Emergency Application for Stay

    HUGHES & LUCE 
2800 MOMENTUM PLACE 

1717 MAIN STREET 

DALLAS. TEXAS 7520] S00 ONE CONGRESS PLAZA 

2 11 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 

January 3, 1990 

FEDERAL EXPRESS 

RECEIPT NO. 9762333 

Gilbert F. Gamdcheau, Clerk 
of Appeals, 5th Circuit 

Street 

rleans, 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 Dallas County District Judge F. Harold 
Entz's Emergency Application for Stay and accompanying 
Exhibits for the above-referenced case. As indicated in the 
Application, we believe action on the Application is required 
on or before January 12, 1990. In accordance with Local Rule 

46.2, please be advised that this appeal and Application 
involve issues similar to those presented in Rangel v. Mattox, 
No. 89-6226, presently pending before the Court. 

  

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. 

nr "a 

David C. Godbey VL 

DCG/pai 

Enclosures  



    

HUGHES & LUCE 

Gilbert F. Canucheau, Clerk 

Page 2 

January 3, 1990 

CC. (CERTIFIED MAIL RRR without 

enclosures except where indicated) 
William L. Garrett (w/enclosures) (HAND DELIVERED) 
Rolando Rios 
Susan Finkelstein 

wads A. Ifil1} 
Gabrielle K. McDonald (w/enclosures) (FEDERAL EXPRESS) 
Edward B. Cloutman, III (w/enclosures) (HAND DELIVERED) 
E. Brice Cunningham 
Renea Hicks (w/enclosures) (FEDERAL EXPRESS) 
Ken Oden 

David R. Richards 
J. Eugene Clements (w/enclosures) (FEDERAL EXPRESS) 
Darrell Smith 
Michael J. Wood 
Joel H. Pallen 

Seagal V. Wheatley 

 



  

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

LEAGUE OF UNITED LATIN AMERICAN 

CITIZENS (LULAC), et al., 

Plaintiffs-Appellees, 

Vv. NO.   

JIM MATTOX, et al., 

C
I
C
 

LI
 
CA

 
CA

 
LA
A 

CA
I 

LA
I 

LA
I 

Defendants-Appellants. 

EMERGENCY APPLICATION FOR STAY   

TO THE HONORABLE COURT OF APPEALS: 

Defendant-Intervenor-Appellant Dallas County District 

Judge F. Harold Entz ("Judge Entz") moves the Court for entry 

of an immediate stay of an order entered by the Hon. Lucius D. 

Bunton in Cause No. MO-88-CA-154 (W.D. Tex.) on January 2, 

1990, pursuant to Rule 8 of the Federal Rules of Appellate 

Procedure, for the following reasons: 

  PRELIMINARY STATEMENT 

1. This emergency stay is requested in order to prevent 

a tragic dismantling of the judiciary of the State of Texas 

prior to this Court's having an opportunity to review the 

admittedly uncertain legal basis upon which the district court 

exercised its awesome powers to sweep aside state 

constitutions, concerns of federalism, and over a century of 

state policy and practices regarding the selection of judges 

in the State of Texas. 

2. Plaintiffs in this action seek to apply Section 2 of 

the Voting Rights Act, 42 U.S.C § 1973, to the district courts 

EMERGENCY APPLICATION FOR STAY -- PAGE 1   

 



  

of nine urban counties in Texas. Those nine counties include 

Harris, Dallas, Tarrant, Bexar, Travis, Midland, Jefferson, 

Lubbock, and Ector Counties. The 172 judicial districts in 

those counties include almost half of the judiciary of the 

State of Texas. In keeping with over a century of Texas 

policy, judges in those counties are elected in county-wide, 

partisan elections, consistent with the judges' county-wide 

primary jurisdiction. Plaintiffs claimed that such 

county-wide elections unlawfully diluted the voting rights of 

minority voters and that the system of county-wide elections 

was unconstitutionally discriminatory. 

