Brief in Support of Judge Wood’s Motion for Attorneys’ Fees

    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-Respondents, 

versus 

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

Defendants, 

JUDGE SHAROLYN wWoOoD, “ETC 0 | 

Defendant-Appellant. 

  

Appeal from the United States District Court 
for the Western District of Texas 

Midland Division 

  

BRIEF IN SUPPORT OF JUDGE 
WOOD’S MOTION FOR ATTORNEYS’ FEES 

  

PORTER & CLEMENTS 
J. 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 APPELLANT/ 
INTERVENOR/DEFENDANT JUDGE WOOD 

 



   

TABLE OF CONTENTS 
  

  

  

  

I. HISTORY OF THE CASE o fe ile 4 ilae lets Seilogt tet cerita Elli, oy 

A. Judge Wood Defended Harris County in the District 

Court and Participated Integrally in Shaping the 

Defense. oi gi hy "kg HE Tg gh 1 gli, yp Agr ngs Gi Lesa a iy BL Te Tl 

B. Judge Wood Forestalled the State’s Settlement with 

II, 

  

the Plaintiffs’ on the Plaintiffs’ Terms and the 

Immediate Dismantling of Texas’ State District 

Judge Election System Without Appellate Review. . . 

  

  

  

C. Judge Wood Advanced and Argued the Issues on Which 

Defendants Prevailed in This Court. 
  

  

AUTHORITIES 
  

III. 

The Supreme Court has Interpreted the Status of 

Intervenors Under Civil Rights Fee Statutes as 

Similar to that of Plaintiffs Rather than Defendants. 

  

  

  

As A Prevailing Defendant-Intervenor Whose 

Intervention Was Important to the Outcome, 

Judge Wood Is Entitled to Attornevs! Fees. . « + + +i 

  

  

  

Judge Wood Should Be Awarded Her Attornevs’ 

Fees From The State of Texas. Ne ea ee ie ee 
  

  

Judge Wood is Entitled to Attorneys’ Fees at Harris 
  

County, Texas Rates.   

CONCLUSION 
  

10 

14 

18 

oi 

24 

26 

 



    

TABLE OF AUTHORITIES 
  

Cases 

  

  

  

  

Page 

Alabama Power Co. Vv. Gorsuch, 672 F.24 1, 3 
(D.C. Cir. 1883) vial suid oo eiiales wi, Lil, oT Te, 22 

Baker v. City of Detroit, 504 F. Supp. 841, 850 
(E.D. Mich. 1980), aff’q 704 F.2d 878 {6th Cir, 
1983), on rehearing 712 F.2d 222, cert. denied, 
(464 U.S. 1040, 104 S.Ct. 703) ) oe WEL ey Cl Ty Ne 102 

Chisom v. Edwards, 839 F.2d 1056 {5th Cir. 1988) odie 2) 32,13 

Christiansburg Garment Co. v. EFOC, 454 U.S. 412, 
217, 421,:98 S.Ct, 694, 698, 700 (1978) oi 0. 18, "17 

Commissioners Court of Medina City, 
Tex. v. United States, 683 F.2d 435, 440, n.é6 
(D.C Cir. 21882), i... of i i, ET A Ny 14, 19 

Copper Liquors v. Adolph Coors Co., 624 F.2d 575, 
583. (5th Cir. 1980) oie. Be Tu Be TRAE WE ot Pathe ie ak ie 25 

Donnell v. United States, 682 F.2d 240 {D.C..Cir., 
1982), cert. denied, 459 U.S. 1204, 103"°S.Ct. 
1380 (15933) a anie te vs he me hE 19-22, 25 

Ford Motor Co. wv. EFOC, 458 U.S. 219, 239-240, 
102 -8.Ct..3057, 3069-3070, 73 L.Fd.2d 721 (3982) a. ai 17 

Friends of the Earth v. Potomac Elec. Power Co., 
546 F.Supp. 1357, 1360 (DD. C.- 1982) = vo Salis Lu . 21 

Geler v. Richardson, 871 F.2d 1310, 1311, v1313 
(6th Cir. 1989) oe. TRL 22 

Independent Federation of Flight Attendants v. Zipes, 
U.S. rv 103. 8.Ct, 2732, 2735 at n. 2 (1885) wii Rm a ta, a SN 14-18, 24, 26 

Johnson v. Georgia Highway Express, Inc., 488 F.2d 
714, 717-19 (5th Cir. 1974) s wie el ees ae wl i24 0 28 

Posada v. Lamb County, Tex., 716 F.2d 1066, 1074-75 
And. N,13 (Sth Cir. 1983) 1. uv vive: own ta "oth 18,20, 22 

Riddell v. National Democratic Party, 545 F.Supp. 
252, 255 (S.D. Miss. 1982) (on repand) soa, wel, 0, Ni, 28 

ii 

 



   

  

Riddell v. National Democratic i 624 F.2d 539, 
543 (5th Cir. 1980) « ‘ 

Seattle School Dist. No. 1 v. Washington, 633 F.2d 
1338 (9th Cir, 1930), aff'd, 458 U.S. 457, 
102 .85.Ct. 3187 (1982) site. oo 

Silberman v. Bogle, 683 F.2d 62, 65 (3rd Cir. 1982) 

  

Statutes 

42 U.S.C. § 19731 (e) . . 
42 U.S.C. § 319731 
42 V.8.C. § 1983 oven a Re Lieb ae I ale) ai 
42 U.S.C. § 1988: . ool i. ah, TES a EP 1 
43 U.S.C. '§:1973 oi a 
Fed. R. App. P. 4(b) (4) 
S$ 2 of the Voting Rights Act 
§ 5 of the Voting Rights Act 
§ 2(b) of the Voting Rights. Act ., iwc Pai 2, 

Miscellaneous 
  

Civil: Rights Act of 1882 

Fifteenth Amendment to the United States Constitution 

Fourteenth Amendment to the United States Constitution 

iii 

14 

21 

19 

 



     
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-Respondents 4 

versus 

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

Defendants, 

JUDGE SHAROLYN wooh, ETC . A 

Defendant-Appellant. 

  

Appeal from the United States District Court 
for the Western District of Texas 

Midland Division 

  

BRIEF IN SUPPORT OF JUDGE 
WOOD’S MOTION FOR ATTORNEYS’ FEES 

  

Harris County District Judge Sharolyn Wood ("Judge Wood") 

files this Brief in Support of her Motion for Attorneys’ Fees in 
the above referenced case to show the court that she played a vital 

role in the defense of this important Voting Rights Act case and, 

therefore, should be awarded her costs and attorneys’ fees pursuant 

to 42 U.85.C. 86 19731 (e) and 1988. 

 



I. HISTORY OF THE CASE 
  

Judge Wood Defended Harris County in the District 
Court and Participated Integqrally in Shaping the 
Defense. 

  

  

This case was brought in Midland, Texas by the League of 

United Latin American Citizens ("LULAC") and certain named 

individuals in the summer of 1988. The Plaintiffs claimed that the 

election of state district judges on a county-wide basis in certain 

populous Texas counties diluted the votes of blacks and/or 

Hispanics in violation of the Fourteenth and Fifteenth Amendments 

to the United States Constitution, the Civil Rights Act of 1864, 42 

U.S.C. § 1983, and § 2 of the Voting Rights ACt, 43 U.S.C. § 1973. 

The original Defendants .ere named Texas officials charged with the 

responsibility of upholding and enforcing Texas’ constitutional and 

statutory election system. As state officials, the Defendants were 

represented by Texas Attorney General Jim Mattox. 

Although trial was set for June, 1989, with a discovery cut- 

off ‘date of April,’ 1989 Attorney General Mattox initiated no 

discovery prior to moving for a stay in October, 1988, pending 

action by the United States Supreme Court on a petition for writ of 

certiorari filed in Chisom v. Edwards, 839 F.2d 1056 (5th Cir. 

1988). In Chisom, a panel of this Circuit had held that § 2(b) of 

the Voting Rights Act--which prohibits the illegal dilution of the 

votes of protected minorities--applied to the state judiciary. 1In 

December, 1988, the Supreme Court denied certiorari. Nevertheless, 

the State still failed to initiate any discovery in this case.  



    

Fearing that her interests as a Texas voter and as a sitting 
Texas State District Judge were not being adequately represented in 

this crucial Case, Judge Wood moved to intervene as a Defendant on 

the side of the State of Texas on February 21, 1989. Attorney 
General Mattox opposed her intervention in her official capacity on 
the ground that he alone had the right to represent State 
officials, although he did not oppose Judge Wood’s intervention in 
her personal capacity. Following a hearing on February 27, 1989, 
Judge Bunton permitted Judge Wood to intervene as a Defendant in 
her personal Capacity along with Dallas County District Judge 
Harold Ent:z ("Judge Entz"). He also permitted the Houston Lawyers’ 
Association ("HLA"), an organization of black attorneys in Harris 
County, Texas, and certain named individuals from Harris and Dallas 
Counties to intervene as Plaintiffs. 

From the day of her intervention Judge Wood bore the primary 
responsibility for the defense of Harris County, the most populous 
Texas County whose judicial election system was challenged in this 
litigation.! As her first step, the day after her intervention 
was permitted Judge wood initiated discovery attempts against the 
Harris County intervenors and the original plaintiffs. She also 
filed numerous pre-trial motions, assembled demographic data, hired 
expert witnesses, conducted depositions, Prepared a pre-trial order 
and motion in limine, and in e€very way prepared the defense of 

  

The suit originally targeted 47 Texas counties. trial, the Plaintiffs retained alle Harris, Dallas, Tarrant, Bexar, 
and Midland. 

By the time of 
gations against ten counties: 

Travis, Jefferson, Lubbock, Hector 

 



    

Harris County while contributing at the same time to the general 

defense effort. Because of her actions, the State was spared 

considerable expense and attorney time in preparation of its 

defense in general while receiving the benefit of counsel 

intimately familiar with electoral conditions in Harris County. 

At trial, Judge Wood presented virtually the entire defense of 

Harris County. She put on witnesses live and by videotape and 

cross-examined the plaintiffs’ witnesses with respect to Harris 

County and general issues. The State was thus spared a major 

portion of the trial expenses it would otherwise have borne. After 

the trial, Judge Wood submitted a post-trial brief and reply brief 

detailing the legal and factual deficiencies in the Plaintiffs’ 

proof regarding Harris County in particular and in the plaintiffs’ 

challenge to the State of Texas’ Judicial election system in 

general. Thus Judge Wood relieved the State of Texas of a large 

part of its defense burden at her own considerable personal 

sacrifice and expense in order to ensure a full airing of the 

extremely important public issues at stake. 

B. Judge Wood Forestalled the State’s Settlement with 
the Plaintiffs’ on the Plaintiffs’ Terms and the 
Immediate Dismantling of Texas’ State District 
Judge Election System Without Appellate Review. 

  

  

  

  

On November 8, 1989, the District Court issued its Memorandum 

Opinion and Order on the merits of the Plaintiffs’ claims (the 

"District Court Opinion"). 1In that Opinion, Judge Bunton held that 

the Plaintiffs failed to prove that Texas’ system of electing state 

district judges was unconstitutional. Slip Op. at 91. Judge 

Bunton also held, however, that Texas’ county-wide district judge 

4 

 



    

election system diluted the votes of minorities in all challenged 

counties in violation of § 2(b) of the Voting Rights Act. Slip Op. 

at ‘sl. Finally, Judge Bunton indicated that he might enjoin 

further elections under Texas statutory election system if no 

remedy was reached in the special session, but that he might also 

consider permitting an interlocutory appeal. Slip Op. at 93-94. 

He gave the Texas Legislature six weeks to devise a new election 

system at a special session previously called to address another 

matter. 

On December 11, 1989, Governor Clements reported to Judge 

Bunton that no consensus could be reached by the Texas Legislature 

regarding a remedy in the affected counties. Apparently at that 

meeting (to which neither Judge Wood nor Dallas County Defendant- 

Intervenor Judge Entz was invited) Judge Bunton asked the 

Plaintiffs to submit a remedial plan to him by December 15, 1989. 

Having heard rumors that an agreed plan was being devised by the 

Texas Attorney General and the Plaintiffs, counsel for Judge Wood 

telephoned the clerk of the district court. The clerk informed 

counsel that no notice of proceedings had gone out but that the 

court had requested that the Plaintiffs submit an interim remedial 

plan by December 19 and that the Plaintiffs had indicated to the 

court that they were working on such a plan with Texas Attorney 

General Mattox, and expected to file it by December 22, 1989. The 

clerk also informed counsel that if any parties had objections to 

the agreed plan, those objections should also be filed by 

December 22, that is, simultaneously with the remedial plan itself. 

 



    

Upon confirmation of the rumors concerning the negotiations between 

the Plaintiffs and the Texas Attorney General, Judge Wood filed a 

motion to stay all further proceedings in the district court and a 

motion for certification of the District Court’s opinion for 

interlocutory appeal, setting out controversial controlling issues 

of law at stake in this case. A copy of that motion is attached 

hereto as Exhibit "anv.? 

On December 19, 1989, Attorney General Mattox sent Judge Wood 

an agreed "Proposed Interim Plan" signed by himself and the 

Plaintiffs, and on December 22, 1989, the Plaintiffs filed an 

identical "Interim Plan for 1990 Elections. * and Mattox and the 

Plaintiffs filed a "Joint Motion for Entry of Proposed Interim 

Plan". Copies of the Plaintiffs’ Plan and the Plaintiffs/Mattox 

Joint Motion are attached as Exhibit "B". On December 22, 1989, 

Judge Wood filed her Objections to the Plaintiffs and Mattox'’s 

Plan, as required by the court. A copy 1s attached hereto as 

Exhibit "cn, 

In her Objections to the Plaintiffs/Mattox Plan, Judge Wood 

voiced fears of the court’s adoption of an "interim plan" for the 

election of district Sutiges which had been promulgated in haste 

without any input from the Texas legislature or officials and in 

direct opposition to her own express concerns and interests and 

those of many of the named Defendants represented by Attorney 

General Mattox. She pointed out that the proposed plan would 

  

Judge Entz, likewise filed a Motion for Certification Statement, a s did the State. However, the State continued at the same time to pursue settlement on the Plaintiffs’ terms. 

6 

 



    

require the immediate dismantling and restructuring of Texas’ 

judicial election system without any appellate review of the many 

vital controversial issues of law set out in her Motion for 

Certification for Interlocutory Appeal and Motion for Stay. She 

also listed numerous violations of federal and state law on the 

face of the Proposed Interim Plan. 

On January 2, 1990, in spite of Judge Wood's Objections, Judge 

Bunton enjoined the election of Texas state district judges under 

Texas’ statutory election system in the target counties and ordered 

immediate implementation of his own plan--which was nothing more 

than the Mattox/Plaintiffs’ Interim Plan with the exception that 

races were made non-par.isan rather than partisan, as Mattox and 

the Plaintiffs had sought and special election and run-off dates 

were established. In that same Order Judge Bunton certified the 

November 8 Opinion for expedited interlocutory appeal and denied 

Judge Wood’s motion for stay of proceedings in the district court. 

Following Judge Bunton’s certification of this case for 

interlocutory appeal, Judge Wood’s actions diverged radically from 

those of the state." While Judge Wood pursued a stay of the 

district court’s Plan pending review of the unresolved legal issues 

by this Court, Texas Attorney General Mattox tried to get Judge 

Bunton to reinstate partisan elections while retaining the other 

features of the Interim Plan. On January 2, 1990 both Judge Wood 

and Dallas County Defendant-Intervenor Judge Entz filed notices of 

appeal with this court. on January 4, 1990 Judge Wood filed in 

this Court an emergency application. for stay of Judge Bunton’s 

 



Order of January 2 and a petition for expedited interlocutory 

appeal, setting out for this Court the same controversial 

controlling issues of law she had recited for the district court. 

On the same day that Judge Wood filed her application for stay 

and petition for interlocutory review with this Court, Attorney 

General Mattox filed a Motion to Alter the Order of January 2, 1990 

in the district court, seeking partisan elections in place of non- 

partisan elections. The State denominated its motion a "Rule 59 (e) 

Motion.” Had this genuinely been a Rule 59{(e) motion, it would 

have had the effect of destroying the jurisdiction in this Court 

granted by the Defendant-Intervenors’ previously filed notices of 

appeal. See Fed. R. App. P. 4(b) (4) and Harris County District 

Judge Sharolyn Wood’s Response to Mattox’s Motion to Alter the 

Order of January 2, 1990, attached hereto as Exhibit wpv, 

The State also filed in this Court an Emergency Motion to Stay 

Final Order Pending Appeal, attached hereto as Exhibit "E". The 

State’s Motion for stay differed radically from Judge Wood’s motion 

in that it sought to stay implementation of the district court’s 

"Interim Plan" for Judicial elections essentially until the 

district court could rule on the State’s Motion to Alter the 

Judgment to require partisan elections and until the Texas 

Legislature could meet to consider a permanent remedial plan. See 

Exhibit "E". Thus, the State effectively renounced any attempt to 

seek review of the controversial controlling issue of law decided 

by Judge Bunton if Judge Bunton would agree to keep Texas judicial 

elections partisan. It also indicated no interest in forestalling  



   

  

the extremely costly and wholesale destruction of Texas’ judicial 

election system until (a) it was finally determined that such 

dismantling was actually required by law and (b) the patent 

illegalities of the district court’s Interim Plan could be 

removed--so long as the wholesale changes were made on Mattox’s and 

the Plaintiffs’ terns. 

The next day, January 5, 1990, George S. Bayoud, Jr., Texas’s 

Secretary of State and one of the defendants purportedly 

represented by Attorney General Mattox, filed his Notice of 

Designation of Independent Counsel on the ground that Mattox had 

breached his duty to him as his client and was, in fact, 

representing his own personal views rather than those of the State 

Defendants. Judge Wood herself had already written Attorney 

General Mattox protesting his claim to represent her in her 

official capacity as a state digtrict Judge, 

All of the evidence compels the conclusion that Texas Attorney 

General Jim Mattox failed to represent the interests of the Texas 

State Defendants in general or of Judge Wood in particular in this 

Case. That same evidence compels the conclusion that, had it not 

been for the actions of Judge Wood and Judge Entz, this case would 
never have been appealed, Texas'’s judicial election system would 
have been summarily dismantled without any objection from the State 
except as to the partisanship or non-partisanship of the 

dismantling, and the State judicial election code, along with the 
elaborately detailed Provisions in the Texas Constitution and 

statutes for the election of state district judges and the 

 



    
administration of judicial districts would have been scuttled, 

casting the system into chaos. 

Thus, there can be no question that Judge Wood played an 

essential role in the defense of this suit by urging the State’s 

interest in maintaining a fair and efficient judicial election 

system and by seeking a definitive interpretation of the crucially 

important and extremely controversial legal issues at stake in this 

case, while the State itself was retreating from these goals. In 

sum, Judge Wood at her own expense and personal sacrifice, acted in 

this case as a private attorney general in furtherance of the 

public interest while the State was failing to seek the review by 

this Court which ultimately reversed the district court’s opinion 

on the merits and rendered judgment for the defense, en banc, 

twelve to one. 

C. Judge Wood Advanced and Argued the Issues on Which 
Defendants Prevailed in This Court. 
  

  

On January 11, 1990, this Court granted Judge Wood’s petition 

for leave to appeal from Judge Bunton’s November 8 Opinion.? The 

same day, this Court granted Appellants’ Motions for Stay. A copy 

of the January 11 Order is attached as Exhibit "F".* On the same 

day, January 11, Attorney General Mattox finally filed a notice of 

  

On January 11, 1990, Judge Entz and Secretary of State Bayoud also 
filed petitions for Permission to Appeal incorporating Judge Wood’ 
& Petition by reference. The Court granted their petitions on 
January 12, 1990. 

The January 11 Order granting Appellants’ motions for stay observe 
d that the State’s "Rule 59(e) Motion" was without effect since th 
e notice of appeal filed by Judge Wood and Entz had vested 
jurisdiction over the district court’s Order of January 2 in this 
Court. "Exhibit “Fr. 

10 

 



   

  

appeal, attached hereto as Exhibit "G," and a form for appearance 

of counsel. Attorney General Mattox never filed a petition for   

interlocutory appeal within the ten-day Jurisdictional window   

provided by the district court’s Order of January 2. Thus it is   

absolutely certain that Judge Wood’s actions--together with those 

of Judge Entz--were essential to the reversal of this case and that 

the State did not timely initiate adequate steps to seek reversal 

of Judge Bunton’s November 8 Opinion.’ 

Following this Court’s grant of her petition for interlocutory 

appeal and stay of the district court’s "Interim Plan" for the 

election of State District Judges, Judge Wood moved, with Judge 

Entz, for an expedited briefing schedule, briefed the merits of the 

appeal, and presented her arguments orally, before a three-judge 

panel of this Court on April 30, 1990. Counsel for Judge Entz, 

counsel for the State, and counsel for Secretary of State Bayoud, 

all likewise briefed and argued the merits of the appeal. 

Judge Wood’s briefs and oral arguments set out arguments and 

cited authorities relied on by no other parties, and her arguments 

were, therefore, at least an integral part of the defense effort at 

the appellate stage. In addition, Judge Wood, alone among the 

Defendants, filed a Post-Submission Brief on May 5, 1990, which 

addressed issues raised by the panel at oral argument. Those 

  

In accordance with its interpretation of the November Opinion as a final judgment, the State filed a notice of appeal on December 21, two days after filing its Joint Motion for Interim Plan with the district court. Since the November 8 Opinion was not a final orde r, however and since no appeal lay as of right from any Order of t he district court at that time that notice was entirely without effect. See Exhibit "G" at 2 n.1. 

11 

 



   

  

issues--principally the relationship between §§ 5 and 2 of the 

Voting Rights Act--proved crucial to both the majority opinion and 

the dissenting opinion handed down by the panel five days later-- 

although the short time frame the panel allowed itself did not 

permit thorough consideration of Judge Wood’s arguments. (The same 

arguments were subsequently raised at en banc review.) 

The panel’s opinion was handed down on May 10, :1990. The 

majority opinion (the "Panel Opinion") reversed the district 

court’s November 8 Opinion and rendered judgment for Defendants on 

the ground that § 2 of the Voting Rights Act--which prohibits 

dilution of minority votes within multi-member election districts-- 

cannot apply to state district Judges, who are elected from 

overlapping single-member districts in which each judge exercises 

plenary power. This argument had been developed and strongly 

argued by Judge Wood both in her district court motions and briefs 

and before this Court. The Panel majority, however, rejected Judge 

Wood's primary argument, which she was the first to raise in this 

case and which she argued at every opportunity: § 2(b) cannot 

apply to the judiciary at all because § 2(b) applies only to 

"representatives," and Yudves are not "representatives" but 

servants of the people. 

Within days of the Panel’s Opinion reversing the district 

court, this Court moved sua sponte for en banc review of the case.   

Oral argument was held on June 16, 1990. The En Banc Opinion was 

handed down on September 28, 1990. The Court ruled overwhelmingly 

in favor of the defense, overruling Chisom v. Roemer and holding 

12 

 



   

  

for the first time in any federal court of appeals that § 2(b) of 

the Voting Rights Act does not apply to the judiciary. 

Seven members of the Court joined in Judge Gee'’s opinion, 

which held that § 2(b) does not apply to any state judicial 

elections because judges are not "representatives" within the 

meaning of the Act--the principal conclusion for which Judge Wood 

had argued from her entry into the case and for which she had 

persistently urged en banc review. Five members joined in Judge 

Higginbotham’s opinion, which held that § 2(b) does not apply to 

the election of state trial judges because each district is a 

separate county-wide judicial district in which the trial judge 

enjoys plenary power, and there can be no dilution in the election 

of ‘a candidate to fill ‘a single-menber office--likewise, a 

conclusion which Judge Wood had consistently urged. Only Judge 

Johnson--the author of Chisom--dissented. 

Since the En Banc Court ruled overwhelmingly in favor of the 

defense as a matter of law jt did not reach Judge Wood’s final 

argument that the standard of proof of illegal vote dilution 

employed by Judge Bunton was clearly erroneous. Nor, a fortiori, 
  

did it reach Judge Wood's argument that the Plaintiffs had 

presented insufficient proof of vote dilution in Harris County. 
Judge Wood was thus a Prevailing Defendant-Intervenor on all 

  

The Plaintiffs had strongly argued that this Court was compelled ( if not by law then by the overwhelming weight of precedent) to follow the numerous district courts, its own prior holding in Chisom, and the Sixth Circuit in holding that §2 does apply to the judiciary. Only Judge Wood opposed that argument from precedent b 

13 

 



issues, and one whose contribution was essential to the result 

obtained. She is therefore entitled by law and equity to recover 

her attorneys’ fees from the State of Texas, the party charged by 

law with the defense of this suit. 

IT. AUTHORITIES 
  

The award of Attorneys’ fees in this case is governed by 42 

U.S.C. §§ 19731(e) and 1988. Section 19731 (e) provides, 

(e) In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the Prevailing party, other than the United States, a 
reasonable attorney’s fee as part of the costs. 

+5.C. § 18731. Similarly, § 1988 provides in relevant part, 

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title 
we. Lhe court, "in ‘its discretion, may allow the prevailing party, other than the United States, a 

reasonable attorney’s fee as part of the costs. 

42 U.S.C. § 1938. Sections 19731 and 1988 are construed alike. 

Independent Federation of Flight Attendants v. Zipes, U.S, 

ye 109 S.Ct." 2732... 2735 at npn. 2 (1989); Donnell v. United 

States, 682 F.2d 240 (D.C. Cir. 1982) 
  

, Cert. denied, 459 U.S. 1204, 

103 S.Ct. 1190 (1983); Commissioners Court of Medina City, Tex. v. 

United States, 683 F.2d 435, 440, n.6 (D.C. Cir. 1982): Riddell v. 

National Democratic Party, 624 F.2d 539, 543 (5th Cir. 1980). 

The Supreme Court has Interpreted the Status of 
Intervenors Under Civil Rights Fee Statutes as 

Similar to that of Plaintiffs Rather than Defendants. 

  

  

  

Neither § 19731(e) nor § 1988 draws a distinction between the 
rights of prevailing plaintiffs and those of prevailing defendants. 

However, both statutes fall within a group of civil rights fee 

14  



statutes which the United States Supreme Court has interpreted as 

requiring that attorneys’ fees must be awarded to prevailing 

plaintiffs in the absence of special circumstances but may be 

recovered by prevailing defendants only if the plaintiffs’ cause of   

action is without foundation. Independent Federation of Flight 

Attendants v. Zipes, 109 S.Ct. at 2736; Christiansburg Garment Co. 

v. EEOC, 454 U.S. 412, 417, 421, 98 S.Ct. 694, 698, 700 (1978). 

The rationale for the distinction is that Congress has cast the 

plaintiffs in civil rights cases in the role of private attorneys 

general, vindicating a policy which Congress considers of the 

highest priority; and, moreover, fees awarded to a prevailing 

plaintiff are by definition awarded against a violator of federal 

law. Christiansburg Garment, 434 U.S. at 418, 98 S.Ct. at 699. 

However, Congress did not intend to distort the adversary judicial 

process by giving private plaintiffs substantial incentives to sue 

while foreclosing to defendants all possibility of recovering their 

expenses. id. at 432 U.8."419, 98. 8.ct. 699. Therefore, 

prevailing defendants may recover their costs and attorneys’ fees 

when the plaintiffs’ action is without foundation, even if it is 

not brought in bad faith. Id. 

In Independent Federation of Flight Attendants v. Zipes, the 

only attorneys’ fee case concerning defendant-intervenors to reach   

the Supreme Court, the court significantly drew an express line 

between defendants under the civil rights fee statutes and 

defendant-intervenors--one which places a defendant-intervenor in 

a position much more analogous to that of a plaintiff in such cases  



    

than to that of a defendant. Addressing the issue whether losing 

defendant-intervenors should be held liable for the plaintiff’s 

attorneys’ fees, the Court held that they should not be held 

liable. 109 S.Ct. at 2736. The Court reasoned that, unlike losing 

defendants, losing defendant-intervenors have not been found to 

have violated anyone’s civil rights, and awarding attorneys’ fees 

against them would further neither the aim of deterrence nor the 

general policy that wrongdoers make whole those they have harmed. 

Id. at 2737. Finally, the Court warned of the undesirable and 

inequitable consequences of treating defendant-intervenors like 

defendants in civil rights litigation: 

The regime proposed by respondent--that those who 
intervene in a [civil rights] suit are presumptively 
liable for fees, while those who take the alternative 
course of becoming plaintiffs in independent lawsuits 
attacking provisions of the decree are presumptively 
shielded from liability--would encourage interested 
parties to await the entry of judgment and collaterally 
attack remedial schemes. This would serve the interests 
©f no one: not. plaintiffs, not defendants, not 
intervenors. 

Intervention that is in good faith is by definition 
not a means of prolonging litigation, but rather of 
protecting legal rights--ranging from contract-based 
right ... to statutory rights ... to constitutional 
rights ... =--which are entitled to no less respect than 
the rights asserted by plaintiffs in the subject suit. 

109 S.Ct. at 2737 (citations omitted). 

While recognizing that innocent intervenors are not "the 

chosen instrument of Congress," the Supreme Court stated that 

neither are they disfavored participants in civil rights 

proceedings. 109 S.Ct. at 2737. Indeed, the Court went out of its 

16 

 



      

play in civil rights proceedings, noting, 

The dissent repeatedly implies that intervenors are 
no more than intermeddlers who get in the way of tidy 
settlement agreements between [civil rights] plaintiffs 
and wrongdoers.... That characterization might be 
understandable if our opinion addressed intervenors who 
are not themselves affected by the outcome of the 
lawsuit; but it does not.... What is at issue here is 
only the liability of intervenors who enter lawsuits to 
defend their own constitutional or Statutory rights. It 
seems to us that the dissent dismisses out of hand the 
legitimate claims of these people, not because they are 
intermeddlers, but rather because the dissenters have 
established a judge-made ranking of rights, authorizing 
[civil rights] claims to prevail over all others. That 
is the essential difference between us. Whereas we think 
that the fee-award provision is subject to "the competing 
equities that Congress normally takes into account," 
supra, at 2736, the dissent believes that we "must be 
guided first and foremost by the interests of the 
prevailing party" (so long as that it is [the civil 
rights] plaintiff and not the defendant, see 
Christiansburg Garment, supra), post, at 2741, and that 
the only criterion of our decision is that it "respect 
the objectives of [the civil rights statute)," post, at 
2742. Those objectives must of course be respected. But 
nothing in the statute gives them hegemony over all the 
other rights and equities that exist in the world. Here 
as elsewhere, the judicial role is to reconcile competing 
rights that Congress has established and competing 
interests that it normally takes into account. See, 
e.g., FordaMotor Co. v. EZOC, 458 U.8. 219, 239-240, :102 
S.Ct. 3057, 3069-3070, “73 .L.Ed.24 721 (1282). When 
Congress wishes [civil] rights to sweep away all others 
it will say so. 

plaintiffs in a civil rights suit may not recover attorneys’ 

17 

way to recognize the vital function that a defendant-intervenor can 

109 S.Ct. at 237-38 n.4. The Court thereupon held that prevailing 

fees 

from losing defendant-intervenors unless--exactly like losing 

 



    
plaintiffs--the intervenors’ action was "frivolous, unreasonable, 

or without foundation." Id. at 2736.7 

As A Prevailing Defendant-Intervenor Whose 
Intervention Was Important to the Outcome, 
Judge Wood Is Entitled to Attorneys’ Fees. 

  

  

  

The Supreme Court in Zipes did not address the issue of 

recovery of attorneys’ fees by prevailing defendant-intervenors. 

  

Nor, a fortiori, did it address the issue of which party should be 
  

held liable for the attorneys’ fees of prevailing intervenors. 

However, the Court not only makes it clear that it views the 

activities of defendant-intervenors not as disfavored 

"intermeddlers who get in the way of tidy settlement agreements" 

between civil rights plaintiffs and defendants, but as vindicators 

of rights on the same level as the rights sought to be vindicated 

by plaintiffs, and it emphasized that it reached its conclusion by 

interpreting the fee statute "in light of the competing equities 

that Congress normally takes into account." 109"Ss.Ct.. at 2736, 

2737-38, n.4. 

So that equity may prevail, the lower federal courts, 

including this Circuit--in the absence of Supreme Court directive-- 

have determined that prevailing defendant-intervenors on the side 

of the government can recover their attorneys’ fees in appropriate 

  

The District Court for the District of Columbia had previously tak 
en the same position, holding that environmental organizations whi 
ch prevailed against the EPA and intervening industrial groups in 
litigation brought under the Federal Water Pollution Control Act 
were not entitled to an award of attorneys’ fees against the 
intervenors, who, like the plaintiffs themselves, were advancing 
non-frivolous views of the Act and were seeking to ensure that the 
EPA properly implemented and administered the Act. Natural 
Resources Defense Council v. Administrator, EPA, 585 F.Supp. 65, 6 
9-70 (D.D.C. 1984), aff'd, 801 F.2d 457 (D.C. Cir. 1986). 

  

18 

 



      

circumstances. To that end, the courts have devised a rigorous 

test, which is succinctly expressed in Posada Vv. Lamb County, Tex., 

716 F.2d 1066, 1074-75 and n.13 {5th Cir. 1883): 

fees may be awarded only if [1] the governmental litigant 
did not adequately represent the intervenors’ interest, 
[2] if the intervenors proposed different theories and 
arguments for the court’s consideration, and (3] if the 
work the intervenor performed was of important value to 
the court. Donnell, at 248-49; accord, Alabama Power Co. V. Gorsuch, 672 F.2d 1, 4 (D.C. Cir. 1982); Silberman v. 
Bogle, 683 F.2d 62, 65 {3rd Cir. 1982). 

Posada, 716 F.2d at 1075. The test is tailor-made for this case. 

The test set out in Posada is, as far as Judge Wood knows, 

this Circuit’s only pronouncement on the standards for awarding 

attorneys’ fees to defendant-intervenors, and it is dictum, since 

the appropriate circumstances for such an award were not present in 

that case. However, Posada is fully in line with the traditional 

interpretation of §§ 19731 (e) and 1988 by other courts--including 

the United States Supreme Court--which have consistently stressed 

equity over procedural posture in making awards of attorneys’ fees 

in civil rights cases. See, e.g., Commissioners Court of Medina   

County, Texas v. United States, 683 F.2d 435, 439-440 (D.C. Cir. 

1982) (quoting Baker v. City of Detroit, 504 F. Supp. 841, 850 

{E.D. Mich. 1280), aff’d 704 F.2d 878 (6th Cir. 1983), en rehearing 

712 F.2d 222, cert. denied, (464 U.S. 1040, 104 S.Ct. 703)) (the   

attorneys’ fee statute "is to be liberally construed to effectuate 

its purposes.... The procedural posture of the case should not be 

dispositive"). 

Several courts have explained at length--if not as succinctly 

as this court in Posada--the factors that determine whether a 

19 

 



defendant-intervenor in a civil rights suit should be awarded 

attorneys fees. In Donnell v. United States, 682 F.2d 240 (D.C. 

