Amicus Curiae Brief — Richards v. Terrazas

Supreme Court brief1992

Ask Donna

What actually matters in this document.

Text

No. 91-1270

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

ANN RICHARDS, GOVERNOR OF TEXAS, ET AL.

Appellants

Vv.

LOUIS TERRAZAS, ET AL.

Appellees

GUADALUPE MENA, MARIA GOMEZ, ZULEMA HERNANDEZ,

JUAN ANGEL GARCIA, CHAYO FLORES ZALDIVAR,

ROBERTO R. ALONZO, PATRICIA ROYBAL SUTTON,

JOSE R. KENNARD, the EL PASO COALITION FOR FAIR

REDISTRICTING, AUGUSTIN NEGRETE, BENJAMIN MENCHACA,

RICHARD ARRIOLA, SAUL GONZALEZ, and MARC CAMPOS

Intervention-Applicants

ON APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

MOTION FOR LEAVE TO INTERVENE

James C. Harrington Judith Sanders-Castro

(Counsel of Record) MEXICAN-AMERICAN LEGAL

TEXAS CIVIL RIGHT PROJECT DEFENSE & EDUCATION FUND

227 Congress Ave. (Suite 340) 140 E. Houston (Suite 300)

Austin, TX 78701-4021 San Antonio, TX 78205

(512) 474-5073 (512) 224-5476

FAX (512) 472-1043 FAX (512) 224-5382

ATTORNEYS FOR INTERVENTION-APPLICANTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES . «© © + see se c8eeeeesnee«s we Sh

QUESTIONS SOUGHT TO BE PRESENTED BY MINORITY

APPLICANTS QUESTIONS PRESENTED ...... «© « «© © © «© «© «© «© « 3

CONSTITUTIONAL PROVISIONS INVOLVED ...... .« «© «© «© «© «© « « 5

STATUTORY PROVISIONS INVOLVED ..... 2 « «© «© «© «© © © © © «© «© 6

I. PROCEDURAL HISTORY LEADING TO THE INTERVEN-

TION APPLICATION IN THIS COURT ..... 2 «© «© «© «© «© «© « 6

II. INTERVENTION BY THE MINORITY APPLICANTS IS

REQUIRED BY LAW... +++ e ee ce ee «© © © © © eo we wo oe YF

A. THE TIMELINESS OF THE MINORITY APPLICANTS'

EFFORTS TO INTERVENE .... +. © «© © «© © © © © © © © «© 9

B. LACK OF PREJUDICE BY THE MINORITY APPLICANTS'

INTERVENTION . . . . . . . . . . . . . . . . . . . . * i3

C. THE MINORITY APPLICANTS HAVE A COMPELLING INTEREST

IN THE SUBJECT MATTER OF THE LITIGATION WHICH WOULD

BE IMPAIRED WITHOUT THEIR PARTICIPATION ....... 14

D. NO PARTY TO THIS LITIGATION ADEQUATELY REPRESENTS

THE MINORITY APPLICANTS’ INTERESTS .......... 16

E. ALTERNATIVELY, INTERVENTION SHOULD BE ALLOWED

BECAUSE THE MINORITY APPLICANTS AND OTHER PARTIES

PRESENT COMMON QUESTIONS AND THERE WILL BE NO

UNDUE DELAY OR PREJUDICE TO EXISTING PARTIES .... . 24

FPF. CONCLUSION-. = + se see eeeeseseeeeeeves « « £0

III. THE THREE-JUDGE COURT WRONGLY USED THE VOTING RIGHTS

ACT IN DEROGATION OF RELIEF AFFORDED UNDER STATE

CONSTITUTIONAL EQUAL RIGHTS GUARANTEES THAT MORE

ADEQUATELY PROTECTED MINORITY VOTING RIGHTS THAN

THE PLAN PROMULGATED BY THE THREE-JUDGE PANEL ...... 27

IV. THE DISTRICT COURT MADE WHOLLY ERRONEOUS FINDINGS

UNDER SECTION 2 OF THE VOTING RIGHTS WITHOUT EVEN

CONDUCTING AN EVIDENTIARY HEARING THEREON ........ 28

A. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN

FINDING SB-1 FAIL TO MEET THE REQUIREMENTS OF

oss i: i a a ee a ee ee ee a ee ee ee a ee a ee a

B. THE LOWER COURT ERRED AS A MATTER OF LAW BY

IMPOSING ITS OWN PLAN OVER THE LEGISLATIVELY

ENACTED AND APPROVED SB-1 ..+.+ +++ 2 © © © «© «© 34

V. ARGUMENT AS TO LEGAL IMPROPRIETY OF TERRAZAS

INJUNCTION AGAINS? TEXAS STATE COURT ACTION ...... 37

Ris TCE 6 ee ees 2 6 ee 8 ee 8 4M ee GS oe OF

B. THE DISTRICT COURT'S TEMPORARY INJUNCTION OF ALL

STATE COURT PROCEEDINGS VIOLATES THE ANTI-INJUNC-

TION ACT . . . . . . . . . 7 . . . . . . . . . . . . . 38

C. THE DISTRICT COURT'S REFUSAL TO DEFER TO THE STATE

COURT ACTION VIOLATES THE DOCTRINE ESTABLISHED IN

SCOTT GERMANO . . . . . . . . . . . . . . . . . 4 6)

E . CONCLUSION . . . . . . . . . . . . . . . . . . . . . . 4 6

PRATER ie Weeeeee 6 ee ee 8H ee ee! ee wes ee ee

ATTACHMENT 1:

ATTACHMENT 2:

ATTACHMENT 3:

ATTACHMENT 4:

ATTACHMENT 5:

ATTACHMENT 6:

ATTACHMENT 7:

ATTACHMENT 8:

ATTACHMENT 9:

ATTACHMENT 10:

APPENDIX TABLE OF CONTENTS?

