Plaintiffs' Response to Judge Wood's Motion to Intervene; Plaintiffs' Response to Midland County's Request for Reconsideration of Order Denying Intervention

    GARRETT. THOMPSON & CHANG 

ATTORNEYS AND COUNSELORS AT Law 

8300 DouGLAS AVENUE 

Suite 800 

PresTON CENTER 

Darras. TExas 75225 

WILLIAM L. GARRETT. P.C. 
214-369-1952 

BRENDA HULL THOMPSON. P.C. 
214-363-1022 

SUES, CHANG. P.C. 

214-987-9887 

February 23, 1989 

U. 8. District Clerk 
200 FE... Wall 

Midland, TX 79702 

Re: MO-88-CA-154 
IULAC, ET AL. v. JIM MATTOX, ET AL. 

  

Dear Clerk: 

Enclosed for filing please find the original and one copy of 

the following: 

1. Plaintiffs' Response to Midland County's Request for 

Reconsideration of Order Denying Intervention 

5. Plaintiffs' Response to Harris County District Judge 

Sharolyn Wood's Motion to Intervene 

If you have any guestons, please advise. 

Yours truly, 

ol i 

diy in - Arig. 1, 

William IL. Garrett 

WLG. lk 

cc: Attorneys of Record 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LULAC, ET Al. 

Plaintiffs 

vs 

CIVIL ACTION NO. 

JIM MATTOX, ET Al. 
MO-88-CA-154 

Defendants 

PLAINTIFFS' RESPONSE TO 

HARRIS COUNTY DISTRICT JUDGE SHAROLYN WOOD'S 
MOTION TO INTERVENE 
  

Plaintiffs, LULAC, ET AL., oppose Harris County District 

Judge Sharolyn Wood's Motion to Intervene. 

SECTION I: Issue Decided 
  

The issue presented by the Judge Wood's Motion 1s the same 

as that decided by this Court on January 27, 1989, in response to 

the motion of Midland County and its duly elected district judges 
  

  

to likewise intervene. 

Judge Wood's Motion presents no arguable interest 

distinguishable from that presented by the Midland County 

Intervenors. 

SECTION II: Additional Argument 
  
  

A. Intervention of Right. 
  

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE - PAGE 1 27/r-m~-inv.tc 

 



  

Intervention of right under Rule 24(a) (2), F. R. C. P.'is 

considered under a four part test as stated in International Tank 
  

Terminals, Ltd, Vv. M/V Arcadia Forest, 579 F. 24 964, 967 (5th 
  

  

cir. 1978): 

1. the application must be timely: 
2." the applicant’ must have an interest in the 

litigation; 
3. the applicant must be so situated that disposition 

may impair his ability to protect his interest; and 

4. the applicant's interest must be inadequately 
represented by existing parties. 

Judge Wood's Motion to Intervene should not be granted 

because she has no "direct, substantial and legally protectable 

interest" in the litigation. New Orleans Public Service Vv. 
  

  

United Gas Pipe Line, 732 F. 2d 452, 464 (5th Cir. 1984), cert. 

denied, 469 U. S. 1019. 

The question of "interest in the litigation" is Eirst 

analyzed by an examination of the subject matter of the 

litigation and of the election system under attack. 

“ The subject matter of the litigation is the claim that the 

present method of «- electing district judges in Texas dilutes 

minority voting strength in violation of the 14th and 15th 

Amendments to the U. S. Constitution and the Voting Rights Act, 

42 U. 8S. C.::1973. 

The system under attack is the election scheme for district 

judges. District courts are created by the Constitution of the 

State of Texas 1876, (Art. ¥, Sec. 1: "The judicial power of this 

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE - PAGE 2 27/r-n~inv.tc 

 



  

state shall be vested in ... District Courts... .» Division of 

the state into judicial districts is pursuant to Art. V., Sec. 7, 

Tex. Const.: "The State shall be divided into judicial 

districts, with each district having one or more judges... ." 