Cir. 1982), cert. denied, 459 U.S. 1204, 103 S.Ct. 1190 (1983),   

expressly relied on by this Circuit in Posada, the Board of 

Supervisors of Warren County, Mississippi, brought suit against the 

United States seeking a declaratory judgment that a new 

redistricting plan was non-discriminatory. Several individuals 

intervened on the side of the United States. The United States 

prevailed, and the Defendant-Intervenors sought their attorneys’ 

fees from the Board of Supervisors. The District of Columbia 

Circuit Court of Appeals, reviewing the district court’s grant of 

attorneys’ fees to the defendant-intervenors, held that, in 

considering an intervenor’s request for attorneys’ fees, the Court 

must examine the particular role played by the intervenor. It 

concluded: 

Where Congress has charged a governmental entity to 
enforce a statutory provisidn, and the entity 
successfully does so, an intervenor should be awarded 
attorneys’ fees only if it contributed substantially to 
the success of the litigation. This inquiry primarily 
entails determining whether the governmental litigant 
adequately represented the intervenors’ interests by 
diligently defending the suit. It also entails 
considering both whether the intervenors proposed 
different theories and arguments for the court’s 
consideration and whether the work performed was of 
important value to the court. 

682 F.2d at 248-49. 

The Donnell Court buttressed its holding by reference to 

similar holdings in similar cases, Baker v. City of Detroit, 504 

F.Supp. 841 (E.D. Mich. 1980) (defendant-intervenors black police 

officers recovered attorneys’ fees for their role in successful 

20  



    

defense of affirmative action plan where city’s reluctance to admit 

past discrimination might have impaired the defense); Seattle 

School Dist. No. 1 v. Washington, 633 F.2d 1338 (9th Cir. 1980), 

aff'd, 458 U.S. 457, 102 S.Ct. 3187 (1982) (intervenors on the side 

of the school district in declaratory judgment action entitled to 

fees on constitutional issue which the district would not have 

raised). Donnell, 682 F.2d at 246, n.12. The Donnell holding was, 

in turn, followed in Friends of the Earth v. Potomac Elec. Power 

Co., 546 F.Supp. 13587, 1360 (D.D.C. 1982) (an award is appropriate 

if a party has substantially contributed to the goals of the Act 

and served the public interest). 

Judge Wood Should Be Awarded 
Her Attorneys’ Fees From The State of Texas. 

  

  

In those cases where the award of attorneys’ fees to 

defendant-intervenors has been at issue, the courts seem, again, to 

have based their decisions as to who should pay on equity. For 

example, in Baker, the court awarded the prevailing intervening 
  

  

defendant police officers their attorneys’ fees from the losing 

plaintiff police officers’ union, reasoning, "[T]he Intervenors   

have vindicated their rights, and this Court believes it is just 

and reasonable for the union to pay their attorneys’ fees." 504 

F. Supp. at 840-51. By contrast, the Sixth Circuit ordered the 

United States, which had intervened in a civil rights suit as a 

plaintiff, to pay attorneys fees to its prevailing fellow 

plaintiffs on the ground that it had reversed its original posture 

and actually acted solely to challenge a validly and judicially 

approved consent decree entered into by the original plaintiffs. 

21 

 



    
Geler v. Richardson, 271 F.2d 1310, 1311, 1113 (6th Cir. 1989). 

The Court declared, 

The United States cannot undermine a clearly stated 
congressional purpose by clinging to its nominal status 
as a plaintiff and shifting the financial burden to the 
original private plaintiffs and the State of Tennessee, 
who in good faith agreed upon and entered into a consent 
decree. Regardless of the labels placed upon the 
parties, to bear the financial burden of litigating to 
protect a consent decree against governmental attack 
would chill citizens in the assertion of the civil 
rights. 

Id. at 1314. Finally, the D.C. Circuit (which ordered the losing 

plaintiff to pay attorneys’ fees to the prevailing defendant-   

  

intervenor in Donnell) has also stated:   

If ever an intervenor can recover attorneys’ fees from a 
party on whose side it participated--a question we do not 
here reach--the justification would have to be a clear 
showing of some unique contribution of the intervenor to 
the strength of that party’s legal position. 

  

Alabama Power Co. v. Gorsuch, 672 F.2d at 4 (quoted at Donnell, 682 

F.24 at 248). All of these cases compel the conclusion that a 

prevailing defendant-intervenors’ attorneys’ fees should be paid by 

that party whose actions necessitated the intervention, whether 

plaintiff or fellow defendant. 

In most cases equity demands that defendant-intervenors on the 

side of the government recover their attorneys’ fees from the 

government, if at all, since under the generally accepted test for 

recovery of fees by defendant-intervenors, an intervenor can 

recover only if the government did not adequately represent the 

intervenor’s interest; the intervenor proposed different theories 

and arguments to the court; and the intervenor’s work was valuable 

to the court. Posada, 716 F.2d at 1075, supra at 19. Therefore, 

22 

 



    

it is the government’s failure to adequately bear its own burden of 

proof that necessitates the intervention, and not any action of the 

plaintiffs. In such a case, equity requires that the governmental 

entity that benefits from the intervention repay the intervenor 

those fees which the intervenor would have been spared had the 

government adequately defended the case itself. 

In the instant case, equity clearly requires the State of 

Texas to assume the expenses of Judge Wood's intervention. In the 

first place, her intervention relieved the State of Texas of 

virtually all litigation expenses relative to the defense of Harris 

County, the most populous Texas County challenged in the 

litigation. Second, and perhaps even more importantly, had Judge 

Wood not appealed, Judge Bunton’s Interim Plan would have been 

implemented, effectively carrying out the Plaintiffs’ and Attorney 

General Mattox’s settlement. That Interim Plan was patently 

unconstitutional, yet it would have effectively destroyed Texas’ 

Judicial election system prior to any review of the extremely 

important legal issues which this Court has now resolved in the 

defendants’ favor. It would be bitterly ironic if Judge Wood--who 

obtained an injunction against the Interim Plan and appellate 

review of the district court opinion--were to be denied attorneys’ 

fees simply because of her status as defendant-intervenor, whereas 

if she had led a successful collateral attack on the Interim Plan 

as a plaintiff, she would automatically have been entitled to her 

costs from the state under §§ 19731(e) and 1988. This is exactly 

the paradoxical situation envisioned by the United States Supreme 

23 

 



   

  

Court in Zipes when that Court distinguished defendant-intervenors 

from defendants on equitable grounds.® 

Judge Wood is Entitled to Attorneys’ 
Fees at Harris County, Texas Rates. 
  

  

In awarding Judge Wood her attorneys’ fees the Court must 

follow the guidelines first set forth in Johnson v. Georgia Highway 

Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). These require 

that the Court assess twelve factors: 

(1) the time and labor required; (2) the novelty and 
difficulty of the questions; (3) the skills requisite to 
perform the legal service properly; (4) the preclusion of 
other employment by the attorney due to the acceptance of 
the case; (5) the Customary fee; (6) whether the fee is 
fixed or contingent; (7) time limitations imposed by the 
client or the circumstances; (8) the amount involved and 
the results obtained; (9) the experience, reputation, and 
ability of the attorneys; (10) the "undesirability" of 
the case; (11) the nature and length of the professional 
relationship with the client; and (12) awards in similar 
cases. 

  

There is one serious respect in which Zipes appears to run counter to Judge Wood’‘s motion to recover attorneys’ fees from the State. Zipes held, following Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099 (1985), that the party who loses on the merits should also bear fee liability under § 1988. Zipes, 109 s.Ct. at 2737. However, Zipes is distinguishable on the issue of the liability of the state for the attorneys’ fees of prevailing intervenors on the same side. In Zipes the Court was supporting the role of Defendant-Intervenors who intervene and shorten litigation. It found it inequitable to hold such defendant-intervenors liable for wrongs they have not committed. Conversely, it would be inequitable to deny recovery of attorneys’ fees to prevailing defendant-intervenors who do the work of the State. Zipes contemplates a situation where the state is blameless, not one, as here, where a Defendant-Intervenor plays a role which the State should have played but did not. In precisely similar circumstances involving intervenors’ claims for attorneys’ fees from a governmental entity on the same side, the D.C. Circuit expressly distinguished Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099 (1985) (the predecessor to Zipes in holding that a party successful on the merits cannot be held liable for attorneys’ fees), holding that it was "specific to the facts of Graham and is not fairly interpreted as a definitive statement of § 1988 liability in factually distinguishable cases." Geiet, 871 F.2d at 1315. 

24 

 



Riddell v. National Democratic Party, 545 F.Supp. 252, 255 (S.D. 

Miss. 1982) (on remand) (citing Johnson, 488 F.2d at 717-19). The 

key factors among these are the 

(1) time and labor involved; (5) the customary fee; (8) 
the amount involved and the results obtained; and (9) the 
experience, reputation, and ability of counsel. 

Riddell, 545 F.Supp. at 255, n.1l; gee also Copper Liquors v. Adolph   

Coors Co., 624 F.2d 575, 583 (5th Cir. 1980). 

The Johnson factors alone, however, cannot guarantee a 

rational, reasonable fee-setting. Riddell, 545 F.Supp. at 255. 

Therefore, the Courts in this Circuit have looked to other circuits 

to amplify the mandatory guidelines and, in. particular, to 

establish the "lodestar," which is calculated by multiplying a 

reasonable hourly rate by the number of hours reasonably expended 

on the lawsuit. Id. at 256. The "lodestar" may then be adjusted 

to reflect other factors like the delay in receipt of payment and 

the quality of the representation. Id. The key to establishing 

the lodestar is to determine the reasonable hourly rate for similar 

work prevailing in the community. Riddell, 545 F.Supp. at 256. 

The relevant community is that in which the district court sits, 

unless a particular attorney’s services are necessary and no 

attorney with the requisite skill is available within the local 

court’s jurisdiction. Riddell, 545 F.Supp. at 256; Donnell, 240 

F.24 at 252, 

In a case such as this, where intimate familiarity with Harris 

County judicial elections and processes and with the witnesses for 

both the plaintiffs and the defense was crucial to a successful  



defense of the case, the relevant community for assessing Judge 

Wood’s attorneys’ fees is Harris County. Moreover, in this case 

the rationale for establishing attorneys’ fees at the rate 

prevailing in Midland, Texas, where the district court sits, is 

particularly weak since Midland was chosen by the plaintiffs for 

their own strategic purposes and not for any nexus that Midland 

County has with this litigation that otherwise makes it a suitable 

forum. The cost of the litigation was therefore enhanced for the 

defense in general by the choice of a community which lacked 

attorneys with the requisite local knowledge and expertise to 

defend Texas’ specialized judicial election system as it exists in 

Texas’ most populous couiities.? 

IIT. CONCLUSION 
  

The foregoing interpretation of the requirements of §§ 1973 

and 1988 is the only one consistent with the law as interpreted by 

the United States Supreme court in Zipes--law which favors 

defendant-intervenors who defend their own constitutional and 

statutory rights, especially when the State failed to do so, and 

who shorten complex litigation by intervening in a civil rights 

controversy in which they have a personal stake rather than 

awaiting the outcome and collaterally attacking the remedial 

scheme. 109 S.Ct. at 2738. It is also the only interpretation 

that can reconcile the status of both Plaintiffs and innocent 

  

For example, while Harris County has 59 sitting state district judges divided among civil, criminal, family, and probate benches, Midland County has few state district judges and no specialized court system. Counsel's acquaintance with the realities of a specialized court system was essential to the preparation of a 
strong defense. 

26  



    
prevailing Defendant-Intervenors in civil rights litigation. 

Finally, it is fully consistent with the lower federal courts-- 

including this Circuit’s--standards for awarding fees to prevailing 

defendant-intervenors in civil rights litigation. 

WHEREFORE, for the foregoing reasons, Defendant-Intervenor 

Harris County District Judge Sharolyn Wood respectfully requests 

that the Court award her costs and attorneys’ fees in the instant 

litigation and grant her such other and further relief to which she 

may show herself justly entitled. 

Respectfully submitted, 

PORTER & CLEMENTS 

aw Sl Clirmints) eof 

J./ Eugene ‘Clements lg a 
Evelyn V. Keyes 
3500 NCNB Center 
P.O. Box 4744 
Houston, Texas 77210-4744 
Phone: (713) 226-0600 
Fax: (713) 228-1331 

  

ATTORNEYS FOR APPELLANT/ 
INTERVENOR/DEFENDANT JUDGE WOOD 

CERTIFICATE OF SERVICE 
  

I hereby certify that on this / A day of October, 1990, a true and correct copy of the above and foregoing document has been mailed to all counsel of record by first class United States mail, postage prepaid, addressed as follows: 

Mr. Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002 

27 

 



    

Mr. David C. Godbey, Jr. 
Mr. Robert H. Mow, Jr. 

Hughes & Luce 
2800 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

Mr. John L. Hill, Jr. 
Mr. Andy Taylor 
Liddell, Sapp, Zivley, Hill & Laboon 
3300 Texas Tower 

Houston, Texas 77002 

Mr. Seagal V. Wheatley 
Mr. Donald R. Philbin, Jr. 
Oppenheimer, Rosenberg, Kelleher & Wheatley 
711 Navarro Street, 6th Floor 
San Antonio, Texas 78205 

Mr. Mark H. Dettman 

Attorney at Law 

Post Office Bax 2559 

Midland, Texas 79702 

Mr. Gerald H. Goldstein 
Goldstein, Goldstein & Hilley 
29th Floor, Tower Life Bldg. 
San Antonio, Texas 78205 

Mr. Joel H. Pullen 
Kaufman, Becker, Pullen & Reibach 
2300 NCNB Plaza 

300 Convent Street 

San Antonio, Texas 78205 

Mr. R. James George 

Mr. John M. Harmon 
Ms. Margaret H. Taylor 
Graves, Dougherty, et al. 
P. O. Box 98 
Austin, Texas 78767 

Mr. William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas, #800 
Dallas, Texas 75225 

Mr. Rolando L. Rios 
Ms. Susan Finkelstein 
Attorneys at Law 
201 N. St. Mary’s st., #521 
San Antonio, Texas 78250 

28 

 



      

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 
301 Congress Ave., #2050 
Austin, Texas 78701 

Mr. Renea Hicks 
Mr. Javier Guajardo 
Special Asst. Atty. Generals 
P. O. Box 12548 

Capitol Station 
Austin, Texas 78711 

Mr. Edward B. Cloutman, II 
Mullinas, Wells, Baab & Cloutman 
3301 Elm Street 
Dallas, Texas 75226-1637 

Ms, Sherrilyn aA. Ifill 
NAACP Legal Defense and 

Education Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, New York 10013 

Mr. E. Brice Cunningham 
Attorney at Law 
777 South R. L. Thornton Frwy., Suite 121 
Dallas, Texas 75203 

Mr. Michael Ramsey 
Ramsey & Tyson 

2120 Welch 
Houston, Texas 77019 

Mr. Daniel J. Popeo 
Mr. Paul D. Kamenar 
Mr. Alan M. Slobodin 
1705 N. Street, N.W. 
Washington, D.C. 20036 

Mr. Paul Strohl 
Attorney at Law 
100 Founders Square 
900 Jackson Street 
Dallas, Texas 75202 

29 

 



    
Mr. Daniel M. Ogden 
Attorney at Law 

900 Chateau Plaza 

2515 McKinney Avenue 
Dallas, Texas 75201 

Ll, wl, Vt 
  EVELYN V./ REYES > 

3285C:\DOCS\W0027001\001 

30 

 



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THE WESTERN DISTRICT OF TEXAS | 17% 

MIDLAND-ODESSA DIVISION | CHARLES QT GNER, Clark 

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CITIZENS (LULAC), et al., S | gn 

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Plaintiffs-Appellees, § 

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Vv. S 

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JIM MATTOX, Attorney General S 

S, . S Of the State of Texas, et al : : NO. MO-88-CA-154 

Defendant-Appellants, 5 

S 
and 8 

$ 
Harris County District Judge S 
SHAROLYN WOOD, S 

S 
Defendant-Appellant. § 

DEFENDANT-INTERVENOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD'S MOTION 

FOR CERTIFICATION FOR INTERLOCUTORY APPEAL 
AND MOTION FOR STAY 

TO THE HONORABLE JUDGE OF SAID COURT: 

Purstant io Ped. RR. Civ. P75 7(b), Defencant-Intervenor 

Harris County District Judge Sharolyn Wood ("Judge Wood") files 

this Motion requesting that the Court amend its Memorandum 

Opinion and Order of November B, 198% ("Opinion"), to ‘include =a 

Statement certifying this case for interlocutory appeal pursuant 

to 28 U.S.C.A. § 1292(b) and that it stay all further proceedings 

in this Court pending interlocutory appeal. In support of her 

Motion, Judge Wood respectfully shows the Court the following: 

1 l. Interlocutory appeal of an order not otherwise appealable is 

appropriate under § 1292(b) when the following criteria are met: 

 



    
(1) the order involves a controlling question of law; 

£2) as to which there is substantial ground for difference 
of opinion; and 

(3) an immediate appeal from the order may materially 
advance the ultimate termination of the litigation.— 

The Court's Memorandum Opinion and Order of November B, 1989, irs 

not appealable at this time as of right since that Order is not a 

final judgment; the Court has merely Zound liability; fit ‘must now 

proceed from the liability phase +o ‘the remedy phase of the 

litigation. However, the criteria for certification for inter- 

locutory appeal under § 1292(b) are amply met in this case, 

A. The Court's Declaratory Judgment 
Involves Controlling Questions Of Law. 
  

  

2. This case involves a challenge under §2 of the Voting Rights 

Act, 42 U.S.C. §1973, to the existing system of electing state 

  

1/ Section 1292(b) provides: 

When a district judge, in making in a civil 
action an order not otherwise appealable under 
this section, shall be of the opinion that such 
order involves a controlling question of law as to 
which there is substantial ground for difference 
of opinion and that an immediate appeal from the 
order may materially advance the ultimate 
termination of the litigation, he shall so state 
in writing in such order. The Court of Appeals 
which would have jurisdiction of an appeal of such 
action may thereupon, in its discretion, permit an 
appeal to be taken from such order, if application 
is made to it within ten days after the entry of 
the order: Provided, however, That application 
for an appeal hereunder shall not stay proceedings 
in the district court unless the district judge or 
the Court of Appeals or a judge thereof shall so 
order. 

{Footnote Cont'd) 

 



    
district Zudges from countv-wide districts in Texas. In its 

Opinion, the Court held that the Present svstem violates Section 

2.0f the Voting Rights Act by diluting the votes of blacks and/or 

Hispanics in all target counties, including Harris County. 

3. The United States Supreme Court and the Fifth Circuit hold 

that the appropriate test of vote dilution claims under the 

Voting Rights Act is a "totality of the circumstances" test based 

upon a practical, intensely local inquiry peculiarly dependent 

upon the facts of the case. Thornburg v. Gingles, 473 U.S. 20, 
  

106 8.Ct. 2782, 2781 (1986); Overton v, Citv of Austin, 321 .F.24 
  

529, 532 (%th .Cir. . 1988). That test employs as a threshold 

inquiry three factors set forth in Gingles: (1) demonstration by 

the minority that it is sufficiently large and geographically 

compact to constitute a majority in a single-member district 

(Gingles 1); (2) political cohesiveness of the minority (Ginales 

2); and (3) sufficient white bloc voting to enable the white 

majority usually to defeat the minority's candidate of choice 

(Gingles 3). Gingles, 106 S.Ct. at 2766. These factors are then 

augmented by a searching, practical inquiry into typical local 

  

2 
factors. Gingles, 106 8.Ct. at 3763. =32/ 

(Footnote Cont'd) 

28 U.S.C. §:1292(b). 

7 4 These typical factors in proving vote dilution are often 
referred to as the "Zimmer factors" after the case of Zimmer 
V. NMcKeithen, 485 F.28 1297 (8th Cir. 1973), in which they 
were first set forth in detail. 
  

 



      

4. Essentially, the Court rested its declaratory judgment on 

the fellowing conclusions of law: 

l. Bection 2 of the Voting Rights Act applies to the 

  

  

  

judiciary. Opinion at 81 (citing Chisom v. Roemer, 839 
F.24 1056 (5th Cir. 1988), cert, denied SUD nom Chisom 
Vv. Edwards, 109 s.Ct.- 310 (1389).).,.7.3/ 

2. Section 2 applies equally as well to the election of 
state "district judges who serve as independent 
decision-makers, as it does to the election of appel- 
late judges, who serve in a collegial body; Chisom's 
extension of § 2 to judicial elections was rot meant to 
be limited to collegial judicial bodies. Opinion at 81 
and n. 32. 

3. Political cohesiveness of the minority (Gingles 2) and 
the ability of the white majority usually to defeat the 
minority's preferred candidates (Gingles 3) are usually 
established by statistical evidence of racially 
polarized voting. Opinion at 85. 

4. Racial bloc voting can be established by a type of 
abstract statistical inquiry called "bivariate 
regression analysis." Opinion.at 28 n. 4. 

5. Party affiliation is irrelevant under the controlling 
law. Opinion at 80. 

6. The addition of irrelevant variables to regression and 
statistical analysis distorts the equation and vields 
results that are indisputably incorrect under $ 2. 
Opinion at 80. 

~J
 

Unopposed minority candidate election contests and 
white versus white contests are not germane in this 
Circuit to the statistical analysis cf Voting Rights 
Act violations. Opinion at 80-81. 

8. The concept of "one man, one vote" does not apply to 
judicial elections. Opinion at 15. 

  

The Court had previously held that the Voting Rights Act is 
constitutional as applied to judicial elections and violates 
neither the principle of separation of powers nor the 
fourteenth amendment guarantee of equal protection of the 
laws. Order entered May 3, 1989. 

 



The eligible spool of minority lawvers, rather than 
eligible minority voters, 7 is not the appropriate 
reference point for evaluating the extent of electoral 
success. Oplnion at 74-75. 

Specific to Harris County, the Court held: 

10. The data set relied upon by Plaintiffs’ expert 
Dr. Richard Engstrom £0 analyze Harris County 
elections, consisting in 1980 census counts of total 
black population by precinct and computer printouts of 
1982, 1984, 1986, and 198s precinct voter registration 
estimates supplied Dr. Engstrom by Dr. Richard Murray, 
a non-testifying expert (Opinion at 22), which had been 
written over, struck out or crossed through, and 
contained pencil notations and other marks was reliable 
data on which to base statistical analvsis of racially 
polarized voting and racial bloc voting. Oplnion at 
27. 

Testimony fron PlaintiZ?Z’s expert, Dr. Engstrom, that 
(1) primary elections in Harris County need not be 
addressed because they do filter out the candidate of 
choice of black voters; (2) that uncontested races do 
not assist researchers in their analysis; (3) that the 
appropriate comparison in Voting Rights cases is black 
and non-black; (4) that, although not controlled for, 
the votes of Asian-Americans would be included in the 
percentages of non-black votes; and (5) that the range 
of absentee votes in Harris County never rose above 
13.6% was adequate to address Defendant Wood's concerns 
about absentee voting, the influx of Vietnamese 
population into Harris County and traditionally black 
precincts and failure of Dr. Engstrom's analysis to 
reflect black candidate successes in primary elections 
and uncontested races. ‘Opinion at 27. 

Dr. Engstrom's testimony regarding correlation and 
regression analysis of 17 selected races proves that 
white bloc voting exists in Harris County and is 
sufficiently strong generally to defeat the choice of 
the black community. Opinion at 28-30. 

The testimony of Judge Wood's witness, Judge Mark 
Davidson, that race and ethnicity are irrelevant to 
voting behavior as it relates to the judiciary .in 
Harris County, while credible, is irrelevant under 
controlling law. Opinion at 31. 

Defendant Wood's contention that black referred 
candidates lost their judicial races because of failure 
to win the Harris County bar or preference poll or  



    

obtain the Gay Political Caucus endorsement is legally 
incompetent. Opinion at 21 

5 The questions of law listed above are controlling in that 

they provide the conceptual basis for the Court's determination 

that the present system of electing state district judges dilutes 

  

  

the votes of minorities in the targeted counties, and, in 

particular, in Harris County, in violation of § 2 of the Voting 

Rights Act. 

B. There Are Substantial Grounds For Difference 
Of Opinion To The Contrclling Law. 

5, in sum, the controlling conclusions of law raise at least 

the following questions of law for which <%here are substantial 

grounds for difference of opinion: 

1." Whether '§ 2 of the Voting Rights Act applies to the 
Judiciary; and, if so, whether it is constitutional? 

2. Whether § 2 applies to independent overlapping countvy- 
wide election districts? 

3-6. Whether Gingles 2 and 3 are proved by abstract statig- 
tical inquiry with all other inquiry being irrelevant? 

~J
 

Whether unopposed election contests and white versus 
white contests are germane to the statistical analysis 
of vote dilution claims? 

8. Whether the concept of one-man, one-vote applies to 
judicial elections? 

9. Whether the eligible pool of minority lawyers or that 
Of minority voters is the appropriate reference point 
for measuring minority success in judicial elections? 

10-14. Whether the court's holding that illegal vote dilution 
exists in Harris County, Texas judicial races is 
clearly erroneous? 

2. As the Court acknowledged in its Opinion, "This area of law 

is not. an icy certainty.” Opinion at 093. Indeed, the Court 

- 5 - 

 



    
implies that the questions involved are "difficult legal 

questions” on which "the most distinguished experts" may dis- 

agree. Opinion at 93 (quoting Chief Judge Charles Evans Hughes 

1936 address to the American Law Institute). Clearly, the Court 

acknowledges by its language that there is substantial ground for 

difference of opinion as to that law. 

C. An Immediate Appeal Will Materiallv Advance 
The Ultimate Termination Of This Litigation. 
  

  

3. Interlocutory appeal would very materially advance the 

ultimate determination of this litigation with rctentially great 

savings of expense and disruption for both the parties and the 

people of. Texas as a “whole, Agia result of the Court's 

declaratory judgment in this case, all further elections for 

state ‘district judge in the target counties are subject to 

immediate injunction; and the Court has indicated that it will 

consider such an injunction. Opinion at. 93. Moreover, in‘ the 

remedy rhase the parties and the State will inevitably be 

subjected to an immensely expensive and protracted process which 

will predictably be enormously disruptive of the Texas electoral 

process, and of the stability of the state judicial system. 

0% Federal law requires that the state legislature must first 

be given a reasonable opportunity to redress the violations. 

Should it reach consensus on a plan it must submit that plan to 

the Justice Department under §5 of the Voting Rights act. The 

Justice Department has previously indicated in a similar case 

that 1t will approve no judicial redistricting plans until 1990 

census data 1s available. Any remedy devised by the legislature 

 



    

will also require a constitutional amendment which must be 

approved by the voters of the State of Texas, who only four vears 

ago overwhelmingly approved an amendment “oo the Texas constitu- 

tion forbidding the creaticn of udicial districts smaller than a 

county without majority approval. 

10. + Failing a legislative remedv, as seems all too predictable, 

the Court must devise its own remedy. At the trial of this case 

there was little if any testimonv or evidence Yelating *o such a 

remedy. FOr example, 1% the Court were +o 4dmpose ‘a remedy 

requiring the election of state district judges Zrcm legislative 

districts in the affected counties, there is no evidence that 

such" judicial districts would satisfy the Gingles criteria, nor 

1s there any evidence as to the population or. racial makeup of 

such potential districts. Even such evidence as was introduced 

at trial regarding demographics - which was never related to 

legislative dlstricts ~ is entirely extrapolated from 1980 census 

cata and ls thus ten years out of date, Moreover, in Harris 

County, there is no reason *o order single member districts for 

any areas of the county other than black areas in that no 

evidence of vote dilution was presented on behalf of anyone other 

than blacks. Any such Court-imposed remedy will have 

far-reaching. implications for the future of the state judiciary 

and will necessarily lack voter approval and indeed, voter input. 

It will also result in tremendous upheaval in the administration 

of Justice and expense to the State and ultimately to the 

citizens themselves. The impact of any such plan on numerous 

 



   

  

laws affected by judicial redistricting or racial lines--such as 

venue and jurisdiction--is entirely unpredictable. 

11. During all of the time spent in devising and implementing a 

remedy for the vote dilution found by the Court in its Opinion 

and Order, the ultimate resolution of the controlling questions 

of law in the case must remain in doubt with the attendant 

possibility that the massive litigation, disruption, expense, and 

instability dncurred will (all have been for naught should the 

appellate court ultimately reverse *+he district court on the 

merits: of this ‘case. There can be no doubt, therefore, that 0) 

swift decision on the troublesome questions of law in this 

exceptionally complex and important case will very materially 

advance the ultimate termination of this litigation in the manner 

which is most just, orderly, efficient, and sound. 

WHEREFORE, for +the foregoing reasons, Defendant-Intervenor 

Harris County District Judge Sharolyn Wood requests that the 

Court amend its Memorandum ané Order of November 85,1989, hv 

including a statement certifying this case for immediate 

interlocutory appeal pursuant to 28 U.S.C. $ 12924b)., that “ie 

devise no remedy for vote dilution and that it impose a stav on 

 



    
all further proceedings in this Court pending interlocutory 

appeal. 

Respectiully submitted, 

PORTER & CLEMENTS 

2 2. By: = i ALE A Ga LR Z REI = 
  J //Eugene( Clements 7 i 
700 Louisiana, Suite 3500 TY 
Houston, Texas 77002-2730 ye 
(713) 226-0600 / 

ATTORNEY FOR HARRIS COUNTY 7 Vii es. 
DISTRICT JUDGE SHAROLYN WOOD 

OF COUNSEL: 

PORTER & CLEMENTS 

Evelyn V. Keyes 
700 Louisiana, Suite 3500 

Houston, Texas 77002-2730 

{713) 226-0600 

Michael J. Wood 

Attorney at Law 

440 Louisiana, Suite 200 

Houston, Texas 77002 

(713) 228-5105 
i 

CERTIFICATE OF SERVICE 
  

1 hereby certify that on the 14th day of December, 1989, a 
true and ‘correct: .copy of the above and foregoing Defendant- 
intervenor Harris County District Judge Sharolyn Wood's Motion 
for Certification for Interlocutory Appeal and Motion for Stay 
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 lL. Rios 
Southwest Voter Registration & 

Education Project 
201 N. St. Marv'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 
16th Floor 
New York, New York 10013 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 
301 Congress 2Ave., 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 80. R.1L. Thornton Freeway 
Suite 121 
Dallas, Texas 75203 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

br 
lA 

Evelyn V./Keyes 
  

WO0004:47:br  



THE UNITED STATES DISTRICT COURT 
THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

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

Plaintiffs-Appellees, 

Vv. 

JIM MATTOX, Attorney General 
Of the State of Texzs, et al,, NO. MO-88-CA-154 

Defendant-Appellants, 

and 

Harris County District Judge 
SHAROLYN WOOD, 

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Defendant-Appellant. 

ORDER 

Came on for consideration Defendant/Intervenor Harris County 

District Judge Sharolyn Wood's ("Judge Wood's) Motion for 

Certification for Interlocutory Appeal of the Court's Memorandum 

Opinion and Order of November 8, 1989 (the "Order") in accordance 

with 28 U.S.C. §1292(b), and Judge Wood's Motion for Stay. Upon 

consideration of Judge Wood's Motion, the arguments contained 

therein, and the trial and record in this action, the "Court is of 

the opinion that the Motion should be GRANTED. The Court 

therefore hereby finds and ORDERS as follows:  



    

1. The Court is of the opinion and finds that its Memoran- 

dum Opinion and Order of November 8, 1989 involves controlling 

questions of law regarding the application §2 of the Voting 

Rights Act to the election of state district judges in Texas, as 

to which there is substantial ground for difference of opinion 

and that an immediate appeal <£from the Order may materially 

advance the ultimate termination of the litigation. 

2 The Court's Memorandum Opinion and Order of November 8, 

1989, as amended, is further amended to incorporate the findings 

in the first paragraph of this Order. 

3. All ‘further proceedings in this Court are stayed 

pending interlocutory appeal of the Court's amended Memorandum 

Opinion and Order of November 8, 1989, as amended by this Order. 

ENTERED this day of December, 1989. 
  

  

LUCIUS D. BUNTON 

UNITED STATES DISTRICT JUDGE 

WO004:48:br 

 



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TE ATTORNEY 1A3ENIR.ANYL 
DOF TREX.\S 

JI MM ATTOX 

ATTORNEY GENERAL 
December 22. 1989 

U.S. District Clerk 

P.O. Box 10708 

Midland, Texas 79702 

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

Civil Action, No. MO-88-CA-154 

Dear Sir or Madam: 

Although it was in the original, the enclosed sheet 
inadvertantly was omitted in the copy of the Joint Motion for Entry 
of Proposed Interim Plan filed with the Court today. It should be 
attached as the second page of Attachment A to the joint motion. I 
apologize for the oversight. 

Sincerely, 

ow TET, ye J ) \ $/ \ —— a ok | / \ : 

N 8 Fy by NA y : y Fa 5 
te” i PN 9 Ak rR 

Renea Hicks : 

Special Assistant Attorney General 

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

CC: Counsel of Record 

$12.16 = 2100 SUPREME COURT IBTTILIING AUSTIN, TEXAS 78711-2308 

 



  
    

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

LULAC COUNCIL #4434, et al 

Plaintiffs, 

.y 

VS. Civil Action No. 

MO-88-CA-154 
JIM MATTOX, et al., 

Defendants. 

LO
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CO
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LO
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LO
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LO
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LO
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LO
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JOINT MOTION FOR ENTRY OF PROPOSED INTERIM PLAN 

The plaintiffs, the plaintiff-intervenors. and the Attorney 

General of Texas on behalf of the State of Texas hereby jointly move 

the Court to enter an order adopting and implementing the Proposed 

Interim Plan which they have filed today with the Court. The 

grounds follow: 

3h The Court's memorandum opinion and order of November 

8, 1989, as modified by the order of November 27, 1989 ("November 

8th order"), declared that the current system for electing judges to 

the district courts in the Texas counties of Harris, Dallas, Tarrant, 
Bexar, Travis, Jefferson. Lubbock, Ector. and Midland violated Section 

2 of the Voting Rights Act of 1965, as amended, by illegally diluting 

minority voting strength. 

2: Pursuant to the Court's directive that any proposed 

remedial plans be submitted to the Court no later than December 22 
1989. the below-signed counsel have prepared and submitted to the 
Court a Proposed Interim Plan ("Plan"). We urge the Court's adoption 

of the Plan. 

[249 

 



    
  

i The Plan harmonizes the current method for electing 

district judges in Texas with the Court's November 8th order insofar 

as possible. In this way, the Plan's objective is to provide an interim 

remedy to those whose voting rights the Court declared are violated 

by the current system and, within the confines of that declaration. to 

otherwise minimize the disruption of the current electoral system for 

district judges in the nine affected counties. To that end. the Plan: 

a. Limits the terms of office of those elected under its 

terms to two years instead of the four years provided under the 

Texas Constitution, in an effort to give the State Legislature the 

maximum flexibility to devise a permanent remedial plan in its next 

regular session in 1991; 

b. Retains countywide residency requirements but 

waives electoral subdistrict residency requirements: 

C. Retains countywide jurisdiction and venue: 

d. Retains the system of electing judges by party 

primary and general election; 

8. Permits incumbent judges running for district 

judgeships in 1990 to choose the electoral subdistrict in which they 

will run and permits them, if reelected:, to retain their current 

district court number and their current docket-type specialization; 

and 

f. Permits a limited, one time per party right of 

recusal of an assigned judge elected under the interim plan, modeled 
Ste f i Gedo fr 2 . - Wily 2 . Aller 4 lexas statute concerning recusal of visiting trial judges. 

