Terrazas v. Ramirez

GONZALEZ, Justice,

concurring.

I join in Sections I, IIA, III (except the conclusion that the Attorney General acted within his authority in settling the suit) and IV of the plurality opinion. However, I write separately because I disagree that the Attorney General has the power to settle redistricting suits. In my opinion, the purported settlement violates the separation of powers doctrine. 1

*727 I begin by noting several relevant circumstances that shape this case: 1) the “new” Senate reapportionment plan increases by three the number of predominately Mexican-American senatorial districts; 2) the time period within which the Legislative Redistricting Board (LRB) can redistrict has expired; 3) the filing period for the approaching primary elections opened on December 3 and will close on January 2; 4) the costs of separating the Presidential primary from other primaries (for redistricting purposes) would dramatically increase their cost; 5) special sessions of the legislature are expensive; 6) the Governor declined the Attorney General’s first request to call a special session to adopt a revised redistricting plan; and 7) parallel litigation is currently underway in federal court involving the same parties and some of the same issues. 2 In light of these exigent circumstances, it perhaps would be politically expedient and economically advantageous to look the other way and deny the writ of mandamus. However, by denying the writ, we would tacitly approve the unprecedented and flawed process that produced the substitute plan. Because I believe that the process is constitutionally infirm, I concur in the court’s judgment.

Our Constitution and statutes confer substantial powers upon the State’s Attorney General to settle ordinary civil lawsuits. However, this is not an ordinary civil lawsuit; and the Attorney General’s authority does not include the power to bind the state to a settlement that modifies or alters a redistricting plan which only the legislature or the LRB had the power to create. Compare Tex. Const. art. IV, § 22 (Attorney General is state’s legal representative) and Tex.Govt.Code Ch. 402 (delineating Attorney General’s duties) with State v. Reagan Cty. Purchasing Co., 186 S.W.2d 128, 135 (Tex.Civ.App.—El Paso 1944, writ refused w.o.m.) (Attorney General may not act beyond powers granted by Constitution and statutes). See also Maud v. Terrell, 109 Tex. 97 , 200 S.W. 375, 376 (1918); Bullock v. Texas Skating Assoc., 583 S.W.2d 888, 894 (Tex.Civ.App.—Austin 1979, writ ref’d n.r.e.).

The Texas legislature has the primary responsibility to reapportion the state’s legislative districts at its first regular session following each decennial census. If the legislature fails to fulfill its duty, then the LRB has authority to act. Tex. Const, art. Ill, § 28. 3 Pursuant to its constitutional mandate, the legislature enacted Senate Bill 31, reapportioning the state’s voting districts. When the period within which *728 the LRB had authority to act expired, the respondents challenged the constitutionality of Senate Bill 31 in the trial court. The Attorney General initially defended the statute and appealed the trial court’s judgment holding the statute unconstitutional. Anticipating that the trial court’s judgment holding the statute unconstitutional would be affirmed, the Attorney General requested the Governor to call a special session to remedy the existing redistricting plan; but, as the news media widely reported, the Governor decided against calling a special session. 4 The trial court enjoined enforcement of the legislature’s reapportionment plan. Before we could hear an appeal on the merits of this decision, the Attorney General settled with the respondents and other interested parties. While not conceding that S.B. 31 was unconstitutional, the Attorney General agreed that a new suit would be filed, and on the same day a consent judgment would be rendered in that suit, providing for a substitute reapportionment plan.

The Attorney General had no power or authority to enter into this consent judgment. The Texas Constitution explicitly provides for the separation of powers among three branches of government: the legislature, the executive, and the judiciary. Tex. Const, art II, § 1. And the Constitution prohibits any branch exercising “any power properly attached to either of the others, except in instances expressly permitted.” Id. Here, the legislature and the LRB have the express power to reapportion the senate voting districts, and the Attorney General has no statutory or constitutional power to alter this process. Thus, he exceeded his authority, and his unauthorized action did not bind the state. See Reagan, 186 S.W.2d at 135 . 5

In representing the state in these matters, the Attorney General had no particular justiciable or proprietary interest upon which to settle, because, by virtue of the position he holds, he represents all the people of Texas. When he agreed to change several voting districts’ boundaries, he in *729 evitably acted adversely to part of his constituency. 6 Those adversely affected had no chance to intervene and voice their objections to the submitted plan. 7 Without question, the substitute plan was not subjected to the kind of intense study and public scrutiny that is essential in these matters. 8

I can well appreciate why it was done in this manner; but it sets a bad precedent. The drafters of the Constitution did not envision, and we should not countenance, relegating so important a decision to a back room deal. Public lawsuits that seek to remedy wrongs of “wide constitutional dimension” should not be privately settled. See Sheffield v. Itawamba Cty Bd. of Supervisors, 439 F.2d 35, 36 (5th Cir.1971). I would hold that the Attorney General exceeded his authority, and that under the circumstances of this case, the district court did not exercise its judicial power in an appropriate or well considered manner.