3. Judge Entz is a sitting district court judge in 

Dallas County. He was granted leave to intervene as a 

Defendant to contest Plaintiffs' claims with respect to Dallas 

County and participated actively in the trial of the matter. 

4. Trial of Plaintiffs' claims was held during the week 

of September 18, 1989. On November 8, 1989, the district 

court entered an order Cinding in favor of Plaintiffs in all 

nine counties (the "November Order," see Exhibit C), though 

also finding that Texas' system of county-wide elections does 

not violate the Constitution. In addressing the numerous 

factual and legal defenses to Plaintiffs' claims, although 

ruling for Plaintiffs, the district court noted that the 

application of the Voting Rights Act to judicial elections "is 

not a sphere of icy certainty." (See Exhibit C at 93) 

5. The November Order requested the Governor of Texas to 

add the issue of judicial selection to the agenda for the 

EMERGENCY APPLICATION FOR STAY -- PAGE 2 
  

 



  

special session of the Texas Legislature scheduled to address 

workers compensation reform; the November Order indicated that 

the district’ court would consider interim relief if no 

state-sponsored plan were presented by January 3, 1990, the 

filing deadline for the 1990 elections. On December 11, 1989, 

Governor Clements and counsel for the parties met with the 

District Court, at the Governor's request. The Governor 

advised the District Court that it would be impossible for the 

State of Texas to propose a plan before January 3 and 

requested the District Court to allow more time for the state 

to consider a remedy, while simultaneously permitting an 

expedited appeal of the November Order. (See Exhibit H at 3) 

6. The District Court did not agree to permit additional 

time and instead solicited submission of "interim plans" to 

provide a framework for holding the 1990 Texas judicial 

elections. On December 21, 1989, Plaintiffs and the Attorney 

General (over the objection of all other individual State 

Defendants, see Exhibits E-3, G) submitted a proposed interim 

plan (the "Mattox-LULAC Plan," see Exhibit E-2) for the 1990 

elections. Essentially, the Mattox-LULAC Plan assigns 

judicial spots to state legislative or JP districts in a form 

of quasi-single member districts. It retains county-wide 

jurisdiction and venue, but restricts voting to voters within 

the district. Because the number of judicial positions is 

greater than the number of legislative districts, some 

legislative districts would get "extra" judges; the districts 

with higher minority populations were allocated the "extra" 

EMERGENCY APPLICATION FOR STAY -- PAGE 3   

 



judicial seats. Additionally, the Mattox-LULAC plan 

effectively mangles Texas' system of judicial specialization 

through civil, criminal, family, and juvenile courts and the 

continuity of court dockets by permitting the presiding 

administrative judge for each county to assign specializations 

and dockets to winning candidates after the election. 
  

7. On January 2, 1990, the district court entered a 

slightly modified form of the Mattox-LULAC Plan (the "January 

Order," see Exhibit H). Most significantly, after having 

ruled (improperly) that the partisan nature of Texas' judicial 

elections was irrelevant to a Voting Rights Act claim (see 

Exhibit C at 88-89), the January Order abolishes partisan 

judicial elections in Texas, calling for a non-partisan 

general election on May 5 with a runoff on June 2, 1990. The 

Order preserves the aspect of the Mattox-LULAC Plan that 

requires candidates to run for numbered "places" in special 

election districts; only ‘after the election will the 

"Administrative Judge" Ziterning whether the voters have 

elected a judge of a civil, criminal, family or juvenile 

court, Of course, this further confuses voters in their 

already-difficult efforts to make an informed choice between 

judicial candidates, since now even legal experience in a 

particular area is of questionable relevance to a voter given 

that no one will know until after the election what type of 

bench the prevailing candidate will occupy. 