Letter from Minority Intervenors to Terrazas court

Chronology (Mena, Terrazas, Texas Legislature)

Final Judgment in Mena vy. Richards

Findings of Fact and Conclusions of Law (Mena)

Further and Supplemental Findings (Mena v. Richards)

Order Denying Intervention (Terrazas v. Slagle)

Sixth Application to Intervene (Terrazas)

Preliminary Injunction (Terrazas)

Comparison Chart of Senate Redistricting Plans in

Mena (SB-1) and Terrazas

Notice of Appeal (Mena v. Richards)

1 The Appendix is included separately.

wiie

Federal Cases

Allen Calculators, Inc. v. National Cash Register Co.,

322 U.S. 137 (1964) ccccccevecvecesesenssesestesesecvereeseeres 3

Amalgamated Clothing Workers v. Richman Bros.,

388 U.8. SLL (1958) co ccvccccevsveecvneeesaseseseneesesesssvsve 39

Atlantic Coast Line R.R. v. Brotherhood of Locomotive

Eng'rs, 398 U.S. 281 (1970) .-.ccccccccccscsesescvccscsessece 39,40

Avens v. Weight, 320 F. Supp. 677 (8.B.. Vas 1970) vi ccccveseweves 42

Badham v. March Fong Eu, 568 F. Supp. 156 (N.D. Cal. 1983)...... 42

Baker v. Gotz, 415 F. Supp. 1243 (D. Del.),

ettts. $46. 7.26 625 (26 Cal, A976) « cvcsvncsvnwssnseciesurseees 44

Baltimore & Ohio R.R. v. Wabash R.R. Co., 119 Fed.

678 (7th Cir. 1902), cert. denied, 187 U.S. 650

PRON i eka ceca eiabaeeceeredes SPT Tee Perr TT TTT reer ..44

Banks v. Chicago Grain Trimmers Ass'n, 389 U.S. 813

(1967), 390 GU.B. 45P (IPSS) cc ccccesesesscescesreceoressevsneveece 4

Beare v. Gath, 3221 F.Gapp 1100 (8.0. Tes IST) ccsccccccesaunve 17

Dianeni ~. GELECing, 393 7.36 667 (20 Cik. 19680) soc vc cvcvescoceneld

Bose Corp. v. Consumer Union of U.S., Inc.,

SES VU. B. SES CASS) cc cceccscccsertervrrretervaesseeressevesesves 30

Brotherhood of Railroad Trainmen v. Baltimore & R. Co.,

DSk Dale DAW CAPER Ooch ee cece KF COOP OR EHR TOR TODOS HORROR OOOO 3

Bryant v. Yelien, 447 U.S. 332 (1960) . wc cccnccccvvcccevnevscccsseveese 4

Cascade Natural Gas Corp. v. El Paso Gas Co., 386 U.S.

EOEAUET? o> daca ces erry oer teres eye Sed eek baa eae een 3

Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988).......... 39, 40

Cisneros v. Corpus Christi 1.S.D., 324 F.Supp 599

CBakes BOs BP FE) cave vcccecsevcseerisonecesrbrbasenesssenensiiane 17

Sate: Vi D,, Site Gulke TOD TASS) soa viccce re cere veacbersreewss 34

Davis v. Board of School Comm'rs of Mobile County,

517 F.2d 1044 (5th Cir. 1975), cert. denied,

SS Veles. PE EASTER es cee eb ne rbeeaa abba vesseieeswees eeeaerew es 25

Diaz v. Southern Drilling Corp., 427 F.2d 1118

i Rs fee is nn dae CEL a POSES RO ERO EE ES EES Ee 13

Don't Waste Washington Legal Defense Forum v. Washington,

COR Wells Dae EROS LS 6 00-46 os 0668s 6668004 O OOD EDO O Ke ROS ORS 9

Eastern-Central Motor Carriers Assoc. v. United States,

S21 UB. 196 (19E4) cc ccnccvcscveserssces Coeseccsseseceseves coceee 4

Garsa vv. Seith, 320 F.Supp 131 (W.D. Tee. 1970) ccaccsccsscecseces 17

Germano v. Kerner, 241 F. Supp. 715 (N.D. Ill. 1965)........... ~42

Graves v. Barnes, 378 F. Supp 640 (W.D. Tex. 1974)...ccccccscecs 17

Gregory V¥. ABNGCTFOLT, 111 S&S. Cl. 299D (ADPL) cc vcccvcconevesssecses 38

Geanee v. Beecae, G70 F. 28 365 (OER Clb. SOOO) oc cv ocacvteacocves 14

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473 (1981)...... -40

eee WV. SEVERE, 437 Use 220 CERES) 6 oc ccc wee tere bas beeeceeeer 40

wunter v¥. Ohio Gu Fel. Hilder, 396 U.8. 679 (19690) ..cccvdsccocrnecsee 4

Kline v. Burke Construction Co., 260 U.S. 226 (1922)............ 44

Jansen v. City of Cincinnati, 904 F.2d 336

Sa. DD Chas bcp kee Sas eee ae ee eae ee eee ee 12, 26, 21

-iii-

Federal cases, continued

Labor Board v. Acme Industrial Co., 384 U.S. 925 (1966),

3SBS U.S. 432 (1967) .ccccccscccccccsccccccccsccesvvessecsscveseses 4

Mahoney v. Burhardt, 299 F. Supp. 787 (D. N.J. 1969)............ 42

Maryland Committee for Fair Representation v. Tawes,

BIT Ustdse BOS CAGE) oc ccccccesccccecrccecccesccsecesesececs 43, 46

rr ee oi, BO FASB) oc cccccvecesvccsvecseses 41

eee 0, mew LOER, 423 UU... 345, (1I9TS) ccccccccsevsccsece oeevece as Be

Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967)......... ecvecee iv, 24