I am sympathetic to the Respondents’ concerns that the current reapportionment plan may be unconstitutional. But I cannot accept their argument that a general policy favoring the settlement of lawsuits empowered the Attorney General to act, and thus trump our Constitution’s express mandate that the legislature or the LRB possess the primary constitutional responsibility for reapportionment. I also reject the notion that the Attorney General’s broad authority to protect the state’s interests supersedes the legislature’s specific Constitutional authority to redistrict. In my view, the legislature should be given an opportunity to remedy the reapportionment plan’s deficiencies during a special session. Failing that, only then are the courts empowered to fill the gap. 9

The legislature cannot call itself in session. S ee Walker v. Baker, 145 Tex. 121 , 196 S.W.2d 324, 328 (1946). The Attorney General does not have the unilateral power to annul or void a statute because in his opinion it is unconstitutional. Cf. State ex. rel. York v. Turpen, 681 P.2d 763, 767 (Okl.1984) (Attorney General declaring statute unconstitutional encroached on legislature’s powers and violated separation of powers doctrine). If the Governor elects not to call a special session, of necessity, the void will be filled by the judiciary.

I am acutely aware of the time-sensitive nature of this reapportionment dispute. As I noted in footnote four, supra, I can well appreciate the Governor’s assumption that either the Attorney General had constitutional authority to settle this case, or that a special session simply would be a waste of taxpayers’ money; because it ultimately is the federal courts that historically have redistricted the state after finding enacted reapportionment schemes illegal. However, since we now hold that the trial court abused its discretion in accepting the agreed judgment, the Governor should call *730 a special session. 10 Each passing day aggravates the problem and increases the likelihood that three federal court judges may impose their own redistricting plan, which, in my opinion, would be an unfortunate result for the state.

The United States Supreme Court has recognized that reapportionment is primarily the duty and responsibility of the, state legislature or other state authority rather than of the federal courts. See, e.g., Wise v. Lipscomb, 437 U.S. 535, 539 , 98 S.Ct. 2493, 2496-97 , 57 L.Ed.2d 411 (1978); Connor v. Finch, 431 U.S. 407, 414-15 , 97 S.Ct. 1828, 1833-34 , 52 L.Ed.2d 465 (1977); Chapman v. Meier, 420 U.S. 1, 27 , 95 S.Ct. 751, 766 , 42 L.Ed.2d 766 (1975); Reynolds v. Sims, 377 U.S. 533, 587 , 84 S.Ct. 1362, 1394-95 , 12 L.Ed.2d 506 (1964). A federal court should defer to a state legislature’s remedy for a legally flawed reapportionment plan, even when it is the federal court that declares the existing apportionment scheme unconstitutional. Wise, 437 U.S. at 540 , 98 S.Ct. at 2497 ; Burns v. Richardson, 384 U.S. 73, 85 , 86 S.Ct. 1286, 1293 , 16 L.Ed.2d 376 (1966). In a jurisprudential era characterized by “new federalism” and crowded federal court dockets, I would hope that our federal colleagues will defer the resolution of these thorny issues to the state. The federal courts have characterized these suits as an “unwelcome obligation.” Wise, 437 U.S. at 550 , 98 S.Ct. at 2502 ; Connor, 431 U.S. at 415 , 97 S.Ct. at 1834 . Permitting Texas institutions to resolve this problem will relieve them of this obligation.

I would give the Governor a reasonable time to reconsider whether to call the legislature into special session so that it can analyze the reapportionment plan’s alleged flaws and construct an appropriate remedy. In light of today’s opinion, if the Governor elects to adhere to her prior decision on this matter, I would authorize the trial court to fill the legal hiatus by first extending the time-table for filing for office, and then conducting a hearing during which all interested parties would have an opportunity to participate. Only then is the trial judge empowered to adopt an interim plan “fashioned in the light of well-known principles of equity.” Reynolds, 377 U.S. at 585 , 84 S.Ct. at 1394 (Douglas, J., concurring). 11 This process would allow an “open-door” review of the reapportionment plan as opposed to the “closed-door” process that characterized the substitute plan currently on the table. And this process will further this court’s clearly articulated policy of ensuring that the reasons underlying state decisions “be discussed openly before the public rather than secretly behind closed doors.” Acker v. Texas Water Comm’n, 790 S.W.2d 299, 300 (Tex.1990). As Justice Doggett, writing for a unanimous court, succinctly stated last year, “[o]ur citizens are entitled to *731 know more than the result. They are entitled not only to know what government decides but to observe how and why every decision is reached.” Id. The process by which the substitute plan was adopted simply does not live up to this standard of openness. I hope that if this state determines to conduct an open review of the allegedly flawed reapportionment plan, then the federal courts would defer, in the interests of comity, from imposing a court-devised plan in favor of permitting Texas to solve its own problems.