The drawing of judicial district lines is vested in three bodies: 

(1) the state legislature, Art. V, Sec. 7 & 7a, Tex. Const. 12) 

the Judicial Districts Board, Art. V, Sec. 7a, Tex. Const., and 

Texas Rev. Civ, BStat., Government Code, Sec. 24.941ff; and (3) 

the Legislative Redistricting Board, Art. III, Sec. 28, and Art. 

Vv, ‘Sec. 7a (ee), Tex. Const., and Texas Rev. Civ. .Stat., 

Government Code, Sec. 946. 

Redistricting is a legislative function, which can be 

delegated to the Judicial Districts Board, or the Legislative 

Redistricting Board. Both Boards act in the place of the 

legislature, but with its approval. "Any judicial reapportionment 

by the board must be approved by a record vote of the majority of 

the membership of both the senate and house of representatives 

before such order can become effective and binding." Art, ty, 

Sec. 7a (h), Tex. Const. 

Judge Wood has not been able to point to her role in 

judicial redistricting, because there is none. The legislature 

is required to follow county lines in judicial redistricting, 

Art. V., Sec. 7 (i), Tex. Const., but the district judges have no 

act to perform in the legislative process of judicial 

redistricting. 

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE - PAGE 3 27/r-m-inv.tc 

 



  

This reiteration cf the legislative role in Judicial 

redistricting is to emphasize that district Judges have no 

ndirect, substantial, and legally protectable interest" in the 

question of whether the present judicial lines are 

discriminatory. As pointed "out by the Fifth Clrouit, the 

interest of a proposed intervencr must be one which the 

substantive law recognizes as belonging to the applicant. New 

Orleans Public Service, supra, at 464. Since Texas district 
  
  

judges have no legally recognized role in Judicial redistricting, 

they cannot be said to have an interest in this litigation. 

Whatever substantive rights that can be asserted by the 

defendants in this case belong to them solely, and not to 

district judges. To meet Rule 24(a){2) requirements for 

intervention, the interest asserted must be based on a right that 

belongs to the proposed intervenor, not an existing party. New 

Orleans Public Service, supra, at 464 guoting In re Penn Central 
  

  

Commercial Paper Litigation, 62 F. R. D. 346 (S.D.N.Y. 1974). 
  

Another way of analyzing the question as to whether district 

judges are a "real party in interest,” Rule 17{(a), F. R. C. P., 

is to ask whether a district judge caused the injury, and if so, 

does he/she have the power to comply with a remedial order of 

this court should it find that the present system discriminates 

against minorities. The answer is, clearly, no. Had Judge Wood 

been named a defendant in the Complaint, she could have prcperly 

moved to be dismissed from the suit. "If this defendant has nct 

caused the injury, a remedy directed against him will not relieve 

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE - PAGE 4 27/r-m~inv.ic 

 



  

  
    the injury. Wright & Miller, Federal Practice and Procedure: 

Civili, Sec. 3531.5 at * 458. Further, under the Texas 

constitution, only the legislature, or its delegates, has the 

power to redraw judicial districts. 

Indeed, in her Motion to Intervene, Judge Wood has been 

unable to even articulate any "direct, substantial, legally 

protectable interest" in the litigation. Judge Wood's Motion to 

Intervene, pp. 2-5. She has only speculated that Plaintiffs may 

at some time request that terms of office be shortened. No such 

pleading is on file; none is anticipated. Judge Wood 1s unable 

+o present this Court with Flfth Circuit authority definitively 

in support of her claim of a significantly protectable interest 

in this litigation. 

Since Judge Wood has no "direct, substantial, legally 

protectable interest" in this litigation, there is no reason to 

discuss the other three Rule 24 requirements for intervention of 

right. 

B. Permissive Intervention 
  

Judge Wood has also sought permissive intervention under 

  

Rule 24(bY{2). Such intervention is wholly discretionary with 

the district court. New Orleans Public Service, supra, at 470- 

£71. In deciding upon whether to grant a permissive 

intervention, a district court should look at (1) whether the 

intervenor's interests are adequately represented Dy other 

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE - PAGE 5 27/r=n~-inv.tc 

 



  

parties, and (2) whether they will significantly contribute to 

full development of the underlying factual issues in the suit. 