Q)
 

 



  

4. The Plan remedies for the 1990 elections the voting 

rights violations found by the Court on November 8th in the 

following manner: 

a. Eliminates countywide district judge elections in the 

nine affected counties, substituting in their place elections from 

subdistricts. The subdistricts are created using existing state 

legislative district, justice of the peace precinct, and county 

commissioner precinct lines, all of which have received preclearance 

from the United States Department of Justice under Section 5 of the 

Voting Rights Act; and 

b. Allocates the places for which judicial candidates 

may run according to the percentage of combined minority voting 

age population in the election subdistrict as reported in the 1980 

Census. The subdistricts are ranked by county in descending order 

of combined minority voting age population, and the places are 

allocated in that descending order until all have been allocated. In 

this way, those voters whose rights the Court determined have been 

violated receive first preference. 

5; The Plan also attempts to reflect the policy choice of the 

State Legislature. Attachment A to this motion is a statement signed 

by a majority (16 ot 31 members) of the Texas Senate supporting the 

Plan's concept and its adoption. Attachment B to this motion is a list 

showing 71 of 150 members of the Texas House of Representatives 

(with more anticipated) supporting the Plan's concept and its 

adopuon.  



  

     
  

Based upon the foregoing matters, the plaintiffs, the plaintiff- 

intervenors, and the Attorney General of Texas on behalf of the State 

of Texas urge the Court to grant this joint motion and adopt their 

Proposed Interim Plan for the 1990 judicial elections in the nine 

affected counties. 

Respectfully submitted, 

foot 
JIM MATTOX 
ATTORNEY GENERAL OF TEXAS 

  

TTR 

7 5 "y 

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ny oy Ya i o KX. AA 
  

WILLIAM C. GARRETT Conf 4 LUAAMAA fm 
ROLANDO L. RIOS Sh WM (3 # 
SUSAN FINKELSTEIN 

ATTORNEYS FOR PLAINTIFFS AND. FOR 
THIS MOTION, ON BEHALF OF THE 
ATTORNEYS FOR DALLAS PLAINTIFF- 
INTERVENORS AND THE ATTORNEYS FOR 
HARRIS PLAINTIFF-INTERVENORS 

 



    
  

CERTIFICATE OF SERVICE 

[ certify that on this 21st day of December, 1989, I sent a copy 
of the foregoing document by overnight courier 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. Cloutman. III, Mullinax, Wells. 
Baab & Cloutman, P.C., 3301 Elm Street, Dallas. Texas 75226-1637: 1. 
Eugene Clements, Porter & Clements. 700 Louisiana, Suite 3500. 
Houston, Texas 77002-2730; and Robert H. Mow. Jr. Hughes & Luce, 
2800 Momentum Place. 1717 Main Street, Dallas. Texas 75201. 

  

“Renea Hicks Si 

 



       

  

= goEIvEY 

EDDIE BERNICE JOHNSON : 5 % zr EA HICKS CAPITOL OFFICE. SENATOR : Chr ~2RIIr 03 REN P.O. Box 12068 DISTRICT 22 ’ Austin Texas 78711 
i : 512/463-0123 ' Nf Ay Comiiete: Lip Stutr 54 Trxus 

EDUCATION 3 
DISTRICT OFFICE: FINANCE ; 400 S. Zana Blvd. Subcommittes: December 8 ’ 1989 Dallas. Texas 75208 Chair: Health ano 

4/94201723 Human Services 
214/942 “ HEALTH AND HUMAN 

SERVICES 
To Whom It May Concern: 

We, the undersigned members of the Texas Legislature, 
support the concept outlined in S.B. 42, 71st Legislature, 
2nd Called Session, a common-sense interim solution to the 
LULAC, et al v. Mattox decision on selection of district 
juages 1n nine Texas counties. This legislation offers an 
interim plan using existing district lines for only those 
judges up for election in 1990. A final plan would be 
developed in 1293 wing redistricring, 

2 

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ATTACHMENT B 

  

  

: - 

Che Stare of Texas 
' N ; - Rajph B Waliseeslll House of Wepresentanves Committees: 

Austin. Texas Soltpesl& novice Rutourned 
Chairman, Arman 

Democratic Caucus Financial Institutions 

December 21, 1989 

The Honorable Jim Mattox 
Attorney General, State of Texas 
Attorney General's Office 
Austin, Texas 78701 

Dear General Mattox: ‘ 

In conjunction with several members of the Texas House of 
Representatives, my staff and others have been polling members of the 
Texas House to determine support for H.B. 113 and your proposed 
interim plan for selecting district judges in nine Texas counties, as 
represented by the proposal endorsed by LULAC and other plaintiffs. 

. The undersigned House members believe this plan represents a 
viable, interim plan although it may not reflect each member,s exact 
preference for a final, long-term solution. 

Despite the difficulty finding House members due to the holiday 
season, each of the members listed below has either co-authored H.B. 
113, signed a letter supporting that legislation, or made a verbal 
commitment to support the interim plan. In addition six House members 
expressed support but wished not to be listed for political reasons or 
because they have cases pending before affected district judges. 

  

The total number of members, listed and unlisted, is 71, and I 
am confident that at least 76 members, a majority of the House, will 
express support for the interim plan when we are able to reach them 
after the Christmas holiday. We will provide additional names at a 
later date should you neeed them. 

Sincerely, 
 ——— a 

St. Rep. Ralph Wallace 

Attachement: List of House Members 

apitol Ottice: 12.0). Box 2910 « Austin, Texas 78768-2910. 512-463-0732 
District Office: I>.O. Box 12667 « Houston, Texas 77217 + 713-644-2359 

 



  

   

Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 

plan 

  

Ralph R. Wallace, III 
District 145 

Chairman, 

Democratic Caucus 

Alexander 
Beauchamp 
Berlanga 
Blair 
Cain 
Cavazos 

Chisum 
-Colbert 
Collazo 
Conley 
Counts 

Cuellar, H. 
Cuellar, R. 

Delco 

Denton 

Dutton 

Earley 
Edge 
Edwards 
Evans 
Garcia 

Gavin 
Glossbrenner 

Granoff 
Guerrero 

Harrison 
Hightower 
Hinojosa 
Hudson, D. 

Hudson, S. 

Johnson, J. 
Junell 

Laney 
Larry 
Lewis, R. 

In addition, 
do not want their na 

Austin, Texas 

Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 
Rep. 

  

House of Representatives 

Linebarger 
Lucio 
Luna, A. 

Madla 
Martinez 
Luna, G. 

McDonald 
McKinney 
Melton 
Morales 

Moreno, A. 

Moreno, P. 

Oakley 
Parker 
Patterson 

Perez 
Rangel 
Rodriguez 
Russell 
Saunders 
Seidlits 
Swift 
Telford 
Thompson, G. 
Thompson, 8S. 
Wallace 
Warner 
Willis 
Wilson 
Wolens 

Committees: 

Cultural & Historical Resources 
Chairman 

Financial Institutions 

we have positive commitments from six members who 
mes listed at this time. 

Further, two house members endorsed the major aspects of the interim plan but 
at this time 

Capitol Office: P.O. Box 2910 « Austin, 
District Office: P.O. Box 12667 « Hous 

Texas 78768-2910. 512-463-0732 
ton, Texas 77217 « 713-644-2359 

refused to be counted as supporting this specific



    
| 

UNITED STATES DISIRICT COURT | I 
WESTERN DISTRICT OF TEXAS yo 
MIDLAND/OQDESSA DIVISION 

LULAC COUNCIL #44234, ¢1 al. 3 
Plaintiffs, $ 

§ 
vs § Civil Action No. 

N MO 88 CA 154 
HAM MaAUTUX ef af, § 

Defendants. § 

INTERIM PLAN FOR 1090 ELECTIONS 

Below 1s a proposed election plan that the attomeys for the plaintiffs submit as 
a possible remedy that addresses the Voting Rights Act violation found by this 
Court. 

GUIDING PRINCIPLES 

The following considerations were used as guidelines in the design of this 
plan: 

I) Remedying the violation found by the Court -- restoring the full and 
effective voting franchise that is guaranticed to the minority community by 
fedural law. The plan emphasizes the use of election subdistricts in which the 
minonty community will elect candidates of their choice. 

2) dinintizing the disruption of the 1990 elections by using existing districting 
aud voting precinct lines and avoiding, as much as possible, any changes that 
may conflict with the Texas Constitution or Statutes. 

3) Allowing for the orderly transition from a completely at large system to a 
form of single member district elections. 

4) Providing a remedy that will most likely withstand the scrutiny of the 
United States Department of Justice. All clection subdistricts used in this plan 
have already been approved by the Departinent of Justice. 

5) Previously enunciated state policies: Equality of population, maintenance of 
communtiies of interest, respect for existing political boundaries, compactness 
and contiguity. White v. Regester, 412 U.S. 755, 761, 37 L.Ed. 314 (1973), 
Graves v. Barnes, 408 F. Supp. 1050, 1053 (W.D. Tex. 1976). 

. DESIGN OF THE PLAN 

Generally, the plan will use the existing State Representative District, Justice 
of the Peace Precinct or County Commisioner Precinct Lines. In Harris, Dallas, 

Tarrant and Bexar Counties, the existing State legislative House District Lincs 
shall be used. If any of the districts are not wholly within their respective 

 



    

> 

1 

county, then only that part that is within the county shall be used. In Travis 
County, the existing Justice of the Peace Precinct Lines shall be used. In 

Jefferson, Lubbock, Midland, and Ector Counties, the existing County 

Commissioner Precinct Lines shall be used. 

F.ach county shall be designated a District Number and cach election unit -- 
state representative district, justice of the peace or commissioner precinct -- 
shail he designated a Subdistrict Number. 

ELECTION METHOD AND RESIDENCY REQUIREMENT 

In accordence with current provisions of the Texas Constitutions, each 

candidate for District Judge shall run within the designated subdistrict and be 

ciccted by those voters in the subdistrict. Each candidate shall be a resident of 

his/her designated district (county) but need not be a residen of the clection 

subdistrict. : 

COURT DESIGNATION 

Each candidate shall sclect the election subdistrict in which they will be 

running. Those candidates who have already filed for candidacy, must now 

designate for which subdistrict they wish to run. Or, if they wish, they may 

withdraw and their filing fec will be refunded. 

FILING FEE AND PETITION 

For purposes of this election only, due to the shortness of time, the [filing 

petition shall be waived: the filing fee shall remain as set by state law. 

COURT SPECIALITY 

After the election, the successful candidates shall collectively designate the 

court of speciality and thc court numbers that were used before this litigation, 

Successful incumbents shall have preference on. the designation of the courts. 

TERMS OF OFFICE 

All terms of office shall be for two (2) years so that thc Legislature can address 

this issue at it rcgulariiy scheduled session in 1991, 

THE PLAN 

For the 1990 Elections, according to the Secretary of States Office for the State 

of ‘Texas, the following number of District Courts are up for clection by 

respective county: 

jotal civil ' 2: criminal - family juv. 

HARRIS- 36 11 13 9 3 

DAI LAS- 32 11 12 9 NA 

ECTOR- 3 NA NA NA NA 

TARRANT- 14 NA NA NA NA 

2 

 



MIDLAND- 
THFFERSON- 
I URBOCK- 

REXXAR. 

TRAYIS: 
Total Judges- 

1 
1 

NA 

NA 

NA 

(source: clerk in charge of ballot sclection, Texas Sec. of State, RO0-252-568 1) 

They shall be elected by Subdistrict as follows: 

HARRIS COUNTY 

(District )) 

DISTRICT 

NUMBER CQUNTY 
Harris 

— ia : Harris 
  

SUBDIST * 

NUMBER 
HD-125 

HD-126   

C; Harris 

  

WCE J 1. wollareis 
F Harris 

bib EE ATRIA ange   

Harris 

Harris 
Harris 

  

Se ———larries 
Harris 

Harris 

HD-127 

nr ia ne D2 108 | 
HD-129 

SIME Ta TRAE - LCR 
HD-131 

Sh ca HD.13 

HD-133 
11D-134,   

  

Harris 

Harris 

HD-115 | 
HD-136 3 : 

HD-137 
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HD-143 
BD-144     

  

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HD-147 
HD-148 

  

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Harris   

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HD-139 

  

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K 2 Dallas HD-108 

Ta ME POR en Ll Dallas HD-109 

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SOUR, NUMBER COUNTY NUMBER 
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B 9 Ector cC-3 
C 9 Ector CC4 

TARRANT COUNTY 
(Distinct 4) 

DISTRICT SUBDIST * 

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MN 4 Tarrant HD-93 
N 4 Tarrant HD-92 

MIDLAND COUNTY 
(District 8) 

DISTRICT SUBDIST.* 

LOURT, NUMBER COUNTY NUMBER 

A R Midland CC-3 

B 8 Midland CC4 

TRAVIS COUNTY 

(Disuict 5) 

t DISTRICT SUBDIST.* 

COURT, NUMBER NTY NUMBER 

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DISTRICT SUBDIST .* | LOURT, NUMBER COUNTY NUMBER 
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C 6 Jefferson CC-3 
i i wand) 6 Jefferson CC.4 

E 6 Jefferson CC4 i F 6 Jefferson CC-3 

| LUBBOCK COUNTY 
i (District 7) 

| DISTRICT SUBDIST.* 
LOURL NUMBER COUNTY NUMBER 

A 7 Lubbock CC-3 
B 7 Lubbock CC4 

| C Lubbock CC-2 

BEXAR COUNTY 
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; DISTRICT SURDIST .* 
COURT, NUMBER COUNTY NUMBER 

A 3 Bexar HD-115 
—— 3. Bexar ee HD-120 

1M 3 Bexar HD-116 
. 3 Bexar. HD-124 
E 3 Bexar HD-123 

Rae po aa Joma on Bexar HD-122 oF 
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] ed AV dh ddd CLAD ——r a Ard NASAL 

THE UNITED STATES DISTRICT COURT 
A ar -— NS 

rmTyT TT mre ™ ™T7T M™ TANT AT MIURA ~ 
THE WESTERN DISTRICT OF TrYAS 

0 FI ATI, i, TE 8 Th ul en 10 5 oe ds 80 ef 1 
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LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al. 

IM MATTOX, Attorney General 

of the State of Texas, et al. 

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Wood ("Judge Wood") files these Objections to the Proposed 

™ OM ME £4) Pl asrnts ££ AE ah rr WE en ~ 3, Remedial Plan of the Plaintiffs ang ‘tne Aciorney General 

Judce Wood has received no notice from =he Court regarding 

settlement discussions cor any proceedings since =the Court issued 

its Memorandum Opinion and Order on November 20, 1989 (the 

"Opinion"). Having been provided, however, with a copy of the 

roposed Interim Plan (the "Plan") apparently agreed upon by 

€xas attorney General Jim Mattox ("Mattox") and the Plaintiffs, 

Judge Wood would first observe that the purported settlement has 

been entered by Mattox, apparently on his own, without conference 

with and in direct defiance of the wishes of his clients, 

including the Secretary of State, and all administrative judges. 

See attached Exhibit "a." 

In proposing what Judge Wood perceives to re a disastrous 

interim "solution," Mattox has acted solely on his own behalf 

and, apparently, on behalf of his political aspirations. The 

| BBY 

 



    
Jost covious and cynical example is the assignment of “he "extra" 

. oS wb H — 5 7 be = xv 3 = -— . 1x8. Since there are only <C.svale ledgls:iative districts 

and 36 udgeships at stake, 10 of the judgeships are "extra." On 
wn

 

of the Plan, Judicial Places Z7=36 are assiconed to the 

heavily Democratic Eouse Distric+s in Harris County (i131, 

,adl, 142,343, 1456, 

A —- AS a slitting state district judge (not up for re-election in - 

  

1990), ‘Cudge Wood im ostensibly represented in her official 

capacity by the Texas Attorney General. i/- In that capacity, 

Judge Wocd cbjects that Mattox dces not speak for her Or for any 

of <he, cther sitting Texas s=tate district or administrative 

udces vio would be affected rv “=he remedy Mattox and =he 

Const 

inter 

1 

Srie velieve that he is acting in the best interest of Texas 

S The current settlement discussions, insofar ‘as -udge 

has been given the courtesy of even brief descriptions of 

discussions, appear to go far beyond the authority of <+he 

ney General and affirmatively =o violate the statutes and 

itution of the State of Texas. 

There is no reason for the Court to adopt a Jjerry-rigged 

im plan with far-reaching consequences for the long term 

  

health of the Texas judicial system just because unfortunate 

37 Judge Wood was allowed to intervene only in her individual 
Capacity as a sitting state district judge. Order signed 
and entered March 1, 1989. 

 



November 20, 

As the Court if : the underlying 

guestion in this least, "not 

of 
No the Court 

address workers 

aerermine YReL er wou vy aS 

was properly made. 

Judge understands har sovernor, the Lieutenant 

Governor, A Speaker of i m with“ the Court on 

December J i889 to express } Lm ibility of the Texas 

reachin agreement complete dismantling 

the Texas :udici election system in the 

(which includ ' most populous urban 

within the time 

established by the oreits certification of 

is case for interlocutory appeal--namely serious consideration 

legislature and the Governor--has been 

ripe. for LES For 

interlocutory appeal. 

On December 1989, Judge Wood and Dallas County District 

Defendant/Intervenor Judge Harold Entz ("Judge Entz"), having “a  



      
a 

p= 
Ate ~N 3 - QA y+ + abide «The State's, +h eXas legislature's and +<he Governor's 

~ pm ~ -— — ~ y ~ : : responses ~o The Court's Opind 

~ An am — —~ 3 la = ~13 appropriate neXt step in this cau Cada oO 0 @ cf action. Lest her motives 

ce misunderstood, Judge Wood wishes to make clear that she rh 

disagrees with the Court's opinion and will prosecute the appeal 

the Court has invited. Judge Wood urges that the case be 

-mmeciately certified for expedited appeal and that, pending such 

appeal, «0 ‘interim: plan. proposed Dy partial agreement or 

cromulgated at the Court's own initiative should be ordered. 

AS these objections are being filed, Ther are: Just four 

ousiness days before the filing deadline for running for district 

judge. The proposed interim plan will add seven business days to 

that deadline to permit judges and judicial candidates to sort 

out and act upon a plan the implementation of which will, as 

{ cescribed below, create an electoral circus. Judge Wood respect- 

Uily urges that this Eonorable Court has =a higher duty than 

imposing a hastily cobbled-together, new judicial election and p
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administrative scheme solely to increase minority voting strength 

at an imminent election and that duty is to maintain an orderly, 

  

effective, fair judicial ‘system. Qhisom vv. ‘Roemer, 853 F.2d 

1186, 2189 (5th Cir. 1988}, In connection with the maintenance 

of such a system, Judge Wood cbserves that, the Voting Rights Act 

~-tself makes no provision for the imposition of any interim 

remedial plan. However, even fithe Court were to insist upon an 
- 

] -— 

 



   

interim plan but were to defer imposing a new scheme until after 

$0 lmpose only a minimal election plan, e.g. single member 

districts “sclely Zor ‘the peri=ionin minorities, solely in 

sub=districts as to which evidence has been heard, and held 

concurrently with the November general election, while leaving 

intact the county-wide election system as to all seats except the 

number allotted to The proven minority/majority districts, the 

court's goal "of maximized minority voting would be delayed bry 

“nly two years or, at worst, fulfilled immediately with minimized 

~ Ee -— ~~ + ~ ~~ i - - - J = bel of sik ihe Court. acts Frecipitusiy ~~ DyYoadly anc 03 udiciously 

if the appeal proves the Court 

This Court, with the advice cf only Plaintiffs' counsel and 

now, Or even if, the parts fit together properly This creation 

nay Create tragic ripples for years. Good Incumpent judges may 

be frustrated into retirement or defeated by caprice; good candi- 

dates may be deterred from running; candidates of questionable 

credentials and experience may be catapulted into seats of 

responsiplliity; «and thousands of civil and ‘criminzgl verdicts and 

Judgments may be subject to statutory and constitutional attack. 

Even ‘federal judges may feel the effects of a tidal wave of 

habeas ccrpus petitions.   

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defined court with a known specialty nd all on less than one 

The Flan proposed by the PJ 5 and ‘Mattox violates =a 

Rrra NL nr AC om 4 Tazo : Tv1A4 3 = -1 . 1 Cf Federal and State laws including, at the very least, the 

nave only two year terms and run agaln 

Sniy viclates art. "5, 3 7 fil 
ich provides that judges shall have four year terms, 

ut it will deprive those judges of due process in that 
e oe iz tenure In office will Bb terminated sooner than 

i constitutionally permitted and sooner than that of 
othe a 

lh di 

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en allowed to run its 
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fil ro 353 in gr ha = pe, - : : (2) sandlicateg file. for Speci icC CCUTrLS with statultorli Ye 
Ss S mposed specialtie 

  

Comment: See “Texas Constitution Article 'V,. 8 1; Texas 
Zlection Code § 141.031; and Local Rules of the Board u 
of Judges of the Second Administrative District. 

(3) Election petitions are filed for specific courts with 
identified specialties. 

(4) Administrative judges are not now statutorily 
authorized to assign courts to successful candidates 
for public office, as the Plan proposes. 

  

Comment: Eee Government Code § 74.092 (1988). 

{5.) Sub=district courts are not. now authorized by law, 
creating potential conflicts between current law and 

1 

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such: districts are deemed 

(2) -udces are  reguired "fo ide iin "th district d res inth 
which they serve and perhaps in the sub-district 
Irom which the 1 

(b) Judges are required =o hold court in their 
district, subject to "visiting judge” ceptions, 
and perhaps in their sub-district. 

{C) Juries must be drawn from the court's district 
which might be construed to be sub-districts 

(Gd) Venue lies in the 

be 1n the sub-distr 

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since Texas law requires that a candidate for 
yffice designate On his petition the court for 
is a. candidate), judicial re 

S the assignment of candidates f 
judges to new districts, and the determination 

he court for which the candidate should file his 
fee. None of these practical considerations can 

adequately addressed within the next two weeks. 
tead, any remedial plan designed to affect the 1990 

3 numerous Bobet of compliance 
complicated provisions of the Texas Election Code 

h would have to be dealt with willy-nilly in th 
rior to the filing deadline. 

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() Plan proposes broad relief not sought or proved at 
lal, e.g. or [ikereios for all parts "of Harris 
Nty rather th those specific sub-districts proved 
meet Gingles i for black voters. F

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comment: The proposed an reassigns all. glstrict 
ludgeships "to legislativ Gistricts wn Harris "Cou ta 
rather than fo specifically drawn judicial districts 
with known black and majority populations. The 
evidence presented at trial (solely as toc black voters) 
is ignored, and the proposed county-wide Plan is pro- 
mulgated in ignorance as to whether th lew districts 
serve any Voting Rights Act purpose at al , much less 
whether they bear any semblance of compliance with the 
standards of Thornburg v. Gingles, 478 U.S. 30, 106 
S.Ct. 2752 (1986), the seminal Supreme Court case under 
  

 



    
which the liabilify phase ‘cf the instant action was 
Jecided NO evidence was presented at trial gs to the 
deémograpnic maxKe-up or UoTing patterns in legislative 
dlstricts--even con the basis of the out-dated census 
materials from 1980 on which the Plaintiffs reliede~-nor 
d Sucn districts Degln tC approximate the size and 
number oF geographically distinct single-member 
judicial districts which would be required to accom- 
mocdate the legislatively prescribed number of judicial 
Qiscrices in the affected counties. Random assignment 
of "extra" judgeships by =zhis Court and subsequent 
designation of eoure number and specialty by a newly- 
ensconced administrative judge goes far beyond any 
evidence or any Lid sought "inthis case, violates 
the principal of one-man, one-~vote 2/ and, ‘for no good 
reason, permits some voters to vote for two judges and 
others ITO vote for only one--all in ignorance of <*he 
Type of cour 2 which they are voting. There is no 
evidence that ‘the creation ff such judicial districts 
would achieve the purpose of elimina ing the dilution 
of black and/or Hispanic votes in the election of state 
district judges which the Court has found to be present 
in the target counties. Indeed, ‘in. Harris ‘County, 
there was no proof that Hispanic votes were diluted at 
all 

(7) Sub-district courts, as prorosed, violate Article ¥; 
§ 7 of the Texas Constitution 

Comment: The Court itself has acknowledged that the 
Texas State Constitution would have to be amended to 
authorize the elect ion of state district judges from 
gingle-member districts smaller than a county without a 
majority vote of the citirens of the affected county. 
See srt. 5877 of the Texas Constitution of 18785,   
adopted November 5, 885, Nevertheless, in ‘utter 

  

[8
 Judge Wood relieves that under <the plan devised by the 

Plaintiffs and Mattox, voter <urnout is dramatically higher 
in ‘the districts assigned one judge than in those assigned 
two Judges ‘and ‘that, if this plan were to be implemented, 
the actual voting power of voters in the arbitrarily favored 
districts would exceed that of <wvoters in the disfavored 
districts by’ more than 3 to 1, a result which “is 
unconstitutional “on its face. -ucdge Wood is prepared to 
present evidence on this and other claims she makes in these 
cbjections which ‘are. without evidentiary support in the 
record if the Court permits an evidentiary hearing on 
remedy. 

 



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voters of all races. 

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The Judicial Redis stricting Board 
the Texas Constitutien in 
together with all: Texas statutes providin 
tionment that will serve the purpose of prompt and 
efficient administration of justice. 

Comment: The 

policy "that 

subchapter 

various ‘4 

H O 3 Oo 0 MD Q.
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apportionment shall be as provided by 
the Texas Government Code 

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Comment: Judicia Places 2 
assigned to heavily Democratic 
legislative districts 131, 132, 
143, 146, 147 and 148. A } tily conceived and 
implemented program with } 1akedly self-serving 

1 si designed to Sopevas the: rights of non- 
non-Lemocratic voters selecting judges, 
vied solely as .an rroposal, neces- 

fundamental Lon S$ To whether the 
Ually complies wi ch standards of the 

S Act'itself, wi it can survive strict 
scrutiny, and whether it unjustly and 

bitrarily deprives the judges and voters of Texas of 
process and equal protection of the law and 

specific statutory safeguards. 

~~ Ea :Z any of the sweeping changes from current Texas 
Constitutional ‘and statutory requirements are deemed 
invalid--despite the federal constitutional supremacy 
clause--thousands of civil judgments and riminal 
convictions may be tainted with potentially horrendous 
cnseguences for the State. —ad 

The proposed Plan raises substantial questions with no good 

answers:  



      

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i - 3 = . % : - - Wny alter the judicial election system as it relates to -- - - 

Other ‘than petitioning nincorities? csudge Wood cites 
i, RE BEE al RR 2 eR > 3 ! EW mt id Chie clg maxim sala @ElINl T Droxe, con = fi it 

Why not leave county-wide districts and races for those 
voters (and judges) who have not complained, who have 

nts Not proved a Voting Right Act violation and who 
require no relief? If the appezl is successful and/or 
the interim Plan proves defective, at least the adverse 
consequences are limited t 0 the number of ‘courts the 
Flaintiffs put at issue, not all the courts in nine 
counties. 

Since roughly one-half of Harris County judges are up 
for election, why now create six single-member 
SSuniese in 1990 and seven in 1992 with the boundaries 
suggested by the Houstcn Lawyers Association with the 
hope that open Lenches can £ill these guotas, thus 
minimizing disruption 

Why assign judicial candidates to districts which may 
themseives violate the Voting Rights Act? 

How, does a specific incumbent judge or judicial 
candidate assure himself that he is ramming... fora 
specialized court for which he is qualified when 
specialized courts are assigned after the election? 

How does a judicial candidate campaign if he does not 
Know whether he is running for a civil, criminal 

How do voters evaluate a candidate's exper: 
redentials if the wvorers do not know what ‘kind of 

ri the candidate is running for? 

What 1s the rationale or authority for vesting virtual- 
ly absolute discretion in the administrative judge to 
assign courts (and specialized functions) to successful 
candidates? 

ITAL - 1 A +a = GES EEEE Sp 
O0W would “hii S rw alo Jo LC ify assigning oy fiat "extra 
Judicial: benches only to those State legislative 
districts hand-picked by Plaintiffs' counsel and Mattox 
for their Democratic (and la argely minority) history? 

What if this Court is wr 
to veside in: their dj : 
"district," or pick duries fro 
held to mean sub-district? Will all criminal convic- 
tions and ‘civil 3 ts oe subject to being set 
aside? In'sithis context, the Court might profitably 

ng and requirements for judges 

ct Or hold court in Their 

m their "district! “is 

 



  

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read Williams v. Superior Court of Los Angeles Countv 
781 P.2d'S37 (Calif. 198%), Ree attacned ~xnibit TET. 

Why are judges elected inn 1990 =o be Prejudiced by 
receiving only two year =erms? 

Why will all judges run in a single vear = 1892 = when 
we know from historical experience that the vicissi- 
tudes of politics may give ‘one Party or.the other =he 

vantage in tha iS precisely to provide 
WS pr 

t year? =r 

yi ovide that not 
pom 

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adva 

stability and continuity “ha 

all judges run in any given ye 

Why do away with the requirement for filing a petition 
in 1980 when we know the rerition regquirement--again 
from historical experience--is a desirable mechanism 
for avoiding the candidacies of kooks and cracRkpots of 
all races and persuasicns who cannot muster enough 
friends "and supporters to meat =h Minimal petition 
reguirements? 

Why «do some voters get To "vote for wo judges and 
others only cone? 

Why d the Flaintiffs and lattox select which voters 
will be thus favored? 

S assigned 

i3 There a danger that assigning politically naive 
jucge 0 districts where ' state legislators have 
existing political organizations in place will simply 
make judges the patronage pawns of state legislators? 

Phy ois «th Plan's recusal right only available to 
Plaintiffs, since Defendants will not have been served 
or filed their appearance within fifteen days of the 
case being filed and the court assigned? 

Why “is. an interim election plan to cure purported 
Viclations of the Veotin Rights Act entering the 
complex thickets of cours administration, trial 
procedure and the Texas Rules of Civil Procedure? 

Why not hold an evidentiary hearing on any proposed 
interim vemedy? Surely what is done to our fudicisl 

Tem" ls: as important +o =the Court ‘as the Court's 
finding that something needs doing. 

I 

4
 

—
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- The "gravity of the Court's implementing any hastily con- 

trived, politically oriented remedial deal cannot be overstated. 

O and who individually 

have on average more than ten years experience, and it would 

crejudice candidates who propose to run for district judge. Any 

clan prorosed at this time would wreak havoc with the ability of 

Tie se uoges. To L850 thelr .ves, not mowin what district they 

candidates who seek to run for election in 1280, all cof whom will 

have to run again in 1992, should not be so cavalierly affected 

DY a court-imposed hastily negotiated interim plan without input 

From all parties to this suit, without input from the Judges 

themselves, whose interests the Texas Attorney General is bound 

Py law to represent, and without input from the Texas legisla- 

Ture. 

8.ly, the «census data on which the Court and those 

carties which have been invited to participate in constructing a 

remedial plan are relying is “ten years old and therefore 

dramatically out of date. There is no assurance that that data 

would permit a remedy bearing any resemblance to actual - 

[\S
) | 

 



    
  

ne Ei fry Circuit in Chisom vv Roemer, supra at 1189, cuoted 

Justice Black in Oden vv Britssain, 3968: U.S 123 (1869) as   

In awarding or withholding immediate relief, 'a court is 
entitled to and should consider the proximity of a 
forthcoming election and the mechanics and complexities 

Ir state election laws, and should act and re 
e 8l ‘equitable principles. With respect to ‘the 
iming of relief, ‘a court: can reasonably endeavor to 

aveld a disruption of the election process which might 
< 

& 
a 

e 

and implemented. A more adequate 

result -“»om regquirin precipitate changes tha could 
maxKe Unreasonable or embarrassing cemancs on a State. in ale 

—~ - . ~ 2QIUSTing to the requirements of the court's decree. 

FT} = = . IN A RE 5 -~ < Jy a - Tit ha 3 <flele _. 8 no Tegquirement that this Court act immediately. Again, 

We consider significant the Supreme Court's acti 
in jWhiccomb v.} Chavis. 3 
  

I staying’ the reapportio 
ment plan ordered by =a three-judge court, the Supreme 
Court permitted the conduct of an election under the 
old scheme which had been found constitutionally 
inZirm. In dissenting from the refusal to vacate their 
Stay order, Justice Douglas pointedly stated: "The 
State contends that without a stay it will be forced to 
conduct the forthcoming election under the reapportion- 
ment pian cfithe District Cour: By granting The =tay, 
aowever, This Court has equally forced the appellees to 
ge through the election under the present scheme which 
wags neld unconstitutional by the District Court." 396 
U.8, 1064,80 S.Ct. 761, 24 L.Ed.2d 757. Nonetheless 
the court permitted the election to proceed. 

In sum, the proposed interim Plan crucially affects the 

lives of judges who currently hold the office of state district 

will fila. *0o runt for office: Chief ‘Justics Phillips 

udge as well as the lives of those candidates who have filed or 

indicated that the affected incumbent judges collectively have Q 

more than 800 years of judicial experience which is put at ri 

()
 | 

 



    
it also ‘fundamentally affects the rights of voters ‘in the 

counties for whic The remedy S pyrecposed The result would 

inevitably be a system in total Slsarray uniquely calculated to 

squander cone of Texas great resources--half of 

experienced judges--and to interfere with =the rights of judges, 

the rights of candidates: and the rights of voters to elect state 

district judges in the target counties in elections which are 

consistent with the fundamental requirements of due process, 

Sm Fa ot y Pn . alt 3 WREALZOURE, Or all of the Ioregoing reasons, Judge Wood 

-rges That no interim plan be approved, pending interlocutory 

appeal cf the Court's Declaratory cudgment. 

I § ! 

  

B ; : L babi 2 eee mei a = i 

J. Eugene Clements 
3500 NCNB Center 

  

r Box 4744 
— do ~ —— ~ AA H or; exas ]210=4744 

FOR HARRIS COUNTY 

JUDGE SHAROLYN WOOD 

CF COUNSEL: 

FORTER & CLEMENTS 
Evelyn V. Keyes 

2500 NCNB Center 
P 4744 
A: 

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I hereby certify 
true and 

malled to 

States mai 

  

correct copy of 

counsel of record 

l, postage prepaid, 

C
n
 

p
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pw
 
W
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Texas Rural 

201iN. "St, 

Antonio, 

that on the 

the above and 

in this case by 

day of December, 

nile 
+ = 4a 

JE Sp 

addressed as follows: 

Julius Levonne Chambers 
 Aglelinm A. 

oe Byer Detens 

ga 95 

10013 

Ms. 

Mat 

301 Congress ave. , 

Austin, Texas 7870 

Gabrielle K. 

Mr. 

Ms. 

Mr. 

My. 

P.O, bs 

Jim Mattox, 

Mary F. Rell 

Renea Hicks, 

Box 12548 

Capitol Station 

Austin, Texas 78701 

Javier Guajardo, 

McDonald 

Puews & Zransaoubd 

i889.,; a 
foregoing document was 

st class United 

nev General - 

crThey General 

tant A t ror ney General  



Edward B. Clo 

inax, Wells, 
oli Elim Street 

Texas 75226- 

Brice Cunningham 

R.L. Thornton Freeway 
| 

BR 

8s, Texas 75203 

Mr. Robert H. Mow, Jr. 

