Defendant-Intervenor Dallas County Judge Entz's Motion for Certification Statement; Proposed Order

    HUGHES & LUCE 
2800 MOMENTUM PLACE 

1717 MAIN STREET 

  

DALLAS, TEXAS 7520 900 ONE CONGRESS PLAZA 
I CONGRESS 

(214) 939-5500 AUSTIN, TEXAS 7870! 
FAX (214) 939-6100 (512) 482-6800 
TELEX 730836 FAX (512) 482-6859 

Direct Dial Number 

(214) 939-5581 

December 14, 1989 

FEDERAL EXPRESS or 

Mr. John Neill ooh 
United States District-Court 
Western District of”Texas 
Midland-Odessa Pivision 
316 U.S. Courthouse 
200 East Jdll Street 
Midlang; Texas 79701 

> 

= Re: League of United Latin American Citizens (LULAC), 
et al. v, Jim Mattox, et al. Civil Action 
MO 88 CA 154 

Dear Mr. Neill: 

Enclosed please find an original and two copies of 
Defendant-Intervenor Judge F. Harold Entz's Motion for 

Certification Statement and accompanying Order. 

Please return file-marked copies to me in the enclosed 
envelope. Please note that copies of the above documents are 
being sent by certified mail to the other parties. 

If you have any questions, please call. Thank you. 

Very truly yours, 

for 
for C. Godbey 

DCG/pai 

Enclosures 

 



  

CC. (CERTIFIED MAIL RRR) 

William L. Garrett 
Rolando Rios y 
Susan Finkelstein / 
Sherrill A. Ifill 

Gabrielle K. McDonald 
Edward B. Cloutman, III 

E. Brice Cunningham 
Renea Hicks 

Ken Oden 

David R. Richards 

J. Eugene Clements 

Darrell Smith 

Michael J. Wood 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs, 
CIVIL ACTION NO. 

Ve. MO-88-CA-154 

JIM MATTOX, et al., 

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Defendants. 

DEFENDANT-INTERVENOR DALLAS COUNTY DISTRICT JUDGE 
F. HAROLD ENTZ'S MOTION FOR CERTIFICATION STATEMENT 
  

Defendant-Intervenor Dallas County District Judge F. 

Harold Entz ("Judge Entz") moves the Court to certify its 

interlocutory order entered in this action on November 8, 

1989, as amended (the "Order") for interlocutory appeal in 

accordance with 28 U.S.C. 1292(b), for the following reasons: 

1. Judge Entz asks the Court to certify that "an 

immediate appeal from the Order may materially advance the 

ultimate termination of the litigation." As the Court 

knows, this 1s not a case involving only the parties 

directly involved in it. It involves every person in the 

state. If the Court's finding of a Section 2 violation is 

correct, establishing a remedy will be no small task. As 

the Court noted in the Order, if the declaration of 

illegality is correct, "our Texas Constitution will need to 

be amended." That will entail mobilizing the Texas 

Legislature. If and when the Legislature finds a solution, 

their proposal must be put to a vote of acceptance by the 

people. If the people pass the constitutional amendment, 

DEFENDANT-INTERVENOR DALLAS COUNTY JUDGE 
F. HAROLD ENTZ'S MOTION FOR CERTIFICATION STATEMENT - Page 1 
  

 



  

the approval of the Justice Department is needed before the 

new plan could be implemented. In the alternative, if the 

Legislature and the voters are unable to present an 

acceptable plan to the Court, or to react on this Court's 

time table, the Court has indicated it will devise its own 

plan for Texas' largest counties. In either alternative, 

the effort involved in restructuring the judiciary of this 

State to suit this Court will be extraordinary. An 

immediate resolution of the liability issues certainly could 

materially advance the ultimate termination of this 

litigation and avoid possible needless, and irreparable, 

damage in the interim. 

2s Judge Entz also requests the Court to certify that 

there are "controlling issues of law as to which there is a 

substantial ground for difference of opinion." Many of the 

operative facts in this case were largely undisputed; the 

dispute centered more around the legal import of those 

facts. There were and are substantial grounds for 

differences of opinion as to the interpretation of the 

controlling law. Without limitation, major issues include: 

the applicability of the Voting Rights Act to district court 

judges; the effect of partisan voting in a Section 2 claim, 

where blacks running as Republicans win and virtually anyone 

of any race running as a Democrat loses; the need for a 

showing of causation in a Section 2 claim; and the 

constitutionality of Section 2, both per se and as applied. 