New Orleans Public Service, supra, at 472. 
  

Judge Wood's request meets none of these requirements. 

First, since, as demonstrated above, she has no "interest" in the 

litigation, the question of adequate representation of that 

interest is moot. 

Even assuming, arguendo, that Judge Wood has an interest, it 
  

is adequately represented by the Texas Attorney General. Without 

charges of collusion, nonfeasance or an antagonistic interest, 

the Attorney General is presumed to represent county interests. 

Bakey Vv. Vade, 743 F. 24 236, 243 - (5th Cir. 01984). This 

presumption has been characterized as "strong." U. S. v. Hooker 

Chemicals § Plastics Corp., 101 P., BR. D. 444, 447 (S.D.,N.Y. 
    

1984). Judge Wood has asserted that her positions and defenses 

may not be the same as other district judges, but she does not 

articulate any legitimate separate goal. Further, it is doubtful 

that Judge Wood could contribute to a full development of the 

underlying factual issues. The factual issues relating to Harris 

County are only one part of a challenge directed toward many of 

Texas' urban counties. 

A further practical reason for denying Judge Wood's 

intervention is that, 1f granted, then all of the other 

170 challenged districts, the judges thereof, could reasonably be 

expected to seek intervention, which, if granted, would 

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE - PAGE 6 27/r=-m~inv.zc 

 



  

complicate this litigation exponentially. 

For the foregoing reasons, Plaintiffs respectfully request 

this Court to DENY Judge Wood's Motion to Intervene, and for 

their costs and attorneys' fees. 

Respectfully submitted, 

GARRETT, THOMPSON & CHANG 
ATTORNEYS AT LAW 
A Partnership of 

Professional Corporations 
8300 Douglas, Suite 800 
Dallas, TX 75225 
2147 369-1952 

ROLANDO L. RIOS 
ATTORNEY AT LAW 

SOUTHWEST VOTER REGISTRATION & 

EDUCATION PROJECT 

2301 N. St. Mary's, Suite 521 
San Antonio, TX 78205 
512/ 222-2102 

SUSAN FINKELSTEIN 
TEXAS RURAL LEGAL AID, INC. 
201 N. St. Mary's, Suite 600 
San Antonio, TX 78205 
512/ 222-2498" . _~ 

2 3 i ory 
— i Fd / - - > i 2 pt 

By "! ( x /¢ - ‘ r= 2% 

WILLIAM L. GARRETT 07700000 
  

ATTORNEYS FOR PLAINTIFFS 

CERTIFICATE OF SERVICE 
  

I certify that on this od day of February, 1988, I served 

the foregoing document on ail attorneys of record, ‘certified 

mail, return receipt requested. : HR rin Ss gy 

Z 4 ; Zz Y - 

{ & 4 ~ Lo as ie 

i wel ) 
i 

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3 it 

  

TWilliam L. Garratt 

PIAINTIFFS' RESPONSE TO MOTION TO INTERVENE - PAGE 7 27/r-n~inv.tc 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 
MIDLAND-ODESSA DIVISION 

LULAC, ET:AL. 

Plaintiffs 

VS 

CIVIL ACTION NO. 

JIM MATTOX, ET AL. 
MO-88-CA-154 

C
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Defendants 

PLAINTIFFS' RESPONSE TO 

MIDLAND COUNTY'S REQUEST FOR RECONSIDERATION OF 

ORDER DENYING INTERVENTION 
  

Plaintiffs, LULAC, ET AL., oppose Midland County's Request 

for Reconsideration of Order Denying Intervention. 

SECTION I: Issue Decided 
  

The issue presented by their Motion was correctly decided by 

this Court on January 27, 1989, in response to the motion of 

Midland County and its duly elected district judges to intervene. 
  

The request for reconsideration presents no arguable 

interest distinguishable from that previously presented. 