Hughes & Luce 

2800 Momentum Place 

1717 Main Street 

Dallas, Texas 75201 

i es — 

  

mugene Clements, 

 



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Citation Rank 

263 Cal.Rptr. E23 Fi 

¥81 P.2d £37 

Edwarc 

The SUPERIOR COURT 

The PEQPL 

Suprem 

During trial of defengant for 

venlre on ground that Diack par 

unconstitutiorally underreprese 

Superior Court, Los Angeles Cou 

“ot10n ang cefengant filed pet: 

The court of Aspeal Wo T3 Cal. fp 

24 Cal.Rogtr 208 I Bod 137 

court icf Appeals Lilie, FP, J.. 

grant of review, the Supreme Co 

definition of "community" for ¢ 

and (2) representation of blact 

not unfalr eng unreasonable in 

community 

Affirmeo 

Kaufman, J ww filed concurring 

Eroussara, .filea ocpamion ¢ 

which Most, ©., jolned 

” = yo -~ - 
Aeprecentallion oT Community. 

mad 190 cal, 138% 

No litigant has right to jury t 

population, or necessarily incl 

any particular individual; lit 

that is near approximation of i 

random draw permits. U.3.C.A. 

ig, 

Williams Superior Court 

b> Cal. .Rpwr. 203, 781.24 5 

K. Representation of community, 

Cal. 1888 

There 1s no constitutional limitation on legislature to crea 
community from which jurors are 

J.S5. L.A Cone . Amand. &. 

Williams Superior Court Peo 

cba Cal. Retr. S03, 781 P.D4 £2 

COPR 

E 

Const .Amena. &; 

WILLIAMS, Petitioner, 

Y 

of Los Angeles County, 

E, Reali Party in Intere 

No, 58@2131. 

e Court or California, 

In Bank 
a 

Dot. 32 : 

rirst-degree murder, Je 

SONS On jury paneis in 

ntativ cf bilsck popuis 

nty, Jacauei:ne L. Weis 
AY ra Et Es Te 
bon wth - wi. - i - 

Tr 720. ZemieEg pet LT 

Sy transfarreg Cause fo 

=oB Lal Bogyr. 488, aga: 

grt, Bane llae Jide] 

ross section analysis w 

E 1n venire from which 

pelalion to number or gh 

Som 

hat mirrors demographic 

udes members of his own 

1gant is constitutional 

deal cross section of c 

West = 

drawn for cross section analys: 

XHIBIT "pm" 
  

Respondent; 

gt. 

fengant moved to quash 

district were 

Yon ans county The 

ES. J... Oenled defencant s 

ition Enosor mangate 

on Tne cupreme Court, 

r reconsideration The 

D.Jdenled. petition, on 

that l) appropr:ate 

&s Judyicaal district, 

Juris wens sslecyi ec was 

lack persons 1n 

issenting i1n part :n 

composition of 

group, or 1s composed of 

ly entitled to petit Jury 

ommunity as process of 

Ann. Cal, Const, Art. 1, = 

purposes. 

Ig)
 

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0
 

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£3 Lal. mpur. 233 

SBKIZc 

JRY 

Representation cf community, in general. 

ai. 13ET, 

“ppropriate definition of “community £ - 
ar purposes of drawing jury 

representative cf cross section of community is a judicial district: 
legislature intended that courts of district serve population within its 

vonst.Amend. 5. Cf C aounaaries. whe 

~1lliams v. Zuperior Court (People) 

~23 Cal.Rptr. 228, 721 PP, 24 63 

~ 4 

ng dui du 

JJRY 

“ace 

21. SEY, 

~epresentation of blacks .n venires 

.nrair ang unreasonable :n rejation to 

of court 2 

deprived cof 

zefined as judicial district 

thus, defendant was not 

rom 

number of blacks in 

fair 

selectea was 

community 

Wwnicnh juries were 

which 

cross section of community in 

ejection of jurors. U.S5.C.A.tConst.Amend. 5. 

Jl1lliams zuperior Court (Feople) 

~53 Ca pir. S93. 21 P.od 57 

Madelynn rcOple, “rank CU. Bell, ir., State Fuplic Cefender. ana Donal 
erson, oseput tate Fublic Jefenger, ‘zr ~eti:ticner 

~anWwiCh, avis w@g1., Mitchell Zimmerman ang Sall SET EE DE SR 

AM1C1 Curise on penaif of petitioner 

!0 appearance T:-r respondent. 

Nt .2. zcheicegger ang Lharles UL. Hopson, tacramentd, as amici curia 

zenalf -r resgconogent 

a Reimar. “ist Srtvi.. Harry B. Sopomeim. Donald rapian and seor 

Eimer, Jsdutya ist. Altys,, for real zarty interesst 

3 dpe LE od ER OY DO Ten. , cary +. Aan, Jonn =S Sorey., Thun 

_2Du mite, can. ecil Hicks, “List tty. range, ichael =, _&api:z 

List. y iwilliam Ww, Sedsworth, Franclain ov. Carrc:l. Deputy Dist. = 

ang Chrisicpner MN. Hearag, San Jose, as amici: curiae on behalf of real 
interest 

Je Witt Ww. Clinton, County Counsel, ana Richarc E. Townsena. Deputy 

-oungel, Los Angeles, as amicl curiae. 

~ANELL CZ, lst =a. 

"Me 133uUe In Tnls case 15 whether jury selection procedures in Los 

*ngeles Lounty violate a criminal defenpant s ~ight 2 an impartial ju 

18, 8 Jury renresentative of a cross-section of the community. Ep 
1 

” 

J@ must gecide 

defined as the county, 

axtending 20 miles from the courthouse. 

that the appropriate 

judicial distract, [FNL] 

for purposes of 

dati 
i ps 

SOPR. CJ) WEST 

the superior court 

11tion of community 

cross-section analysis, 

(Judicial) district, 

As explained hereafter, 

for cross-section analysis 

  

defengant was being tried; 

wn
 

[RH
 

[¢]
 

0
 

ecifically, 

community” 

or an area 

we conclude



    

Sistrict 

—dward Williams 

Norton. Defencant 

21 the outset ‘nat this cEse 

PF aiiury ocfithe wacinage. In 

Ti, unacainsl Teaget 0 2808 we 

S47) we nola trat bouncaries 

(defendant) 

is Black; 

a Comba 

ot ay) Bl. 

SAGE I 

1 - - y 
+e oT vNl1s 

5S LalRpar 
SEI a Tine ne 

is charged with the first degree murder of Bruce 

Horton was White. The 
Superior Court District of Los Angeles County (West District); 

scheduled for that district s superior court, located in Santa Monica. 

crime occurred in the West 

trial was 

[FN2] 

FN2. Pursuant to the provisions of Government Code sections 53640-53650, 

Los Angeles County has been oivideo into ii 

d1siricis, 

~efengant moved to quash the 

=anels 

veninpe son the gro 

super. 

ung tha 

er coury 

ry . 
Y misCk OD 

or judicial 

ersons on jury 
in the west [istrict were unconstitutionaily unacerrenresentative of the 

clack population of Los Angeies County. Defendant sougnt transfer of the case 

0 either the (Central District in downtown Los Angeles or tne South Central 
in Compt 

sxpecled to appea 

1 
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+
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Y m y (b
 

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nn
 

[§ 

ba
 

_efendant did not 

on, where a greater number of 

rin the venire. 

cathe motid 

argue that the 

COPR. 12) 

s, Ierfencant ca 

§ County, wn 

eg voters an 

pl 

. Bnrosat 

r 

¢1
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- 
3 nl
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ble Jur 

percentage of 

WEST 1389 NO 

Blacks 

computer ro 

or may 

could rea 

I 1 ~~ 

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5 oO
 

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Blacks on nis jury panels was 

CLAI 
-——- pm — m 

Cl
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® =
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Dy the county 

virtually 

fe that court 

courthouse 

1s residence, 

-d3. he nas = 

repealed former 

we Du COUT, WORKS 

 



AGE 

unfair in relation to the percentage of Blacks within the West District or 
41thin a ZQ0-mile radius of its courthouse. He argued only that Blacks were 
<naerrepresented on the panels in relation to the percentage of Blacks within 
the entire county. 

The trial court denied defendant s motions. The court found county s jury 
telecticn procedure to be "fair and reasonable" and further A 

il
 

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ne constitutional 

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presented here.’ 

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a petition for writ of prohibition 

Th “opeal denied 

wOMMUTILT Yi. 

, the art to trial by a8 Jury drawn from a representative 
section oft community 1s guaranteed equally and independently by 
Amendmen he federal Constitution {Taylor v. Louisiana 13875) 41 
23 F..58c. B87, 42. L.Ed. 2d B30) and 3 BY article I, section 16 

y - = 
— Nt M . i Sn JE do [ y ug 

California Constitution. Feopie vv. Wheel 1 La, 

381 .Rptr., 8 83a F. od 748. 

Representative cross-section analysis deveioped as a response to the 
oernicious practice of eliminating identifiable groups from the jury pool 
areventing 
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groups. 

. 15 well settled that no litigant has the right to a jury that mirrors 

emographic composition of the population, or necessarily includes members 

§ Cwn group, or 1ndeed 1s composed of any particular individuals. ‘People 

oe Cal. 2d at ip. 277.0248: Cal .Rpotr. 580, SBT F.24 745; 

43 Cal.od at pg. 749, 7B P.23 8; Feopie v. Hinas 

- What the representative cross-section 

mean, however, .s that a litigant "is constitutionally 

t1t Jury that 1s as near an approximation of the ideal cross- 

ommunity as the process of random draw permits.’ 

ot tdi rad at on 77 18 Cal.Rptr. B88@, 583 

CORR. 10) HW 1383 NO CLAIM TO ORI  



   

  

~N5. The fair cross-section principles set forth in Wheeler were codified 
by the Legislature in 1980. As amended in 1988, :zection 187, subdivision 
‘a), requires 1n part that jurors be selected "at ranaom, from a source or 
sources inclusive of a representative cross section of the population ~f 
the area served by the court.” Section 224 former zsctiion 197.10 
Zroniblts exclusion from jury service ‘by reason of cccupation. race, 
toior. religion, sex, national origin, Or =CONOMIC status, or Tor any other 
ra8sin. 

Oefendant argues that his right to a jury panel crawn from a representative 
€Clicn Cr ine community 1s abricged by the jury selection procedures in 

C vy. Defencant cities the = mony zT Raymond frce ‘ante, p. 

, F.-S) tnat Blacks comprise 11.4 
percent of the countywide, juror-eligible population. Defendant did not argue 
that the jurors called in his case were rot representative of the juror- 
2l1gible tlack population of the West District, which Arce testified averaged 
=.b percent in the three months preceding gcefengant trial, In fact, Blacks 
omprisea 8.5 percent cf the jurors appearing for cefengant s case. 
Under Duren v. Missouri, supra, 438 U.S, 357, 989 S.Ct. 664, in order to 

2stablish a prima facie violation of the fair cross-section requirement, "the 
cefendant must show (1) that the group alleged to be excluded 1s a 

J 
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ot
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oy [SS (A 

distinctive group in the community; (2) that the representation of this 
sroup in venires from wnich juries are selected 1s not fair and reasonable 1n 
~alation to the number of such persons in the community; and (3) that this 
“nderrepresentation 1s due to systematic exclusion cof the group nithe jury- 
selection process” tlc. svg. 84, 38 S.Ct. at co. BaE; Feople v. Harr:s. 
idpra, 2B Lal.S0 Z6, CF, 001 Cal .Rotr. 782, E78 P.243 433.) 
~4& are not concerned with the first prong of the Duren test for the People 

concede that Blacks are a cognizable, distinctive group tor purposes of fair 
cross-section analysis. Feople vv, Harrie ©1884 3°38 cal. 2d 35. 51. 2p} 
-al.hotr. TE2. ETBE.Cg A330; “imovey v. upsrior Court 18880 22 Cal.zd {2 
Be oy Es Re LR eg rR i Nea BY EO 

© meet ihe secono prong of the Duren test, cefendant must show that Blacks 
were underrepresented in jury venires in relation to the number of such persons 
in the community. Before this court can evaluate the statistical showing of 
inderrepresentation made by defendant, however, we must first determine what 
community the jury venire must fairly represent. it 13 here that we confront 
the central issue of this case. 

Defendant argues that community is defined as the entire county. The People 
argue that community means the judicial district. As noted, the Court of 
~ppeal rejected both definitions, preferring instead a provocative compromise 
‘that defines community as that area within a 20-mile radius of the courthouse. 
ENB] TInasmucrn as the pasis for the decision of ne -ourt ft Appeal has been 
g2liMminsieqg, nC OUrPOSe 15 ssrved by an sxtenceg discussion of the propriety of 
JEIiNg Ine SJ=-mile-rS0ius CoMMUnLtY In cetermining Tne population far cross~- 
3@Cctlion anslysie,  [FN7) Je turn, instesg, is ithe srouments cor the Feoplie ana 
zefengant who. ~2:5p jqglcial ogreirict and county. We 

J 

Clively, Jropose the 

t erves the constitutional ang 

termination of the appropriate 

c = 

ude that ihe judicial district bes 

I’ = 

BS NO CLAIM 70 ORIG. U.S. BOUT. WORKS 

one Ss 
statutory considerations at issue in the d 

2OFR. ALY WEST 

 



   

  

ia) me —y 
i - Fi af Ir Es J =O 
=AsE = 

community for cross-section analysis as weil as the practical problems posed by 
a far-flung megapolis--Los Angeles County. 

tl
 

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® urt, anc shall oe seiecteg po 

Of more than one court loca n H 

gistance traveled by juror 

ureor shall te required tc serve at 

5S. Or her rasigdence.”’ Sasction 2 

y Selection anc Management Act. ta 

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85 tne relevant Immunity for Ccatermination 

0)
 

3 

(2] Defendant contends that the relevant community 1s the county. In 0 Hare 

v. Superior Court (1987) 43 Cal.3d 86, 233 Cal.Rptr. 332, 729 P.2d 766, we 
addressed the 1ssue whether the Sixth Amendment entitled a defengant to a 
venire drawn from, and representative of, the entire county. We squarely held 
that it does not. 

J Hare was to De tried on a felony charge 1n the North County Eranch of the 

an Liege superior Lourt, which drew 1ts jurors from an area i:mited by the 
zounagari:2s 7 tne North County Municipal Court Judicial District J Hare 

‘
o
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 3)
 

cmplainec that the limiteg venire contained a significantly lower oercentage 

2t jury=-eligitle Blache than did the county as a whole. 

Je held that "the constitutional cross-section requirement is a procedural and 

not a substantive reguirement” (0 Hare, zupra, 43 Cai.Zd at po. 100, 233 

~&8}l.Fpir, 232, 728 P.2d 766) and found no constitutional limitation on the 

government s power to define the "community" against which the demographics of 

the venire 1s measured. The drafters of the Sixth Amendment intended there 

COPR. (LC) WEST 1888 NO CLAIM TO ORIG. uU.5. GOUT. WORKS 

 



   

  

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Florida (1872) 3989 U. 5, 78, 85, 90 5.Ct. 1893, 

=¥
, tionality of juries drawn 

“0st signirticantly, as stated in OU Hare. the federal courts ha 

rom subdivisions of d 

PAGE 7 

should be no limitation on the legislative power toc define the boundaries of 
the federal district from which jurors in criminal trials are drawn. See 
s1lliams 1803, 28 L.Ed.2d 

gail e nat ne venire aig not match the cemograpnics cf t 
l1sirici-uwige community. (United States v. Gottfriea (2d Cir.1348) IE5 F.2d 
80. 254; united States v. Florence (4th Cir.1872) 456 F.2d 46. 49.) Based on 
ne foregecing authorities, we concluded in 0 H hat the n 

3
 

-—
 oses nc limitation on the legislative gef 0 

Nn requirement: "What the Sixth Amenamen 0 
ant, regaraless of his personal characterist 

mmu y 

m a 

ire from which no member of the local community was aro 
ecessar:ly excluged." 5 Cal. 20 atvp, 238, =F Lal.Rp 

~lbeit in another context, in People vv. Harris, Justice M 
Eikanilel mature of Los Angeles County snootre ‘significa 
=8 LEE IF Iountywics statistical dats 5. c2l.la sep 
HR BR a ur core uses the term area served 
i FrOD, NE (BT) rotate county aniunicn the court 1s 
Mly & cursory rnowieage of the cemograpny ci Southern Cal 
Nat Long Seach courts serve an area completely oistinct 1 
naracier:istice from the totality of [os Angeies County... 
ntire _ounty of Los Angeles are not cniv irrelevant but 

as Community. 

L2J maving concluded that there 1s no constitutional lim: 
re to create a relevant community for cross-secti 

: : 

C
 a =
 0 =
 71
 

—
 her in creating Superior court tor 

ngeles Lcunty, the Legislature i1ntendeag to gefine commun: 
he Judicial district where the case 18 tried. 
BR a pe CE Dh pm ay z fae ” aS - <CLVvLwnd TToaWY-SCoooY OT the povernment cde, =nactec I i 

Ligelirnas forma creation of ERLE IC Cour astra ots ain 
- = - EN = - = - = = = - = ie nll WE Carticu.a aigvance IC thas case are ‘ssctions ohcdle 
- —- —_ x ——- - — - 5 

“4544 iT lel ang £5645, [FN12)] 

n 63641 reads: ‘The beard cf supervisors 

o 

ng census taken unger the authority of 
ordinance may divige such county into 

e rt districts within which one cr more se 
court znall be heid."” 

£83643 reads: 

t 

E2c=1oNn8 Of tha superior cou 

Cis, 11 may make such chang 

21
] hl D ct
 

4 0 

s Dy.Ccrdinance. 

FN1l. t2ction 69644 reads: “Ar nce creating or 

% 

n of community for th 

es guarantee to every 

1 

Sixth Amendme 

® 

a jury crawn from a 
bh al AM \ ~ 1trar:ly o 
Fay ——— m—ony LS - 

1 a —- — 

- —- = + 
Pah nGLeq e 

yr ~~ Cia hs = -* I JecCepllveness - 

Sn ee an Tee 
- a Fo A SE OD SE [= 

— a - # 
FY ANS Jour wile 

tation 

on purposes, we must 

LI al i re LCS 
avo Ee wm

 

ot
 

3 

XIyi in that county 8S 

fr po ANE RR 

LIE mNoelegiLounty, 
—_aim ale] a) avy onl A 0 MT, Bi 

FRG eS ed sy, CEN 

of any county, which 
f not less than 4,000,200 as c=termined upon the basis of 

the Congress or the 

nct more than nine 

icns of the superior 

cn ‘Whenever the board of supervisors finds that 

population make necessary or expedient the change ¢ 

rict, ihe change of, aadition of, or elimination of 

te neld, cr the creation of 

CT boungoaries 

any location 

n o! na ; 
COPR. «C) WEST 1583 NO CLAIM TD ORIG. U.S, GOUT, WORKS 

 



   

  

)
 

panels, 

lace--the practical realities o 

cal expanse, ana the need for 

Ny ZJlslricl =nail not ras 8 fio 2 2 res 

= i Mm 3 dy, aiticn St less than 2E2.80 

25545 ~aAanes a ~mEYran “ob 4 Tesls in Crgins 

consigerations that orompted the ls=gisi 

10 De achieved. Following Worlg War 

1a, in 1357 ithe Legislature created 

istration orf Justice (Joint Commit: 

udicial efficiency 1n the Los Angel 

CQ of cases in Los Angeles County 3 

aving aoubled from 65,300 cases :n [8 

perios from 1323 through 1887. & se 

court” hails) nad enapleg cities t 

feraticon of Los rngeies County one- 

rein 1E83.anp again In (357 cassen 

J1E1ANCE CelWeEn & Drojecten ew Co 

Nearest L.ty 1N8l nag an existing oo 

Sf tne 1357 legisistion was hold: 

ZOUrts in the .os Angeles area 

t Committee Cid not encounter zoje 

ther, objections focused On the le 

The branch court system, the Joi 

Dy & system of Courts located by o 

nience, -egargless of city Doundgar: 

ngeles County Eoard of Supervisors 

Perior court operations “according 

ge and sconomy. 

1 Committee, :n turn, recommenced 

1Zing the Board of Supervisors of Lo 

15.5 or 13 superior court district 

zt the ugpes. cne or more locatio 

sess10NsS wSint Lom, Fep.. .&t pD. 

ng the creation of such districts i 

lature in 18580, The kill was cogif 

t Lod Stars, 1968 cn, 1371, = 

€ Legislature gid not explicitly d 

cts as communities for ithe purpose cf 

the considerations that prom pt 

f the 

Juo) 

intenged that the cistricts 

Jury impartiality. In 

entity==t1he Los Ange 

inefficient as a s 

i 

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ropolitan ar 

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shed some iignht on the goal 

the popuiation explosion i 

int Judiciary Committee on 

geal with the urgent need 

RA BY 

Court wa 

Less ans Tne manoaliory 

noStherwise 2ligiplie cot 
iret - al -r 1 / rma i d 
2 y GN - tld Y = ? oi 

The 1.008 Of Crhneryise 
~ —- 

om Neh. Cea Da 

t0 1Ne Srafncnsccurts as 

28 TOrMUlas Tor thalir 

ti1ee was 1o0id, Zhoulg he 

velopment cf 

the 1nterest 

=.40 

Daseq Cn population, need, 

on n 

e 

€ County 15 divide the 

cower > gesignate, with the 

CH gigsIrIcy for ihe moioin 

gnate Ell No, 282, 

ngeles, unanimously passed 

sections 535640-£5650 or tn 

542. ; 

the superior: court 

ng the respresentativeness 

ion of the districts in tne 

s unique demographics, its 

ency--convince us that 

the community for 

1 

unmistakabl 
+ 

  

owl thy Lt Nis visu,



  

p 

SMMUNIItY CIN LO8 HANGS 

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the Court 

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ise cr the =u 

their se 

the instant c 

r definition oc 

county, 

juries a 

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al

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and EAGLESON, YAUFMAN 

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as the 

court juries, 

res S~S8ct ion 

reasonable 1n 

nevis esour yt, 

the Black 

the percentage 

relation to an 

District. 

n. of Elacks in 

e 1n relation 

ng under 

1.8. SOUT, WORKS 

 



wholly unwort 

and Ba v. Municipal Court (1888 

Cal.Rkptr. 513, 731 P.2Zd 547 ang the other zZecisions criti 
are not and net based on racial consigerations at all, much 

scrimination. They represent reasoned and reasonable resolutions 

sroblems, adopting rules th \ l afford trial courts the 

y require to operate the j rt system and conduct criminal 

1 r vet expeditious manner Ln f ot CEec1ls basically 
ject arguments based con 

1 
4 

y 

i rosecutors of (rr 

] standaras 

- 

ZySiematc 

whnoerrapre 

-omMmmunil 

Memneres 

squally 

| 
- 

NO memper 

e Lgnorant 

lsagreement on 

lsadvaniage r= 

Sackgrounag. 

souniry ~egaral 

L48 should siimi 

mrrQcegures 

onstrate invidious or 

group, a& showing of some 

s.given iime 1 ( Neither tne venire nor 

racial. ethmic, or relig composition of The 

ury has peen fairly ti 5 umes that 1ts 

white, Hispanic ig od Lh Wks are 

representing the ent: ty. I} pio trial cbhy’a 

- gefendant 1s 

defenoant 

a crime 

ang no thoughtful p in. this -co VY 1.0 

‘he powerful and corrosive f of racism. Nor 1s there any 

the goal we all seek: = ty 1n which no advantage or 

sults from an individual s race, religion, zex, cr ethnic 

1s, however, an emotiocnally-charged debate raging in this 

the best means to reacn this common goal. According to some, 

1 forms of racial criteria ana use only race-neutral 

sccordlng to others, past wrongs can be redressed and subtle forms 

ion rooted out only by the use of racial preferences and a 

consciousness, hopefully, benign. 

O0nal view that heighteneg race consciousness snd 

criteria preferring one race cver another, ~o matter how well 

.n the long run be counterproductive to tne common goal and 

eruate racial bias ang hostiiaty. Sut as justices 11 

cial aecisions to tax 1 tn1s 1monious agebate, 

tS time we are p ith  1mMplnge on some 

COFR, (CT) } R1G, U.S... GOVT. WORKS  



   

  

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that each 
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cne s cclleagues 

cf an appellate cou 

to the rule 

indeed every judge 

the United 

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PAGE. ii 

vw TOTVICTIONS OM 

ncminem attacks and 

Judiciary, Refraining 

Surt: 11 pains me 

t aside. 

ful and reasoned 

ne law. But attacks 

oy the collegiality 

0g undermine the 

W. It would be 

this state, ifook an 

the State of 

fulfilling that cath as 

ce that the 

me case 15 finally 

nclude the place 

-d. ante, the 

ng superior court 

gislature 1ntended 

1rict where the case 

analysis, none of 

me was committed and 

nclude that use of 

te community in Los 

F. SOB of 283 

inion never Zirectly 

al gistrict wnere 

 



  

fe
m 

tb
 

representative 

~epresentative of 

This conclusion 

Aplvaraao 

near Chignik, 

ut 450 miles 

from people 

not excluage 

exclude almost 

ntiy asitering the r 

es that reliance on 

10 ang Brown was cross-section representation. 

neir proper place, 

represent a community 

« 
- 

+ 
- v 

-- 

1 

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the communit 

fings support 

residing with 

Native Rmerican 

wm
 

Jeterminyy 

Q
 

0 

the community PY
 

ot
 

gid not viol 

ct
 

ot
 

these precedents 

on that a 

the crime, 

ow
 

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mh
 ng reasoning toe 8 

ne 

communiiy 

itutionai 

m 

De representative 

county which 

*t
 

entative of the 

Ce changed to 

8 court.  ZTuch 

more than a right 

hirg judicial 

In Anchorage. The jury 

Anchorage. This selection 

lived in Anchorage, 

PDintsrisang, thus 

Stive jury, ithe 

ining the 

the zileged 

J 

i [K
1]

 

giver Jury 

«+e must adhere to 

or the alleged 

that the Jury 

lected only from 

Jury must 

ne ~lvarado Jury 

of =ny defined 

ies :zuperior 

ire county, or 

~ cefendant S 

£.. S0VUT. WORKS 

 



   

  

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peremptory 

character 

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excluging 

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 8 

glspropor 

fo
ns

 

y correlates with 

lusion of Blacks. 

8) 49 Cal.3d £92, 

al ana continuous 

ufficient even 

oresentation. 

missible 
i cause of 

aspect 

Jor 
£1 

w / 

~ac 

county to the 

Oo 

the practice results 1n 

ative jury must mean ry renresentative. cf the community 
ccmmittedg, not some other zommunlty selected for the 

nience or the = 

cf a series of recent sions an which this court has 
1c 8 representative jury, and thus a suitable time to 
ns as a whole. 

led was Feople v. Jonnson (1989) 47 Cal.3d 11S yes 
cd 1047, which concerned the prosecution s use of 

§ 10 remove minority members from the jury. Prosecutors 

Pt to Justify such challenges by pointing to individual 
Ne challenged jurors. Jur prior geclsions recognizea that 

ay 10 test the truth those statements is to see if the 
iengedg nonmin Ju with similar individual 
eople v. Trevino (128 Cal. 23667, 17 Tal.Rpir. +852, 

nson. however, il evino., Iepriving the appellate 
rfective way vie mi1&1 ju0Qe & Cecision upnoioing 

E1ate in Qict at @ Door To not constitute a 
£al.ld at po. Sig 1.7ptr,. EB TB Pad 3047). 

ne that the or Pps y systematically exclude Door 

That conclus see be contrary to the Unitedg States 
ton in Thiel v the cific Co, {184567 328 U.5. 717, 55 
i181) which hel nat state could not ystematicailly 
ups. from jury 1c hen, 1n an astonishing footnote, 

rat although Blacks ang panics cannot Se excluded from 
ews can, (47 5 5 Jal. fn, 3, EE Cal JRoir. EBR3, 
a prosecutor wants =a century Jury of Christian 

cnstitution, :f interpreted as suggested in Johnson. 13 no 

ple v. Morales g 81.3027, 2E7 Cal ,Rotr. B4, 770 

g«<clusion of 1% om tHE jury venire ne majority 

Cal zample cof ) w@g rooasmal lic crove 

«even though 1s Experts testifieg without Zispute 

sufficient to e th o1nt with a risk of error of Only 
578-573, 25 Ro1r. B40 :7%Q0 F.2d 244, O3 SOT OF 

les further =t ti defenaant could not =nhow a 

tion by proving that tally neutral practice haa the 

a cognizable class. Ne. S4B 257 Cal .Rotr. £4, 778 

S means 1385 that the s e cannot expressly exclude Blacks, 

all persons of charact lic "=" (low income, for sxample), 

8 holds = 

from =a 

of 

 



  

g a ccgnizabie group, —
 

dnravorably of 

and 

10 present 

less than 

Hernanage:z 

an obligation 

none 

of a defendant 

mmunity ana the vicinage cof 

Conscious. or 

Shou 

a predominately 

judges, 

racial bias. 

prove subtle 

trines wnicn hn 

agree 1n 

PAGE 14 

ithe holding 1tself assumes that the county. confronted with a showing 
ils method of selecting jurcrs is having the effect of 

has no duty to investigate and correct the 
11 may continue to exclude minorities until someone 1s able 10 'nrove 

the problem. 

speak favorably of the “absolute disparity’ test for 
defendant has made & prima facie showing of exclusion, and 
other tests. (48 Cal.3d at p. B27, fn. 14, 252 Cal.Rptr. at 

8 P.2d-at p. 142, fn. 12.3 Tha absclute-aoisparity test 
measures the disparity as a percentage 

100 percent, 

a prima facie 

L3uUrt, 

Cal Rptr., 

The 

vi. Municipal 

py 
p= 

these 

+0 

of 

cbtain a 

the 

LUNCONSC1l0Us, 

any sensitivity 

White jury. 

Jurors, 

~ 

- 

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jury 
They erect pr 

forms of 

ave pDeen cre 

pr 

COPR. «03 

19 percent or so of 

cage 

consider the practica 

decisions 

Jul y 

“i 

com 

[01
] 

nciple with the 

of total population. (1.8... 1F Blacks 
constitute B percent of county populaticn. and all are excluded, this 1s "only" 

exclus 

in practical effect 

ion. it 1s the most restrictive of the 

will make 1t impossible for a 

showing on behalf cf a minority group which 

the community. 

EUoré. Ente, 

*- 
i 

consequences of it 

f their impact on 

representative of 

reccgnition that 

iter of concern 

facing trial 

simply seem 

lack any 

difficult 

tep by step, 

make the right 13 

nave dissenteg ti 

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y io a truly “A 

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show any awaren 

which 15 

me, None 

or ever was a 

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now 

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EXHIBIT 
D 

 
 

     



TQMD TAM AATTD 
ISTRICT COURT 

TY OAT ITVS” 
T..0OF TEA 

DIVISION 

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

V. 
NO. MO-88-CA-154 

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

HARRIS 1 AR N 
TO MATTCX [] LTER THE i JANUARY 2, 1990 -— a 

  

  

arolyn Wood ("Judge Wood") 

General Jim Matt "$s ("Mattox''s) - 

Order of January 2, 1990 (the "January 2 

and respectfully shows the Court the following: 

JUDGES WOOD AND ENTZ HAVE FILED INTERLOCUTORY 
o 

“od 

APPEALS WHICH DIVEST THIS COURT OF JURISDIC- 
TION OVER THE MATTERS ADDRESSED IN MATTOX'S 
MOTION 

Mattox comes before this Court complaining of the Court's 

January 2 Order. The "January 2 Order the Court's 

Memorandum Cpinion and Order of November 8, 1989 (the "November 8 

Opinion") for certification for expedited interlocutory appeal to 

the Fifth ; denied the Motions of Judge Wood and Dallas 

Judge NF. E ("Judge Entz") 

enjoined all elections of state district judges 

under Texas' constitutionally and statutorily authorized judicial 

election system in the nine counties targeted ‘by the Plaintiffs 

sult; and imposed an Interim Plan for the election of 

ln those target counties.  



    
Following this Court's entr < Cf the January 2 Order, Judges 

Zntz and Wood promptly filed Notices of Appeal with this Court on 

January 2 and January 3, respectively. Copies of those Notices 

of Appeal are attached hereto as Exhibit "A"." Both judges also 

immediately filed Emergency Applicaticns for Stay with the Fifth 

Circuit “on January 4, 1990. In addition, on January 4, Judge 

Wood filed a Petition with the Fifth Circuit: for "Expedited 

Permission to Appeal Under 28 U.S.C. 8. 1282(bY With the TFTifth 

Circuit. Copies of Judge Wood's Emergency Application for Stay 

and her Fetition for IXpedited Permission to Appeal Under 

TAA AN $ 1l2S2(b) are attached hereto as Exhibits "RB" and "Cc." 

As Judge Wood observed in her Pefition,"she not only has the 

right to petition the Fifth Circuit for expedited interlocutory 

appeal, which she has done, but she also has the right to appeal 

directly from ‘the Order of January 2, 1990 because of its 

injunction against elections under . Texas' statutorily and 

onstitutionally imposed system of electing state district 
—~ 
Nr 

Judges. Title 28, § 1292(a) éXpressly provides that: ~ 

The Courts of Appeals shall have jurisdiction «of 
appeals from 

(i) ~ Interlocutory orders of the 
district courts of the United States 
granting... injunctions. 

28.U.8.C. §.1292¢(a)(1)" 

An interlocutory order is _mmediately appealable under 28 

U.S.C. § 1292(a)(l) if the appeal will serve § 1292's purpose of 

permitting litigants to effectually challenge interlocutory 

orders of serious and perhaps irreparable consequence. Carson Vv. 
  

 



      

  

DC... 2500.5. 508 Bd, "101 S.0ft..993. 5 006.97 

(1881). The Fifth Circuit has made i+% Crystal clear that 

immediate appeal of an order such as the Order of January 2, 1990 

28 proper under 28 U.S.C... 1292(a)(l). See Black Ass'n of New 
  

Orleans Firefighters (Eanoff) v, City of New Orleans, La., 853 
  

F.2d 347, 353-54 (5th Cir. 1988) (District court's order denying 

firefighters' union's motion to vacate order restraining city 

from promotin Q firefighters to rank of captain 9
 (D 3 Q.
 

-
 

3 Q
 judgment 

on black firefighters' civil rights suit was appealable in view 

— 

of serious consequences to firefighters represented by union), 

Therefore Judge Wood has properly filed both her Notice of Appeal 

and her Petition for Permission to Appeal under § 1292(b). 

An order granting a preliminary. injunction can be recon- 

sidered by the district court if an ebpeal is not taken, since a 
  

district judge always has the power to modify or overturn an 

interlocutory order or decision while it remains interlocutory. 
  

Tanner Motor Livery,» Ltds .v. Avis, inc. , “316 rr
] .2zd 804, 809-810   

~ .   

(9th Clr. 1963), “cert. denied. 375 U.8. 821,84 S.Ct, 59(1963); 

see gnlgo, Fed. FR. Civ. P. 24(»). Thus, this Court would ordie   

narily retain jurisdiction over motions to alter or amend its 

interlocutory Order of January 2, 1990. It is well established, 

however, that, 

The filing of a notice of appeal is’ an event of 
Jurisdictional significance--it confers jurisdiction on 
the Court of Appeals and divests the district court of 
its control over those aspects of the case involved in 
the appeal. 