Overton v. City of Austin See 871 F.2d 529, 536

(5th Cir. 1989) (CELE) .. cc ccccccccccccccccccscccccccvecscscces 32

Pennsylvania Bureau of Correction v. United States

ree. Ore ies BS CAGES) cc cc cccsescvesesscceseses 44

Phillips v. Chas. Schreiner Bank, 894 F. 2d 127

cee e net keen nce enessccncuserecses 40

Reynolds v. Sims, 377 U.S. 533 (1964) ....cccccccccccccccccscsces 35

Rogers v. Lodge, 458 U.S. 613 (1982)... cece reece eeercvescescece 39

Rogers v. Paul, 382 U.S. 198 (1965) .....- cece neeeer eres eeceese 4, 30

Sam Fox Publ. Co. v. United States, 366 U.S. 683

ET eee eC Ue eb eee ee aeseeseerenacesveessvseuees 3

Scott v. Germano, 381 U.S. 407 (1965)

PE GUEITRM) oo ccc ce cc cece svasecccccers a7, 20, 41, -44,.43, @&

ee ee re. 2 Walle BO CARES) ccoccccasececsovesceseceseces 46

Securities & Exchange Comm'n. v. Dresser Indus., Inc.,

628 F.2d 1368 (D.C. Cir. 1980), cert. denied,

BED Dolls DOS CAPOO) ccc ccccee ser eeesesesessesevevrecvecseveseees 17

ne nn. Ce fom Ree (Ds. CLF 1969) .ccccccccsccccsscces 22

Sugarman v. Dougall, 413 U.S. 634 (1973)... cece ceeeeccerevessves 38

Terrazas v. Clements, 537 F.Supp. 514 (W.D. Tex. 1982),

stay denied, 456 U.S. 902 (1982)... . ccc ccccccvvccccvcvccccce 36

Texas v. United States Dept. of Energy, 754 F.2d 550

aS RE errr 9, 40

Thermeurg ¥. Gingles, 478 U.S. 30 (1982) 2. ccccvcccccvcccses 30, 34

rn en re 1, OIL (USERS. enc ccc ccnvesccceseneevecs 45

Trbovich v. United Mine Workers, 404 U.S. 528

Ee eee ke ecb whee teeaneccsecneses i 23, s: 2

United Auto Workers v. Scofield, 382 U.S. 205 (1965)............. 3

United States v. Terminal Railroad Ass'n.,

Neen ee eee wees a eenn senses sdeeees 4

United States v. Texas, 252 F.Supp 234 (W.D. Tex. 1966)......... 17

United States Postal Service v. Prennan, 579 F.2d 188

EBM CAF. T97E) oc ccccccccceveccscecsccccccccssececcessccces 3, a2

Washington State Bldg. & Const. Trades v. Spellman,

684 F.2d 627, 630 (9th Cir. 1982),

i i MMs cc cece e esse scorer rcocccscrossesesenccesee 9

rr ns Cr ici, 2EO CEO ccc cascnccceeseesecesvcus 35

ee i, Fee CROP Sp ceccscasececesessusseonce 35, 36

eee Vw. mewemerr, 412 U.S. 755 (1973) .cccvcsaccescccvscceesesses 17

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc)....17

-iv-

Texas Cases

Cae ec es. Ds Beta es bb a oo oe SRR Oe oe eee eee me é

Guadalupe Mena, et al. v. Ann Richards, et al....... a, Os 24. 26032

16-18, 20, 21, 23-25, 27, 31-37, 44, 45

in £0 Molen, 725 BoB. 2G COG (TOR. 19ST) cc cscs eccrverssvseeser ececkS

Mesquite v. Alladin's Castle, Inc., 455 U.S. 283 (1982)...... sea k®

Quiroz v. Richards, No. C-4395-91-F (332nd 7

Judicial District of Texas, Hidalgo County)......11, 23, 35, 36

Terrazas v. Ramirez, 35 Tex.S.Ct.J. 256

(Dec. 17, 1991) -ccccrveves GS, 75 @, 20, a2, 26, 26, 17, 20, 23, 27

28, 36, 31, 34, 37-39, 41, 44, 48

Whitworth v. Bynum, 699 S.W.2d 194 (Tex. 1985) ...cccccccccccsccece 16

Other State

Harris v. Shanahan, 192 Kan. 183 P.2d 771 (1963)... ccccccccvcee 43

United States Constitution

dC FETS Te Tees eS ee ee eee ee ECE CC TT EOE CT CE CST CT Tee eT eS 5

Amend XIII

ot Yet ee RTE RE CSE CEE Ee CCT CRE TTC TET Ee Cee ree ree ee 6

Article IV

| oe Pree ee ae ee eee A OT RRC Te ET ee ee ee Pee 38

Statutory Provisions

a, RNS oo oe iia ewe ac eee kn Dale ecb che en eens 6, 44, 46

Es Ns ie NG os Cob eis POL ns OER OCR EE eee ewe ueeeeeee 6, 38

No a eG hy ve bce an bbe eames oe a ee ieee 22

oR es Pe rr hry ee ree ree rn ac ny 10, 39

ss SE UN ae bo iw o-e Gi oo eh eee ee ae ened 10, 15, 25

ee Wicaii S -6 6 o 0 54-055 0 ha oo oe Sk sana ek sd Choker 10, 29

Federal Rule of Civil Procedure

ae Pee eT eT TREC TCT CYT TET TTT eT ee eee 4, 6, 9, 26

fw lt oa | Pere eR Cee ETE PTT LE CTE eee eer ee ee 9, 24

ee | PTT LEER ERT RECT E CU LC TTT Oe CUP eT TT CCE 6, 9, 26

Se OUT EE 85.46 60056 64446669. 0 Ow HOS OOS CECE ORS OE OE REO Le 24

Texas Constitution

Article I,

a TCeeugr ee ee Tee RC OTe TE CTT POLO TTT Te Tee 3, ¥5 aey ar

Pe! Perret rrerererecrert terre, eee eT ee eee eT Te ee >» 4, 106, 3?

