Judge Entz's Response to Plaintiffs' Motion to Dismiss and Mattox's Motion to Strike

    HUGHES & LUCE 

2800 MOMENTUM PLACE 

1717 MAIN STREET 

900 ONE CONGRESS PLAZA 
Il CONGRESS 

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

DALLAS, TEXAS 7520! 

Direct Dial Number 
(214) 939-5581 

January 8, 1990 

FEDERAL EXPRESS 
RECEIPT NO. 9762333383 

Gilbert F. Ganucheau, Clerk 
U. S. Court of Appeals, 5th Circuit 
600 Camp Street 

New Orleans, Louisiana 70130 

Re: League of United Latin American Citizens (LULAC), 
et al. v. Jim Mattox, et al. 

Dear Mr. Ganucheau: 

Enclosed please find an original and four copies of 
Defendant-Intervenor-Appellant Dallas County District Judge F. 
Harold Entz's Response to Plaintiffs' Motion to Dismiss and 
Mattox's Motion to Strike for the above-referenced case. 

Please return a file-marked copy to me in the enclosed 
envelope. Please note that copies of the above document are 
being sent as indicated to the other parties. 

ry Wr) ad 

Lf Ca. An 

DCG/pai 

Enclosures 

 



   
HUGHES & LUCE 

Gilbert F. Canucheau, Clerk 

Page 2 

January 8, 1990 

CC. (CERTIFIED MAIL RRR except where indicated) 
William L. Garrett 
Rolando Rios 
Susan Finkelstein (FEDERAL EXPRESS) 
Sherrill A. Ifill 
Gabrielle K. McDonald (FEDERAL EXPRESS) 
Edward B. Cloutman, III (HAND DELIVERED) 

E. Brice Cunningham 
Renea Hicks (FEDERAL EXPRESS) 

Ken Oden 
David R. Richards 
J. Eugene Clements (FEDERAL EXPRESS) 
Darrell Smith 

Michael J. Wood 
Joel H. Pallen 
Seagal V. Wheatley 
John L. Hill, Jr. (FEDERAL EXPRESS) 

 



  

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

v. NO. 90-8014 

JIM MATTOX, et al., 

Defendants-Appellants. 

JUDGE ENTZ'S RESPONSE TO PLAINTIFFS®' MOTION 
TO DISMISS AND MATTOX'S MOTION TO STRIKE 
  

TO THE HONORABLE COURT OF APPEALS: 

Defendant-Intervenor-Appellant Dallas County District 

Judge F. Harold Entz ("Judge Entz") responds to the Joint 

Motion of Plaintiff-Appellees and Dallas-Plaintiff-Intervenor- 

Appellees to Dismiss for Want of Jurisdiction Requests for 

Stay of Judge Entz and Wood ("Plaintiffs' Motion to Dismiss") 

and the Texas Attorney General's Motion to Strike ("Mattox's 

Motion to Strike") as follows: 

RESPONSE TO PLAINTIFFS' MOTION TO DISMISS 
  

1. Appellees are simply wrong when they state that Judge 

Entz is not running for re-election in 1990. Accordingly, 

their argument fails with respect to Judge Entz and their 

motion to dismiss should be denied on that basis. 

2. The AppATENL source of Appellees' confusion is their 

Exhibit "B" at page 772. That page indicates that the term 

for the 194th district court expired December 31, 1988; 

appellees apparently conclude that Judge Entz's current term 

must expire in 1992. Appellees neglect footnote 2 to that 

JUDGE ENTZ'S RESPONSE TO PLAINTIFFS' MOTION 

TO DISMISS AND MATTOX'S MOTION TO STRIKE -- PAGE 1   

 



page, showing that Judge Entz was appointed on February 2, 

1988 to. fill ‘the unexpired term of Justice Kinkeade. 

Accordingly, under article 4, section 12(a) of the Texas 

Constitution, Judge Entz was required to stand at the next 

general election, i.e., the 1988 election, for the two-year 

balance of Justice Kinkeade's term. The palance of that term 

expires December 31, 1990, and Judge Entz is running for 

re-election subject to the January Order. Thus, appellees are 

wrong about the January Order's impact on Judge Entz, and 

Judge Entz obviously has standing to seek a stay of that Order. 

