Judgment Denying Intervention of Right

    LAW OFFICES OF 

TEXAS RURAL LEGAL AID, INC. 
201 NORTH sT. MARY'S ST. SUITE 600 SAN ANTONIO. TEXAS 78205 

(512) 222-2478 

  

TO: All counsel of record FROM: Susan Finkelstein ¢ RE: LULAC et a] V Mattox et al Civil Action ©. MO-88-CA-154 DATE: September 14, 1989 

  

MEMORANDUM 
am enclosing a Copy of the Fifth Circuit's decision on Midland 

hg 
County's interlocutory appeal, for those of You who have not been 
Served with a copy. 

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IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

  

No. 89-1189 

  

LEAGUE OF UNITED LATIN AMERICAN CITIZENS, COUNCIL #4434, ET AL., 

Plaintiffs-Appellees, 

versus 

WILLIAM P. CLEM ENTS, Governor of the State of Texas, ET AL., 

Defendants, 

versus 

MIDLAND COUNTY, TEXAS, EPC., ET AL., 

Movants-Appellants, 

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

  
( September 8, 1989) 

Before GARZA, REAVLEY and POLITZ, Circuit Judges, 
REAVLEY, Circuit Judge: 

In this voter rights case Midland County attempts to 
intervene as a defendant and is here seeking to appeal the 

 



  

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district court’s order denying its motion to intervene as a 
matter of right or on a permissive basis. We conclude that 
intervention was properly denied. 

I. Background 

The underlying action in which Midland County (Midland) 
sought to intervene was brought on behalf of certain black and 
Mexican-American citizens of Texas, alleging that the at-large 
scheme for electing state district judges diluted minority voting 
strength in violation of the Voting Rights Act, 42 U.S.C. § 1973, 
and the United States Constitution. 

As a county targeted in the suit, Midland filed a timely 
motion to intervene as a matter of right and pPermissively, under 
Fed. R. Civ. P. 24 (a) (2) and (b), for itself and on behalf of its 
district judges in their official capacity. The district court 

~ A. Intervention of Right 

A moving party must meet each of the following requirements 
to intervene as a matter of right: 

(1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or 

action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; (4) the applicant’s 

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interest must be inadequately represented by the existing parties to the suit. 

International Tank Terminals, Ltd. v. M/V Acadia Forest, 579 F.2d   
964, 967 (5th Cir. 1978). 

Because the district court denied the motion on the grounds 
that Midland lacked sufficient interest in the litigation, the 
interest requirement will be our focus. 

To prove the requisite interest, an intervenor must 
demonstrate a "direct, substantial and legally protectable® 
interest in the Property or transaction that is the subject of 
the suit. New Orleans Pub. Serv., Inc. wv. United Gas Pipe Line   
€o., 732 F.2d 452, 463 (5th Cir.), cert. denied, 469 U.S. 1019   

(1984). A movant found to be a "real party in interest" 
generally establishes sufficient interest. Id. at 464; Fed. R. 
Civ. P. 17(a). Courts, however, have Yet to adopt a uniform 
standard for determining who is a "real party in interest." 7C 

  

C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure, 
§ 1908 (Supp. 1989). The district court adopted a causation 
test, which we find useful here. Under that test, a "real party 
in interest” may be ascertained by determining whether that party 
caused the injury and, if so, whether it has the power to comply 
with a remedial order of the court. 

l. Interests of the County 

Applying this standard, the district court found that 
Midland was not a" real party in interest" because it played no 

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part in creating judicial districts -- the action that has 
allegedly injured the Plaintiffs. Rather, the power to re-shape judicial districts is vestegd in three legislative bodies: (1) the state legislature, Tex. Const. art. v, § 7 & 7a; (2) the 
Judicial Districts Board, id. art. V, § 7a; Tex. Gov't Code Ann. §§ 24.941-24.961 (Vernon 1988); and (3) the Legislative 
Redistricting Board, Tex. Const. art. III, § 28 & art. v, § 
7a(e); Tex. Gov't Code Ann. § 24.946 (a). Lacking the power to 
re-draw district lines, Midland couldn’t have caused the injury, nor is it in any position to effect a remedy. The district 
court, therefore, found that Midland did not have sufficient 
interest to justify intervention. 

Midland, however, argues that it has an interest in 
representing the citizens in its county. Midland points out 
that, under the Present system, the district encompasses the 
whole county and its three district judges are elected through a county-wide vote. Midland claims that the plaintiffs seek to 

Const. art. v, § 7a; Tex. Gov’t Code Ann. § 24.945(e). Midland 

  
    

 



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This argument, however, is without merit. Midland is 

  

without authority to protect its citizens in this manner. If the 
present district lines are found to violate the Voters Rights act 
and/or the United States Constitution, Texas’ constitutional and 
statutory provisions Protecting district lines will be nullified 
under the Supremacy Clause. U.S. Const. art. vI, c1. 2; see 
Butterworth wv. Dempsey, 229 F. Supp. 754, 764 (D. Conn.), aff’qd 

  

  

sub nom. Franklin v. Butterworth, 378 u.s. 562; and aff’d su 
    

nom. Pinney v. Butterworth, 378 U.S. 564 (1964) (state 
    

“ constitutional ‘or statutory limitations cannot bar action to 
comply with federal constitutional requirements). Moreover, if 
there is no violation. found, the provisions will stand regardless 
of the representation Midland offers. a "legally cognizable 
interest" cannot be crafted out of Midland’s purported interest 
in representing its county citizens. 