ee aes ee ee eee 8 ee ee ee ot ee ee ee ee ee Mele 6, 7, 10

ie. STE reeTCeCLreRereReeeRehe rere rer Tere Tre ee er ror 7, 10

Article V,

ee SECT CTE CEL EL COTE CEE CTE CTS CS Tee rT er eT rer 00042

Texas Code

Government Code §22.001(c) (Vernon SOE Sch eceeeeeweeenereeennes 42

Other Authorities

1A pt. 2 J. Moore, W. Taggart, A. Vestal, J. Wicker

& B. Ringle, Moore's Federal Practice § .209[2] at

2340 (26 GB. 1084) oc cccecs er! RPE rms ee gig Sie 40

7A C. Wright & A. Miller, Federal Practice and Procedure

BOS. LHSS CEPTS occ cee c ee eee eM nese ber rerescesecrenesescosese 9

7C Wright, Miller & Kane, Federal Practice and Procedure:

Cis. Oe Oc SOR, OS Bee CAE) 6 ue 6 606 cob us bee keccescs 17

17 A.C. Wright, A. Miller, & E. Cooper,

Federal Practice and Procedure § 4247, at 127..........cc0e0. 43

Hine, Black Victory: The Rise and Fall of the White

Re Se PORE CPP UG 6 cece eb ee debaceuseeadececnseces 49

Montejano, Anglos and Mexicans in the Making of Texas,

Sr Be CLOT D6 666s ON CRORE TERRE HEE HORE OSES ORE OS OS ODe i

National Conference of State Legislatures, Reapportion-

ment Update (April 1987)..... MOPESBAREC CEA CH WEOH DO O04 ROS OR BES 37

-vi-

No. 91-1270

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

ANN RICHARDS, GOVERNOR OF TEXAS, ET AL.

Appellants

Vv.

LOUIS TERRAZAS, ET AL.

Appellees

GUADALUPE MENA, MARIA GOMEZ, ZULEMA HERNANDEZ,

JUAN ANGEL GARCIA, CHAYO FLORES ZALDIVAR,

ROBERTO R. ALONZO, PATRICIA ROYBAL SUTTON,

JOSE R. KENNARD, the EL PASO COALITION FOR FAIR

REDISTRICTING, AUGUSTIN NEGRETE, BENJAMIN MENCHACA,

RICHARD ARRIOLA, SAUL GONZALEZ, and MARC CAMPOS

Intervention-Applicants

ON APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

MOTION FOR LEAVE TO INTERVENE

Thirteen Mexican American individuals from throughout Texas

and one community organization that protects voting rights of

Mexican Americans in West Texas respectfully ask this Court for

leave to intervene as parties in this case, pursuant to Federal

Rule of Civil Procedure 24(a).

The Intervention-Applicants (designated as "Minority Appli-

cants" for purposes of this motion) appreciate that they seek a

seldom-granted remedy in this Court.

However, they believe the extraordinarily unusual circum-

stances that give rise to their seeking relief in this Court, to-

gether with the fact that they have rights vitally affected by this

appeal, rights which are not adequately protected or represented by

any party to this cause, are imperative enough to request the Court

to allow them to intervene in order to safeguard their interests

that would otherwise go undefended. |

Because the Minority Applicants seek to vindicate fundamental

voting rights and to prevent discrimination against those rights on

the basis of national origin, they would suggest respectfully that

this is the kind of unusual case that should compel the Court to

look favorably upon this request for intervention. The Minority

Applicants have no other means at their command to otherwise safe-

guard and defend their voting rights.

Indeed, the Minority Applicants on five different occasions

have sought to intervene in the three-judge court below; and each

time the court rebuffed them, the most recent occasion being by

order of February 25, 1992, which rejected their third, fourth, and

fifth applications for intervention. The first two times, the

lower court denied their intervention attempts before the December

10, 1991 preliminary injunction hearing.

The Minority Applicants subsequently have sought review of

that order by filing their sixth application to intervene on March

13, 1992, which addresses in detail the issues relied upon by the

three-judge panel in rejecting applications two through five. To

this date, the lower court has not acted on that motion, despite a

subsequent request on April 13 from the Minority Applicants that it

do so. See Appendix Attachment 1 to this motion. The Minority

Intervenors thus have done all that they can to intervene below but

have faced repeated rejection.

Nevertheless, even were the lower court to deny intervention

again, the Minority Applicants would only be able to appeal that

denial to this Court and still would be unable otherwise to bring

forward the question of the legal inadequacy of the judgment

entered on December 24, 1991, and supplemented on January 10,

1992,+ which derogated very significant state constitutional

guarantees that are more protective of their voting rights than

accorded by the December 24 and January 10 orders. see, @€.G.

United Auto Workers v. Scofield, 382 U.S. 205, 209-10 (1965); Allen

Calculators nce. v. National Cash Register Co., 322 U.S. 137

(1944); Sam Fox Publishing Co. v. United States, 366 U.S. 683

(1961); Brotherhood of Railroad Trainmen v. Baltimore & R. Co., 331

U.S. 519 (1947); Cascade Natural Gas Corp. v. El Paso Gas Co., 386

U.S. 129 (1967); Trbovich v. United Mine Workers, 404 U.S. 528

(1972); NAACP v. New York, 413 U.S. 345, 364-69 (1973).

Further, since the Minority Applicants seek a modification of

the temporary election decrees of December 24 and January 10 at

issue before this Court, in order to supplant them with the legis-

latively-adopted election plan more protective of minority voting

rights, as decreed by a Texas state district court on January 13,

1992 in Guadalupe Mena, et al. v. Ann Richards, et al., No. C-454-

91-F, in the 332nd Judicial District for Hidalgo County, Texas

1 It should be noted that neither the December 24 order nor

the January 10 order was unanimous. The Circuit Judge dissented

both times on grounds of federalism.