 



    
  

  

Criggs v. Provident Consumer Discount Co., 259 U.S. 58, 58, +103 

5.Ct. 200, 402 (1982); United States v Hifchmon, «587. £r.24 1357 

{Sth Cir, 1979): After the filing of a timely and sufficient 

notice of appeal, the district court has no jurisdiction to take 

any action with regard to any matter involved in the appeal “dd 

except in aid of the appeal. Willle, 746 F.2¢d at 1045.   

Since Judges Wood and Entz both filed timely and sufficient 

Notices of Appeal on January 2 and 3, 1990, jurisdiction over all 

matters involved in their appeals has been transferred from this 

~ourt To the Court of Appeals anda this Court is divested of 

jurisdiction to" take any action with regard to the matters 

addressed in those appeals except in aid of the appeal. Willie, 

746 F.2d at 10486, Obviously, the matters addressed include the o 

nterim Plan, which dis "not onal: part of the subject of Judge 

Wood's Petition for Permission to Appeal but is also the subject 

Of her and Judge Entz's Emergency Applic 

Mattox 1s not asking this Court to take "any action which 

would aid the matters involved in the appeal. He has not asked 

the Court to reconsider its injunction against district judge 

elections under Texas' Statutory election plan; nor does his 

Motion suspend the effectiveness of the Interim Plan; nor does he 

ask Or Or even contemplate 2 stay. of thie Court's Surther 

remedial proceedings pending appeal. Instead, he only asks this 

Court to reconsider making district judge elections partisan. 

Any action this Court could’ take regarding partisanship or 

non-partisanship under its Interim Plan would be entirely 

 



    

in no way depends 

upon whether elections are Fartisan:<or non-partisan. Judge Wood 

has cbjected in earlier Pleadings both to this Court's Interim 

Plan and to the Plaintiffs' znd Mattox's Proposed Remedial Plan 

which included partisan elections, and she incorporates those 

objections herein by this reference. 

In fact, Mattos is counting on what he believes is this 

Court's continued jurisdiction over this case and his "Rule 59(e) 

Motion" to invalidate Judge Wood's and Judge Entz' a   ppeals, since 

Fed. 'R. app. P. '4(bi(4) provices zITnat a notice of appeal filed 

must Pe refiled after the Motion is adjudicated. Ted. R. App. P. 

2(b)(4); Criggs, 459.U.% at 28, #303 ,53.Ct., at 402. Thus, if 

Mattox's Motion achieved its true purpose, 1t would frustrate the 
  

appeal by invalidating the Notices of Appeal and Petition for 

Expedited CrFermission to Appeal a }
—
 

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Circuit--thereby staving off review of the Interim Plan and 

lg 1T tO gain a greater foothold in the judicial election 

system with each passing day as one filing deadline after another 

passed under the election system which Judges Wood seeks to 

reinstate in her Emergency Application for Stay and Petition for 

HJ
 ermlssicn to Appeal with the Fifth Circuit 

Mattox's confidence in his ability to frustrate Judge Wood's 

appeal 1s, however, misplaced. Rule S9(e) motions are designed 

to address an entirely different set of circumstances from those 

 



    

: pn ag , present. in this case. Filing a Rule 59(e) motion suspends the 

finality of a judgment. Federal Communications Comm'n v. League 
  

cf Women Voters of Cetifornia, <68 U.S. 1205 104 +8S.Ct. 3574   

(1984); Willie v. Continental Oil Co., 746 F.2d 1041, 1044-45 PoE 
  

(5th Cir. 1984). No such effect is either sought or achieved by 

Mattox's Motion, which merely seeks +o ensure that the Plain- 

tiffs, having secured an injunction prohibiting elections under 

Texas' statutory judicia election system are assured that 

elections can remain partisan under the Court-imposed Interim 

Plan. 

Since NMaftox'!s Motion is ‘not properly a Rule 5%(e) motion 

and does not suspend this Court's injunction or its remedial 

plan, it does not toll the time for filing an appeal. See FCC v. 
  

League of Viomen Voters at n. 10. Aofortiori, it does not   
  

invalidate the Notices of Appeal and the Petition for Expedited 
> 
Lo 

Interlocutory Appea | 0) 0 \) 0) 1]
 = 

— Previously filed in th 

  

i In such case it makes no difference whether or not he stvles his Motion a 1" - \ ‘ 184 ‘ . Il ¥} . 1 Rule 59(e) Motion," since neither the courts nor the parties are bound 
by the title given to a motion. Willie v. Continental 0il Co., 746 F.2d 

  1041, 1045 (5th Cir. 1984). 

ro
 

In this regard, the Court also should recall that Fed. sR. App. P.. 5 
allows an Appellant under § 1292(b) only ten days from the date of the 
interlocutory order certifying the appeal to file a Petition for 
Permission to Appeal. Failure to file such an Application’ is a 
jurisdictional defect that deprives the appellate court of power to 
entertain the appeal. Aparicio v. Swan Lake, 643 F.2d 1109, 1111 (5th 
Cir. Unit A 1981). Obviously the Federal Rules do not contemplate giving 
parties the right to frustrate appellate jurisdiction over interlocutory 
appeals by the mere filing of motions self-styled as Rule 59(e) motions, 
thereby destroying the right of interlocutory appellants to appeal within 
the only 10 days open to them. 

  

 



MATTOX INVITED ERROR WITH HIS PROPOSED REMEDIAL PLAN AND HIS PROPOSALS DO NOT MERIT RECONSIDERATION 

Even i this Court did retain jurisdiction over matters 

relevant to Judge Wood's and Judge Entz' appeals--as it clearly 

does not--Mattox's proposals would not merit reconsideration. By 

agreeing with the Plaintiffs to submit to this Court a Proposed 

Interim Plan agreed upon between them without a hearing and in 

the express wishes of the state officials 

purportedly represents in this case, Mattox invited error. 

nterim Plan he sought but To implement each and every 
SE] 

detail <hat suited Mattox. furthermore, I 
ES lattox's Motion does not 

bring any new considerations to bear on this case. All Mattox 

has really done i to come back to the Court to ask it to give 

him the =» the Proposed Remedial Plan which he and the 

Plaintiffs devised. 

X. ls really savy] t} while he 

for’: the "rejecting 

century-old state election law! 8 the fruits of those 

intrusions benefit him and his new-found political allies, the 

Plaintiffs, he is not willing to have the Court intrude into any 

lists with the 

Interim plan--its imposition without conducting an evidentiary 

hearing and in direct contravention of state law (which did not 

previously raise a peep of protest from Mattox); its character as 

judicial reform; and its resolution of contentious issues without 

debate in the Texas legislature and by the people of Texas=--are  



NOt new issues. These supposed flaws in the Interim - 

tute only the veneer to coat 

of urgency the Attorney General's i5.t0 deliver to 

tlffs the deal he negotiated with tI v1 1] act the urgency 

in this case proves the contrary: wisest and most judicious 

course would be the imposition of no 11, 

Indeed, whether the 1990 - elections are 

partisan or not is important only } who wish to 

partisan election schme) 

which they and v 1 together. The obvious 

displeasure cof the victors i: hi with the Interim 

he number of cbjections whi h raise underscore 

po 

have imposed an 

As for ‘a bijection by Mat P the Interim - 

Court should be under no delusion that Mattox speaks for anyone 

but himself, unless he speaks for the Plaintiffs. The Court is -— 

well aware of the numerous protests entered by the State Defen~- 

dants and various state districs judges to Matton's aims +o 

this case. Judge Wood cited numerous examples 

Such protests in her Response to Attorney General Mattox's 

Statement Concerning Non-Partisan Elections and Supplement, filed ade 

with the Court on December ~989=-~-a document which explored  



    
in calling for partisan 

whose observations are 

Judge Wood reiterated her concerns about Mattox's preten- 

sions to represent the defense in =his case and his efforts to 

keep any Defendants from mounting an effective defense on their 

own behalf in her Petition for Permission to Appeal to the Fifth 

Circuit, attached hereto as Exhibit "C." One of her exhibits to 

~nat appeal, Exhibit "d3," includes sample letters and alterna- 
+ 3 1a <3 J {+h =] 3 ir ; Daf J ; 
-=VE pPiB8NS Illed with =his LCUrt Dy ‘various Defendants. Since 

1, Secretary of State George Bayoud 

Chief Election Official of the State © H
 Texas and has hired other 

counsel, a move vigorously opposed, as usual Ly Mattox, even as 

he reiterates his insistence that he and only he represents the 

tate in this Court. Mattom's Motion to Strike at's 

The audacity of Mattox's Position ‘in. the face of all 

evidence to the contrary is perhaps most clearly delineated when 

it is set against his Statement Regarding State Defendants, filed 

with this Court by the Attorney General on December 21, 1989, and 

which states in full as follows: 

Statement 1s submitted on behalf of all the 
state defendants in this case other than the Attorney 

of Texas, Jim Mattox. None of them has joined 
in the Attorney General's submission to: the Court today 
of a Proposed Interim Plan and a joint motion urging 
the interim plan's adoption. Some have submitted their 
own remedial proposals directly’ to "the Court. Chief 
Justice Phillips’ December 15th submission in his 
personal capacity is an example of this approach. 

 



      
That Mattox should now reTurn fo this Court urging it once 

f)
 gain £3 ‘accept the Snly. remaining details of a proposal he 

concocted with the Plaintiffs, in defiance of the wishes of all 

the state officials he claims so insistently to represent (except 

when he claims that he has never represented them), is but a 

further example of his total flaunting of the Texas' Rules of 

Disciplinary Procedure regarding conflict of interest and 

settling against the wishes of =he client which, as Judge Wood 

argued in her Response tO Mattox's Statement Concerning 

Non-Fartisan Elections and Supr.ement, constitute grounds for 

disqualifying him from Fgpresenting the State of Texas in this 

case. Iti is. also a further attempt at the very collusion and 

non-feasance which belie any claim that Mattox might make that he 

represents the State of Texas in this action. 

It is outrageous that under the foregoing circumstances 

Mattox should see fit to quote and indeed to urge upon this Court awd 

the Fifth Circuit's "staunch admonition" in recent cases involv=- 

in =h application "of. the Yoting Rights Act. to judicial 

a federal court should jealously guard and sparingly 
use it awesome powers To ignore or brush aside 
long-standing state constitutional provisions, stat- 
utes, and practices. 

Mattox's Motion to Alter the Order of January 2 1890 at 3 

(quoting Chisom v. Roemer, 853 F.2d 1186, 1189 (5th Cir. 1988).   

The point is proper, even if the spirit in which it ‘is argued: is 

not. This Court should not have entered any Interim Plan in this 

case. Since it “has .done SO, it should now exercise the 

-el ie 

 



    
Jurisdiction remaining to it to take action in aid of 

Wood's appeal by vacating its Interim Plan and allowing the 1990 

election of state district Judges to proceed in the ''t 

counties under Texas' statutory election system. 

Therefore, Harris County District Judge Sharolyn Wood urges 

this Court <o take judicial notic that it lacks jurisdiction 

over the matters addressed in Mattox's Motion to Alter the Order 

of January 2 1990 he a ; and she further requests that this Court 

disqualify Attorney General Jim Mattox from any purported 

representation of any state offi 

NRelr orticial or any ioilner capacity. 

Respectfully submitted 

—SQRTER & CLEMENTS 

—FEee- 

’/ 

  ~~ 
Boi, : J. Eugene Clements 

ER ET NCNB Center 
P.O. Box 4744 
Houston, Texas “77210-4744 

(713) 226-0600 

ATTORNEY FOR HARRIS COUNTY 
ISTRICT JUDGE SHAROLYN WOOD 

OF COUNSEL: 

PORTER & CLEMENTS 

Evelyn V. Keves 

3500 NCNB Center 

P.O. Box 4744 

Houston, Texas 

(713) 226=0600 
/210=-4744 

Michael J. Wood 

Attorney at Law 
230 Louisiana, Suite 200 
Houston, Texas 77002 

(713) 228-5105 

 



  

I hereby cer \ hat ] January, .1%90, a 
True and correct t] 1 egoing document was 
mailed to counsel § hi First class United 
States mail, postage prepaid, 

Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 
8300 Douglas, Suite 800 
Dallas, Texas 7522S 

Mr. Rolando L. Rios 
Southwest Voter Registration & 

Education Project 
201 MN. St.''}M rhe, By 
San 

Ms. 

Texas Rura 

<O1:Nv St. 

Mr. Julius Levonne Chambers 
Ms. Sherrilym a. Ifill 
NAACP Legal Defense and Educaticnal 
9S Hudson Street 
16th Floor 
New York, New York 10013 

Ms. Gabrie 

Matthews 

S01 Cong 

Austin, 

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 
F. O. Box 12543 
Capitol Station 
Austin, Texas 78701 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab &Cloutman., P.C. 
3301 Elm Street 
Dallas, Texas 75228-1637  



    
777-80. R.L. Thornton Freeway 

O A} — +
 ol n D Xas 75203 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

yi 

By / 
ove, llr, Ls 

Evelyn V7 Keyes of 
  

by 
-— 

 



   

  

IN THE UNITED STATES DISTRICT COURT F L E D FOR THE WESTERN DISTRICT OF TEXAS 
MIDLAND-ODESSA DIVISION JAN 1930 

U. S. DISTRICT COURT LEAGUE OF UNITED LATIN AMERICAN § BY. CLERK'S OFFicE CITIZENS (LULAC), et al,, § Seto. DEPUTY 
§ 

Plaintiffs, 

CIVIL ACTION NO. 
MO-88-CA-154 

Vv. 

JIM MATTOX, et al., 

Defendants. 

  

Notice 1s hereby given that Defendant-Intervenor Dallas 

County District Judge F. Harold Entz nereby appeals to the 

United States Court of Appeals for the Fifth Circuit from the 

Court's Order of January 2, 1990. 

Respectfully submitted, 

(de trny 

bert H. "Mow, 
oy C. ae 
Bobby M. Rubarts 
Esther R. Rosenblum 

    

of HUGHES & LUCE 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 
(214) 939-5500 

ATTORNEYS FOR DALLAS 
COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ 

CERTIFICATE OF SERVICE 
1 certify that a true and correct copy of the foregoing instrument was served upon all counsel of record in acgordance with the Federal Rules of Civil Proce ure this _s~4¢ day of January, 1990. 

GTI, 
  

  

NOTICE OF APPEAI Soir BXHIBIT "A" Pd 
- -— 

— - 

4 

 



    
k 

LEAGUE OF UNITE 
CITIZENS (LULAC 

Ve. 

JIM MATTOX, Att 
of the State of 

Notice is 

County District 

States Court of 

Court's Memorandum Opinion and Order of November 8, 1989, 

modified for clerical corrections on November 27,.: 198% 

December 26, 1 

pursuant to 28 

At" —" 

RECEIVED | 
THE UNITED STATES DISTRICT COURT | 

THE WESTERN DISTRICT OF TEXAS JAN 3 19%0 
MIDLAND-ODESSA DIVISION 

CHARLES W. VAGHER, Clerk | 
By ( Deputy 

v 
    D LATIN AMERICAN 

yy ek al. 
  

NO. MO-88-CA-154 

orney General 
Texas, et al. D

h
»
 

HARRIS COUNTY DISTRICT JUDGE 
SHAROLYN WOOD'S NOTICE OF APPFAL 
  

hereby given that Defendant/Intervenor Barris 

Judge Sharolyn Wood hereby appeals to the United 

Appeals for the Fifth Circuit from the District 

as 

989 and as certified for Interlocutory Appeal 

U.S.C. § 1292(b) by the District Court's Order of 

January 2, .1990, 

Respectfully submitted, 

a & CLEMENTS 
\ 

- 
Ee —————— 

= i 
By: -~ S he ue. TN 

JJ Eugene Clements is. 
00 NCNB Center 

P.O. Box 4744 

Houston, Texas 77210-4744 
(713) 226-0600 

  

  

ATTORNEY FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

 



    

(713) 

{713 
rp 

- 
wh 

Houston, 

hereby certify that on the 
true and correct copy of the above and 
mailed to counsel of record in this case 
States mail, postage prepaid, addressed as 

OF COUNSEL: 

PORTER & CLEMENTS 

Evelyn V. Keyes 
3500 NCNB Center 

P.O. Box 4744 

Houston, Texas 77210-4744 
226-0600 

Michael J. Wood 
Attorney at Law 
440 Louisiana, Suite 200 

Texas 77002 

228-5105 

CERTIFICATE OF SERVICE 
  

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 
16th Floor 
New York, New York 10013 

  

2nd day of January, 
foregoing document was 
by first class United 
follows:



    
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. 
3301 Elm Street 
Dallas, Texas 75226-1637 

O 

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 

  

  on, ME = 
J. Eugene Clements 
  

I 

/ 
J 

- — 

WO005/07/cdf 

 



    | / 

IN THE UNITED STATES COURT OF APPEALS 
FOR "THE FIFTH CIRCUIT 

  

  

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS {LOLAC), et al., 

Plaintiffs-Appellees, 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

DEFENDANT-INTERVENOR HARRIS COUNTY DISTRICT 
JUDGE SHAROLYN WOOD'S EMERGENCY APPLICATION FOR STAY . a in 

  

PORTER & CLEMENTS 
J. Eugene Clements 
Evelyn V. Keves 
3500 NCNB Center 
P.O. Box 4744 
Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR HARRIS COUNTY 
DISTRICT JUDGE SHAROLYN WOOD 

EXuib1iT "Bp"   

 



    
IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

NO. 
  

  

JIM MATTOX, Attorney Genera [S
 

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Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

DEFENDANT-INTERVENOR HARRIS COUNTY DISTRICT 
JUDGE SHAROLYN WOOD'S EMERGENCY APPLICATION FOR STAY 

  

Defendant/Appellant Harris County District Judge Sharolyn 

Wood ("Judge Wood") files this Emergency Application for Stay 

pending appeal pursuant +o Federal Rule of Appellate Procedure 8 

and 28 U.S.C. 8S 1292(a)(l) and 1292(b}), and in support of her 

Application shows the Court the following: 

I. BACKGROUND 
  

This Voting Rights Act case was brought by the League of 

United Latin .American Citizens ("LULAC") and named black and 

Hispanic individuals challenging the system of electing state 

 



    

district judges in certain target counties in Texas. In its 

Memorandum Opinion and Order of November 8, 1989 (the "Opinion"), 

the district court declared that Texas system of electing state 

hb 

district judges from county-wide districts illegally dilutes th 

votes of blacks and/or Hispanics in all nine counties targeted by 

| >
 the Plaintiffs. & [2 copy of the Opinion with subsequent amendments 

to correct for clerical errors is filed herewith as Exhibit "c" 

1 / In that Opinion the district court took under advisement the 

possible injunction against future district judge 

elections in the target counties under the system 1t had declared 

illegal. The court also indicated that it would consider 

granting an expedited appeal on controlling issues of law 

addressed in the Opinion if the Texas legislature failed to 

produce a remedy in a special session previcusly called for 

November, 1989 to address another matter. Opinion at 93-94. 

The Governor of Texas reported to the Court on December 11, 

1989 that no consensus could be reached in the Texas legislature 

on a remedial plan. Subsequently, Judge Wood filed a motion for 

stay of all further proceedings in the district court together 

with a motion for certification for interlocutory appeal. A copy 

of Defendant-Intervenor Harris County District Judge Sharolyn 

Wood's Motion for Certification for Interlocutory Appeal and 

  

1/ Copies of all relevant documents filed with the district court are filed 
} lth under separate cover, as required by Fed. R. App. P. 8 and loc. 
R. 8. 

 



    

Motion for Stay is filed herewith as Exhibit "el." By its Order 

of January 2, 1990 (the "Order") the district court certified the 

Opinion for expedited interlocutory appeal but denied Judge 

Wood's motion for stay. A copy of the Order of January 2, 1990 “ g 

is filed herewith as Exhibit "£". By that Order the district 

court also enjoined the 

calling, holding, supervising and certifying elections 
for State District Court Judges in ‘Harris, Dallas, 
Tarr ‘arrant, Bexar, Travis, Jefferson, Lubbock, Ector og 

A ana 

Midland Counties under the current at-large scheme. 

II. GENERAL OBJECTIONS TO THE DISTRICT cCcoupm's 
INJUNCTION AND REMEDIAL PLAN 
  

  

In general, Judge Wood cbiects to “he  distric court's Ce 

injunction prohibiting any future elections under Texas’ consti- 

+11 tutionally and statutorily authorized judicial election system in ~f 

the nine target counties and its imposition of its remedial plan 

T= 11 y Sy 3 = Fg} £3 : 3 37 = = + = 4 I ay 
~-~-€ra..y on the date of the 1L.1lng deadllne for state district 

judge races. The district court took these actions without a 

hearing, less than eight weeks after the court's November 8, 1989 

Opinion finding liability, and without any prior opportunity for 

the Defendants to appeal the serious and controversial issues of 

law decided by the district court. Moreover, Judge Wood believes 

“A 

and has argued repeatedly that any "interim" plan is de facto a 
  

final remedial plan since it effectively partially dismantles the 

state's judicial election system. 

In addition, Judge Wood is uvnable to find any authority to 

support the district court's imposition of any interim remedial 

 



   

  

plan. The district court cites ct
 ne Court's opinion in Chisom v. 

  

™ |», loemer, 853 F.2d 1186, 1192 (5th Cir. 

  

1988), as authority for 

this unprecedented action. Judge Wood's reading of Chisom is 

exactly the opposite of the district court's. For example, at 

the very page cited by the district court as support for imposi- 

tlon of an Interim plan, Chisom mandates that, in the event a 

district court finds a Voting Rights Act violation, the responsi- 

ble state authorities [in this case the Texas legislature and/or 

State Districting Board] be given an opportunity to correct any 

draft a remedial plan. Chisom continues, 

In the interim we are convinced that +h system in 
place for the election of the subject judicial office 
should be left undisturbed. 

H 

853 F.2d at 1192. 

111. SPECIFIC OBJECTIONS TO THE DISTRICT CourT's 
INTERIM PLAN   
  

The district court's remedial plan adopts most of the 

essential features of a "Proposed Remedial Plan" agreed upon by 

the Plaintiffs and Texas Attorney General Jim Mattox ("Mattox"), 

a Defendant in this case and counsel for the State Defendants. A 

copy of the Proposed Remedial Plan is filed herewith as Exhibit 

"d." This proposed Plan was vigorously opposed by Judge Wood and 

other Defendants. See Exhibits "d2"-"d3". Judge Wood's objec- 

tions to the Plaintiffs' and Mattox's Plan and her objections to 

Mattox's collusion with the Plaintiffs and his conflicts of 

interest in preparing that Plan are more fully discussed in her 

Petition for Interlocutory Appeal at 6 through 5 and ‘are - 

 



    

incorporated herein by this reference 

objections to the Plaintiffs' and Mattox's 

which apply to the Interim Plan adopted by 

are fully set out in Exhibit "d2" and are i 

this reference. 

In addition to its injunction against 

supervising and certifying elections in the 

the district court's Interim emedial Plan 

Harris County, provides as follows: 

1 mh 

‘ Judge Wood's specific 

Plan itself--mcst of 

the district court-- 

incorporated herein by 

the calling, holding, 

nine target counties, 

‘ Th entire county shall be divided into sub- 
districts. 

Comment: AE to Harris ‘County, 
violation alleged or proof adduc 

there was no 

ed except as to 
black voters. There is therefore no reason to 
devise a "remedy" that cures no ill for areas of 
Harris County other than those areas which satis® BX ae 

Gingles I criteria for one or more black electoral 
districts. 

Comment: The assignment of judges to legislative 
districts was proposed by the 
adepted by the district court. 
already objected to this feature 

Plaintiffs and 

Judge Wood has 
of the Plan on 

numerous grounds. Sea Exhibi+ "42." Among he PAR Sh 

objections are the following: the assignment of 
Judges to legislative districts blatantly allots 
legislators patronage power over Judges and bears 
no relationship to any proof presented at trial 
regarding the demographic makeup of potential 
minority districts. Specifically, it bears no 
relationship whatsoever +o the maps of majority 
black neighborhoods relied on by the Plaintiffs to 
prove vote dilution in Harris County. 

Ww
 

. Thirty-six (36) [out of 59] Harris 
Judge seats are up for election 
District will receive one or two 
out in Attachment A to the Interim 

County District 
in 1390. Each 
judges, as set 
Plan, 

 



    
ha
 

w
n
 

Comment: Attachment A was adopted “rom the 
Plaintiffs' Plan. It assigns two district judges 
to Judicial districts selected by the Plaintiffs 
for their heavily Democratic partisan history and 
their large minority populations. Republican and 
Anglo House Districts are allotted one judge. The 
result is that minority areas of Harris County are 
allotted 61% of the total judgeships=--a gross 
departure from equity, from equal protection of 
the laws, from due process, and from the principle 
of one-man, one-vote. The blatant uncenstitution- 
ality of such a provision was pointed out by Judge 
Wood in Exhibit "a2." 

Each candidate shall run within a design 
subdistrict and be elected by the voters within 
the subdistri 

protection of the laws under the Interim Plan 
since they are deprived by court fiat of the right 
to elect 34 or 35 judges (depending on whether 
they reside in heavily Democratic and minority 
legislative districts or not) out of 36 judges who 
have Jurisdiction over them. If this is found 
unconstitutional, hundreds oF judgments and 
criminal convictions may become invalid, causing 
chaos. 

Elections shall be non-partisan. Each candidate 
shall select the election subdistrict in which he 
Or she will run by designated place and shall file 
an application for a place on the ballot with the 
appropriate court officer. 

Comment: This provision invokes a remedy--non- 
partisan elections--not Sought by any party to 
this suit and bitterly opposed by the Plaintiffs 
and Mattox. See "Statement Concerning Non- 
Partisan Elections as an Aspect oF an Interim 
Remedy" and Letter from Plaintiff Jesse Oliver +o 
Judge Bunton, dated December 28, 1989, attached 
thereto, filed herewith as Exhibit "il." This 
opposition to non-partisan elections by . the 
Plaintiffs is especially ironic since they argued 
throughout trial that partisanship was irrelevant 
to claims of vote dilution under § 2 of the Voting 
Rights Act and the court agreed. See Opinion 
at 80. 

 



   

  

Judge Wood, of course, has argued from the 
day she was allowed to intervene that partisanship 
and not race explains state district judge 
election results in Harris County (a position 
given support by the Plaintiffs’ voluble objec- 
tions to non-partisan elections). However, Judge 
Wood has also argued that, under the authority of 
Whitcomb v, Chavis, 403 U.S. 124, 91 sS.Cv. 1858 
(1971), the inability of a minority group to elect 
representatives of its chosen political party does 
not support a valid vote dilution claim. Thus, if 
partisanship, and not race, explains Harris County 
district judge elections, the Plaintiffs have no 

  

finding. of liability under § 2 of the Voting 
Rights Act was error. For a fuller discussion of hi 
this issue, see Defendant Wood's Post Trial Brief, 
file herewith as Exhibit "bl" at 34-39, and 
Exhibi+ 74i2" at 47. 

Moreover, no claim was ever made in this case 
for non-partisan election districts and no showing 
was ever made that such a "remedy" for vote 
dilution would improve the lot of minority voters. 
To the contrary, in the Attachment to Exhibit 
"il," Plaintiff Jesse Oliver argues that non- 
partisan elections dilute minority voting 
strength. 

In addition, under this provision of the 
ict court's plan, candidates are forced to 
or office without any knowledge of how--if at 

all--Harris County's specialized court system will 
function under the court's plan. Thus, either 
(1) 2a candidate will file for offic in one 
istrict only to discover later that he has filed 
in a family court district [since voters in, savy, 
HD 149 will turn out to be assigned a family court 
Judge] while he is a sitting criminal district 
judge or (2) a sitting criminal district judge 
will file for office as such only to discover 
later that ‘the court-imposed plan silently 
abolishes all specialized courts, in direct 
violation of Texas law. 

Moreover, imposition of a non-partisan 
election scheme in mini-districts is certain . to 
result in the development of control over judges 
by organized special interest groups. The removal 
of party identification deprives most voters 
(demonstratively at least 80% in Harris County) of 
their only previous means of choosing judges, 

 



   

  

~J
 

party identification, without putting any way of identifying candidates in its place, even as it 
deprives candidates of the party identification 
and support on which they have previously relied 
to fund their campaigns. The inevitable result 
will be control over 3udicial selection by special 
interest factions with sufficient interest and a sufficient budget to blanket their preferred mini-districts with advertisements or direct 
appeals for their slates. This feature of the Interim Plan also provides an incentive for 
factions to introduce racism into campaigns where 
there is no evidence whatsoever that it previously 
existed, since race can provide a means of 
identifying with otherwise unknown Judicial 
candidates. 

All terms of office shall be for four (4) vears. 

Comment: This provision contradicts the express 
desire of the Plaintiffs for two vear terms for 
judges elected under the Interim Plan. See 
Exhibit "d1." In Judge Wood's view it ensures 
maximum disruption of the present system of 
electing judges by Providing that half of all 
state district judges elected under the plan 
cannot be removed from office for four years. 
Thus, for four years, legislative districts must 
remain as judicial districts regardless of 
attempts by the Texas Legislature or Judicial 
Districts Board to devise a an that would 

1sTy the district court. Any attempt to do 
away with these districts would subject the state 
t0 charges of unconstitutionally depriving those 
judges of their property interest in their 
continued tenure in the offices to which they were 
elected. See Williams v. State Board of Elec- 
tions, 696 F, supp. 263, 1572 (N.D. 1% 1988). when ® 

§ Le
) a
 

  

Elections shall take place the first Saturday of 
May, 1990, with Run-off Elections +o take place 
the first Saturday of June, 1990. 

Comment: The district court's Interim Plan 
tequlres a special election for district court 
judges, in contrast to the plan proposed by the 
Plaintiffs and Mattox. Thus it provides a remedy 
no one sought and which has no support in the 
record as a vehicle for maximizing minority voting 
strength. This provision of the Plan has at least 
the additional legal and practical defects of 
(1) requiring voters to go to the polls five times 

 



   

  

to elect judges--twice to pick district court 
judges, twice to pick other county and appellate 
Judicial candidates and finally to vote in the 
general election; (2) requiring a special election 
for which there is no provision in any county's 
budget (See Appendix "3") and which Jettisons the 
entire legislative machinery for organizing and 
financing of primary elections set out in Title 10 
of the Tex. Elec. Code, subtitles B and C, and the 
tabulation of results of election, Tex. Elec. Code 
§ 68.001: and (3) requiring a run-off one month 
later, thus leaving too little time for the county 
to comply with Texas Election Code requirements 

  

  

regarding canvassing of votes. §$67.812. 
Moreover, under the Texas Election Code, the 
pelitical parties bear hese expenses. See Title 
10, Tex. Elec, Codes, S$ 173.001, et." sed, The 
district court's plan blithely ignores th 
questio of who pays. If ‘also ignores the 
question of when the Judges elected under th 
Interim Plan take office. If immediately, their 
election unconstitutionally deprives the incumbent 
judges of a half-year in office to which they have 
been duly elected. See Williams, 696 F.Supp. at 
1572. 

  

1 An: application for a place on the non-partisan 
election ballot must be filed by 6:00 p.m. March 
26, 1990. Except as modified by the district 
court's plan, all provisions of the Texas Election 
-ode rz=main applicable. 

Comment: It is impossible to determine which, 1 
any, provisions of the Texas Election Code 
actually remain applicable under +his plan sinc 
it tramples on so many of them. For example, the 
Plan leaves entirely unclear whether any filing 
fee (previously paid to the county party chairman) 
will be required or whether any petition will 
suffice to obtain a place on the ballot and 
whether previous filings of fees and petitions 
with the appropriate authorities under Texas law 
will count, See. Tex. Elec. Code 88 172.021 
(Application Required): 162.022 (Authority wit} 
Whom Application Filed); 141.062 (Validity of 
Petition); 172.025, These problems can be 
expected to generate litigation regarding the 
proper filing of candidates for office. 

In 1991, the Administrative Judge of the county- 
wide district shall designate any courts of 
specialization and the district court numbers in 

 



    

10. 

use prior to. the Interim Plan's adoption. 
Successful incumbents shall have preference in the 
designation. 

Comment: This provision of the plan allows the 
Administrative Judge, apparantly at his sole 
discretion, to make any arbitrary decision he 
wishes as to which judges are assigned to which 
specialized courts, heedless of Texas Statutes 
providing specifically for such designated 
courts--and to make that decision in 1991, aftey 
the newly elected judges take Cffice, thus 
ensuring maximum administrative chaos and venue 
and jurisdictional disputes of horrendous propor- 
tions. The provision also blatantly violates the 
Court Administration Act, Chp. 74, Tex. Gov't 
Code, which provides, among other pertinent 
things, that the Texas Supreme Court shall have 
supervisory and administrative control over the 
judicial branch (§ 74.021); that the Supreme Court 
may adopt rules for the operation and management 
Of the court system (§ 74.024); and that the state 
is divided into nine multi-county administrative 
regions (§ 74.042). That Act minutely prescribes 
the duties of the presiding judge of each adminis- 
trative region (§ 74.046). It also sets out in 
detail which judges are subject to assignment by 
the presiding judge of the administrative region 
(§ 74.054). All of these provisions suffer gross 
abuse under the district court's Interim Plan. 
See also Comment to provision 5 -~ ® 
  

Current jurisdiction and venue remain unaffected 
subject to modification by the Supreme Court of we 
Lexas LJ 

Comment: For: the jurisdictional and venue 
problems raised by the Interim Plan, see Comment 
to provision 4 supra. In addition, the Interim 
Plan creates grave jury selection problems. See 
Williams v. Superior Court of Los Angeles County, 

  

  283 Cal, Rptr. 203, J8: 2.338 375 (1989) (In Banc) 
(for purposes of the sixth amendment right to a 
Jury drawn from a cross-section of the community, 
the relevant community is the judicial district). 
Under Williams (apparently the only case decided 
on the subject), the court's Interim Plan creates 
an ambiguity as to whether the "Judicial district” 
is the mini-election district or the county-wide 
jurisdictional district, hence whether the 
relevant community for jury selection purposes is 
the mini-district or the county-wide district. 

  

 



  

Williams raises the specter that mini-communities 
drawn on racial ines are perhaps the only 
appropriate community for jury selection under che 
district court's Interim Plan. 

  

There .shall be no right of recu 1sal of Judges 
elected under this plan, since "such a measure 
would be extremely disruptive to District Court 
dockets, administratively costly and could be the 
source of abuse by attorneys attempting to gain 
continuance of their cases." 

Comment: The district court, which departs from 
the Plaintiffs’ and Mattox's Proposed Interim Plan 
on this issue, ignores the real fzar that such a 
Plan as this without a right of recusal ensures 
that litigants from outside the mini-districts 
facing opponents from the mini-district will have 
to trust to the impartiality of a judge who is 
indebted for his office to the favor of his few 
constituents and is, in a real sense, the "rep- 
resentative" of their interests. Judge Wood has 
argued since her intervention into this case that 
this precise danger follows naturally on the 
proposition that judges are "representatives" of 
their constituents and that subdistricts should 
therefore be drawn so that the votes of those 
constituents in support of their own interests can 
have maximum impact, a view hitherto enthusias- 
tically embraced by the Plaintiffs — — — ® 

IV. GROUNDS FOR INJUNCTION AND STAY 
  

obtain a stay pending appeal under Fed. XR. App. P. 

moving party must demonstrate 

that it is likely to succeed on the merits, 

that it would suffer irreparable injury if the 
stay were not granted, 

that grantin th stay would not substantially 
harm the other parties, and 

that granting the stay would serve <+he public 
interest. 