3. Although it is somewhat irrelevant at this point, 

since Judge Entz is in fact required to run for re-election 

this year, he notes that he would have standing even if he 

were not running now. As a participant in the current Texas 

judicial system, he is vitally affected by an order destroying 

that system. An order that effectively destroyed the current 

system beyond any hope of reconstruction would impact Judge 

Entz even were his bench not directly affected until 1992; if 

the January Order were not stayed now, the likelihood that the 

Texas Legislature would take jrrevocable steps to alter 

judicial selection under the threat of that Order would be 

increased and Judge Entz would thus be indirectly, though 

mightily, affected by the January order. If he waited until 

1992 to complain, the damage would be done and as a practical 

matter it would be too late to protect his rights. 

4. Judge Entz does not believe this Court should extend 

appellees additional time to file additional briefs in 

JUDGE ENTZ'S RESPONSE TO PLAINTIFFS' MOTION 

TO DISMISS AND MATTOX'S MOTION TO STRIKE —-- PAGE 2 
      
  

   



  

opposition to Judge Entz's motion for stay. As Judge Entz 

earlier indicated, time is of the essence in this application 

for stay. This Friday, January 12, is the deadline for 

certifying candidates for the March 13 primary. It is 

entirely possible that a decision on Friday will be too late 

for judicial candidates to be imcluded in the primary. Judge 

Entz would be unable to respond to a mew brief from appellees 

(assuming it were filed Wednesday) any earlier than Thursday, 

the last date on which the Court could issue a stay with 

assurance that it would be in time for the March 13 elections 

to go forward with judicial candidates. Thus, permitting an 

additional, late response from appellees would prejudice Judge 

Entz. Appellees were the ones who determined to oppose Judge 

Entz's motion on mistaken jurisdictional grounds, rather than 

addressing it on the merits; they should bear the consequences 

of choosing that dilatory tactic, rather than imposing those 

consequences on the judiciary of the State of Texas. 

MOTION TO STRIKE   

5. Judge Entz generally takes no position with respect 

to the dispute between the Secretary of State and Mr. Mattox 

regarding whether the Secretary of State is required to 

acquiesce in representation by an attorney who contravenes 

express instructions from his client. In the course of the 

Motion to Strike, however, Mr. Mattox makes an erroneous 

statement that if true might reflect on Judge Entz's position 

before this Court. In particular, Mr. Mattox states that the 

Secretary of State's notice of appeal was ineffectual, given 

JUDGE ENTZ'S RESPONSE TO PLAINTIFFS' MOTION 
TO DISMISS AND MATTOX'S MOTION TO STRIKE —- PAGE 3 
  

 



  

the pendency in the district court of Mr. Mattox's motion to 

modify the January Order. Mr. Mattox is wrong on that point, 

and the Secretary of State's notice of appeal (and Judge 

Entz's) is timely and effective. 

6. Mr. Mattox confuses (a) the impact of a true Rule 

59(e) motion to modify a final judgment on an appeal from a 

final judgment under 28 U.S.C. § 1291, as provided by Rule 

4(a)(4) of the Federal Rules of Appellate Procedure with (b) 

the impact of a motion to modify an interlocutory injunction 

on an appeal from the interlocutory injunction under 28 U.S.C. 

§ 1292(a)(1). 

7. Rule 4(a)(4) applies only to "true" Rule 59(e) 

motions; a motion improperly labeled a Rule 59(e) motion does 

not trigger Rule 4(a) (4). "Respondents inaccurate 

designation of their costs request as a Rule 59 motion cannot 

change this fact [that it was not a proper Rule 59 motion]. 

Nor can respondents' incorrect label deprive petitioners of 

their timely notice of appeal.” Buchanan v. Stanships, Inc.,   

485 U.S8.°265%, "108 5S. Ct, 13130, 1132 (1588), 

8. Mr. Mattox's motion in the district court was not a 

"true" Rule 59 motion; Rule 59 applies to motions to modify a 

final judgment, not to motions to modify interlocutory 

judgments. "We do not accept plaintiff's contention that a 

new trial motion with respect to liability had to be filed 

within ten days of entry of the interlocutory judgment entered 

in March of 1974. The 'judgment' referred to in Fed. R. Civ. 

P. 59(b) is the final judgment that will be entered after 

JUDGE ENTZ'S RESPONSE TO PLAINTIFFS' MOTION 
TO DISMISS AND MATTOX'S MOTION TO STRIKE -- PAGE 4 
  

 



  

damages are assessed." Warner v. Rossignol, 513 F.2d 678, 684 
  

n.3 (Ist Cir. 1975). Thus, since the January Order here was 

not a final judgment, Mr. Mattox's motion to modify is not a 

Rule 59 motion; accordingly, under Buchanan, Rule 4(a) (4) does   

not apply and the notices of appeal were effective. 