Further, although the lower court made fact findings in its

January 10 order, no evidentiary hearing whatever was ever con-

ducted on the factual matters in that order, especially concerning

comparisons of redistricting plans.

(finalizing a series of earlier orders that had been issued by the

state court since August 22, 1991), the Court should allow them to

intervene. * United States v. Terminal Railroad Ass'n, 236 U.S.

194, 199 (1915). See also Labor Board v. Acme Industrial Co., 384

U.S. 925 (1966), 385 U.S. 432 (1967); Eastern-Central Motor Car-

riers Assoc. v. United States, 321 U.S. 194, 198-99 n.5 (1944).

This appeal presents the configuration of unusual circumstan-

ces in which the Court on other occasions has allowed non-parties

below to intervene, particularly to defend vital rights not being

defended by any party to the appeal. See Banks v. Chicago Grain

Trimmers Ass'n, 389 U.S. 813 (1967), 390 U.S. 459 (1968); and

Hunter _v. Ohio ex rel. Miller, 396 U.S. 879 (1969). See also

Bryant v. Yellen, 447 U.S. 352, 366 (1980); Rogers v. Paul, 382

U.S. 198, 199 (1965).

The Minority Applicants have no alternative other than

intervention to bring forward their concerns and seek the protec-

tive mantle of this Court.

QUESTIONS SOUGHT TO BE PRESENTED

BY MINORITY APPLICANTS

The questions, which are all substantial and which no party

yet has presented to this Court and which the Minority Applicants

seek to bring before the Court as reasons why it should set aside

the December 24 and January 10 orders in this appeal are:

2 Because the Terrazas interim order basically incorporated

the Mena v. Richards judgement/settlement as to the Texas House of

Representatives, the Minority Intervenors direct their attention to

the Terrazas Senate plan, which is much less protective of minority

rights than the Mena plan (also referred to as "SB-1") inasmuch as

the Mena plan eventually was adopted and approved by the Texas

Legislature on January 8, 1992.

1. Whether the district court committed clear legal

error by making findings and issuing a ruling under Sec-

tion 2 of the Voting Rights Act without even conducting

an evidentiary hearing thereon?

2. Whether, given the principles of federalism and

the Fourteenth Amendment, as well as the Congressional

intent behind the Voting Rights Act, a three-judge court

may use the Voting Rights Act in derogation of relief

afforded under state constitutional equal rights guaran-

tees that more adequately protect minority voting rights

than the plan promulgated by the three-judge panel?

3. Whether the Anti-Injunction Act permits a

federal trial court to enjoin a state court from adjudi-

cating challenges to the state's legislative districts?

4. Whether a federal trail court should defer to a

state court where parallel actions are pending in each

court challenging a state's legislative districts?

5. Whether the All Writs Act authorizes a federal

trial court to enjoin implementation of a final judgment

in 42 previously commenced state court action that re-

districts the state legislature in accordance with state

constitutional equal rights provisions, consistent with

the Voting Rights Act?

CONSTITUTIONAL PROVISIONS INVOLVED

The Tenth Amendment to the United Constitution provides:

The powers not delegated to the United States by the

Constitution nor prohibited by it to the States, are re-

served to the States respectively, or to the people.

Section 1 of the Fourteenth Amendment to the United States

Constitution provides, in pertinent part:

No State shall ... deny any person within its

jurisdiction the equal protection of the laws.

® Texas Constitution, article I, section 3, provides:

All free men, when they form a social compact, have

equal rights, and no man, or set of men, is entitled to

exclusive separate public emoluments, or privileges, but

in consideration of public services.

The Texas Constitution, article I, section 3a, provides:

Equality under the law shall not be denied or

abridged because of sex, race, color, creed, or national

origin. The amendment is self-operative.

The Texas Constitution, article I, section 19, provides:

No citizen of this State shall be deprived of live,

liberty, property, privileges or immunities, or in any

manner disenfranchised, except by the due course of the

law of the land.

STATUTORY PROVISIONS INVOLVED

28 U.S.C. §1651(a) provides:

The Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in

aid of their respective jurisdictions and agreeable to

the usages and principles of law.

28 U.S.C. §2283 provides:

A court of the United States may not grant an injunction

to stay proceedings in a State court except as expressly

authorized by Act of Congress, or where necessary in aid

of its jurisdiction, or to protect or effectuate its

judgments.

I. PROCEDURAL HISTORY LEADING TO THE

INTERVENTION APPLICATION IN THIS COURT

The Minority Applicants, at five separate times pursuant to

Federal Rule of Civil Procedure 24(a) and, alternatively, pursuant

to Rule of Civil Procedure 24(b), sought to intervene and partici-

pate in this action below.

The Minority Applicants attempted to intervene as Plaintiffs

in order to assure the continuing invalidity of HB-150 and SB-31,

the original legislative plans redistricting the Texas House and

Senate respectively, to insure the implementation of a legislative

reapportionment plan that comports with both federal law and the

Texas Constitution, and to protect the final state-court judgment

on January 13, 1992 and other relief that they won under the Texas

Equal Rights Amendment and other provisions of the Texas Constitu-

tion (Tex. Const. art. I, secs. 3, 3a, 19, 29) as plaintiffs in

Mena v.Richards.

The Minority Applicants' efforts were all unsuccessful, their

last three attempts being rebuffed together on February 25, 1992.

The Minority Applicants' first attempted interventicn was for

limited purposes, namely, opposing the Texas State Defendants'

Motion for Stay of Court Proceedings in Mena. On August 2, 1991,

the lower court overr led the State Defendants' application for

stay and, in the same order, denied as moot the Minority Appli-

cants' application.