Midland also argues that it has an interest in the case 
because the outcome may effect other suits challenging county 
elections. we believe, however, that this threat of litigation 

‘is too tenuous to support intervention under Rule 24 (a) (2). See 
Howse v. S/V "Canada Goose I", 641 r.2a 317, 321 (5th Cir. 1981) 
  

right under Rule 24 (a) (2)"). Moreover, we do not believe that 
Midland’s concerns about increased costs, voter confusion, venue 

 



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problems, or the possible abolition of specialty courts amount to 
a "legally cognizable interestn justifying intervention. 
2. Interests of the Judges 

Midland also seeks intervention as a matter of right on 
behalf of its three district judges in their official capacity. 
In support of its motion, Midland cites Williams v. State Board     of Elections, 696 F. Supp. 1563 (N.D. Ill. 1988), in which 
  

sitting elected judges were found to be necessary parties to a 
voting rights action challenging elections of supreme court, 
appellate court, and circuit court judges. In Williams, the 

prematurely and to enjoin an election for which candidates had 
already been nominated; the court held that both the candidates 
and the elected judges had sufficient interest to be necessary 
parties. Id. at 1570-72. 

While the Williams court did not clarify whether that 
interest was based on their individual or official Capacities, 
the distinction is important. In an individual capacity, elected 
judges arguably have personal interests in their office or 
equitable interests in the remedy fashioned by the court. Id. at 
1572; see also Tarrant County v. Ashmore, 635 S.W.2d 417,422     

{Tex.), cert. denied, 459 U.S. 1038 (1982) ("[A]n officer’s 
  

interest in his elected position, though not ‘Property’ in the 
conventional sense, is a recognizable interest ‘for purposes of 

 



  

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Procedural due process analysis."), Additionally, their absence 
from the trial may impair the "ability to protect their continued 
tenure." Williams, 696 F. Supp. at 1572. 

  

The same arguments, however, do not hold true for judges 
intervening in their official capacities. 2 voting rights case 
Challenges the election process rather than the individuals 
holding office. As government officials, they have no legally 
protectible interest in redistricting. Because it is a 
legislative action, judges Play no part in Creating or revising 
the election scheme and, therefore, fail to meet the "real party 
in interest" test.l/ 

Since neither the county nor the judges in their official 
capacity can demonstrate the requisite interest in this suit, the 
order denying Midland’s motion to intervene as a matter of right 
is affirmed. 

B. Permissive Intervention 

District courts are given broad discretion in granting 
- motions to intervene under Rule 24 (b) (2) .2/ Accordingly, we can 

1/ State defendants-appellees filed a brief arguing that it is 
district judges in their official capacities. Since we find that the judges have no legally cognizable interest in this suit, we do not reach the question of who has the authority to represent them. 

2/ Rule 24 (b) (2) provides for permissive intervention when (1) timely application is made by the intervenor, (2) the intervenor’s claim or defense and the main action have a question 

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not disturb the district court’s denial of the motion for 
permissive intervention absent a showing of an abuse of 
discretion. See New Orleans, 732 F.2d at 470-71.   

When acting on a request for permissive intervention, a 
district court should consider, among other factors, whether the 
intervenors are adequately represented by other parties and 
whether they are likely to contribute significantly to the 
development of the underlying factual issues. Id. at 472 
(citations omitted). ¥hen a proposed intervenor possesses the 
same ultimate objectives as an existing litigant, the 
intervenor’s interests are Presumed to be adequately represented 
absent a showing of adversity of interest, collusion, or 
nonfeasance. Kneeland V. National Collegiate Athletic Ass’n, 806   

F.2d 1285, 1288 (5th Cir.) cert. den. 108 S. Ct. 72 (1987); Bush   

Vv. Viterna, 740 F.24 350, 355 (5th Cir. 1984). While the 
  

presumption may be rebutted on a relatively minimal showing, 
Midland must "produce something more than speculation as to the 

  

purported inadequacy." Moosehead Sanitary Dist. v. S. G. 
Phillips Corp., 610 F.2d 49, 54 (1st Cir. 1979). Considering the 
  

Texas Attorney General’s Presumed representation of common 

interests and Midland’s failure to present evidence to rebut that 
presumption, the district court did not abuse its discretion in 

of law or fact in common, and (3) intervention will not unduly delay or prejudice the adjudication of the rights of the original parties. 

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finding Midland’s interests adequately represented. 

Additionally, it acted within its discretion in finding that 
Midland could not significantly contribute to the development of" 
the factual issues. 

Midland further claims the district court abused its 
discretion by dismissing Midland’s intervention motion while 
granting those of several other parties -- namely the Houston 
Lawyers Association and the Black Legislative Caucus, as well of! 
several judges and former judges. However, the district court 
made it clear that any judge remaining in the suit as an 
intervenor could do so only in an individual rather than official 
capacity. Again, we find no abuse of discretion here. 

Having found that the district court acted within its 
. discretion in denying Midland’s motion for permissive 

intervention, this portion of the appeal is dismissed for lack of 
jurisdiction. See Woolen v. Surtran Taxicabs, Inc., 684 F.2d   

324, 330-31 (5th cir. 1982), cert. denied, 107 S.ct. 1567 (1987).   

The judgment of the district court denying intervention of 
right is AFFIRMED; in all other respects the appeal is DISMISSED. 

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