9. This result is required not only by the language of 

the rules, but also by the policy underlying them and the 

distinction between an appeal from a final judgment and an 

appeal from an interlocutory injunction. CE. C. Wright 5 A. 

Miller, Federal Practice and Procedure § 2812, at 87 (1973) 
  

("The reason for a short time limit on motions for a new trial 

is to promote finality of judgments. That policy is. not 

applicable to an interlocutory order, which by hypothesis is 

not final and is subject to modification by the court at any 

time before judgment is entered. Thus it has been held that 

the time limits of Rule 59 do not apply to a motion seeking a 

new trial in connection with an interlocutory judgment.") 

10. "Taken together, [Fed. R. App. P. 4(a)(4) and Fed. 

R. Civ. P. 59(e)] work to implement the finality requirement 

of 28 U.S.C. § 1291 by preventing the filing of an effective 

notice of appeal until the District Court has had an 

opportunity to dispose of all motions that seek to amend or 

alter what otherwise might appear to be a final judgment." 

Osterneck v. Ernst & Whinney, 109 S. Ct. 987, 990 (1989). 
  

Thus, a true Rule 59(e) motion makes a notice of appeal from a 

final judgment ineffective because, once such a motion is 

JUDGE ENTZ'S RESPONSE TO PLAINTIFFS' MOTION 
TO DISMISS AND MATTOX'S MOTION TO STRIKE -- PAGE 5 
  

 



filed, the judgment is not a "final" judgment and thus 

appealable until the Rule 59(e) motion is resolved. 

11. In contrast, an appeal of an interlocutory 

injunction under 28 U.S.C. § 1292(a)(l) does not depend on any 

"finality" of the injunction for it to be appealable. The 

whole point of providing an appeal from an interlocutory 

injunction is that the injunction may work changes before 

final judgment and a party should be entitled to review in the 

Court of Appeals before the injunction works its harm. A 

motion to modify an interlocutory injunction does not deprive 

the interlocutory injunction of the characteristics that made 

it appealable -- the injunction is still in place and still 

potentially dangerous. 

12. The facts of this case are a perfect example of why 

this policy is correct. Notwithstanding the pendency of Mr. 

Mattox's motion to modify, the district court's injunction is 

still in effect. 1f the district court has not ruled on the 

motion to modify before JSnUALY 12, irreparable harm will have 

taken place in the meantime. Were Mr. Mattox correct in his 

analysis, this Court would be unable to consider this appeal 

because the motion to modify was still pending, even though 

section 1292(a)(1) expressly gives this Court the jurisdiction 

to hear appeals from interlocutory injunctions precisely to 

prevent the kind of irreparable harm the January Order here 

threatens to cause. Neither the literal language of Rule 

4(a){(4), Rule 59, and section 1292(a)(l), nor the policy 

underlying those provisions, permits such a result. 

JUDGE ENTZ'S RESPONSE TO PLAINTIFFS' MOTION 

TO DISMISS AND MATTOX'S MOTION TO STRIKE -- PAGE 6 
   



WHEREFORE, Judge Entz requests that the January Order of 

the district court be immediately stayed pending appeal, and 

that in the interim judicial elections be permitted to go 

forward under existing Texas law. 

Respectfully submitted, 

Ix ALAA 
Fr 

  

Robert H. Mow, Jr. 

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 by certified mail, return receipt 

requested (except where indicated) on William L. Garrett, 

Rolando Rios, Susan Finkelstein (FEDERAL EXPRESS), Sherrilyn 

A. Ifill, Gabrielle K. McDonald (FEDERAL EXPRESS), Edward B. 

Cloutman, III (HAND DELIVERED), E. Brice Cunningham, Renea 

Hicks (FEDERAL EXPRESS) , Ken Oden, David R. Richards, J. 

Eugene Clements (FEDERAL EXPRESS), Darrell Smith, Michael J. 

Wood, Joel H. Pullen, Seagal V. Wheatley, and John L. Hill, 

JUDGE ENTZ'S RESPONSE TO PLAINTIFFS' MOTION 

TO DISMISS AND MATTOX'S MOTION TO STRIKE -- PAGE 7 
   



* & 

  

Jr. (FEDERAL EXPRESS) in Spon ssnce with the Federal Rules of 

Appellate Procedure this — day of January, ‘1990. 

ald, 
i 

  

JUDGE ENTZ'S RESPONSE TO PLAINTIFFS' MOTION 
TO DISMISS AND MATTOX'S MOTION TO STRIKE -- PAGE 8