying factual issues.” Id. at 189. The Court affirmed the 

district court's refusal to permit the intervention of Midland 

County since it held that Midland had failed to present evidence 

to rebut the presumption that the Texas Attorney General ade- 

quately represented the common interests of the State and the 

district judges. 1d. 

6. There can be no doubt that Judge Wood ‘has met and 

continues to meet the standing requirements for intervenors. She 

has clearly contributed significantly to the development of the 

underlying issues in this case. In addition, since LULAC vv.   

Clements was decided, a great deal of evidence has been presented   

to This Court and fo the district’ court, by Judge ‘Wood and 

others, that Attorney General Jim Mattox ("Mattox") (who has the 

legal duty of representing the state and its officials in this 

case) does not and has not adequately represented the interests 

 



  

a i 

of the state district judges or any other elected state officials 

who are affected by this case; that he has shown his interests to 

be, in fact, adverse to those of the State of Texas in defending 

its judicial election system; ,. and that, in lieu of defending 

Texas' system of electing state district judges, he has collab- 

orated with the Plaintiffs against the express desires of Judge 

Wood and the Defendants. Therefore, under the circumstances, 

Judge Wood would have standing to intervene today not only in her 

individual capacity as a voter and a sitting state district judge 

but also in her official capacity as 'a judge so that the inter- 

ests of the State and of Harris County might be adequately 

represented. Indeed, because of the evidence that has emerged 

confirming Mattox's refusal to represent the interests of the 

State and of Judge Wood in this suit, Judge Wood has requested in 

repeated filings with the district court that Mattox be disqual- 

ified from representing her in her official capacity and that she 

proceed as a Defendant in this case in both her individual and 

official capacities. 

7. The Plaintiffs have requested the opportunity to submit 

additional briefs in opposition to Judge Wood's Application for 

Stay. Judge Wood opposes that request because time is of the 

essence. As Judge Wood showed this Court in her Emergency 

Application for Stay, the: district court's Order of ‘January 2, 

1990, which she seeks to stay, enjoined the election of state 

district judges under Texas' statutory election system and 

imposed the Interim Plan in its place on the last filing day for 

 



* * 

  

state district judge positions under the statutory system. The 

Interim Plan has already imposed severe uncertainty on Texas' 

election system and promises to generate chaos if it is not 

immediately stayed. This Friday, January 12, for example, is the 

deadline for certifying candidates for the March 13th primary. 

Despite the extreme urgency of the situation, the Plaintiffs 

chose to brief the standing issue in lieu of addressing the 

merits of Judge Wood's Application for Stay. Since the Plain- 

tiffs have had an opportunity to address the vital issues in this 

case and have chosen to ignore that opportunity, Judge Wood 

requests that the Court not allow the Plaintiffs to supplement 

their briefs but that it act forthwith to grant the stay sought 

in her Emergency Application «for Stay of the District Court's 

Interim Plan. 

S. WHEREFORE, Harris County District Judge Sharolyn Wood 

respectfully requests that this Court deny Plaintiffs' Joint 

Motion to Dismiss and that it deny the Plaintiffs leave to file 

additional briefs opposing her Application for Stay. 

Respectfully submitted, 

PORTER & CLEMENTS 

aE ecg ere CECimenls 

  

/ z 
By: Fa & at. [Cee eg tely’ 

J. Eugene Clements 7 De) p7 tlre 
3500 NCNB Center vit 
P.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEY FOR HARRIS COUNTY 

DISTRICT JUDGE SHAROLYN WOOD 

 



  

OF COUNSEL: 

PORTER & CLEMENTS 

Evelyn V. Keyes 
3500 NCNB Center 

P.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, Texas 77002 

(713) 228-5105 

CERTIFICATE OF SERVICE 
  

I hereby certify that on the WL day of January, 1990, a 
true and correct copy of the above and foregoing document was 
mailed to counsel of record in this case by first class United 
States mail, postage prepaid, addressed as follows: 

Mr. William L. Garrett 

Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 

8300 Douglas, Suite 800 

Dallas, Texas 75225 

Mr. Rolando L. Rios 

Southwest Voter Registration & 

Education Project 

201 N. St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Susan Finkelstein 

Texas Rural Legal Aid, Inc. 

201 N. St. Mary's, Suite 600 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 

Ms. Sherrilyn A. Ifill 

NAACP Legal Defense and Educational Fund, Inc. 
99 Hudson Street 

loth Floor 

New York, New York 10013 

 



% » 

  

Ms. Gabrielle K. McDonald 

Matthews & Branscomb 

301 Congress Ave., Suite 2050 

Austin, Texas 78701 

Mr. Jim Mattox, Attorney General of Texas 
Ms. Mary F. Keller, First Assistant Attorney General 
Mr. Renea Hicks, Spec. Assistant Attorney General 
Mr. Javier Guajardo, Spec. Assistant Attorney General 
P.O. BOX 12548 
Capitol Station 

Austin, Texas 78701 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab & Cloutman, P.C. 
3301 Elm Street 

Dallas, Texas 75226-1637 

Mr. E. Brice Cunningham 

777 So. R.L. Thornton Freeway 
Suite 121 

Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 

2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

Mr. John.L. Hill, K "Jr. 
Liddell, Sapp, Zivley, Hill & LaBoon 
3500 Texas Commerce Tower 

Houston, Texas 77002-3095 

Lv. V | ae 
Evelyn V./Keyes 7 
  

WOO005 /15 /cdf