8. Judge Entz had previously requested the district 

court to certify its November Order for interlocutory appeal 

EMERGENCY APPLICATION FOR STAY -- PAGE 4    



  

under 28 U.S.C. § 1292(b) and withhold any interim order 

pending resolution of that appeal. (See Exhibit D) Judge 

Entz also requested the district court to stay any interim 

plan pending appeal. (See Exhibit F) Judge Entz felt that 

both of those requests were of obvious merit, given the 

district court's candid admission of uncertainty of the 

correctness of its ruling and the possible consequence of 

effectively dismantling the Texas judiciary -- by mistake. In 

its January Order, the district court denied both requests 

(see Exhibit H at 8) and called for its interim plan to take 

immediate effect. On January 2, 1990, Judge Entz filed his 

Notice of Appeal from the January Order. (See Exhibit I) In 

view of the January Order, this Court has jurisdiction over 

this appeal and motion under 28 U.S.C. § 1292(a)(l). 

9. Filed under separate cover concurrently with this 

Emergency Motion as exhibits (corresponding to the lettered 

paragraphs) are true and correct copies of: 

a. Plaintiffs’ Second Amended Complaint and the 

various defendants' answers; 

b. the trial briefs of plaintiffs and defendants; 

c. the November Order, including modi ications 

d. Judge Entz's Motion for Certification; 

e. the Proposed Mattox-LULAC Plan 

f. Judge Entz's Objections to the Mattox-LULAC Plan 

and Motion for Stay; 

g. statements from other State Defendants regarding 

the Mattox-LULAC Plan; 

EMERGENCY APPLICATION FOR STAY -- PAGE 5   

 



  

h. the January Order; 

i. Judge Entz's Notice of Appeal. 

BASIS FOR STAY 
  

10. This Court is empowered to issue an immediate stay 

based on an evaluation of: (1) likelihood of success on the 

merits; (2) risk of irreparable harm; (3) whether the grant of 

a stay will substantially harm other parties; and (4) the 

public interest. United States v. Baylor University Medical 
  

Center, 711 -F.24 38 (5th Cir. 1983). Indeed, a movant need 

not "show a 'probability' of success on the merits; instead, 

the movant need only present a substantial case on the merits 

when a serious legal question is involved and show that the 

balance of equities weighs heavily in favor of granting a 

stay.” Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981).   

11 With regard to the likelihood of success on the 

merits, Judge Entz objects to the January Order because of 

defects in both the underlying November Order on liability and 

the January Order imposing the interim election plan. 

XZ. Judge Entz believes that the November Order was in 

error because it was inconsistent with the standards set forth 

by this Court in Monroe v. City of Woodville, 881 F.24 1327 
  

{5th Cir. 1989), in which this Court stated: "That a group's 

voting behavior is racially polarized indicates that the group 

prefers candidates of a particular race.” Id. at 1331. The 

undisputed proof at trial showed that voting in Dallas County, 

and other counties under attack, was polarized based on the 

partisan affiliation of the candidate, not the race of the 

EMERGENCY APPLICATION FOR STAY -- PAGE 6 
  

 



  

candidate; thus plaintiffs failed to show racially polarized 

  voting as required for a section 2 violation. See also 

Whitcomb v. Chavis 403 U.S. "124 (15971). This argument and 
  

others showing the error in the November Order are stated more 

fully in Judge Entz's Post-Trial Brief, which he incorporates 

by reference. (Exhibit B-1) 

32. Judge Entz believes that the January Order was in 

error for a variety of reasons. In particular, imposing 

single member judicial districts while retaining county-wide 

jurisdiction and venue has the effect of disenfranchising the 

vast majority of voters with respect to any given judge. 

Also, the January Order's plan to assign the "extra" judges to 

districts based on minority population is an egregious 

violation of equal protection. Additionally, the January 

Order's provisions for assignment of specialized courts are 

arbitrary and capricious and effectively deny voters the right 

to be "represented" by judges in all specialties (voters 

cannot even know what type ok judge they are electing: civil, 

criminal, family, or juvenile). Finally, the Court's power to 

abolish partisan elections is questionable -- and certainly an 

unnecessary disruption -- especially when hte Court had 

earlier held that partisan factors were irrelevant and when 

plaintiffs did not ever attack the partisan nature of judicial 

elections as a Voting Rights Act violation. 