. I disagree with Justice Cornyn that writ should issue against the Attorney General. The settlement agreement entered into by the Attorney General merged into the trial court’s judg *727 ment. This agreement did not relieve the trial court from making a full adjudication of the facts based on the pleadings.

Because the process by which the substitute reapportionment plan was adopted does not live up to the standard of openness set forth only last year by this court in Acker v. Texas Water Comm'n, 790 S.W.2d 299 (Tex. 1990), and because the agreement in question did not provide sufficient basis for rendition of the judgment, I agree with the plurality opinion that the trial court abused its discretion and that mandamus should issue against the trial judge.

. The relators in this mandamus review are plaintiffs in a suit in federal court in the case of Terrazas, et al. v. Slagle, et al., Civ.Action No. ACA-426, now pending in the United States District Court for the Western District of Texas, Austin Division. A three judge panel hearing is in progress in this suit, which was filed pursuant to 28 U.S.C. § 2284 (a). In that case, the plaintiffs seek a declaratory judgment invalidating the Texas Senate’s reapportionment plan as embodied in Senate Bill 31. They also have asked for an injunction prohibiting state officials from conducting elections under the existing and allegedly unconstitutional plan (or any substitute plan). They further want the federal court to supplant S.B. 31 or its substitute with its own interim plan.

. The Texas Constitution provides that if the legislature does not reapportion the state legislative districts at its first regular session following each decennial census, the LRB, composed of the Lieutenant Governor, the Speaker of the House of Representatives, the Comptroller of Public Accounts, the Attorney General and the Commissioner of the General Land Office shall meet within 90 days after adjournment of the regular session and complete the reapportionment process within 60 days after assembling. Tex. Const, art. Ill, § 28.

The legislature reapportioned in a special session in 1911, 1921 and 1971. Bickerstaff, Reapportionment by State Legislatures: A Guide for the 1980’s, 34 Sw.L.J. 607, 623 n. 129. See also Braden, The Constitution of the State of Texas: An Annotated and Comparative Analysis, 159 (1977).

. The Governor doubtlessly was well aware of the protracted, expensive, and confusing litigation that has tarnished Texas' redistricting efforts over the past 30 years. She perhaps thought that it would be a waste of time and resources to call a special session to enact a substitute plan only to have a federal court ultimately disregard the state’s remedial action and institute its own plan. In light of this backdrop, one can hardly blame her. See, e.g., Terrazas v. Clements 537 F.Supp. 514 (S.D.Tex.1982); Graves v. Barnes (Graves II), 378 F.Supp. 640 (W.D.Tex.1974), aff'd sub nom., Briscoe v. Escalante, 435 U.S. 901 , 98 S.Ct. 1444 , 55 L.Ed.2d 492 (1978); Graves v. Barnes (Graves I), 343 F.Supp. 704 (W.D.Tex.1972), aff'd sub nom., Archer v. Smith, 409 U.S. 808 , 93 S.Ct. 62 , 34 L.Ed.2d 68 (1973); Bush v. Martin (Bush II), 251 F.Supp. 484 (S.D.Tex.1966); Kilgarlin v. Martin, 252 F.Supp. 404 (S.D.Tex.1966), rev’d sub nom., Kilgarlin v. Hill, 386 U.S. 120 , 87 S.Ct. 820 , 17 L.Ed.2d 771 (1967); Bush v. Martin (Bush I), 224 F.Supp. 499 (S.D.Tex.1963), aff'd, 376 U.S. 222 , 84 S.Ct. 709 , 11 L.Ed.2d 656 (1964); Clements v. Valles, 620 S.W.2d 112 (Tex.1981); Smith v. Craddick, 471 S.W.2d 375 (Tex.1971); Mauzy v. Legislative Redistricting Board, 471 S.W.2d 570 (Tex.1971); see generally S. Bickerstaff, Reapportionment by State Legislatures: A Guide for the 1980's, 34 SW. L.J. 607 (1980).

. Justice Mauzy’s dissent draws the inaccurate conclusion that the Texas Constitution’s separation of powers doctrine does not constrain the Attorney General’s powers to settle any lawsuit. In fact, Texas’ Constitution and statutes do limit the Attorney General’s authority. See Reagan Cty. Purchasing Co., 186 S.W.2d at 135 . These limits extend to his power to settle lawsuits.