DEFENDANT-INTERVENOR DALLAS COUNTY JUDGE 
F. HAROLD ENTZ'S MOTION FOR CERTIFICATION STATEMENT - Page 2 
  

 



  

3. Plaintiffs' case and evidence relied exclusively on 

Justice Brennan's test enunciated in Thornburg v. Gingles, 
  

478 U.S. 30, 106 S. Ct. 2752 (1986). As this Court 

recognized, Justice Brennan did not speak for a majority of 

the Court on all points in his opinion. As stated in Judge 

Entz's Post-Trial Brief, the Fifth Circuit in Monroe v. City 
  

of Woodville, 881 F.2d 1327 (5th Cir. 1989), has defined   

racially polarized voting and political cohesiveness in a 

manner that could lead to a different result in this action 

and that may not follow Justice Brennan's individual views 

in Gingles. 

4. These issues of law control and dictate either 

liability or nonliability under Section 2. Because the only 

Supreme Court case interpreting the 1982 amendments to 

Section 2 is Gingles, and because Gingles is in part a 

plurality decision sending mixed signals, there is a 

substantial ground for difference of opinion on just what 

the law is. As the Court has already noted, this area of 

the law is not a "sphere of icy certainty," and is, 

therefore, an appropriate case for certification. 

5. Given the lack of clarity in the law, and the 

devastating consequences to the continuity of the 
[} — 

administration of justice in this state were a remedy 

imposed and later vacated due to a different court having a 

different view of the law, Judge Entz respectfully requests 

that this action be certified for immediate appeal. 

DEFENDANT-INTERVENOR DALLAS COUNTY JUDGE 
F. HAROLD ENTZ'S MOTION FOR CERTIFICATION STATEMENT - Page 3 
  

 



Respectfully submitted, 

David C. Godbey 
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 

I certify that a true and correct copy of the foregoing 

instrument was served upon all counsel of record in 
Bk it with the Federal Rules of - Civil Procedure 

this   

  

day of December, ond 

bi, 7 va 

IRC 

DEFENDANT-INTERVENOR DALLAS COUNTY JUDGE 
F. HAROLD ENTZ'S MOTION FOR CERTIFICATION STATEMENT - Page 4    



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs, 

CIVIL ACTION NO. 

Vv. MO-88-CA-154 

JIM MATTOX, et al., 

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Defendants. 

ORDER 

Came on for hearing the motion of Defendant-Intervenor 

Dallas County District Judge F. Harold Entz ("Judge Entz") for 

the Court to certify its interlocutory order entered in this 

action on November 8, 1989, as amended (the "Order") for 

interlocutory appeal in accordance with 28 U.S.C. 1292(b). 

Upon consideration of that motion, the pleadings of other 

parties, and the trial and record in this action, the Court 

finds that the motion should’ be granted and further finds and 

orders as follows: 

1. In view of the public interests at stake in this 

action, the complexity involved in fashioning a remedy the 

Court finds that an immediate appeal from the Order may 

materially advance the ultimate termination of the litigation. 

2. Given the relative novelty of application of the Voting 

Rights Act to the judiciary, the Court finds that this case 

raises controlling issues of law as to which there is a 

substantial ground for difference of opinion. 

ORDER OF CERTIFICATION - Page 1   

 



  

3, This Court's Order of November 8, 1989, as amended, is 

further amended to incorporate the findings in the first two 

paragraphs of this Order. 

SIGNED this day of December, 1989. 

  

LUCIUS D. BUNTON 
UNITED STATES DISTRICT JUDGE 

ORDER OF CERTIFICATION - Page 2   

 



  

THE UNITED STATES DISTRICT COURT 

THE WESTERN DISTRICT OF TEXAS 

MIDLAND-ODESSA DIVISION 

LEAGUE OF UNITED LATIN AMERICAN § 

CITIZENS (LULAC), et al., S 

S 
Plaintiffs-Appellees, § 

S 
¥. S 

§ 

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

S i 
Defendant-Appellants, § 

§ 
and N 

§ 
Harris County District Judge N 
SHAROLYN WOOD, § 

S 
Defendant-Appellant. § 

ORDER 

i 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