National Treasurv Emplovees Union <=. Von Raab, "808 v.24 1057, 
  

Cir. 1987). However, when a serious legal question 
- 

 



   

  

involved, the movant "need only present a substantial case on the 

  

merits ... and show that the balance of equities weighs heavily 

in favor of granting the stay." Id. (quoting Bavlor Univ. Med. 

center, 711 F.2&8 38, 39 (5th Cir. 1383), cert, denied, 469 U.S. 
  

1189,-:105 S.Ct. 958. (1988)). The criteria for an injunction 

prohibiting operation of the district court's Interim Remedial 

Plan and for a stay of all further district court proceedings 

- 
34 TITS = £4971 RI J 3 - = Eo h hal pending apreal are fully met in this case, as set forth below. 

  

A. Judge Wood Presents A Substantial Case Which 
Is Likely To Succeed On The Merits. PASS we 8 
  

In her Petition for Permission +o Appeal fo this Court, 

filed simultaneously with this Motion and incorporated herein by 

this reference, Judge Wood states more fully the grounds for her 

contention that the lower court's decision was clearly erroneous 

on numerous points of law, both with respect to Texas' judicial 

election system in general and with respect to Harris County in 

particular. In Judge Wood's view, 54
 he lower court erred in at 

least the following ways: (1)-.i: unconstitutionally applied the 

Voting Rights Act to state Judicial elections in violation of the 

constitutional principles of the separation of powers and the 

{9
 

QQ
 (@]
 

fv
 
=
 

0
 5 otection clause of the fourteenth amendment: (2) it found 

wide Judicial districts constituted election from "at-large" 

districts with no supporting authority and despite authority to 

the contrary; (3) it held that illegal vote dilution was proved 

by statistical evidence (which itself was improperly admitted) in 

selected races and that all other inquiry was "legally 

 



    

   

incompetent" in defiance of both Supreme Court and Fifth Circuit 

controlling authority directly to the contr vi: (4) it held that 

the principle of one-man, one-vote did not apply to judicial 

elections despite Supreme Court authority that the principle of 

one-man, one-vote applies to the election of all "representa- 

tives"; (5) it determined the measure of "electoral success" of de 

Protected classes according to their percentage of population, 

> J - ~ 1! 1 ~ = -1 aq £4 ~ y oy 
rather than using Ward's Cove's percentage of qualified candi-   

dates as the standard, thus implementing proportional Ht epresenta- 

tion in direct contravention of the Proviso of § 2 of the Voting 

Rights Act; and (6), in Harris County, it ‘found illegal vote 

ilution without pragmatic proof of unequal opportunity for black 

voters to participate in judicial elections and *o elect judges 

orf their choice, finding vote dilution instead solely through its 

reliance on unverified, unauthenticated and thoroughly unreliable 

al data derived from census tract figures a decade old. 

Moreover, as an interim remedy for the vote dilution it had 

found in this case, the district court adopted for the most part 

a remedial plan which was urged in the utmost cynicism by 

Plaintiffs eager to implement affirmative action and restructure 

Texas' judicial election system before this Court could rule on 

the many grave disputed issues of law. Judge Wood has objected 

to Mattox's and the Plaintiffs’ Proposed Interim Plan and to the 

aspects of the district court's Plan not adopted from the 

Plaintiffs and Mattox's Plan on numerous constitutional, statu- 

tory and practical grounds as set forth above in Exhibit "42" and 

above. 

 



    
If this Court finds that the lower court's decision was 

clearly erroneous with respect to even one of the questions of 

law cited by Defendant Wood, the lower court's decision must be 

reversed. Judge Wood's arguments and citations provide over- 

whelming grounds for finding that the lower court's opinion was 

clearly erroneous and that its remedial plan is similarly riddled 

with error. 

  

  

B. Judge Wood Will Suffer Irreparable Harm Tf 
Her Motion Is Not Cr nted, Whereas A Stav 
Will Not Substantially Harm The Plaintifes, 
  

The timing of the district court's injunction prohibiting 

elections in the target counties under Texas constitutionally 

and statutorily mandated election system and its imposition of a 

radically different scheme which violates numerous laws and 

constitutional principles within six hours of the filing deadline 

for state district judge positions presents an imminent threat of 

irreparable harm to Judge Wood bv its precipitate irremediable 

destruction of the Judicial election system she defends. By 

contrast, should the 1990 judicial elections be allowed to 

proceed as they have for a century, no significant damage will 

have been done to the Plaintiffs in this suit, even should the 

district court's opinion ultimately be upheld, and the stability 

of the judicial system will be protected pending appeal. 

Under very similar circumstances, this Court has held that 

irreparable injury to the Plaintiffs is not automatically 

established merely by a showing that a challenged electoral 

standard, practice, or procedure results in a denial or ho 

 



   

  

abridgement of a minority group's right +o vote. Chisom vv. 
  

Roemer, 853 F.2d 1186, 1188-39 (5th Cir. 1988) (vacating injunc- 

tion prohibiting election of justices to the Louisiana Supreme 

Court under election system found by the dist 

violate the Voting Rights Act). In refusing to 

tion in Chisom, the Court quoted Justice Black 
  

Brittain, 396. U.S. 12310 (1969) as follows:   

a forthcoming election and the mechanics and complexities 
election laws, and should act and rely upon general equitable principles. With respect +o the timing of relief, a court can reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in 

n awarding or withholding immediate relief, a court is entitled to and should consider the proximity of a 

td 

adjusting to the requirements of the court's decree. 

The only possible injury--if it is an injury--to the 

Plaintiffs from this Court's vacating the 

injunction and imposition of the remedial plan and staying 

further proceedings in that court is that judges will be elected 
P > y : 

for one more election under a 100-year old system which the 

district court has found to be statutorily, but not constitution- 

ally, infirm. The Chisom court, facing §ust such a situation, ——— 
- 

stated: 

We consider significant the Supreme Court's action in [Whitcomb v.] Chavis [403 U.S. 124, 91 s.Ct. 1358 
(1971)]. In staying the reapportionment plan ordered by a three-judge court, the Supreme Court permitted the conduct of an election under the old scheme which had been found constitutionally infirm. In dissenting from the refusal to vacate their stay order, Justice Douglas pointedly stated: "The State contends that without a = stay 1t will be forced to conduct the forthcoming 

  

 



    
election under the reapportionment plan of the District 
Court. By granting the stay, however, this Court has 
equally forced the appellees to go through the election 
under the present scheme which was held unconstitu- tional by the District Court.” 396 U.S. 1064, 90 S. Ck. 
761,24 L.Fd.24a 757. Nonetheless the court permitted 
the election to proceed. 

chigsom, 883 F.2d at 1189. For the same reasons, this Court 

should vacate the district court's injunction against furth 

elections under Texas' present system of electing State district 

Judges from county-wide districts and i= should stay all further 

proceedings in the district court, including the promulgation or 

implementation of any remedial plan, pending appeal. 

C. A Stav Will Serve The Public Interest. 
  

A stay barring implementation of the district court-ordered 

remedial plan and all further proceedings in the district court 

pending appeal is essential in order that the public interest be 

truly served. In the short time since the district court's 

declaratory Judgment was entered- -six weeks=--thi case has 

generated immense controversy both in the halls of government and 

in the press, Numerous interested Persons--including the 

Governor, the Chief Justice of the Texas Supreme Court, Tarrant 

and certain Bexar County Judges, and various legislators and 

district Jjudges--have come forward with their own hastily 

conceived proposals, each designed to protect interests the 

designer perceives as paramount. None of these many proposals 

has had an opportunity to generate any popular support beyond the 

promulgators themselves. All will be rendered unnecessary should 

this Court determine that the illegal vote dilution perceived by 

 



      

the district court does not, in fact, exist, that that court's 

Judgment was improper and that Texas system of electing state 

district judges violates no laws--a decision which Judge Wood 
4 - - 

pelieves, and has argued, is fully supported by the law. 

Should this Court eventually uphold the district court's 

ruling, the public interest would still be served by protecting 

an orderly and stable judiciary and judicial system while 

permitting time for rational debate on the crucial issues of Ao oo 

state government involved and bv permitting time for the people 

€Xas to consider the proposals presented to them and to vote 

on the constitutional amendment which would then be required. 

The public interest is only disserved--and in the most grievous 

fashion--by permitting the implementation of a radical, hastily 

conceived, self-serving plan designed to "remedy" vote dilution 

(which this Court may well find does not exist) at the expense of 

f
 10 risa A Ys TTS : ™ i : vy 1 FI. ++ VOTErs and Judges 1n Texas nine most populous countles. 

  

isastrous effects of the district court's Interim Plan 

on judicial selection in the State of Texas cannot be overstated. 

That Plan was issued and took immediate effect only six hours 

before the filing deadline for the office of state istrict 

judges on January 2, 1990. The judicial candidates had therefore 

iled for election before the district court's order became 

public. nN effect, the district court is altering an election 

already in progress. Among the many reasons for this Court to 

- enjoin the imposition of the district court's Interim Plan and to 

 



   

  

require that state district Judge elections go forward as 

previously scheduled are the following: 

(1) Time is of the essence in determining whether 
Texas' statutory judicial election system shall 
apply. The primary election of state district 
judges under Texas’ statutorily decreed election 
System is March 13, 1990. Under the Texas 
Election Code absentee voting must begin on the 
twentieth day before the election, Tex. Elec. Code 
§ 85.001(a). Therefore, ballots must be prepared 
and ready for absentee voting to begin on or 
before January 12, 1990--a date less than ten days 
awav. 

(2) The Texas Election Code § 142.010 requires the 
certification of candidates for Judicial office 
not later than the 55th day before election day, 
i.e., under Texas’ statutory system of electing 
state district judges, not later than January 12, 
1990. 

(3) If any candidates request a refund of his regis- 
tration fee for filing in the old districts 
outlawed under the district court's Plan and then 
this Circuit orders a stay those candidates may be 
ineligible to run for state district judge at all 
because of improper registration. See Tex. Elec. 
Code § 141.062. 

(4) The chaos which would be created by the Court's 
untried interim plan may well frustrate experi- 
enced judges into early retirement or cause fluke 
election victories where judges with many years of 
service are cavalierly sacrificed to newcomers 
with dubious reputations and credentials. 

In addition, the pragmatic nuts-and-bolts problems of 

adjusting Texas' and Harris County's electoral machinery to the 

Court's unique and unprecedented interim plan, within three 

months of a new filing deadline, four months of an election, and 

five months of a run-off are underscored by the obstacles 

presented in the letter of the Texas Secretary of State attached 

hereto as Appendix A, the affidavit of Harris County Judge Jon 

| [
 

CG
) | 

 



    

Lindsay attached hereto as Appendix B, and the affidavit of 

Harris County Clerk Anita Rodeheaver attached hereto as 

Appendix C. 

These immediate results of the district court's injunction 

prohibiting elections under Texas’ constitutionally and statuto- 

rily authorized judicial district election system and its 

imposition of a hastily devised, unsought and untested remedy 

approved by no one but itself do not by any means exhaust the 

reasons for this Court to act swiftly--the overriding reason 

being, Qf course, th inevitable day-by-day accumulation of 

disastrous consequences and uncertainties from this shot scat- 

tered at the Texas judicial election system by the district 

WHEREFORE, for the foregoing reasons, Defendant Harris 

County District Judge Sharolyn Wood requests that this Court 

vacate the district court's order enjoining the election of 

Texas' state district judges under the present system in the nine 

target counties at issue in this suit, including Harris County; 

that it stay the implementation of the Interim Plan adopted by 

the district court; and that it stay all further proceedings in 

the district court, including without limitation the promulgation 

or implementation of any other remedial plan, pending appeal of 

the district court's Memorandum Opinion and Order of November 8, 

1989 as amended. 

 



    
Respectfully submitted, 

PORTER & CLEMENTS 

  

    

  

a me nS 
Ji. Eugene Clements = 
Evelyn V. Keyes 
3500 NCNB Center 
O. "Box 4744 

Houston, Texas 77210-4744 
(713) 226-0600 

  

  

    

TORNEYS FOR HARRIS CCUNTY 
STRICT JUDGE SHAROLYN WOOD 

- 
JAN 

™ 

- 

AT 

I 

Darrell Smith 

Attorney at Law 

10999 Interstate Hwy. 10, #905 
San Antonio, Texas 78230 
(512) 641-9944 

Michael J. Wood 

Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002 

(713) 228-5105 

CERTIFICATE OF SERVICE 
  

1 hereby certify that on the YH aay 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 

~~ 
PR 

 



   

  

WO005/03/c¢ 

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, 
99 Hudson Street 
16th 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 Gener 
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. 
acnes & Luce 
300 Momentum Place 

1717 Main Street 
Dallas, Texas 75201 

2 til Vl pr 

Inc, 

  

Evetygn V. Keyes 

af 
Ra a 

 



 
 

     



   TATE peel Sm QT is 2 ge =F 

  

  

EXECUTIVE DIVISION 
P.O. Box 12697 
Ausun, Texas 78711-2697 
(512) 463-5701 

ELECTIONS DIVISION 
P.O. Box 12060 
Austin, Texas 78711-2060 
(512) 463-5650 

Disclosure Filings 
P.O. Bax 12070 
Ausun, Texas 78711-2070 
(512) 463-5704 

DATA SERVICES 
DIVISION 
P.O. Box 128%7 
Ausun, Texas 78711.2887 
(512) 463-5609 

SUPPORT SERVICES 
DIVISION 
Financiai Management 
P.O. Bax 12887 
Austin, Texas 78711-2887 
(512) 463-5600 

Safi Services 
P.O. Bax 12887 
Austin, Texas 78711-2887 
(512) 463-5600 

STATUTORY FILINGS 
DIVISION 
Corporations 
P.O. Bax 13697 
Ausun, Texas 78711-3697 
(512) 463-5555 

Sistmory Documerss 
P.O. Box 12887 
Austin, Texas 78711-2887 
(512) 463-5654 

Texas Register 
P.O. Bax 13824 
Austin, Texas 78711-3824 
(512) 463.5561 

Uniform Commerciai Code 
P.O. Box 13193 
Ausun, Texas 78711-3193 
(512) 475-2708 

  

Office of the 

SECRETARY OF STATE 
George S. Bavoud, Jr. 
SECRETARY OF STATE 

Mm graoosw 2 

    

January 4, 1990 

The Honorable Jim Mattox 
Attorney General 
State of Texas 
Supreme Court Building 
Austin, Texas 78711 

ULA UN v 
UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF TEXAS, MIDLAND-ODESSA DIVISION 

Dear General Mattox: 

As I told you in my letter to you of December 21, 1989, I opposed the Proposed agreed order which you were negotiating with the plaintiffs. Among the réasons were that it would be difficult to ad- minister; some citizens may effectively be dig enfranchised in elections under the proposed plan; and my belief that judicial selection is a matter for the Texas Legislature to address. None-the-less, you submitted the plan and the court in great part adopted the plan. Therefore, as a named defendant in the referenced Cause, I am instructing you as my legal counsel to immediately file a Motion for a Stay of the entire Order dated January 2, 1990. This stay should be sought to be maintained until full appel- late review on the merits. I further instruct you to make an interlocutory appeal on all available issues from such Order. The problems mentioned in that December 21st letter continue to exist under Judge Bunteon's Order. 

As Chief Elections Officer of the State, I am en- trusted with the duty of advising and assisting 
operation, and interpretation of the Election Code and election matters generally. There are numerous problems in implementing the nonpartisan judicial



   

  

elections in nine counties in Texas brief list of only some of these problems is as follows: 

The Honorable Jim Mattox 
Page 2 

as set out in the crdsr. A 

(1) Which authority is actually ordering the elections? It appears that Judge Bunton is ordering the elections as his order cites on page 7, Item 6: 

Section 41.001(b)(5) of the Texas Election Code which refers to "an election held under an order of a court or other tribunal..,..* 

(2) There are numerous other questions r the answer to Question (1) above, e.g., who gives notice of the elections; who authorizes the voting systems to be used in the elections; whe is the custodian of the election rg- cords; and so forth. 

evolving around 

{3) Which election precincts are to be used for the elections? 

(4) Who appoints the election judges? 

(35) As the elections do not fall within the definition of a “primary election” in Section 1.005(14) of the Election Code, is it to be assumed that there will be no filing fees paid by candidates, no petitions in lieu of filing fees, and no judicial petitions as required in certain counties? 
(6) How will the canvass be conducted? Under the Election Code, the Governor is to canvass the returns for a district office. Under Section 67.012 ©f the Election Code, this state canvass may not be held earlier than the 13th day after the election, i.e., May 20. Absentee voting for the runoff is to begin on May 14 under the Provisions of the Elec tion Code. There is not 

(7) Who will be the absentee voting clerks in Ector, Lubbock, and Midland Counties as the elections will net Le countywide in those counties? 

(8) What will be the procedure to be used if a judge whose term is not on the ballot in 1990 resigns or dies? will the unexpired term be on the ballot in May? 

(9) There could be a problem in pre a results from the primary runoff in that absentee voting for the May 5 election will begin on April 16 while the runoff is April 10. 

  

vi CLV i avivo~ 0000: :® 3



      

The Honorable Jim Mattox Page 3 

(10) There is no Provision in the Or declaration of write-in candidacy; thus, unlimited number of write-in candidates in all write-in votes will have to be counted. 

der for a filing of 
there wil} be an 
the elections and 

(11) Which political subdivision will Pay the costs of conducting the elections? Harris County will have no other elections on May 5 and the County Clerk estimates the the election will be some $1 million i 
There are numerous other questions and Problems wit tation of Judge Bunton's Order which I will not est cf brevity. I am concerned, however, Order Judge Bunton says: 

h the implemen- 
list in the inter- that on Page 4 of the 

+++ An Agreed Settlement was entered into by and between the Plaintiffs and Defendants in this matter, but was not approved by some of the Intervenocors. 

I would refer you to my letter of December 21, 1989, in which I objected to that Proposed settlement and "request{ed] that you refrain from entering into such plan and that You refrain from entering into any other such settlement or Plan without my prior written consent." 

As you know, unless the court's order is stayed by mid-January 19%0, when candidates have been certifi ed and ballots are being 

- Furthermore, it ig impor- onable period of time to 

I look forward to hearing from you. 

Sincerely, 

7 A 
ete d\ Jr. AN Secxetary of S 

GSB:TH/blltrs 

Cc: Judge Lucius D. Bunton, III, Judge, United States District Court, Western District, Midland-Odessa Division 

IONS=- 0a00:= 2



      

The Honorable Jim Mattox 
Page 4 

Clerk, United States District Court, Midland-Odessa Divisicn 

Ms. Mary F. Keller 
First Assistant Attorney General 

Mr. Renea Hicks 
Special Assistant Attorney General 

Mr. Javier Guajardo 
Assistant Attorney General 
P. 0. Box 12548, Capitol Station 
Austin, Texas 78711-2548 

Mr. William L. Garrett 
Garrett, Thompson & Chang 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Mr. Rolando Rios 
Southwest Voter Registration & 

Education Project 
201 North St. Mary's, Suite 521 
San Antonio, Texas 78205 

Ms. Sherrilyn A, Ifill 
NAACP Legal Defense and Educational Fund, 99 Hudson Street, 16th Floor 
New York, New York 10013 

Ms. Gabrielle K. McDonald 
301 Congress Avenue, Suite 2050 Austin, Texas 78701 : 

Mr. Edward B. Cloutman, III 
Mullinax, Wells, Baab § Cloutman, Pp.C. 3301 Elm Street 
Dallas, Texas 75226-1637 

Mr. J. Eugene Clements 
Porter & Clements 
700 Louisiana, Suite 3500 
Houston, Texas 77002-2730 

Mr. Robert H. Mow, Jr. 
Hughes & Luce 
2800 Momentum Place 
1717 Main Street 
Dallas, Texas 75201 

Western 

0000:= § 

District,



      

felwnN i An AJ - Imi M — 

The Honorable Jim Mattox 
Page 5 

The Honorable William Pp. Clements, 
Governor, State of Texas 

The Honorable William P. Hobby 
Lieutenant Governor, State of Texas 

The Honorable Gibson D. Lewis 
Speaker of the Texas House of Representatives 

The Honorable Thomas R. Phillips Chief Justice, Supreme Court of Texas 

ocQ00:® 6 

 



 
 

    

 



TATE .0 

COUNTY CF 

A FPA DavIT 

BEFORE ME, the undersigned authority, personally appeared JON LINDSAY, known to me, who upon being by me duly sworn deposed and said as follows: 

My name is Jon Lindsay - am the County Judge 
Harris County, Texas, which office T have held sinc January, . 19785, I have reviewed the Order of 
“nited States District Court Zor the Western Cistricet Of Texas in Cause No. 38-CA-154, styled LULAC Council 4434, et al v. Jim Mattox, et al, signed and entered by the Court on January 2, -290, and am familiar with 
its terms. 

m extremely concerned, as the chief administrative icer of Harris County, about the elections ordered 
held for thirty-six (26) district Judges on May 290, with run-off elections ordered to be held on 
» 1990. Mv concerns involve two primary areas. 

Vv - axperiance, ty=-wide 
Countv, Texas, costs tween 

1,200,000. Harris County 
above-described action, an 
menticn of who is to cay 
source of funds. IZ the run-off election is 
the cost will be between $30,000 and $40,000 
district included in the run-off. Because of 
extreme shortness of time Letween the second primary 
election, to be held on April 110, 1990, the first 
election ordered on May =, 1990, and the second 
election ordered on June 2, 1990, the costs will be 
higher than usual. In order to comply with the 
numerous tasks necessary +o hold +he elections, 
overtime personnel will be necessary, and +he cost 
will be closer to the high end of the range I have 
described. Harris County has no money buageted or 
available to hold these addi*ional elections.  



    
Affidavit of Jon Lindsay, January 3, 1990, Page Two ’ 

Secondly, the turn out that may be expected in an 
unusual, off-date election, will be at most 5% of the registered voters in each district. This estimate is based on numerous experiences with county-wide bond elections held during my time in office as County 
Judge, A 5% turn out translates to less than 2,000 
votes per legislative district, which means that a winning judge will be elected with very few more than 1,000 votes. Obviously, special interest groups will 
be in a position to seize district court benches bv 
producing a turn out of "one cause" voters. As 
County Judge, I fear for the administration of 
“ustice in civil and criminal matters, in a system 
where judges with county-wide authority, in a county 
with 1.3 million registered voters, are selected by 
no more than 1,000 voters. 

URTHER AFFIANT SAYETH NOT. 

  

-~ reyes 
~— 1 |», SUBSCRIBED AND SWORN TO befor 
this 3rd day of January, 1990, 

  

undersigned authority, 

NLL 

       
  

\ 1 

25 RO : 
con iy 1 

3 Ig A A Y P Us» yu 2 7 : 2 

Flash 22 NOTARY PUPLIC, State of /TgXkas 
id ; ilo AT Z 
- : Wl : > 
- Pe AN Cy - 
. 4 ~~ A Fong 

= . 2s ne < 3 

% RE STI iy > 

9% 3 132% 
Vv 

ATTTTIT IL 

 



 
 

    

 



      

—
h
 

2
0
 

2TT FFIDA\ 

FilvRAY LY 

BEFORE ME, the undersigned authority, 
Yodsneavary Known to me, who being by me duly sworn, deposed 
follows 

My name is 

personally appeared Anita 

and said as 

Texas, 

Anita Rodenheaver. [ am the County Clerk of Harris County, 
which office I have held since Janiary 1.51978, Jursuant to \ fit 

AI TC 

ol 3 tlection Board OFT 

e 51.U02(c) of the Texas Election Code, [ am tne Ch 
Harris ond Texas. 

nave reviewed the Order of 
western gistrict of 

~ause io. M0-38-CA-134 style ULAC Coun N : 
Mattox, et al and am familiar with its t rms. My review 
Serious questions and problems with respect to the electri 
thirty-six (36) district judges, ordered to be held on M 
followed by runoff elections orderea to be heid on June 
will list my concerns, but not necessarily in order orf t 
significance. 

Ll. A number of routine procedures. which are establisn 
Known in the primary elections and general ej 

7 extremely uncertain under the Urder. Is a ing feo r —
®
 

0
)
 

wi
 

o
 

. 
3
 J 

MD
 

ou
 

dD
 

1rman 

tay 7 he 

2 L240 

neir gre 

of the 

vim 

nas raised 

d and weil 

/@ become V 

aquired? iS a 

tv, 

oO wiil 

norma i 

1S extremely 

petition, ordinarily required for ~istric judges in Harris Cou 
50 required? What form of application will be util “EQ ana 

oromulgate that ‘orm? Aho wiil certify the correctness and 
compieteness of those apptications? The applicapiiity or tne 
orovisions of the Texas Election Ccge to these Jjuestions 
NCyear, 

2. Various provisions of the Texas lection Code, too numerous 
nere, deter many decisions concerning the noiding of an electio 
autnority calling the election. 4ho is the authority calling 
election on May 3, 1990 and on June 2.4990, Until thar. is ae 
3S an elections officer, [ am not aven able to select 3 voting 
0 De utilized in an election. 

2. The Texas Legislature estaplisned the date for the regular 
as Marcn 12, 1990 and the runoff is April 10, 1990, Under tne 
Code, Section 35.001, absentee voting tor the May 5, 1990 distr 
Juade election must begin on April 23, 1990, less than two week 
the primary runoff. [ have held more than fifty countywide ele 
In my term of office as County Clerx and I believe it will be 
1mpossidble to recail all voting equipment utilized in tne primary 
“unori, nave new baliots printed, ~ave the equipment reac T! 
redeliverea to remote voting locations in time for absente



    

“=. In my experience. the cos 
3750,000.00 ana could exceed 
in vune, the cost would appro 
These estimates are minimum. 
me to utilize temporary ana 
tasks.The budget of my office 
used to hold these new specia 

>. The Texas 

t of z countywide 
000,000.uU. 51. I 

ach 330,000.00 per 

oecause 

vertime personnel 

includes n 

| elections. 

od 

0 surplus funds available 

election is at least 
d runotf is necessary 
legislative district. 

tne shortness of time will require 
CO accomplish the 

led by 

clection Code provides for a canvass of the vote to be perrormed not before the 15th day arter the election nor after the 30th day arter the election by the governor of the state. Until the canvass 1s performed, arawing for positions on the ballot cannot be done nor an the ballots be printed. The t'ming of the specially ordered election and runoff election is sucn tnat apsentee voting for the secona election must begin on May .-, 1390 wnile the canvass cannot be perrormea until May 20, 1990. 

15€Q On my experience with of -2ate specia 2lections, [ would 2Slimate & voter turnout in the range of 5% to an absolute maximum of 10%. In my opinion, some district -uages may be elected by as few as 50 voters while other districts juages would be elected by no more than 2000 voters. The position of S1STrict juage in a county with more than. 1.3.mi 13 ion registered voters is f C00 1mportant to be fi 
of a the vote of tha 

ris 4) 
a VQ@rtud ry, PEP * 

— > 

cictis, 
Ais 

Li 5 2, E 

= “9 2 v 

-J nd Ie - — - 

A > 

7 Ph hv 

~ LS ~ 
+ § So - 

- 

Qed, -~ 
at ~ LT 'reeees ~ > 

\ 
EA ~ BEOT™ LRN = 

; Tr 

small a number i 
d
e
 

Ay i a 

cele Nerd 1% Cu lly 

  

ANITA RUDEHEAVER 

  

| 

n
o
 

[| 

   



   

  

L 

IN THE UNITED STATES COURT OF APPTALS 
FOR.THE FIFTH CIRCUIT 

  

NO. 
  

  

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

-— 
JIM MATTOX, Attornev General of the State cf Texas, et 

ané HARRIS COUNTY DISTRICT JUDGE SHARCLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

HARRIS COUNTY DISTRICT JUDGE SHAROLYN KOOD'S 
PETITION FOR EXPEDITED PERMISSION 0 

APPEAL UNDER 28 U.S.C. 8 1292(b) 

  

PORTER & CLEMENTS 
J. Eugene Clements 
Evelyn V. Keves 
3500 NCNB Center 

P.O." Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR APPELLANT 

HARRIS COUNTY DISTRICT JUDGE 
SHAROLYN WOOD 

Egan "cm 
  

 



  

' rg
 

UO
 

[R3
) 

I3BlE Ogr"'cofr 
  

STATEMENT OF CONTROLLING ISSUES 

The Standard 

SSS ele ee 0.0 8 FW 4.0/0 8 6.6 0 eV.n eee ie ea. 

® © © © oo oo © 9° oo eo 

  

of 

Claims Under Thor 
00f of Vote Dil 
OES VN. CinglIeE. . cov uinivsinnrids 

  

The District Court Controlling 
  

Conclusions of i= 
  

Disputed Questions of Law Raised 
  

bv the District Court's Conclusions 
  

SUBSTANTIAL BASIS EXISTS FO 
CPINION ON THE QUESTIONS © 

2 Cf The Voting Richts Act Does 
  

din, 
pplvy To The Judiciary And Would Db 
  

Cnconstitutionayl “f It Dic E00. 
  

2 Does Not Apply To Independent 
  

  

S 

Qverlapping Countv-Wice Judicial 
j ip lection Districts 
  

~~ 
pes Ginalercs 

9's eo 0 8 00 90 86 9 VP 0 6.0 8.0 8 8 ese ese S00 6s 

And 3 Are Not Proved By 
  

Abstract Statistical Inouirv With 
  

All Other Inguiry Being Irrelevant 
  

  

nopposed Election C 
White Versus White C 
  

Germane To The St 
  

kati 
Of Yore Diluticn Cia 
  

The Concert Of One-Man, One-Vote 
  

Applies To Judicial Elections..... 
  

The Pool Of Minoritv Class Members 
  

Eligible To Hold Judicial Office 
  

Rather Than The Pool OF Minority 
  

Is The Appropriate Reference Ser 
  

For Measuring Minority Success In 
  

Judicial Elections 
  

The Court's Holding That Illegal 

® © © 9 © © © ° © °° 0 Oo ® 0 ° © ®@ © © © O° O° © © © O° e 0 0 @ 

  

Vote Dilution Exists In Harris County, 
  

Texas Judicial Races 1s Clearly Err oneOUS.. vvitie vies 
  

-
-
 

Page 

10 

11 

14 

p
t
 

wn
 

15 

17 

30 

3} 

34 

 



  

    S 

IV. AN IMMEDIATE APP EAL MAY MATERIALLY ADVANCE 
THE TERMINATION OF THIS GA I ON vt vivian te a niiiiis sine 28 

Vv. RN CE ON ate eld se laniin ls Ti en ES TREO 42 

 



4 

TAY MITE ev * — - > ~ ) — IINT TRY N ord my -d -—eaes UdNd LL 2 _— a -— 
NATIT AT { j 
ER LR (SL 5 

TOR TUT TT TTT 
Dt i 

YT RTT 
hdd be mem maa aN UL 4 

  

  

  

TTM MATT AY 
A GG WR - JAN, 

ntervenor-Def 

  

  

  

dated January 

9390 1 S Memorandum Pini and Order of 
aT ) Th pol . . 1" Sd November nion’y., 

November A amended include certification 

  

The Opinion was Previously amended to correct for clerical errors on November 14 and 27, 1989 and December 28, 1989.  



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Exhibits. 

 



   

  

5 

Pron its voraing Practices wihilch Jenny JTemcers Cr prctected 

~ ~ — - + - ~n —_ -— - -— 1 = - 3 CLa3388 ine opportunity fo particirate In ‘oh Folitical process 

  
nS = oH, 1 = <r hey ~ 3 = rv uly BR iF and to elacT representatives of Their choice. ine PiadintazIss, 

who Ultimately reguced The number a target counties to nine 

including Harris County, sought a declaratory judgment that 

Texas' system of electing state district judges illegally diluted 

the votes of blacks and/or Hispanics in each of th counties, an 

injunction against all further district court elections in those 

counties under the present system, implementation of a remedial 

  

electoral system, costs and &tiorney’' 5s fees, EY Order of the 

Court dated March 1, 1889, the Court Ppermitied <The Houston 

A [ Hyver nif -— - “= -w —- ~~ bi) ~ = -- && 
Lawyers ASSOClation (th ELA =o intervene as gag Plaintiff on 

Dehall of blacks “in Harris County; 1t permitted certain named 

34 (8) No veering qualification or Prerequisite to voting or standard, 
practice, or procedure shall be imposed or applied by any State or 
political ‘subdivision in. a manner which results in a denial or 
abridgement of the right of any. citizen of the Unired States to 
Vote on account of race or color. b, 

(DD) A violation of subsection (8) Of this section is ‘established 
if, based on the totality of Circumstances, it .is shown that the 
political processes leading to nomination or election in the State 
or political subdivision are not equally open to participation by 
members of a class of citizens protected by subsection (a) of this 
section in that its members have less opportunity than other 
members cI the electorate to participate in the political process 
and to elect representatives of their choice. The extent to which 
members of a protected class have been elected to office in the 
State or political subdivision is one circumstance which may be 
considered: provided, That nothing in this section establishes a 
right to have members of a protected class elected in numbers equal 
to their proportion in the population. 

2 “+ U.S.C. § 1973 (West Supp. 1989). 

} 

(
»
)
 

|} 

 



   

  

’ 

DLAECK 1hdividuals to niervene —-— aa v 

And it irermittad Judge Wood and Dallas Countv District. Judge 

A group of named Travis County Judges were also permitted to 

appear in their individual capacities only, while intervention of 

Midland County and a group of Midland County Judges was denied. 

Texas Attorney General Jim Mattox ("Mattox"), a named Defendant 

] c 3 Re, / " ~ — Nips ame IY il Defendants {the State Defendants ), 

- =~ xs : 
=TT 11001 1 Lr ~~ a J - | = iE JP NECA ~ x maa NY mam - ~ re Ge 
STIrenuous.y SpProseq S41 erl_0orrs ZY ESTEE A 10 SL ai Ug diy adres Oo 

- be r- -~ =~ di = Nm ym = a + = ~~ ~~~ a t—- o ~~ + 1a 

~~ =-S8rvaene =S Yelendants = ier Cid dcial capacities cn =a 

intervention. Mattox's efforts to prevent defense of this case 

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intervention in their official capacities only, .a change which 

would increase the likelihood of insulation from possible 

personal liability for Plaintiffs’ attorneys fees. 