On December 10, 1991, the Minority Applicants filed an amended

motion to intervene, seeking to participate in the preliminary

int.iction hearing.? That application set forth the Minority

Appiicants' interests at stake, including the Mena proceedings that

had concluded recently in state court, and the injunctive relief

secured in Mena, since the initial intervention application.

Although the Minority Applicants believe that the three-judge

court erred in denying their intervention attempts on December 10

and 12, they did not address again that issue. Rather, they sought

to participate in the case as plaintiffs after entry of the Decem-

ber 24 preliminary injunction and from that point forward.

On January 2, 1992, the Minority Applicants filed their Third

Motion to Intervene, again setting out their interests at stake in

3 At the time of the preliminary injunction hearing, the

Republican Party plaintiffs had not conducted any discovery what-

ever; and defendants, only limited discovery. Nevertheless, the

Minority Applicants, at the request of the Terrazas plaintiffs, had

provided them with over 2,000 pages of documents, depositions,

statements of fact, and exhibits from the Mena litigation.

the litigation and further delineating the circumstances presented

by on-going proceedings in the state courts and legislature.

On January 8, the legislature, sitting in special session

passed a new reapportionment plan which was nearly identical to

that arrived at in settlement of, and as a result of, the Mena

litigation.?

On January 9, the Minority Applicants filed their Fourth

Motion to Intervene following the successful intervention of the

Appellees here (except for Tom Craddick) in the Mena litigation on

January 6, 1992.° One should note that Appellees' intervention

came after the December 24 Terrazas order.

On January 13, 1992, the new Senate and House reapportionment

plans (SB-1 and HB-1) were approved and adopted by Hidalgo County

District Judge Mario E. Ramirez, Jr., presiding over the Mena

litigation.

On January 15, the Minority Applicants filed their fifth

motion to intervene.

On February 25, 1992, the lower court rejected the Minority

Applicants' third, fourth, and fifth motions to intervene, the

principal reasons being that the motions were not timely and that

the interests of the Minority Applicants were adequately represent-

4 A more complete chronology of the events surrounding the

Mena case, the legislative response thereto, and this litigation is

set out in Appendix Attachment 2, excerpted from a report prepared

by the House Research Organization for the Texas Legislature.

5 Immediately thereafter, the Terrazas plaintiffs, after

receiving deposition notices from the Minority Applicants, non-

suited their intervention and declined to participate further in

Mena. The same day they filed their own state court action in

Midland County, Texas. Craddick v. Richards, No. 38,899.

ed by existing parties to the litigation.®

II. INTERVENTION BY THE MINORITY

APPLICANTS IS REQUIRED BY LAW

The Minority Intervenor sought to intervene as plaintiffs un-

der Federal Rule of Civil Procedure 24(a) (intervention as of

right) and Rule 24(b) (permissive intervention). In either case,

Rule 24 traditionally has received a liberal construction in favor

of intervention. Washington State Bldg. & Const. s Vv. l-

man, 684 F.2d 627, 630 (9th Cir. 1982), cert. denied sub nom. Don't

Waste Washington Legal Defense Forum v. Washington, 461 U.S. 913

(1983), quoting 7A C. Wright & A. Miller, Federal Practice and

Procedure sec. 1904 (1972).

The four-part test for intervention under Rule 24(a)(2) is as

follows:

(1) The application for intervention must be timely;

(2) The applicant must have an interest relating to the

subject of the action;

(3) The applicant must be so situated that the disposi-

tion of the action, as a practical matter, may im-

pair or impede the ability to protect that inter-

est; and,

(4) The applicant's interest must be represented inade-

quately by existing parties to the suit.

Texas v. United States Dept. of Energy, 754 F.2d 550, 552 (5th Cir.

1985).

A. THE TIMELINESS OF THE MINORITY

APPLICANTS' EFFORTS TO INTERVENE

The first fault the lower court laid on the Minority Appli-

6 The trial court did not address why it had granted virtually

all the other motions to intervene, regardless of when they have

been filed, a number of them after the Minority Intervenors filed

theirs.

cants' third, fourth, and fifth motions to intervene (filed January

2, 9, and 15, 1992, respectively) was that they were not timely.

That arguably may have been the situation as to the second

application relating to the December 10 preliminary injunction

hearing. However, it assuredly was not true with respect to the

three motions in January concerning subsequent activity in the case

and the Minority Applicants' participation in the trial on the

merits. The Minority Applicants sought to intervene as plaintiffs

from that point forward, not retroactively.

Regardless, the Minority Applicants acted expeditiously

throughout the litigation below to assert their pivotal interests

in matters under consideration by the three-judge court.

For well over a year, the Minority Applicants consistently and

vigorously worked to insure that the state legislative redis-

tricting process equitably and fairly protected the voting rights

of Mexican Americans in Texas, consistent with the egual rights

mandate of the Texas Bill of Rights (Tex. Const. art. I, secs. 3,

3a, 19, 29) and in compliance with the Voting Rights Act of 1965,

as amended, 42 U.S.C. §§1973 and 1973(c).

When the original 1991 redistricting plans drawn by the state

legislature (HB-150 and SB-31) using 1990 census data were enacted

over their objections as violative of their rights, the Minority

Applicants immediately sought redress in Texas state district

court, where they ultimately prevailed.’

The Mena victory, which was finally effected on January 13,

7 This Terrazas action below was filed on May 22, 1991, three

months after the Minority Intervenors first filed Mena v. Ricnards.

1992, protected electoral strength for Mexican Americans in Texas.

As soon as it became clear to the Minority Applicants that their

state court victory was threatened by a collateral proceeding

before the three-judge court, they promptly sought intervention to .

safeguard these rights.®

"Timeliness is to be determined from all the circumstances.

And it is to be determined by the Court in the exercise of its

sound discretion." NAACP v New York, 413 U.S. 345, 366 (1973).