13. Aside from the substantive errors in the January 

Order, the Order is insufferably insensitive to the 

complexities of Texas election procedures. 

EMERGENCY APPLICATION FOR STAY -- PAGE 7 
  

 



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 
of state election laws, and should act and rely upon 
general equitable principles. With respect to 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 

adjusting to the requirements of the court's decree. 

  

  

  

  

  

  

Reynolds v. Sims, 377 U.S. 533, 585 (1964) (emphasis added,   

quoted .in Chisom v. Roemer, 853 ¥#.24-1186, 1189 (5th Cir.   

1988)). As indicated in the objections to the Mattox-LULAC 

Plan from the Secretary of State (see Exhibit G-1), the 

January Order fails to consider the complexities of Texas’ 

electoral system. Further, the January Order fails to account 

for the logistical requirements of closing candidate filing 

enough ahead of the election to permit ballot preparation and 

absentee voting; it fails to provide for time or costs in 

publishing notice of the election; it fails to provide for 

sufficient time for a canvass of the returns before the 

runoff. The January Order is plainly a "precipitate changel] 

that [w]ould make unreasonable [and] embarrassing demands on a 

State in adjusting to the requirements of the court's 

decree." These substantive and procedural: arguments and 

others showing the error in the January Order are stated more 

fully in Judge Entz's Objections and Motion for Stay (Exhibit 

F), and his Post-Trial Brief, which he incorporates by 

reference. 

14. Finally, the January Order is in error because it 

failed to give the State of Texas a reasonable opportunity to 

consider remedies. As the Governor noted in the December 11 

EMERGENCY APPLICATION FOR STAY -- PAGE 8    



meeting and in his letter (see Exhibit G-3) the district court 

did not permit sufficient time for the Texas legislature to 

consider judicial selection. As the Court is well-aware, in 

the fall special session the Texas legislature was occupied 

with the culmination of a four-year effort to reform the Texas 

workers compensation system, and will be similarly involved 

this spring with an earlier judicially-required overhaul of 

public school financing. Paraphrasing Governor Clements’ 

words, sometimes even federal judges must wait in line. 

Additionally, as the Governor noted, providing a reasonable 

time for the legislature to consider the issue would 

concurrently give this Court time to review the underlying 

liability findings in the November Order to determine whether 

destruction of the Texas judicial system is really necessary. 

15. The risk of irreparable harm here is dramatic. The 

judicial branch of government, unlike the executive and 

legislative branch, has long been a source of continuity in 

state government and the adninivtistion of justice due to the 

typically lengthy tenure in office of sitting judges. See 

  Chisom v. Roemer, 853 F.24 1186, 1190 (5th Cir.’ 1988) ("The 

core value of the law and its implementing Judicial system is 

Stability". . . ..") The tenure of judges provides not only 

continuity, but also a repository of judicial experience. 

Adoption of an interim remedy in this action through requiring 

a form of single member judicial districts will inevitably 

result in massive turnover in judicial personnel; some judges 

will determine that it is not worth the effort for them to 

EMERGENCY APPLICATION FOR STAY -- PAGE 9 
   



  

struggle for a four-year term under circumstances that will 

change, and some incumbents who can win county-wide elections 

will lose to well-financed or patron-sponsored candidates in 

single member districts. If the ruling on liability is 

subsequently overturned by this Court, as Judge Entz is 

confident it will be, there is no way to undo the harm to the 

institution of the judiciary of the State of Texas that will 

obviously take place in the interim. 

16. Additionally, there is substantial question as to 

the validity of judicial decisions entered by judges elected 

under the January Order if it is subsequently overturned. 