The case was tried to the bench in Midland, Texas beginning 

September 18, 1989, At trial the HLA PUft ion the Plaintiffs 

entire case challenging the Present judicia F
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Harris County,  LULAC having dropped all claims on behalf of 

 



    

   
’ 

» ~~ -— — po. a | -— - - Cy - ~ da ve - 
based 11s Case on Statistical 2nalyses. of =arris Lounty voting - 

Judge Wood defended the Present system of. electing state 

district judges in Harris County. She relied upon exhibits and 

the testimony of live, videotaped, and deposition witnesses which 

showed that judicial elections in Harris County are primarily 

determined by straight-ticket Party voting and secondarily by a 

Tm} ~ « 5 ~ - Fo S le WU i TC ~Ao ol Smal. Jiumber’ ‘cf. discretionary: ‘udicial Oters (15-20%) whose 

votes are _nf.uenced by =the experience and credentials of the 

~ {I s+ ~ 3S a — = a ve \® S A ) ( 
candicartes, Saxo ral Frere rence DoLLE Rewspaper ang other 

endorsements, publicity given the gualifications of the candi- 

dates, and successful county-wide campalgn strategies. She also 

ES 

introduced evidence that racism plays no part whatsoever in 

1 November 8, 188¢ the Clstrict court ae 

Memorandum Opinion and Order including a declaratory judgment 

aolding that Texas' system of electing state district Judges 

illegally dilutes the votes of blacks and/or Hispanics: in all 

Targex counties. In that Cpinion the court took under 

advisement the question cf a possible injunction against future 

Judicial elections in the target counties. It also granted the 

State the opportunity to devise a remedial plan ¢f its own in the 

November 13, 1989, special session of the Texas legislature 

 



expedited interlocutory appeal 

December 1 1989, Governor Clements the ‘court that 

NO consensus could be reached by the 

& remedy in 

condition precedent to th 

on December 15, 

had gone cut but that the court 

submit 
that the 

working on 

file by 

that 

those 

should also December 

vv with the remedial plan itsel 

ee 

Upon confirmation of the rumors concerning the negotiations 

between the Plaintiffs and the Attorney General, who is charged 

ith the task of representing the State Defendants, 

including all state district judges in their official capacities,  



   

  

Judge Wood filed a motion To stay all "Fy 

QlSIriCT Court ‘and. a notion Sor certification of the Jgistrice 

+! : > y 
- < : A court's Opinion for interlocutory appeal 

~\ i -— a im 1 o 2 3 A 3 ~ 
On December 19, the attorney General sent Judge Wood an 

agreed Proposed Interim Plan signed by himself and the 

tiffs. Aicopy of that plan, which was subsequently filed with 

t 5
 

(1)
 

{Y
. 

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0 ct
 

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0 O H ct and adopted almost in *oto py the Court, is 

iled herewith as Exhibit "41." Judge Wood asks this Court to 

ignatures of all Defendants who 

Yl yo +H. the. cCefense of this suit, including 

—~ — ~ 3 ! 
= 

-—Y FE - —~ 
“iCse attorneys whe presented =he State —efendants case, are 

cudge Wood filed 

her Objections to the: Plaint 3 and Matrtox's Flan on Decem- 

A copy of those objections 

8' and Mat:tox's "Remedial" 

entered without notice 0 ner--gespilte Mattox's repeated 

~si13tence, That ne alone represented her and all other state 

it was In direct opposition to her 

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{ H 0 Sts, which, as her counsel, he was sworn to uchold. 

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 any of the State Defendants, and 

Attorney General Mattox's Statement Concerning Non-Partisan 

Election and Supplement filed herewith as Exhibit "i2.% In that 

 



   

  

’ 

AR 
< / 

/ 

Xesponse Juage Wood &41S0 JQocumenteqg numercus other nistances cof 
Ls b- 

~Y = -~ mE a -— mam with N _ = 11 rmA ra ~ + Aa [~ ~ + + 1 ~~ a = v= ~ 
Llssz ou SB [SEER wl wi Matto PRIDOX -2C gerense . Lh1sS case: aQlid 

Rules of Professional Conduct, specifically rules 1.02(a)(2) 

{settling against the wishes of the client) and. rule 1.086 

(conflict of interest). Judge Wood has received no response to 

- - -— -— — id T LN ~ wlge wood. 2lso argued taac DUP AlliCrney oeneral's gover 

-~ - ~~ - ve. . - -— . ~~ - 3 J - ho 3: 2Nn0C overt -activiries in"1n.s"Case, as cdocumented ir her ~esponse, 

constituted the very "collusion, nonfeasance or adversity of 

interest” deemed by the district court and by this Circuit to 

constitute grounds for holding that Mattox does not adequately 

represent the interests of Texas' state district “udges. Exhibit 

i2 at .5. Zven as Judge Wood prepared to fi 

Mattox himself was announcin to the press that he had never 

~~ mvp 

  

, £1led herewith as Exhibit "J. 

Despite the vociferous opposition of numerous Defendants to 

“WX 2 .Cilains "Zo their —Sepresentacion , veXamples of which “are 

  

Mattox's statements were made in response to a non-suit taken in a state 
district court case filed by two Harris County district judges protesting 
Mattox s betrayal of their interests in this case. 

 



   

  

P 

’ - i ~ 11 wil a : 1 IEP 1" 
— - a ~ ay re +n ~~ TN YT NN ~ ! =~ ~~ ~~ = da -—- Teh ins += - reLet TorawlitThias EaDlIoI — gaat aS exh. oa Ts — EB a 0 kp I ery 

—% Aa (NS Ey ne r~ANTT Vv i a r oi. IY yn i on ~ ow Wy YY iy ~ ARE ha ve Lidl RL BS TI CLE CUE Staten Add Le nT Oern mol iw aDUary 2, 3 Agreed 

= i is : sm pong iq 
~ : i a Bs ~ a Il oT ole ry 2 T - ™ ia)! = bo? Fay yy yy ar 
s>elt..ement was Late raag “nto oY anc cetTween RES. TD de a re ae SD anc 

efendants in this matter, but was not approved by some of the 

- ~ ntervenors.” Order of January 2, ‘1990 at 4. Judge Wood submits 

  that ne "Agreed Settlement" was reached because nc one who 

genuinely represented th defense of this suit was consultsd 

about any agreement with the Plaintiffs and that Mattox indeed 

represented only himself in this "Agreed Settlement" with the 
— ~ g -- . - . - ~ = 

A, eo Sl 15 a 5 “v= ~V~ ~~ = pm ~~ i BB FEYYIT™ ON _- py b 1 {le ial - 
Plaintisss -i CI'CES CCOnI. CT With his duties as Attornev General 

1 ™ — : | -— —~— og ~ : 
=~ be Ms ino J, 0 ~ - = ah al Een an 4 19 ~~ Aa TAY (Army ~— hh Wd Add -_1e lavas YisScC ini inary Y i vies A a — rar essS Tonos. rudd AN 

The Interim Fila ih as nN essence Jevised bt the 
-—- PGB Bh SN A | “ a, whRlCZh had [= -—-- ~ ad =, — — I, —a 

trial, has Deen hastily foisted upon the State after secret 

oe He = ph 3 t= 4 ™ wg 3 vy v = 3 negotiations: to which +h genuine bDefencannts were not Privy, anda 

A pt a mil " 3 m™ ! a z < Fh += 2 roCcTs eLy Alsmantles Texas Iyscem oY electing Eilate glscraict 

Select judges while disregarding the most fundamental interests 

of due process, equal protection of the laws, the requirements 

vy 

Voting Rights Act itself, the Constitution and 

3 A ah 
and purrcse or tne 

statutes of the State of Texas, and the rights and interests of 

The specifics of the Interim Plan acdcpted by the District 

court are set forth in Defendant-Intervenor Harris "County 

 



   

  

’ 

note ‘nere that *his destructive and unconst 

court even though that court admitted in 

pur; of this appeal that 

this case contains extremely important controlling issues of law 

48 TO which there is a substantial basis for difference of 

opinion. Opinion at 93. 

11. STATEMENT OF CONTROLLING ISSUES OF LAW 

The ‘district court's “Plnlcn ralses Iundamental cuestions 

POUL, "Tag applicability of the Voting Rights Act 22 B.8%C 

§71873, 2 to. judicial elect ons, <The constituticnality cf such 

application, the proper standard of proof for Voting Rights Act 

x:= Proof “of vote 

  

  

n my Cd ~ - i = ty | -—- YY A -Ne standard of Proof cf Vote Pilution Claims 
T mm 3 v Fai 1 = Under Thornburg v GCingles 

T Thy +a Con SEIU Him» TAT ~ - a I al a C= yr += hold 
sne 0 ced i No Ces DY eme er Nd LR and CLT — a dod dE 44 

lia 3 = oe ~ iw Vis yee PO, rd 
-ar ae appropriate TEST oI Cte giiuToon C-21msS hder le 

TF ™ Py 5 % 0a. “ Eas : 1" a PET | 
LING Rights Act is otality Cl The clrcumstances test based 

U oO
 

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=
 , intensely local inquiry peculiarly dependent 

upon the facts of the case. Thornburg Vv. Oingles, 478 U.S. 30, 
  

106. S§.0%. 2752 somal (1986); Overton ww, City of Austin, 871 F.2d 
  

52%, WS3Z- ASthy Civ 198%). That test employs as a threshold 

inquiry three factors set forth in Gingles: (1) demonstration by 

the minority ‘that it is sufficiently large and geographically 

compact to constitute a majority in a single-member district 

 



  

  
  

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judicial elec 
oicollegial judicial 

2 applies 

judges, 

as 1t does 

equally 
who serve 

to the 

election of state 

i ndent decision- 

n of appellate judges, 
Chisom's extension of 

t to be limited 

and nn. 32. 

endian BE SP SS — 

aadition of irrelevant variables to regression and 
tistical analysis distorts the equation and yields 
ults that are indisputably incorrect under § 2. 
nion‘atr 80. 

PPosed mincority candidate election contests and 
*e versus white contests are not germane in this 
CULT XO The statistical analysis of Voting Rights 
Violations. Opinion at 80-81. 

concept of 
judicial elections. 

  

| O
n
 / The Court: 

powers nor 

laws. 

and 

discussing these issues are filed herewith as Exhibit 'h 

had previously 
judicial elections and violates neither the principle of separation 

the 

*~ 
- 

fourteenth amendment 
Order entered May 3, 1989, 

Motion 

one vote!" does not 
Opinion at 15. 

"one man, apply to 

held that the Voting to 
of 

guarantee orf equal protection of the 

denying Judge Wood's Motion to Dismiss 
Statement. The relevant documents 

114 1" 

Rights Act applies 

More Definite 

il. 

 



    
QO
 

=
 

NS
) 

Th eligible pool of mInNority voters, rather" than 
eilgible minority lawyers, is the apprecriate reference 
point Ior evaluating the extent cf minority electoral 
Success. Opinion at 74-75 

The data set relied upon by Plaintiffs’ expert 
Dr. Richard Engstrom To analyze Harris County elec- 
tions, consisting in 1980 census counts of total black 
population by precinct and computer printouts of 1982 
1984, 1986, and 1988 precinct voter registration 
estimates supplied Dr. Engstrom by Dr. Richard Murray, 
a non-testifying expert whose data was rot authenticat- 
ed in any way (Opinicn at 22) and which had been 
Written  ‘cver, ETXUChk cut or crossed through, Nas 
reliable data con which =o Lase statistical analysis of 
racially polarized voting and racial bloc voting 
Cpinionat 27 

Testimony! from Flaintifs's expert, Dr. Engstrom, that 
a primary §iections “nn. Barris County need not be 

filter cut the candidate 
Of “Choice iof o (2) that uncontested races 
d no in Y 1. $3Y That 

cases 1is 
(4) that, although not controlled 

2nesnepigons would be included in 
n votes; and (5) that the 

a 

assist rTesearchey 

range JOotes in Harris County never rose 
above 13.6% was adequate to address Defendant Wood's 
Concerns about absentee “voting, the influx of Vietnam- 
®85¢ ‘population’ intoe Harris County and Traditionally 
flack precincts and failure of Dr. Engstrom's analysis 
to reflect lack candidate successes in primary 
elections and uncontested races Opinion at 27. 

Dr. Engstrom's ny regarding correlation and o 
regression analysis of 17 selected races proves that 
white Dloc voting exists in Harris -ounty "and "is 
sufficiently strong generally to defeat the choice of 
the black community. Opinion at 28-30 

The testimony of Judge Wood's witness, Judge Mark 
Davidson, <that race and ethnicity are irrelevant to 
actual voting behavior as it relates to the judiciary 
in Harris County, while credible, is irrelevant under 
controlling law. Cpinion at 31. 

| 

}—
 

Ww
) |] 

 



   

  

2 Defendant Wood's contention: tha clack preferred 
candidates lost their -udicial races because of failure 
£0 win the 'Earris County rar ior Preference poll or 
obtain the Gay Political Caucus endorsement is iegally 
incompetent Opinicn at 31 

i5 In addition, 'inai*ts brief survey of =h nine Zimmer 
factors, the district court concluded that among eight 
factors typical of racial discrimination in voting, 
Harris County exhibited only three: (1) historical 
discrimination, ‘which on Urt considered indisputable 

"enhancement" of the 
, which the court held was 
lng and the fact of county- 

arce. County: and’ (3) lack of black 

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Toral. success in iudicial elections, which was 
established by the fact that of 17 black candidates for 
the Office of state digctrice judge in races selectively 
dna.yzed by the plaintiffs’ expert blacks won only 2. 
Opinion at 69-77 The court found no ‘evidence of dig. 
criminatory slating,.: Eppeals in campaigns, or 

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sons IO0r county-wide judicial election districts are 
: -— M - J = . . —- T neither tenuous nor intentiona ly dlscriminatory I 

{The ninth.limmer factor, raciaily polarized voting, is 
~ 3 3 + q Pe = 3 Frog ~~ 7 3 poe Supsumed uncer the Gingles factors and was held by the ~ } 35% =} -— ihe - Tr om LOUrT tobe proved by abstract statistical analysis.) 

mm - A 1 3 ~ ~ = ~ 3:13 2 The questions of law listed above are controlling «in that 

Rl 1 = [= q De y Rl TY > ! 

- » eo - : z - og ; - they provide th conceptual «Dasis.. ford the district court's 

3 ~ - on —_ — wp -— a. ~ vm - ~ ~ - = = —— RY Seéterm.raticn that the present system cof giecting state district 

and, in particular, in Harris County, inwioclation of § 2.0f the 

  

  

rt = Vy yom ce i ~ rm 0, 3 , JY - - Lisputeg ME SELIOnNSs or maw rhalsed ov ne 
™ = a La - YisStricE Court s Conciusinsns. 

rm “ 
The controlling conclusions of law stated by the district 

court raise the following questions of law for which there are 

substantial grounds for differences of opinion, and which Judge 

 



   

  

e § | : GALS ACT applies to tha > > ~ * - - ~ -—- — 3 = JuCicliary; and, 18 so, whether iv is cehsticutional if 
- hi 

thus applied? 

" : Li ee Lend n LE Se Ly . <. Whether § 2 applies tc inderendenz overlapping county- oe ; ; = 5 wide election districts? 

n 

4. Whether unopposed election contest and white versus 
white contests are germane to the statistical analysis 
of vote dilution claims? 

>. Whether the concept of one-man, one-vote applies to 
judicial elections? 

2 Whether the pool of mincrity class members eligible to 
hold judicial office or that of RDCTrity voters is —he 
appropriate reference point for measuring minority 
Success 1n judicizl elections? 

ether the court's holding that illegal 
ists 'in. Harvis “Count: Texas 
early erroneous? 

111.5% A SUBSTANTIAL “BASIS EXIST Fag YE 

c 

OF CFINION ON THE QUESTIONS OF LAW INVOLVE] 

n = x - -, 2 : . , "~ . — a - - > - Ea 0 1 YN 9 TA 5 - AS Lhe. court itself acCRnowledged nn its pinion, ~ail 3S area 

4] : a 3p ~ . ig : A ana To - of +aW- BS Nol san asic certainty CpPenlioen 8 isd «ceed the 

Jues 

agre 

1936 

view, each of =he issues 

The 

tions" on which "ths ‘mest distinguished experts" may dis- 

. : an 
Td jing 3 ! €. Opinion at 23 (quoting Chief Judge Charles Evans Hughes 

address to the American Law Insti 

cf law listed above was wrongly decided 

the following reasons: 

= 

iclarv And Would Be Unconsti 
  

2 Of The Voting Rights Act Does Not Apply To The 
di t 1d 
  

The Court holds that § 2 of the Voting Rights Act applies to 

Judiciary. Opinion at 81. While Defendant Wood acknowledges 

§ 4
 

un
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’ 

Fr n h 1 RE 1 - - -~ pa | - 
“raaiticonel .egal ‘thinking snd 13 consistent with “thoss princi- 

ples. 

; : iP 2 ” Ty inthe instan™ casa. “he gpplication cf the Voting Rights 

i] i ©] Q D n fl
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0
 representatives” of racial groups would have .t} 

Potential effect of outlawing 

appointed judiciary, since an appointed 

satisfy the Voting Rights Act's requirement that protected 

Classes oe ensured the right "to elect representatives of their 

choice.” 42 U.S.C. 8 187315) (emphasis added) 2 Thus, if the 

Voting: Rights act is gpplied to wre Jdiciary, the entitlement of 

protected classes to "representative! officials, even judges, is 

Litutional: rights and duaran- 

  

  

whether the. Voting Rights Act applies to the judiciary and 

whether, 18i< does so, it is constitutional 

BE. } 2 Does Not Apply To Indevendent Cverlapping tounty- 
Wide Election Districts 

The. district court holds thr 2 WY)
 

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election of state district judges, who serve as 

  

laintiffs and Mattox have already indicated that they would not 
accept & merit appointment plan as a remedy for dilution of minority 
votes in this case, and the question has been raised whether any such 

could receive Justice Department approval if passed by the 
Texas legislature. (Texas is subject to § 5 of the Voting Rights Act, 42 
U.S.C... '8 1973, . ;which requires such scrutiny of State-pronuigated 
redistricting plans.) 

4
 

 



    

~ ac Eo - -~ - -— ~ ~ -— - - y - 

-2Li5.00 "Makers, as IT does 0 =he election of abpbelL_.ate judges, IS8 g 

Sa rer - ~ i 1% 3 £ ~ ~~ m™ wRO 28rve ny a CoOllagial body Opinion ‘at El” and n. 32. The 
~~ + ~ 1 - og - ~ 3 y hie T 3 4% 3 
~OUrt C.tes no authority for its conclusion. acwever, Judge Wood 

  

single-member districts are not subject to the Voting Rights Act. 

The election of independent sudges from single-member 

in form and purpose from the 

a) an lL ~ = + m= y “ ~ =~ = A ER Io cs T 
SLecTion or representatives Jnger an aL= Large EysStenm. i an 

el ca PIR JE NE Vy Stree —- To om yy pn ny pe a npg" a mT YY ~~ ~~ N -— 
at-large Cém representatives tf interest groups, or constity- 

SET oc =r a) ~~ ~ -— - - ~~ 11 5 =~ NANT = “~~ — ~~ ~\NY) Ri 
aac, are elec -=2d Neri = Collect = 1 ASIN Y aa Wils dai a=) coliapora- 

- y ~ahRata 3. a % 3 3 1) 3 -1 1 ; ~ : --=On: aNd 'denate So rresumed To result = Le" oes compromlse 

aval.able to accommodate <+h iiffering interests that they 

~ ot 1 1 pe - : : : Ce Single-member districts when protected minorities are 

Sry oo - 3 ~ Pay 3 d " : S = 1 i Sx mBo Ly mpPrONlOoITed" Dy ‘racial discrimination from electing 

OAYY PY = Ea ell wd - ee - - 3 -Y Te -Spresentatives 2 their choice to at-large collegial bodies 

Noti only is the rationale of promoting the compromise of 

conflicting group interests alien to the concept ¢f the judicia- 

istricts serves 2.
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fundamental principles which are irrelevant to the election of 

representatives of interest groups. The county-wide single- 

member judicial election system--and that system alone--insures 

 



    

oS -y - -— i Aa = 3 - 
Rat each Jude nas JRrrisdictlion over all "suits 2rougnt in the 

county &na —har each Judge +5 elactect Jy every citizen in the 

~ my rg - 3 To . jo ] Ja) - pa 
county -ne applicaticn of the Voting Rights Act +o chat system 

Stricts or sub= 

districts drawn on racial lines entails one of two things: 

either (1) the courts whose judges are elected from mini- 

Jurisdiction and proper venue over parties 

resident in all parts of the county other than the mini-district 

-~ 
. 

1 2) Lne Courts must retain J=T13Q.CT13n ana venue over ne entire 

—~ Ri - Ri 
— = he r~ - ~ 

county, aL.taoudan only. .a.smali percentage of The citizens CT The 

r those judges, <thereby ensuring 

Citizens in The 

maj ty ¢Z the judges who have plenary 

~aUSE The contusion of over.aprring Clunty=-wlide Slngle-member 

- - - - —- 3 - - 3 
jualclal districts with at-large districts and the consequent 

judicial districts nas the necessary 

a 2 oh : : : : LX ner (l) a jurisdictional nightmare in which 

equal protection of the laws under the fourteenth amendment and 

th right to a jury drawn from the entire community under the 

rights of certain protected minorities ore .{2) a flagrantly 

- - unconstitutional system under which +he constitutional rights of 

the vast majority are sacrificed to the statutory rights of the 

th
 

ew. 

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City of New York, 7179 F.24 141,149 (28 Cir. 1985), ‘+the Second   

We cannot .... take ‘the concept of 2 class’ impaired 
opportunity for equal representation and uncriticallv 
transfer it from the context cof elections for multi- 
member ‘bodies to that of electicns #or csincle-member 
OfZiceas. There can be no egual opportunity Zor 
“épresentation withir an office filled bv one person. 

Judge Wood agrees with the Sececnd Circuit's holding and urges 

  

  

  

three "Ginglees factors" relied on +r establish vote dilution =- 

Political cohesiveness of the minority {Ginglegs i J). and’ the 

  

ability of the white majority u wallvito'defeat the minority's 

3 wid 8 ‘ 3 . / Sg : 2 prererred canalcate (Gingles 3)—' =--are usually established by 

statistical evidence of racially polarized voting. Opinion at 

85. The district court further held hat  Gingles 3° can 'be 

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~Bo%, 4872-1878 (1871), which Justice White himsslf haa authored. 

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strict court acknowledged, "{Tlhe majority which agreed with 
rennan [in Gingles] that voter dilution was demonstrated by the impact or results of the Zimmer factors and the Gingies threshold 

analysis deserted him when he came to the proor of the second and third Gingles factors.” Opinion at 8, n.7 

As the di 

Justice B 

io 

Gingles is the only Supreme Court opinion that has interpreted the Act as 
amended. The Act was amended, as Justice 0’ Connor observed in her 

1 n - 1 . dissenting opinion in Gingles to codify the esults test empioyea in 

  

Whitcomb v. Chavis, 403 U.S 124, 91.°S.Cc. 1858"(1971) and White v,. 
Regester, %12'U.S. 755, 93 8.0. 2337 (1973). ~1086 S.Ct. ar 2796, 2783. 

 



   

  

’ 

  

candidate and (in contrast +o Eavri 

Whitcomb, the Supreme Court held that invidious   

does not result from the loss cof elections by Democrats favored 

by blacks absent evidence that blacks are denied access to the 
vaio ; - mead l/ political system. Whitcomb, 91 S.Ct. at 1874-76 .— 

  

Justice O'Connor, writing for four members of the Court, 

also expressly rejected Justice Brennan's test for vote dilution. 

106 S.C, mae I0GH Unlike "Justice White, however, Justice 

Prospects for electoral 

. at 2293. However, she aid reject Justice 

w ~ M 13 33)
 fu 3 0 £9)
 Oo (0) 1ticon that evidence that explains divergent racial 

voting patterns is irrelevant. . In her view, such evidence 

would seem clearly relevant in answering the gquesticn whether 

bloc voting by white voters will consistently defeat minority 

candid fv
 iy "n + - } ry 3 =~ 4 VI, SH +} } 

tes. IE. In. other words, assuming that he three 

ingles factors are used zg part of the proof o Hh
 

vote dllution 

under the ‘totality of the circumstances test, Justice O'Connor 

would allow the results of bivariate regression analvsis to be 

  

ft
 

et
 

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S
 

The district court also observed that the issue of partisan voting was 
before the Supreme Court in Gineles and that the Court had no difficulty 
concluding that voting polarized along racial, not partisan, lines. 
Opinion at 80 d(citing Gingles, 478 U.S. at 61-62). The district court 
is. incorrect. its citation is to: Part I11i-C. of Gingles, Justice 
Brennan's minority opinion which was rejected by the majoritv of the 
Court as argued in this section. 

| [\S
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in this circuit to the statistical analysis of Voting Rights Act 

violations. Opinion at 80-81. This holding expressly contra- 

dicts the ‘position © Justice Brennan in Gingles, which the 

- Pr — : 3 - Ts lnstant Court otherwise adopts nN. that Justice Erennan held that 

  

Icr rurposes of proving iilegal ~ofe dilution, "Clearly, only the 

~ace cf ‘the voter, not The race =F ths cancidate,. is relevant. 

Singles, 106 S.Ct. at 2775; see supra at 22 *t also leads the 

district court to approve a statistical test cf illegal vote 

ans ax BEE | wilich mincerily voters 

wiv hg ,~ - , PP 3 4 : < yy 14 3k =] : Otte: Gud eces in which minorities AR unopposed: &gl]l races in 

try = oy - a ~ < a“ 4 A ! ~ - ~ 
yi CH Minor.:+="os Dun. ain -—_e wrong Party (These are considered 

; all races that fall outside selected years (such as 

the 1278 Harris County district iudge "races in ‘which two black 

candidates ran in contested races for State district ijudge and 

won, so that their subsequent unopposed races do not count); all 

primary races (dominated by blacks in the Democratic Party in 

Harris County); ‘and (2) it expressly rejects all factors other 

than race as explanatory of voting patterns, even when there is 

credible evidence that race was not a consideration at =21l in 

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- 

discriminatory enhancement 

las repeatedly held that countv-wide mul+i-no 

lection schemes are not constitution 44 

  

124,.. 81   

Finally, the district court held that 

electoral success in Harris County shows discrimination despite 

2(b) of the Voting Rights Act, which 

minorities have ’ entitlement tO 

representation, and Cove and 
  

  

qualifications are required 

of minority success is the pool 

  

in sum, there are "obviously. solid disputing 

whether "proof" ..é&f vote entirely on 
bivariate 

have been Zourd and those which have been found themselves 

disputable under sound legal authority; hen” ‘the . court 

accepted as proof of vote dilution the Plaintiffs" bivariate 

regression analysis which deliberately ignored as irrelevant 

almost all races in which minority voters--at least in Harris 

  

Assuming, without admitting, that overlapping single-member judicial 
districts are actually disguised multi-member districts.  



   

  

» 

O eC > a
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all races’ in which blacks van “opposed, all races run in 1978 

(when two blacks ran for 

successfully, only to run uncrposed--hence not to count--ever 

since) and all races in which blacks ran as Republicans (which 

wére counted as anomalies); and (2) when the court counted as 

3 ify ws 34% ve 1] re i ie Ps 2 . om 1 Ti n a , 
Legally lnccmpetent ~€stimony which, though "credible tended 

tO prove that, in fact, under practical local conditions, racism, 

1 ~ T a ow 
- I= . - vy ~ rE we YS we TTi2 OY ino part in QIlSTTrLET judge races 

i ot
 

4)
 

on
 

‘0
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0 |
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(E
N 

[3
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 conclusions 

9 =arris County may reasonably be disputed under the 

arguments set Iorth above, substantial grounds exist for disput- 

ing the district court's holding that illegal vote dilution 

MATERIALLY ADVANCE 

In the absence of immediate interlocutory appeal designed to 

settle the numerous contro —
 

p
t
 

}4
- 

3 0
 issues of law which ‘are in 

dispute, the litigation of this and related cases, as well as 

 



   

  

4 

9 
1 - of 0 vv} y.} 

’ Promises to OCCUPY ‘The courtsiifor Years while 

1 : 3 : mT nn PE 1 5 SX < 33 
Leaving tn enctlr +eXas 3juQic.z: election System: nn alsarray 

When the court below cert ied this case for expedited inter- 

locutory appeal it sim 9 =
 

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H im plan enjoin- 

ing all elections under the system it had declared illegal and 

imposing a judicial election system devised in most of its 

essential respects by the Plaintiffs and Texas Attorney General 

Jim Mattox without any "input from Judge Wood, Defendant/ 

Intervencr Judge Entz, the Secretary of State, the administrative 

juages cor the state district _udges wnose interests Attorney 

General Mattox was bound by law to represent That Interim Plan 
+ k 3 Ji + Er 3 3 ~E 1 £4515 mw 3 37 3 f - at 
LOOK lmmedlate effect on the day cf the filing deadline for state 

districe judgeships. Judge Wood has ' filed Objections to the 

Plaintiffs’ and Mattox's "Remedia Plan" which point out its 

violations of numerous Texas statutes, the Texas Constitution, 

the equal protection clause of the 14th Amendment, *the due 

Process clause of the 14t} Amendment, and the right to precpor- 

, 8&8 well as its irrevocable and immediate 

effect of destroying Texas' judicial election system. firtually vi 

all of these objections apply to the court-ordered remedial plan. 

Judge Wood's Application for Stay, filed herewith, .states 

additional objections to the district court's plan. The litiga- 

tion of the issues raised by the district court's Interim Plan, 

as well as the issues generated Dy the district ‘court's 

Declaratory Judgment, could take years if this Court'refuses to 

hear Judge Wood's interlocutory appeal and she must await final 

judgment. 

| Ww
 

XO
) | 

 



    

   
A 

remains unclear and <the standard of Froof accepted by the 

district court stands, suits challenging each cf Texas! "courts 

can be expected to proliferate. On December 22, 1989, the date 

Of submission ‘of ‘the Plaintiffs’! and Mattck's plan to rhe 

district court in this case, the Mexican American Legal Defense 

and Education Fund ("MALDEF") filed suit in fsderal court in 

Brownsville, Texas, challenging the election of judges to the 

Texas Court of Criminal Appeals on the same formulaic grounds as 

Ss have already 

in this suit they expect 

, Challenging county-wide 

regional and statewide elections to all branches of the judiciary 

all over the State of Texas. 

Moreover, a permanent Plan has yet to be devised. Either 

iterim Plan has 

been--in which case it can be expected to generate numerous other 

BUllSs=-~-Cr it will involve a drawn out and very expensive re- 

assessment of the state judicial election system, requiring 

evidentiary hearings by the district court, consideration by the 

Texas legislature and =the Judicial Districts Board of various 

alternatives, amendment =o the Texas Constitution, ratification 

oy the voters o Hy
 

Texas, and. scrutiny and approval by the Justice 

Department under § 5 of the Voting Rights Act, Thus, if +he 

district court's Declaratory Judgment stands, Protracted and 

 



   

  

expensive litigation and 
MD
 nsue over a period of years. 

In the meantime, should Judge Wood be forced to endure 

and/or any 

Ft
 

5.
 

H ct
 

YY
 

MD H "3
 roceedings designed to provide a "remedy" for the vote 

=a 

dilution found by the district court before the Propriety of that 

court's judgment is reviewed, any right she has to elect or be 

elected in. an independent state judiciary under the present 

electoral system mav be irretrievably lost Also should this 
- 23 4 B, Ed — hn de de he Ee - - 7 ~~ 

~Ourt caeny Judge Wood's retition for expedited interlocutory 

inal judgment in the district 

court, only to have that final _udgment ultimately overturned by 

+8 New: round of. chaos will necessarily ensue as the 

state attempts to reconstruce Humpty Dumpty. 

On the other hand, should this Court grant this petition for 

expedited interlocutory appeal pursuant to 3: 1292(b)y all 

questions of law regarding the district court's basis for its 

Jeclaratcory Judgment can be expediticusly ‘decided, thereby 

inging this case to an end in =a more orderly and just fashion 

and allowing future Voting Rights Act litigation =o proceed on a 

more certain footing. Nor will any of the Plaintiffs be prej- 

udiced by any such a 0 ie)
 (Y f | To the contrary, they, like Defen- 

dants, benefit from the swift resolution of the extremely 

significant disputed legal questions at issue in this case. 

H
 3 ally, the resolution of <+he controlling legal issues in this 

 



      
* 

Case can only benefit the public 

TO undergo grievous and perhaps tctally unnecessary suffering. 

Via CONCLUSION 

rr 

WHEREFORE, ‘for the foregoing reasons, Harris ~ » TY mr nS ad YOUNLTY District 

Judge Sharolyn Wood requests that this Court grant her petition 

for expedited interlocutory appeal of the district court's 

Memorandum Opinion and Order of November 8, 1989, as amended, and 

that it grant her such other and further relief in law and in 

equity to which she may show hersels justly entitled. 

=espectfully submitted, 

FCRTER & CLEMENTS 

= oy 

  

  

J. Eugene Clements 
Evelyn V. Keyes 

A Srar NCNB Center 

P.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR BARRIS COUNTY 

DISTRICT JUDGE SHAROLYN WOOD 

OF COUNSEL 

Darrell Smith 

Attorney at Law 
10999 Interstate Hwy. 10, #905 
San Antonio, Texas 78230 
(512) 641-2944 

Michael J. Wood 

Attorney at Law 
440 Louisiana, Suite 200 
Houston, Texas 77002 
(713) 228-5105 

 



  

1 hereby certify that on the FY da 
and correct copy of the above ‘and £ 
l1ct Judge Sharolyn Wood's Petition 

Appeal Under 28 U. 

  

nn
 P| 

this case by 
addressed as follows: 

Mr. William L. Garrett 
Ms. Brenda Hall Thompson 
Garrett, Thompson & Chang 
Attorneys at Law 
8300 Douglas, Suite 800 
Dallas, Texas 75225 

Ms. Susan Finkelstein 
Texas Rural Legal Aid. Inc. 
201 N. St. Mary's, Suite 800 
San Antonio, Texas 78205 

Mr. Julius Levonne Chambers 
Ms. Sherrilyn A. 
NAACF Legal Defense and =ducational 
99 Hudson Street 

Ms. Gabrielle K. McDonald 
Matthews & Branscomb 
301 Congress Ave. , Suite 2050 
Austin, Texas 78701 

Oo 

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

cl
 

Mr. Edward B. Cloutman, 111 
Mullinax, Wells, Baab & Cloutman, P -~ 

3301 Elm Street 
Pallas, Texas 75226-1837 

 



    
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, Attornev General of the State of Texas, etial,, 

Defendants, 

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

JUDGE WOOD'S EXHIBITS 

VOLUME I 

(Exhibits A - B) 

  

PORTER & CLEMENTS 
J. Eugene Clements 
Evelyn V. Keyes 
3500 NCNB Center 

P.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR APPELLANT 

HARRIS COUNTY DISTRICT JUDGE 
SHAROLYN WOOD 

 



    
F
a
 

[O
))
 

a a
 

[J 

4% 

JUDGE WOOD'S EXHIBITS - VOLUME I 
    

EXhibie "avr 
  

[Houston Lawyers' Association's] Complaint in Intervention 

Defendant Harris County District Judge Sharolyn Wood's 
Original Answer to Houston Lawyers' Association 

Plaintiff-Intervenor Houston Lawyers' Association et al's 
Original Answer to Defendant-Intervenor Wood's Counterclaim 

Plaintiffs' Second Amended Complaint 

Dallas County District Judge F. Harold Entz's First Amended 
Answer to LULAC's Second Amended Complaint 

State Defendants' Original Answer to Plaintiffs' Second 
Amended Complaint 

Harris County District Judge Sharolvn Wood's Second Amended 
Original Answer and Counterclaim to Plaintiffs LULAC et al. 