SECTION II: Additional Argument 
  

  

A. Williams v. State Board of Elections. 
  

williams v. State Board of Flectiong, 696 F. Supp 1363 (N. 
  

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE - PAGE 1 27/r-m=-inv.mc 

 



  

D.. Ill. °1988). Midland County's reliance upon this case is 

misplaced for several reasons: 

1. Plaintiffs in Williams had requested that judicial terms 
  

of office be shortened. No pleading is on file in this case 

requesting such relief. 

2. The Illinois system under attack was far different from 

the Texas system. There, once elected, a judge need not run 

again ‘in a competitive election. Six months prior +o the 

expiration of his/her term, a judge may request certification for 

retention in a non-partisan election. If sixty per cent of the 

electorate votes to retain, the judge is elected to another term. 

Williams, at 1564. The Illinois judges had far more personal 
  

interest in their office than Texas judges, who must face an 

opponent every four years. 

3. Williams does not stand for the proposition that 
  

individual judges may be intervened. The relief granted therein 

was to certify defendant classes. Williams, at 1574. 
  

4. Williams fails to distinguish between the Illinois   

judges' individual interest in retaining their office and their 

official interest in carrying out the mandates of the office. 

One may assume that all persons have an individual interest in 

keeping their jobs, but Texas judges have no official, legally 

protectible interest in the subject matter of this lawsuit. 

BY Williams does not deal with the critical inquiry 
  

PLAINTIFFS! RESPONSE TO MOTION TO INTERVENE - PAGE 2 27/r=-n~inv.nc 

 



  

concerning legitimate interest: the fact that district judges in 

Texas did not create the at-large election scheme complained of 

and have no authority or power to comply with a remedial order of 

this court. 

B. Rule 11 and Local Rule 200-1. 
  

Midland's argument here is moot. Hopefully, members of the 

bar of the Western District are no longer offended. Midland 

County's Motion for Reconsideration, p. 7. 

C. Hearing. 
  

The District Court correctly ruled without a hearing since 

the issue before the Court was strictly legal, and did not depend 

on resolution of factual disputes. 

D. Adequate Representation. 
  

Midland County is still unable to articulate any objectives 

different from those of the state defendants. Further, it cannot 

establish collusion, nonfeasance or an antagonistic interest, 

without which the Attorney General is presumed to represent 

county interests. Baker V. Hade, 743 F. 24 236, 243 (5th Cir, 

1984). 

For the foregoing reasons, Plaintiffs respectfully request 

this Court to DENY Midland County's Motion for Reconsideration, 

and for their costs end attorneys! fees. 

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE - PAGE 3 27/r-m-inv.nc 

 



  

Respectfully submitted, 

GARRETT, THOMPSON & CHANG 

ATTORNEYS AT LAW 
A Partnership of 

Professional Corporations 
8300 Douglas, Suite 800 
Dallas, TX 75225 
2l4/ 369-1952 

ROLANDO L. RIOS 
ATTORNEY AT LAW 
SOUTHWEST VOTER REGISTRATION & 

EDUCATION PROJECT 
201 N. St. Mary's, Sulte 521 
San Antonio, TX 78205 
B127/ 222-2102 

SUSAN FINKELSTEIN 
TEXAS RURAL LEGAL AID, INC. 
201 N. St. Mary's, Suite 600 
San Antonio, TX 78205 
512/ 222-2478 : 

rT : | pd 
¥ { . 

4 J ¢ . 4 / ——.. ; A : / 

BY: L eo L a Fay 
CWIILIAM-L. GARRETT 07700000 
  

ATTORNEYS FOR PLAINTIFFS 

CERTIFICATE OF SERVICE 
  

I certify that on this AJ day of ‘February, .1g89, I served 

the foregoing document on all attorneys "of record, gcertified = 

mail, return receipt requested. abode A al 

- 4 .- z N re ee. £3 

Ni" <= 7 g 4 rr 2 
  

William L. Garrett 4 

PLAINTIFFS' RESPONSE TO MOTION TO INTERVENE - PAGE 4 27 /r=n=inv.mc