For certain, if the January Order is determined to be in 

error, inventive, responsible attorneys for losing litigants 

in criminal, civil, domestic, and juvenile matters will for 

years rain legal attacks on sentences, judgments, decrees, 

adoptions, and other orders. Will "divorcees" from courts 

having non-specialists who won non-specific judicial seats in 

special election districts be brave enough to remarry -- and 

thus risk bigamy and illegitimate offspring? Will any court 

considering a habeas corpus attack on a death penalty be brave 

enough to deny a stay before the last motion for rehearing in 

the Supreme Court has been denied in this case -- and thus 

risk the ultimate injustice? See Chisom, supra, 853 F.2d at   

1190-91 (noting problems of uncertainty in death sentences if 

injunction simply requiring a validly elected judge to 

continue in office is not stayed). 

EMERGENCY APPLICATION FOR STAY —-- PAGE 10 
  

 



  

17. Essentially for the same reasons, the public 

interest supports a stay. Judge Entz calls the Court's 

attention to its opinions in Chisom v. Roemer, 853 F.2d 1186 
  

(5th Cir. 1988), Rangel v. Mattox, No. 89-6226 (5th Cir. Dec.   

5, 1989), and Rangel v. Mattox, No. 89-6226 (5th Cir. Jan. 3,   

1990). Those opinions are the only other instances known to 

Judge Entz in which the issue presented here has been 

addressed. In both instances, this Court found that a stay 

was proper. The same reasons apply with greater force here. 

The degree of disruption to one of the coordinate branches of 

the sovereign state government is egregious. The district 

court's invocation of a county-and-western ballad cannot 

disguise the harshness of the court's destruction of the Texas 

judiciary and a system chosen by the people of Texas that has 

served this state in a non-discriminatory fashion for over a 

century; given the January Order's caustic treatment of the 

Texas Constitution and judiciary, all for the sake of as few 

as five additional minority judges in Dallas County, one 

wonders if the district judge is not in fact applying "heavy 

metal" thinly disguised as a dose of his version of Hank 

Williams, Jr.'s "love and happiness." (January Order at 2) 

18. There is no serious disadvantage to Plaintiffs if a 

stay is granted. This Court can surely hear an expedited 

appeal of the underlying liability issues and the particular 

issues raised by the proposed interim plan in the eleven 

months before the November elections. In the unlikely event 

the ruling below is upheld, an interim remedy could still be 

EMERGENCY APPLICATION FOR STAY -- PAGE 11 
  

 



  

§ 4 4 

imposed with at least some level of confidence that it was 

truly required. More to the point, however, Plaintiffs 

acknowledge that the January Order is only an interim remedy 

and would need to be revised before the 1992 elections with a 

permanent plan that would reflect the results of the 1990 

census. Thus, even if this Court could not act to clarify the 

situation before the November, 1990 elections, the harm to 

Plaintiffs from one more election under the current system -- 

rather than a stopgap, highly-disruptive interim plan -- is 

minimal. 

19. Thus, all four requirements of a stay are met. 

Considering the massive impact on the State of Texas that 

would result if a stay were not entered, a lower than usual 

standard of likelihood of success on the merits is 

appropriate. Ruiz vy. Estelle, 650 F.2d 555, 565 (5th Cir.   

1981) ("movant need only present a substantial case on the 

merits when a serious legal question is involved and show that 

the balance of equities volghs heavily in favor of granting a 

stay"). Although Judge Entz certainly believes that the 

arguments in this motion and the incorporated trial court 

pleadings demonstrate a likelihood of SLCCENE. it seems beyond 

question that, at minimum, they "present a substantial case on 

the merits," and thus a stay is justified. 

NEED FOR EMERGENCY RELIEF 
  

20. In order to preserve the regularity and continuity 

of judicial elections, Judge Entz respectfully requests 

immediate relief, and requests that hearing of this motion be 

EMERGENCY APPLICATION FOR STAY -- PAGE 12 
  

 



had by telephone conference call at the earliest possible 

opportunity given the inconsistency between the terms of the 

January Order and the schedule for current judicial election 

procedures under state law. 