Plaintiffs’ Answer to Defendant-Intervenor Wood's Second 
Amended Counterclaim 

Exhibice "np" 
  

Plaintiffs' Post Trial Brief 

Plaintiff-Intervenors Houston Lawyers' Association's Post 
Trial Brief 

Defendant-Intervenor Wood's Post-Trial Brief 

Defendant-Intervenor Dallas County Judge F. Harold Entz's 
Post~Trial Brief 

State Defendants' Post-Trial Reply Brief 

Plaintiffs' Response to Post-Trial Briefs 

Defendant Wood's Reply to Plaintiffs' and Plaintiff-Inter- 
venors Houston Lawyers' Association's Post-Trial Brief 

Plaintiff-Intervenors Houston Lawyers Association's Reply to 
Post~Trial Briefs 

Defendant Wood's Response to Houston Lawyers' Association's 
Reply Brief 

 



    
IN THE UNITED STATES COURT OF APPEALS 

FORTHE FIFTH CIRCUIT 

  

NO. 
  

  

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

versus 

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

and HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD, 

Intervenor-Defendant-Appellant. 

  

JUDGE WOOD'S EXHIBITS 

VOLUME II 

(Exhibits C - J) 

  

PORTER & CLEMENTS 
J. Eugene Clements 

Evelyn V. Keyes 
3500 NCNB Center 
P.O. Box 4744 

Houston, Texas 77210-4744 

(713) 226-0600 

ATTORNEYS FOR APPELLANT 

HARRIS COUNTY DISTRICT JUDGE 

SHAROLYN WOOD 

 



    
Do
 

JUDGE WOOD'S EXHIBITS - VOLUME II 
  

  

  

Memorandum Opinion and Order signed and entered November 8, 
1989, 

Order signed November 14, 1989. 

Order signed and entered November 27, 1989, 

Order to Correct Clerical Errors, entered December 23, 1989. 

  

Defendant Wood's Objections to Plaintiffs' and Mattox's 
"Remedial" Plan 

Sample letters and Alternative Plans Filed with the District 
Court by Defendants. 

Exhibit nz" 
  

Defendant-Intervenor Harris County District Judge Sharolyn 
Wood's Motion for Certification for Interlocutory Appeal and 
Motion for Stay 

  

Order signed and entered January 2, 1989. 

Eghibit "go" 
  

Harris County District Judge Sharolyn Wood's Notice of 
Appeal 

Exhibit "a" 
  

Defendant Harris County District Judge Sharolyn Wood's 
Motion to Dismiss and Motion for More Definite Statement 

Brief in Support of Defendant Wood's Motion to Dismiss and 
Motion for More Definite Statement 

 



    
>
 

F
s
 

Plaintiffs' Response to the Motion to Dismiss or for More 
Definite Statement of Defendant-Intervenor Wood of Harris 
Countv 

Defendants' Statement Regarding Disposition of Motion to 
Dismiss and for More Definite Statement of Defendant- 
Intervenor Wood 

Order entered May 3, 1989. 

Exhibie "I? 
  

[Mattox's] Statement Concerning Non-Partisan Elections as an 
Aspect of An Interim Remedy; Supplement to the Joint Motion 
for Entry of Proposed Interim Plan 

Defendant-Intervenor Harris County District Judge <Sharolyn 
Wood's Response to Attorney General Mattox's Statement 
Concerning Non-Partisan Elections and Supplement 

Exhible 2) 
  

Makei, "Judicial flap spawns oratory, not decision," Houston 
Chronicle, December 20, 1989 at 211A, Cols. 5-6,   

 



      

  

  

  

METROPOLITAN 
    

Local & State 

Oeatns, 26A 

‘Weather. 27K : 

  

  

Bureau s political acuon committec 
— Ag Fund — paid the $18.000 filing 8ee HIGHTOWER on Page 27A. 

Judicial flap spawns 
oratory, not decision 
  

By JOMN MAKEIG 
Houston Chromcie 
  

No decision will be made before 
DEXt week on a judicial redistricting plan for Texas. but the oratory about 
Who represents 
whom In the ac- 
tion was flowing 
fast Friday. 
Two Harris 

County judges 
dropped their 
lawsuit against 
Texas Attornev Er #5 
General Jim 

  

“We win — that's the bottom line.” Announced state District Judge Ted Poe. “He doesn't represent us or any 

  

other juage in Texas. He oniv repre 
sents nimseif." 

Poe said he dropped the lawsuit 
use an assistant attorney gen- 

erai admitted in a hearing last week 
that Mattox did not represent the 
judges. 

In Ausun. Mattox spokesman Ron 
Dusek responded by saving. “Whats 
the beef? Of course we don't repre. 
sent them: thev weren't defengants 
We never ciaimed to represer: 

Whether anvone actualiv won or 
lost 1n the Harris Couns fiz: 1a; 
matter of interpretation. but Foe 
said the path is now oper for mm to 
become an official intervenor in the 
federal acuon. Bevona that. Poe 

-- said. he can appeai anv decision 
-made by U.S. District Court Judge 
Lucius Bunton. 
Bunton found last month that the 

current at-large svstem of electing 

See JUDGES on Page 27A. 

  

   



        

KEY TC CONDITIONS: C=Cloudv: ar=cnzzie: f=tair h=hazv- oc SN=3SNnow: Is=thunaersnowers: w=winay. 
=Dartiy cious =tac- r=: 

  

Judges 
Continued from Page 21A. 

state district judges in Texas iile- 
gaily dilutes the voting strength of 
minoriues. The League of United 
Latin American Citizens and the 
National Association for the Aag- 
vancement of Colored Peopie had 
sued Mattox and other officials in 
hopes of Increasing their representa- 
tion on state benches. 

A settlement reached bv Mattox and LULAC cailed for Harris County 
judges to be eiected from the coun- 
tv's 26 legislative districts. Most 
State district judges in the county 
strongly oppose that proposal. sav- INg 1t would create judiciai “chaos 
In major Texas counues. 

To let Bunton know they disagreed with the proposed settlement, Poe and state District Judge Charles Hearn sued the attorney general. 
Their now-defunct lawsuit savs 

Mattox doesnt represent Texas’ 
juages in the federai court action, 
oniy himseif. 

“I think 1t opened Bunton’s eves to 
the real situation 1n Harris County. 
Hearn said. “If Mattox had his way. it wouid have been cnaos here. 
Bevond the plan agreed on bv LULAC and Mattox. several others 

  

  

Hearn Bunton 

also have been presenteq to Bun:- 
for consideration. Whether he wr 
select one of them. combine pars ¢ 
various pians or chose one whouv ni: 
OWN remains unknown. 

In Midland. a clerk for Bunton said 
the judge won't Sign any orders Ir: the 
case “until Tuesday at the soones: 

The last words in the clerk's state 
ment — “at the soonest” — brougnt 
JOY to some judges hearts. The fiiinc 
deadline for state judgeship races is 
Tuesday. and if nothing 1s signec hx - 
Dm. that dav the next eieclic... 
presumably wiil proceed unaffecteq. 

Also Tuesdav. all 36 Harris County 
state district judges facing re-esec- 
ton in 1990 are to meet in state 
District Judge Miron Love's court to 
hold a bipartisan meeting to divide 
up the county.



EXHIBIT 
E 

 
 

   



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. on

 
Go
n 

Ao
n 

Go
n 

Ao
n 

Ao
n 

Ao
n 

un
 

EMERGENCY MOTION TO STAY FINAL ORDER PENDING APPEAL 

Pursuant to F.R.A.P. 8(a), the Attorney General of Texas. on 

behalf of the State of Texas and certain State Officials in their official 

capacities! who were among the defendants below, move the Court to 

stay, during the pendency of the appeal of this matter, the injunction 

in the district court's order of January 2, 1990. Rather than burden 

the Court with duplicate filings, the State Officials incorporate by 

reference the exhibits accompanying the Emergency Application for 

Stay filed on January 4, 1990, by Appellant Entz ("Entz Stay 

Application"). The reasons for this stay application follow the 

introduction: 

INTRODUCTION 

Because of extreme time pressures, see 1 11, this motion has 

been written and quite likely will be filed before the district court acts 

on an important motion, see 4 8, that might affect the nature of the 

district court's remedy as to which a stay is being sought herein. 

  

1 They are the Attorney General of Texas (Jim Mattox), the Secretary of State 
(George S. Bayoud, Jr.), and the members of the Texas Judicial Districts Board Judges 
Thomas R. Phillips, Mike McCormick. Ron Chapman, Thomas J. Stovall, Jr.. James F. 
Clawson, Jr., John Cornyn, Robert Blackmon. Sam B. Paxson, Weldon Kirk. Jeff 
Walker, Ray D. Anderson, and Joe Spuriock II and Mr. Leonard E. Davis).  



Counsel for the State Officials will notify the Court immediately upon 

the disposition of the pending district court motion. 

The Court also should be aware that yesterday, January 9th, the 

Governor of Texas called a special session of the 71st Texas 

Legislature to convene at 2:00 p.m. on February 27, 1990. One of the 

two purposes identified by the Governor's call is "to consider 

legislation relating to the system for electing state appellate court 

judges, state district court judges and statutory county court judges." 

In light of its two recent orders (dated December 5, 1989. and 

January 3, 1990), in the pending case of Rangel v. Mattox, No. 89- 

6226, the Court should be aware of the Governor's action. 

BACKGROUND 

Qutline of Proceedings Before the District Court 

19, On July 11, 1988, the plaintiffs filed their complaint, 

challenging the system of electing state district court judges in 

targeted Texas counties. They claimed that it diluted the voting 

strength of minority voters in violation of Section 2 of the Voting 

Rights Act of 1965, as amended, and the United States Constitution. 

2. By the time trial commenced on September 18, 1989, 

others were parties to the lawsuit: (a) two sets of plaintiff-intervenors, 

one from Harris County and one from Dallas County; (b) Sharolyn 

Wood, an incumbent state district judge in Harris County, in her 

personal capacity; and (c) Harold Entz, an incumbent state district 

judge in Dallas County, in his personal capacity. 

3. Also by the time of trial, the targeted counties had been 

narrowed to nine: Harris (with 59 sitting state district judges); Dallas 

(37); Tarrant (23); Bexar (19); Travis (13); Jefferson (8); Lubbock (6, 

.3.  



    
including 1 serving an additional county); Ector (4); and Midland (3). 

The claim was on behalf of Black voters only in Harris, Dallas, Tarrant, 

and Jefferson counties; on behalf of Mexican-American voters only in 

Bexar and Travis counties; and on behalf of Black and Mexican- 

American voters combined in Lubbock, Ector, and Midland counties. 

4. The trial was conducted from September 18-22, 1989. 

5. On November 8, 1989, the district court entered an order 

that the system of electing state district judges in all nine targeted 

counties violated Section 2 of the Voting Rights Act. The district 

court found no constitutional violation. The district court has issued 

subsequent orders correcting clerical mistakes and otherwise 

modifying in certain technical respects its November 8th order.2 

6. On January 2, 1990, the district court issued an order 

enjoining further state district court elections in the nine counties 

under the challenged state system and directing implementation of a 

court-ordered interim remedial plan for the 1990 state district court 

elections in the nine counties. A total of 115 judicial elections are 

affected by the court-ordered interim plan. No permanent plan has 

been ordered to be developed or implemented. 

7. At page 8 of its January 2nd Order, the district court 

denied to the State Officials any further stay of district court 

proceedings. 

8. On January 4, 1990, the Attorney General on behalf of the 

State of Texas filed a Motion to Alter the Order of January 2, 1990. As 

  

2 - The State Officials filed a protective Notice of Appeal of the November Sth 
liability determination on December 22, 1989. 

3. 

 



    
explained in the Introduction, at the time of writing, the district court 

has not yet ruled on the motion. 

9. A Notice of Appeal on behalf of the State Officials was 

mailed today by overnight courier service for filing tomorrow with the 

district court. 

QUTLINE OF THE COURT-ORDERED INTERIM REMEDIAL PLAN   

10. The district court's interim remedy requires that state 

district judges in the nine affected counties be elected in non-partisan 

elections to full four year terms. There will be an initial election and, 

if no one receives a majority of the votes, a run-off election. Instead of 

the elections being countywide (as they are under the challenged 

system), they will be conducted in sub-districts within the counties. 

The following list shows the number of judicial elections affected by 

the interim plan and the number and type of sub-district in which the 

elections will take place by county: Harris (36 judges from 26 state 

legislative districts); Dallas (32 from 17 state legislative districts); 

Tarrant (14 from 9 state legislative districts); Bexar (13 from 10 state 

legislative districts); Travis (6 from 5 justice of the peace precincts); 

Jefferson (6 from 4 county commissioner precincts); Lubbock (3 from 

4 county commissioner precincts); Ector (3 from 4 county 

commissioner precincts); and Midland (2 from 4 county 

commissioner precincts). 

EMERGENCY NATURE OF MOTION 

11. If the 1990 elections in the nine affected counties are to 

go forward under the challenged system instead of the one ordered by 

the district court, the state must know by Friday, January 12, 1990. It 

Is by*that date that state law, 1 Tex. Adm. Code § 81.113, and practical 

od. 

 



      

necessity dictate that the list of candidates to appear on the party 

primary ballots on March 13, 1990, be completed. 

REASONS FOR GRANTING THE STAY 
  

Four Basic Factors in Stay Consideration 
  

12. This stay request requires the Court to consider four basic 

factors: (a) whether the State Officials can show a likelihood of 

success on the merits; (b) whether they can show irreparable injury if 

the stay is not granted; (c) whether granting the stay would 

substantially harm the plaintiff-appellees: and (d) whether granting 

the stay would serve the public interest. Hilton v. Braunskill. 107 S.Ct. 

2113, 2119 (1987). Individualized judgments are required in each 

case, thereby precluding rigid application of these rules of thumb. Id. 

These same principles apply to stay requests in vote dilution cases 

such as this one. See, e.g., Cook v. Luckett, 735 F.2d 912, 917 (5th 

Cir. 1984). 

Likelihood of success on the merits is not an invariable 

requirement and gives way if the other three factors heavily favor the 

State Officials and the legal issue is substantially meritorious. Ruiz v. 

Estelle, 666 F.2d 854, 856 (5th Cir. 1982), cert. denied, 460 U.S. 

1042 (1983). 

Likelihood of Success on the Merits 

13. With regard to the November 8th liability determination, 

the State Officials are likely to prevail for two basic reasons: (a) 

contrary to the district court's dismissal of its principles as irrelevant, 

Whitcomb v. Chavis, 403 U.S. 124 (1971), remains viable law which 

requires that the district court's vote dilution finding be overturned 

because voting along partisan preference lines better describes the 

-5- 

 



    
outcome of the analyzed elections that bloc voting along racial lines; 

and (b) Section 2 of the Voting Rights Act is inapplicable to judicial 

elections in which the office being sought by the candidates is one 

involving essentially no collegial decisionmaking. These arguments 

are more fully explored in the State Defendants' Post-Trial Brief, 

which is Exhibit B-3 of the Entz Stay Application. 

14. With regard to the provisions of the interim remedy 

contained in the January 2nd order, the State Officials are likely to 

prevail because there is no legal basis for the district court's order that 

the interim sub-district elections be conducted on a non-partisan 

basis. This remedy is wholly unrelated to any issue before the district 

court and has nothing to do with remedying the vote dilution which 

the district court determined existed in the nine affected counties. In 

short, it is reform, not remedy. Reform is for the Texas legislature 

and the people of Texas through state constitutional amendment. The 

district court's order is a massive incursion into the state legislative 

domain. These arguments are more fully explored in the 

Memorandum Supporting Motion to Alter the Order of January 2, 

1990, and the Statement Concerning Non-Partisan Elections As An 

Aspect Of An Election Remedy, both of which were filed with the 

district court. The former document is attached hereto and 

incorporated herein as Exhibit A to State Officials’ Stay Request. The 

latter document is the first part of Exhibit I-1 in volume II of 

Appellant Wood's Stay Application and is incorporated herein. 

Qther Equitable Factors 

15. The district court's order to conduct non-partisan 

electfons constitutes a major. unwarranted upheaval of a century-old 

«6+ 

 



system of partisan elections in Texas. It is such a major disruption of 

the scheme of things in the Texas judicial system that it runs afoul of 

the Court's directive in Chisom v. Roemer, 853 F.2d 1186 (5th Cir. 

1988) (Chisom II), that federal courts should be especially wary of 

intruding into state election systems and policy choices when the 

state judiciary is concerned. The reason for this admonition is the 

delicacy of the judicial task: 

The core value of the law and its implementing 
judicial system is stability -- the ability 
reasonably to anticipate the results of actions 
and proceedings, by individuals and by legal 
institutions. 

853 F.2d at 1190: cf. Westwego Citizens for Better Government v. City 

of Westwego, 872 F.2d 1201, 1203 (5th Cir. 1989) (reemphasizing in 

non-judicial setting the "potential for serious interference with state 

functions" in voting rights decisions). 

16. There is no real countervailing interest on the plaintiffs’ 

side which would warrant keeping the district court's January 2nd 

order in place during the pendency of this appeal. Although the 

district court permitted no evidence on the point, the apparent fact is 

that non-partisan elections typically disadvantage minority voters as 

compared to partisan elections. At any rate, the plaintiffs asked the 

district court not to impose such a requirement as part of the interim 

remedy. 

CONCLUSION 

For the foregoing reasons, and for the reasons further developed 

in the incorporated exhibits, the State Officials urge the Court to grant 

this emergency stay application before January 12, 1990, and to keep 

ge 3  



the stay in place during the pendency of this appeal. At least the 1990 

elections should be allowed to go forward under the century-old 

system rather than be displaced on ten days' notice by a new system 

hitherto wholly foreign to the state and its policymakers. 

Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

  

HICKS hy. J 
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 
OFFICIALS 

 



     
CERTIFICATE OF SERVICE 

[ certify that on this 10th day of January, 1990, I sent a copy of 
the foregoing document by overnight courier 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. 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; and Seagal V. Wheatley, Oppenheimer, 
Rosenberg, Kelleher & Wheatley, Inc., 711 Navarro, Sixth Floor, San 
Antonio, Texas 78205. 

gi WN 
Vor 

  

   



     

EXHIBIT A TO STATE OFFICIALS' STAY REQUEST 

 



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

LULAC COUNCIL #4434, et al., 

Plaintiffs. 

VS. Civil Action No. 
MO-88-CA-:54 

JIM MATTOX, et al.. 

Defendants. Un
 

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MEMORANDUM SUPPORTING MOTION TO ALTER THE ORDER OF 
JANUARY 2, 1990 

Without conducting an evidentiary hearing and in direct 

contravention of state law and the recently-expressed preference of a 

majority of the Texas Legislature. the Court has directed as part of its 

interim remedial crder of January 2, 1990. that one hundred fifteen 

stats C :irict judges in nine Texas counues be selected through non- 

partisan elections. Straightforwardly stated, this part of the Court's 

order is riot a judicia! remedy: it is judicial reform. The remedial garb 

cannot disguisz its reform character. It cannot be squared with += 

Court's determination that "[p]arty affiliation is simply irrelevant under 

the controlling law.” Finding of Fact No. 43, Memorandum Opinion 

and Order of November 8, 1989. as modified. at p. 80. 

L_GUIDING PRINCIPLES 

The Court has given no explanation based in law or facts relevant 

10 this case for rejecting century-old state election law. It has made 

no factual findings on the issue: it has expressed no legal conclusions 

on it; and it has conducted no evidentiary hearing on it. It simply has 

announced it. However broad the Court's equitable powers may be, 

thzy neither encompass nor justify what the Court has done. 

 



    
While this forum is indisputably a proper one to resolve whether 

the rights of minority voters are being protected. it is just as 

indisputably the wrong one for debating whether state judges should 

be elected in non-partisan elections. The Texas Legislature and the 

people of Texas, not this Court, are the proper judges of that debate. 

It is before them that the debate must be conducted and by them that 

the contentious issue must be resolved. The laudable objectives of the 

Voting Rights Act leaves that part of our federal system unperturbed. 

It has not changed the balance so much that all state election policy 

choices may be made by the federal courts. If supported by the facts, 

policy choices that disenfranchise minority voters may be overricen: 

however, some c.ioices remain for the states. Here. the Court not only 

ex-rcised a policy choice the state alone is entitled to make: in doing 

so, it has adopted a policy widely recognized as harmful to mino:-“ty 

voters because of its disproportionately depressive effect on minority 

voter turr.. ut. Enhancement of minority voter rights pursuant to the 

dictates of the Voting Rights Act provides no legal justification for 

diminishing those same rights pursuant :o the dictates of some 

unspecified law or power.! 

The Court should resist an all-too-understandable inclin: zion to 

cut the Gordian knot of this difficult debate while wielding its judicial 

sword at other aspects of state election law appropriately within its 

jurisdictional arc. Instead, it is obligated to heed the Fifth Circuit's 

  

1 This legal proposition is valid even if, in the short term. the enhancement 
exceeds to some degree the diminishment. The accuracy of such speculaticn is 
tnaddressed by the evidence in this case. Even if it had been. however. the 
diminishment is legally baseless because it is unaccompanied by a-y legal principle. 

3. 

 



‘staunch admonition” in recent voting rights decision involving 

elected state judges: 

[A] federal court should jealously guard and 
sparingly use its awesome powers to ignore or 
brush aside long-standing state constitutional 
provisions. statutes, and practices. There can 
be no doubt that . . . federal courts do and 
indeed must have this authority in our unique 
form of government. It is the use of this power 
that must be maintained in the balance, a 
balance which is more delicate than usual 
when a state's judicial process is involved. 

Chisom v. Roemer, 853 F.2d 1186, 1189 (5th Cir. 1988): see also 

Cook v. Luckett, 735 F.2d 912, 918 (5th Cir. 1984) (in remedying vote 

dilution, "federal court must honor state policies to the greatest extent 

possible when choosing among available plans or fashioning its ow=": 

emphasis added). 

Guided by these governing principles and for the more pract:_al 

reasons set forth below,2 the Court should re-tailor the interim 

remedy to fit the violation it has found and grant the Motion to Alter 

the Order of January 2, 1990. 

[I. PRACTICAL REASONS 

A Financial Burden 

The Secretary of State's Office estimates that conducting 1990 

non-partisan elections on the May and June dates ordered by the 

Court will cost between two and three million dollars more than 

conducting elections under the system of party primary and general 

elections governing Texas district judge races for over a century. 

While such a large financial imposition might not constitute a barrier 

  

4 See also Statement Concerning Non-Partisan Elections As An Aspect Of An 
Intertm Remedy, flled December 29. 1989. 

3  



to equitable relief directly related to violations of the Voting Rights 

Act, it is a legitimate barrier to the imposition of relief unrelated to 

the violations determined by the Court on November 8th. Cf 

Westwego Citizens for Better Government v. City of Westwego, 872 

F.2d 1201. 1210-11 (5th Cir. 1989) (categorizing costliness of 

reorganization in voting rights cases as irrelevant factor in liability 

finding, although potentially relevant in crafting a remedy).3 

B Administrative Burdens and Associated Uncertainties   

There are massive gaps between the Court's January 2nd 

directive to conduct non-partisan judicial elections in 1990 and the 

statutory framework set forth in the Texas Election Code ar 

conducting elections. Set forth below are some of the crucial gaps 

between the provisions of the Election Code. which was not enacted in 

contemplation of non-partisan elections for state officials, and the 

dictates of the Court, which provides no direction on how to conduct 

such elections. 

The order fails to designate the officials responsible for 

conducting the election, and the Election Code does not answe:- the 

questions of who is to give notice of this election, to order election 

supplies, to print the ballots, to appoint the election judges and clerks 

for the polling places, to conduct absentee voting, and to canvass the 

election returns. 

  

3 There is an additional financial considerations apparently not contemplated in 
the Court's order. State statutes make no provision for the State to pay for the Court- 
ordered election. The counties likewise lack the statutory authority to do so. Who is to 
Pay is a question that state law leaves unanswered. The order also fails to specify: 
whether the candidates must pay a filing fee: what the fee is; who is to recetve the fee: or 
whether a petition in lieu of a filing fee is permitted. The Election Code does not answer 
any of these questions.  



    
The order does not recognize that county-owned voting 

equipment is traditionally used in the primary elections and by other 

political subdivisions conducting elections on uniform election dates. 

This court-ordered May and June election will severely interrupt the 

state's other elections if the county retains its equipment for the 

court-ordered election and refuses to provide it to the political parties 

and other political subdivisions. 

The order does not prescribe a method for determining the 

order in which opposing candidates names will appear on the non- 

partisan ballot for the judicial races. 

The order does not specify which election precincts are to be 

used in he county nor does it address the permissibility of 

consolidating election precincts for this election. 

The order is silent on the period for absentee voting. The 

Election Code gives no guidance on the absentee voting period for the 

cour" -ordered runoff. 

The order does not address the permissibility of write-i- 

candidates in the election or whether a declaration of intent to run as 

a write-in is required. 

The order does not discuss whether candidates may withdraw 

from the election or establish a deadline for such withdrawal. 

The order does not name the authority responsible for 

canvassing the returns of the election. It does not address whether 

the canvass is conducted locally only or whether a state-level canvass 

is required.4 
  

4 The order creates yet another anomaly, apparently uncontemplated by the 
Court. There is a possibility (indeed a likelihood) that additional vacancies will occur 
in the office of district judge in the nine affected counties. Such vacancies will be filied 

.5- 

 



      
The order does not specify the recount procedures to be 

followed in the election. The failure to specify the canvassing 

authority renders the Election Code provisions useless for a recount of 

the election. 

The transition from the current electoral system for state offices 

to the non-partisan system mandated by the Court cannot be made 

under the existing combination of the Texas Election Code and the 

Court's January 2nd order. The Court will have to amend its order 

either to direct additional changes to the state election process or to 

permit use of the existing state process of party primaries and general 

elections. The latter course clearly is more consistent with the 

Court's rulings, the Voting Rights Act, and fundamental principles of 

federalism. Within the confines of the violations round by the Court, it 

would accomplish two laudable goals: minimization of disruption of 

the state electoral process: and enhancement of the interim relie: 

afforded the plaintiffs. 

III. -FILI 

There is an alternative to the court-ordered plan which. while it 

still presents substantial difficulties, a!leviates to some extent the 

administrative and financial burdens discussed in Part II. above. It is 

not being recommended to the Court. merely noted for its 

consideration. 

Earlier incarnations of state election law permitted "cross-filing" 

for elective offices. The Court might consider a version of cross-filing 

to be appropriate in the matter now before it. Candidates for state 

  

in accordance with the Election Code. which means that those unexpired terms will be 
filled in countywide partisan elections. 

-6- 

 



    | 

district judge could file with either or both political parties to appear 

on the March primary ballot. Filing would be accempanied either by a 

petition with the appropriate number of signatures or by a filing fee 

which would be split between the two parties. Candidates then would 

appear on both parties ballots in the March primary. Any runoff then 

would occur in the November general election. 

CONCLUSION 

The Court's directive to conduct non-partisan district judge 

elections in 1990 unduly and unnecessarily intrudes into a matter 

lying within the state legislature's domain. Through his submittal of a 

joint motion urging adoption of the proposed interim plan. :he 

Attorney General on behai. of the State of Texas harmonized as much 

as possidle the Court's November 8th mandate to revise the state 

electoral system to protect minority voting rights with long- 

established state policies expressed in fundamental state law. The 

Attorney General urges the Court to re-establish that harmony by 

receding (rom its order that non-partisan elections be part of the 

interim remedy. 

 



    
Respectfully submitted. 

din ALA 
JIM MATTOX 
Attorney General of Texas 

  
  

P. O. Box 12548, Capitol Station 
Austin, Texas 78711-2548 
(512) 463-2191 

CERTIFICATE OF SERVICE 

I certify that on this 4th day of January, 1990. I sent a copy of 
the foregoing document by overnight courier to each of the following: 
William L. Garrett, Garrett, Thompson & Chang, 8300 Douglas. Suite 
800, Dallas, Texas 75225; Re. indo Rios. Southwest Voter Registration 
& Education Project. 201 N. St. Mary's, Suite 521, San Antonio. Teas 
78205; Sherrilyn A. Ifill. NAACP Legal Defense -nd Educational Fuad. 
Inc., 99 Hudson Street, 16th Floor, New Yc:k. 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: J. Eugene 
Clements, Porter % Clements, 700 Louisiana, Suite 3500. Houston, 
Texas 77002-2730: and Robert H. Mow, Jr.. Hughes & Luce, 2800 
Momentum Place, 1717 Main Street, Dallas, Texas 75201. 

  

Rerea Hicks 

 



EXHIBIT 
F 

 
 

   



    
IN THE UNITED STATES COURT OF APPEALS 

FOR T HE FIFTH CIRCUIT 

  

  

U-S. CLURT OF Apps 
No. 90-8014 FILED 

JAN 11 1999 
LEAGUE OF UNITED LATIN AMERICAN GIL 
CITIZENS, COUNCIL NO. 4434, BERT F, SANUCHEAY 

RiS 
Plaintiffs-Appellees, 

versus 

WILLIAM P. CLEMENTS, ETC., ET AlL., 

Defendants, 

JIM MATTOX, 

Defendant-Appellee, 

versus 

JUDGE F. HAROLD ENTZ, ETC., 

and JUDGE SHAROLYN WOOD, ETC. 
and GEORGE S. BAYOUD, JR., ETC., 

Defendants-Appellants. 

and 

TOM RICKHOFF, SUSAN D. REED, JOHN 
J. SPECIA, JR., SID L. HARLE, SHARON 
MACRAE and MICHAEL P. PEDAN, Bexar 
County, Texas State District Judges. 

Appellants. 

 



   
Appeals from the United States District Court for the 

Western District of Texas 

Before GEE, DAVIS and JONES, Circuit Judges. 

PER CURIAM: 

IT IS ORDERED that appellants’ motion for stay 

pending appeal are GRANTED. We do so in order that the State of 

Texas may be allowed a reasonable opportunity to address the 

problem presented by the holding of the district court entered 

November 8, 1989, that the state system of selecting judges is 

invalid as violating Section 2 of the Voting Rights Act. See 

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

That holding, if sustained on appeal, will require an 

organic and wholesale review and reconstitution of the Texas 

judicial selection system, a task which should be addressed and 

carried out by the state’s elected representatives, rather than 

by the federal courts. Only if it becomes apparent that the state 

is unwilling to act with measured and appropriate speed in this 

regard should our courts intervene. When the State has had a 

reasonable period within which to address the problem presented 

in a special session of the Legislature, the Court will entertain 

a motion to dissolve. That has not yet occurred; when it does, we 

will be amenable to a motion to dissolve the stay which we enter 

today. In the meantime, on our own motion, we EXPEDITE and 

consolidate the appeals from the district court’s orders of 

November 8, 1989, and January 2, 1990.1 

1 This appeal being founded on 28 U.S.C. §§ 1292(a) (1) and 
1292 (b), we need not concern ourselves about the motion pending 

  

 



   « 

It is further ORDERED that the motion of appellant Judge 

Sharolyn Wood, etc., for leave to consolidate this appeal with 

case number 89-6226 is DENIED. Instead, on its own motion the 

court consolidates this appeal with case number 90-9003. 

It is further ORDERED that the motion of appellee Jim 

Mattox, etc., for leave to strike the notice of designation of 

independent counsel and the emergency application for stay filed 

on behalf of George S. Bayoud, Jr. is DENIED. 

  

“before the trial court (denominated a "Rule 59(e)" motion in 
certain of the filings) to modify that court’s interlocutory 
injunctive order. Rule 59(e) has no application to interlocutory 
orders, and the notice of appeal vests jurisdiction over this 
order in our court. See Coastal Corp. v. Texas Eastern Corp. , 869 

F.2d 817 (5th Cir. 1989). 

 



EXHIBIT 
G 

 
 

    

 



    
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. on
 

Wo
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NOTICE OF APPEAL 

Notice is hereby given that, in their official capacities, the Attorney 

General of the State of Texas (Jim Mattox), the Secretary of State of the 

State of Texas (George S. Bayoud, Jr.), and the members of Texas's Judicial 

Districts Board (Thomas R. Phillips, Chief Justice of the Supreme Court of 

Texas, Mike McCormick, Presiding Judge, Court of Criminal Appeals, Ron 

Chapman, Presiding Judge of the 1st Administrative Judicial Region, 

Thomas J. Stovall, Jr., Presiding Judge of the 2nd Administrative Judicial 

Region, James F. Clawson, Jr., Presiding Judge of the 3rd Administrative 

Judicial Region, John Cornyn, Presiding Judge of the 4th Administrative 

Judicial Region, Robert Blackmon, Presiding Judge of the 5th 

Administrative Judicial Region, Sam B. Paxson, Presiding Judge of the 6th 

Administrative Judicial Region, Weldon Kirk, Presiding Judge of the 7th 

Administrative Judicial Region, Jeff Walker, Presiding Judge of the 8th 

Administrative Judicial Region, Ray D. Anderson, Presiding Judge of the 9th 

Administrative Judicial Region, Joe Spurlock II, President, Texas Judicial 

Council, and Leonard E. Davis) hereby appeal to the United States Court of 

Appeals for the Fifth Circuit from the Court's Orders of January 2, 1990, and 

January 11, 1990 (and the underlying liability determination in the order of 

November 8, 1989, as modified). 

( 

 



    
Respectfully submitted, 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
First Assistant Attorney General 

or ) es ie : El 
A FHCKS = ig 

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 

 



    

UNITED STATES DISTRICT couRt FF | | E D WESTERN DISTRICT OF TEXAS 
MIDLAND /ODESSA DIVISION JBI 9:3 1357 

LULAC COUNCIL #4434. et al.. U.S DISTRICT court 
Plaintiffs, ov CLER FFiCT 

roils DEPUTY 

VS. Civil Action No. 

MO-88-CA-154 
JIM MATTOX, et al., 

Defendants. on
 

Wo
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Un
 

Un
 

Ao
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An
 

un
 

NOTICE OF APPEAL 

Notice is hereby given that. in their official capacities, the Attorney 

General of the State of Texas (Jim Mattox), the Secretary of State of the 

State of Texas (George S. Bayoud. Jr.), and the members of Texas's Judicial 

Districts Board (Thomas R. Phillips, Chief Justice of the Supreme Court of 

Texas, Mike McCormick, Presiding Judge, Court of Criminal Appeals, Ron 

Chapman, Presiding Judge of the 1st Administrative Judicial Region, 

Thomas J. Stovall, Jr., Presiding Judge of the 2nd Administrative Judicial 

Region, James F. Clawson, Jr., Presiding Judge of the 3rd Administrative 

Judicial Region, John Cornyn, Presiding Judge of the 4th Administrative 

Judicial Region, Robert Blackmon, Presiding Judge of the 5th 

Administrative Judicial Region, Sam B. Paxson, Presiding Judge of the 6th 

Administrative Judicial Region, Weldon Kirk, Presiding Judge of the 7th 

Administrative Judicial Region, Jeff Walker, Presiding Judge of the 8th 

Administrative Judicial Region, Ray D. Anderson, Presiding Judge of the 9th 

Administrative Judicial Region, Joe Spurlock II, President, Texas Judicial 

Council, and Leonard E. Davis) hereby appeal to the United States Court of 

Appeals for the Fifth Circuit from the Court's Order of January 2, 1990, (and 

the underlying liability determination in the order of November 8, 1989, as 

modified). 

 



    
Respectfully submitted. 

JIM MATTOX 
Attorney General of Texas 

MARY F. KELLER 
ist 5 ant Attorney General 

— RENEA HICKS i 
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 

’ 

i