In reviewing "all the circumstances" as they relate to the

timeliness of a motion to intervene, the point to which the suit

has progressed is a relevant factor. NAACP, 413 U.S. at 365-66.

The Minority Applicants' entrance into the case would have caused

no repetition of effort. Nor would it have occasioned disruption

of any trial schedule adopted by the three-judge panel because the

court, to this date, has adopted none.

There was no warning that the Minority Applicants should

attempt to intervene earlier than they did. Following denial of

the stay application on August 2, 1991, the action below remained

dormant as all parties became involved in the state district court

cases of Mena and its related counterpart, Quiroz v. Richards, No.

C-4395-91-F (332nd Judicial District of Texas, Hidalgo County).

Indeed, the August 2 order, refusing to interfere with the

8 The Mena Minority Citizens did not have a final state court

judgment to protect in this Court until January 13, 1992, which is

when they sought to intervene (January 2, 9, and 15), especially

after it became clear on December 24, 1991 that the lower court

would not defer to Texas judicial and legislative prerogatives on

this question. They did win a temporary injunction on December 9,

1991 in Mena as to redistricting the Texas House and thus sought to

intervene in the lower court the next day, a motion they again

unsuccessfully renewed orally two days later.

Mena state court proceedings, specifically noted (p.3) that all the

claims brought forward rested exclusively on alleged violations of

Texas law. Similarly, the August order observed that none of the

Terrazas plaintiffs sought to interfere with the progress of the

Mena litigation (p.2).

Given that order and the posture of the case, there was no

reason to assume that the Mena litigation would be placed at risk

by the Terrazas plaintiffs. Indeed, a fair reading of the August

2 order is to the contrary, that the state proceedings would move

forward unimpeded by federal intervention.

During this time, the parties were all involved in modifying

the previously-passed legislative plans in response to the Mena

lawsuit, which was finally settled on December 9, 1991 as to the

Texas House. The very next day, the Mena Intervenors, now having

a protectable interest, filed their amended (second) motion to

intervene in order to safeguard the full voting rights for Mexican

Americans in Texas. It was only at this point that the Minority

Applicants were able to determine what interests were specifically

at stake and which position they would have to take to safeguard

their interests.

Courts have recognized the propriety of waiting to actually

intervene until the nature of the interest at stake is clear. See,

e.q., Jansen v. City of Cincinnati, 904 F.2d 336, 341 (6th Cir.

1990). .

Further, the lower court gave rather short notice of the

setting for the December 10 hearing. The notice, issued on No-

vember 25, 1991, immediately after Thanksgiving, set the hearing

two weeks later. No notice was given to the Minority Applicants.

Thus, the Minority Applicants acted with dispatch as soon as

it became apparent they had an interest in the case. Nor can it be

said the parties in this litigation were unaware of the Minority

Applicants' interest and position on the various redistricting

schemes. The Minority Applicants all along were central figures in

challenging the 1991 redistricting of the Texas legislature.

Indeed, the parties in the case were all intimately involved in the

Mena proceedings: the Texas Defendants, as adverse parties; and the

Appellees here, first as in-court observers, then as formally ad-

mitted party intervenors in Mena.

The Minority Applicants' application in this Court is timely;

and they meet all the prerequisites for intervention as of right.

B. LACK OF PREJUDICE BY THE MINORITY

APPLICANTS' INTERVENTION

Another factor to be considered with respect to timeliness is

resulting prejudice to the original parties. Diaz v. Southern

Drilling Corp., 427 F.2d 1118 (5th Cir. 1970).

With respect to prejudice to the parties in this case, there

is none. There was not even a suggestion in the record that any

party opposed the Minority Applicants' last three applications for

intervention; and none argued that applications were not timely or

that they were prejudicial thereby. ?

9 The Mena Minority Citizens, as amici curiae, submitted

extensive documentation at the December 10 hearing regarding the

Mena House and Senate plans that they had secured, at least ona

temporary basis, as of the time of the hearing. Indeed, those

plans are close to those ultimately adopted by the Texas Legisla-

ture and approved by the state court on January 13, 1992 in Mena.

Thus, the plans proffered by the Mena Citizens were long

before the court; and no party could claim prejudice because of

Indeed, given that the lower court's December 24 order

indicated that trial would not occur until after the November 1992

elections, it is difficult to imagine how any party would be pre-

judiced by the Minority Applicants' entry into the litigation.

Similarly, the Minority Applicants' application in this Court

does not prejudice any party to this appeal. Further, on April 13,

1992, counsel for the Minority Applicants sent a letter to all

counsel involved in the Terrazas litigation, indicating their

intent to seek intervention in this Court and inquiring as to

whether any party opposed the intervention. To date, none have

replied negatively. Three intervenors have replied positively.

C. THE MINORITY APPLICANTS HAVE A COMPELLING INTEREST

IN THE SUBJECT MATTER OF THE LITIGATION WHICH

WOULD BE IMPAIRED WITHOUT THEIR PARTICIPATION

The same reasons that favor the Minority Applicants' partici-

pation in the proceedings below favor their intervention in this

appeal.

The purpose for which the intervention is sought should also

be considered in evaluating the totality of the circumstances to

determine the timeliness of an application. Grubbs v. Norris, 870

F.2d 343, 345 (6th Cir. 1989). Here, the centrality of the

interest asserted weighs in favor of intervention.

Fairly stated, no party to this litigation has a more com-

that fact. Further, by the time of the preliminary injunction

hearing the Minority Applicants had voluntarily provided over 2,000

documents, depositions, statements of fact, and exhibits to the

Terrazas Appellees at their request.