21. The deadline for filing for office under current 

Texas law was January 2, 1989. The District Court waited 

until that very day to enter its interim plan. This last 

minute order fails to "consider the proximity of a forthcoming 

election and the mechanics and complexities of state election 

laws,” Reynolds v. Sims, supra, and will cause severe and 
  

unfair consequences unless immediately stayed. In particular, 

the January Order comes so close to the long-scheduled March 

13 primaries that if it is not immediately stayed, the 1990 

judicial elections will have been irremediably disrupted. 

22. Initially, unless this Court takes action to stay 

the January Order before January 12, it will be difficult for 

judicial positions to be included in the March 13 primaries. 

State law permits absentee voting to commence sixty days 

before the election. Tex. Elec. Code Ann. § 84.007. In order 

to have ballots prepared in time for the election and absentee 

voting, party chairmen are required to certify to the 

Secretary of State the list of properly filed and qualified 

candidates sixty days before the election. This permits the 

Secretary of State to provide the names to the ballot printers 

in time for the election and absentee voting. This year, the 

date for certification of candidates is January 12, 1990. See 

l “Tex. ‘Adm. Code § 81.113 (proposed at 14 Tex. Reg. 5398, 

EMERGENCY APPLICATION FOR STAY -- PAGE 13 
   



adopted at 14 Tex. Reg. 6075). Thus, 1f this Court is going 

to issue a stay in order to prevent unnecessary disruption of 

the existing judicial election system, it must act before 

January 12. 

23. Additionally, if judicial candidates acting in 

reliance upon the January Order withdraw their filing under 

the current system and refile under the terms of the January 

Order, they will be unable to refile if a stay is granted, 

because the deadline for filing under the existing system has 

passed. Every day that passes while the January Order is in 

effect increases the risk that candidates will become 

ineligible for this reason. 

24. Finally, the realities of political campaigns 

require that candidates have some reasonable time to campaign 

for office. The March 13 primary is only some ten weeks 

away. If judicial candidates are to be on the ballot for the 

March 13 primary, they need time to appeal to the voters, 

solicit support, seek endorsements, prepare and run 

advertisements, organize the precincts, and take all of the 

other steps that are entailed in the political process. 

25. As stated in the letter from Secretary of State 

Bayoud to the district court (Exhibit H-1), the logistical 

problems created for the State of Texas in trying to implement 

the January Order are significant in and of themselves. In 

its unseemly haste to enter some kind of interim order, the 

district court has plainly failed to acknowledge the magnitude 

of the disruption it proposes. As this Court stated in Chisom: 

EMERGENCY APPLICATION FOR STAY -- PAGE 14 
   



  

Our analysis begins with the staunch admonition that 
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 under the 

Supremacy Clause, 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, supra, 853 F.2d at 1189 (footnote omitted). 

Similarly, here, given the district court's failure to heed 

this Court's staunch admonition, this Court should stay the 

district court's intemperate order, as it did in Chisom and 

Rangel. 

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, 

(Zot 
Robert H. Mow, 

Nf 44 
re 

  

  

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 

EMERGENCY APPLICATION FOR STAY -- PAGE 15 
  

 



  

CERTIFICATE OF SERVICE 
  

I certify that a true and correct copy of the foregoing 

instrument was served by certified mail, return receipt 

requested, without exhibits (except where indicated) on 

William L. Garrett (w/enclosures) (HAND DELIVERED), Rolando 

Rios, Susan Finkelstein, Sherrill A. Ifill, Gabrielle K. 

McDonald (w/enclosures) (FEDERAL EXPRESS), Edward B. Cloutman, 

III (w/enclosures) (HAND DELIVERED), E. Brice Cunningham, 

Renea Hicks (w/enclosures) (FEDERAL EXPRESS), Ken Oden, David 

R. Richards, J. Eugene Clements (w/enclosures) (FEDERAL 

EXPRESS), Darrell Smith, Michael J. Wood, Joel H. Pallen, and 

Seagal V. Wheatley in accordance with the Federal Rules of 
~ 

Appellate Procedure this 2 day of January, 1990. 

Df sds,   

EMERGENCY APPLICATION FOR STAY -- PAGE 16