Section 402.004 of the Texas Government Code specifies as follows:

“An admission, agreement, or waiver made by the attorney general in an action or suit to which the state is a party does not prejudice the rights of the state.”

The dissent illogically asserts that any limit on the Attorney General’s power will completely constrain all of his authority to settle lawsuits. It is patently unreasonable to conclude that a district attorney will be prevented from entering into a plea bargain if we conclude that the Constitution prevents the Attorney General from settling a reapportionment suit by adopting a plan he finds acceptable. This "peculiarly formalistic” result indeed would ignore the purposes of our Constitution’s separation of powers doctrine by arbitrarily concentrating the authority to resolve politically sensitive apportionment disputes in a single individual. Under no circumstances can he be a party to rewriting an apportionment statute.

I also note that there is absolutely no support in the trial court’s record for the statement in Justice Mauzy's opinion that Relators were "[Ijndividuals who sat in a courtroom in judicial proceedings in Mena, without ever asking the trial judge to do anything ..." Op. at 739. (Mauzy, J. dissenting).

. Whenever the Attorney General settles a civil suit, by the very nature of the thing, he invariably will displease some members of his "constituency." This however does not diminish his authority to settle regular, ordinary lawsuits. See, e.g., Executive Condominiums, Inc. v. State, 764 S.W.2d 899 (Tex.App.—Corpus Christi 1989, writ denied); Bullock v. Texas Skating Assoc., 583 S.W.2d 888 (Tex.Civ.App.—Austin 1979, writ ref d n.r.e.). However, there is a vast difference between settling for less than all the state is arguably entitled, or deciding whether to appeal an adverse judgment, and agreeing to a judgment that rewrites a statute because the Attorney General thinks that the statute is unconstitutional.

. Senators Eddie Lucio and Bill Sims attempted to intervene but their intervention was denied by the trial court ostensibly because they had no proprietary interest to the office of Senator. However, officeholders do not lose their citizenship rights, and thus they had every right to intervene as ordinary citizens.

As to Relators, they had every right to believe that the Attorney General was going to adhere to his original position and vigorously defend the constitutionality of S.B. 31.

. Reapportionment affects the whole state and before it is done, opportunity to be heard should be afforded to all interested parties. See Legislature of California v. Reinecke, 9 Cal.3d 166 , 107 Cal.Rptr. 18 , 507 P.2d 626, 627 (1973).

. We are all branches (legislative, executive and judicial) of the same constitutional tree. The powers of each branch are generally exclusive if lawfully exercised. If exercised unlawfully or abrogated when the opportunity for lawful exercise is afforded, the void will be filled by one of the other branches subject to review for legality.

. In fairness to the Attorney General, he entered into this settlement when it became evident that the Governor would not call a special session.

. Other state courts have imposed reapportionment plans, but only as a matter of last resort after those authorities charged with properly apportioning the state’s voting districts have abrogated that authority. See, e.g., Hellar v. Cenarrusa, 106 Idaho 586 , 682 P.2d 539, 543-44 (1984) (court ordered reapportionment plan after legislature failed to effectively remedy plan that court had struck down in previous opinion); Legislature of California v. Reinecke, 9 Cal.3d 166 , 107 Cal.Rptr. 18 , 507 P.2d 626, 627 (1973) (court ordered plan after the legislature failed to enact constitutional apportionment scheme after court ruled existing plan unconstitutional); Butcher v. Bloom, 420 Pa. 305 , 216 A.2d 457, 458-59 (1966) (court imposed apportionment scheme after legislature ignored court’s previous opinion ruling prior scheme unconstitutional and urging remedial action); State v. Zimmerman, 23 Wis.2d 606 , 128 N.W.2d 16, 17 (1964) (court ordered apportionment scheme effective until legislature and governor enacted replacement); but see Tam v. Colton, 94 Nev. 453 , 581 P.2d 447, 452 (1978) (court refused to order reapportionment because it would deny the legislature the opportunity to fashion a constitutional plan); Visnich v. Sacramento Cty. Bd. of Educ., 37 Cal.App.3d 684 , 112 Cal.Rptr. 469, 471 (1974) (court should interpose scheme only if legislature “remains obdurate and does not, given the opportunity to do so, reapportion” in a constitutional way). These cases all point to the fact that state courts should defer as long as possible from ordering a reapportionment plan. Courts should impose their own plan only after the authorities responsible for implementing reapportionment have failed, and no prospect for any alternative remedy, beyond what the court could do, exists.