What remained for the Mena Citizens to do was prove as an

evidentiary matter that their plans are more protective of minority

rights than the Terrazas interim plan. That they are more protec-

tive is shown by the comparisons drawn by the House Research Or-

ganization (included here as Appendix Attachment 9).

pelling interest in the subject matter of this case than the

Minority Applicants, who are representative of Texas Mexican

Americans whose voting rights are intended to be protected by the

Texas Constitution and Voting Rights Act, 42 U.S.C. 1973b(f) (2).

They have been the engine behind the entire effort to insure that

redistricting lines are drawn in compliance with Texas constitu-

tional law.

The Minority Applicants originally filed suit in state

district court over the plans for the Texas House and Senate.

After lengthy and costly litigation, they were able to secure a

settlement with the Texas Appellants. This settlement was subse-

quently adopted by the legislature and ratified by Judge Ramirez;

this plan is at issue in this appeal.

As parties to the state court settlement, and as intended

beneficiaries of the Voting Rights Act, the Minority Applicants

clearly have a substantial interest in this cause, separate and

distinct from that of all the other parties.?°

It is obvious that their interests could be impaired by deci-

sions of the three-judge court and by this Court. Each decision

has, and will continue to have, a distinct impact on their voting

rights guaranteed under state and federal law. The Minority Appli-

cants must have the opportunity to participate in the proceedings

out of which any injunctive orders will be generated.

10 It should also be noted that Judge Ramirez found on January

13, 1992, that the lower court's December 24 order, even if it met

the measure of federal requirements, fell short of the Texas Bill

of Rights mandate, that is, it was not protective of minority

voting rights to the extent demanded by the Texas Constitution.

See Appendix Attachment 5 (Further and Supplemental Findings of

Fact and Conclusions of Law), 11, 12-23 (paras. 34, 40-45, 47-65).

Perhaps one of the strongest reasons favoring the Minority

Applicants' request is that on January 14, 1992, the court below

issued a temporary restraining order and then a preliminary injunc-

tion against them, non-parties in the Terrazas litigation, prohi-

biting them from doing anything further in Mena or any other liti-

gation in any court, current or future. See Appendix Attachment 8.

That order precludes Texas courts from construing and imple-

menting the two state equal rights provisions (Tex. Const. art. I,

§3, 3a) that this Court and Texas courts have recognized as more

protective than the Fourteenth Amendment. See In re McLean, 725

S.W.2d 696 (Tex. 1987); and Mesquite v. Alladin's Castle, Inc., 455

U.S. 283 (1982); Whitworth v. Bynum, 699 S.W.2d 194 (Tex. 1985).

Certainly, with such extraordinary injunctive orders issued

against them, the Minority Applicants should be entitled to inter-

vene, not only to protect themselves from possible sanctions (which

Appellees already have invoked repeatedly in Terrazas??) but also

to protect the subject matter to which the injunctive orders

pertain. Due process demands no less.

D. NO PARTY TO THIS LITIGATION ADEQUATELY

REPRESENTS THE MINORITY APPLICANTS' INTERESTS

Here, too, the same reasons that favored the Minority Appli-

cants' participation in the proceedings below support their inter-

vention in this appeal.

11 £.g., Motion to Enforce Preliminary Injunction, Suggestion

for Sanctions Against James C. Harrington and Judith Sanders-Castro

(April 4, 1992); Plaintiffs' Motion for Sanctions for Violations of

Federal Rule of Civil Procedure 11 (Jan. 31, 1992); Motion for

Protective Order and for Sanctions Against Judith Sanders-Castro

(Jan. 24, 1992); Motion to Enforce Temporary Restraining Order and

Suggestion of Contempt (Jan. 21, 1992).

Once intervention applicants demonstrate that another party's

representation of their interests may be inadequate, the burden of

proof on this issue shifts to those resisting intervention. ?}?

Securities & Exchange Comm'n. v. Dresser Indus., Inc., 628 F.2d

1368, 1390 (D.C. Cir. 1980), cert. denied, 449 U.S. 993 (1980). See

also Nuesse v. Camp, 385 F.2d 694, 702 (D.C. Cir. 1967). Further,

the burden on the intervenor applicants to make the required show-

ing should be treated as minimal. Trbovich, 404 U.S. at 538 n.10.

No party in this case can be said to adequately represent the

interest of the Minority Applicants. With respect to the Texas

Appellants, their inadequacy of representation is most clearly

demonstrated by State's unhappy historical record of adopting and

promoting election systems proven to be detrimental to Mexican

American voters, ?}?

including the plans invalidated by Mena.

In addition, Texas Appellants have been implacable foes of the

Minority Applicants in the lengthy and bitter battle in state court

over the 1991 redistricting plans. The settlement reached between

the parties under pressure of litigation cannot transform magically

12 again, the Minority Intervenors would observe that none of

the parties in this case filed papers opposing their third, fourth,

or fifth intervention attempts in Terrazas below. And none oppose

their efforts here.

13 See, e.g., White v. Regester, 412 U.S. 755 (1973): Zimmer

v. McKeithen, 485 F.2d 1297 (5th Cir. 1973) (en banc); Beare v.

Smith, 321 F.Supp 1100, 1103 (S.D. Tex. 1971), aff'd sub nom. Beare

v. Briscoe, 498 F.2d 244 (5th Cir. 1974); Graves v. Barnes, 378 F.

Supp 640, 643 (W.D. Tex. 1974) (three-judge), aff' j t

part sub nom. White v. Regester, 412 U.S. 755 (1973); Cisneros v.

Corpus Christi I.S.D., 324 F.Supp 599 (S.D. Tex. 1970); Garza v.

Smith, 320 F.Supp 131 (W.D. Tex. 1970); United States v. Texas, 252

F.Supp 234 (W.D. Tex. 1966); Montejano, Anglos and Mexicans in the

Making of Texas, 1836-1986 144 (1987); Hine, Black Victory: The

Rise and Fall of the White Primary in Texas 27-28 (1979).

Appellants overnight into guarantors of the minority voting rights.

Further, the courts recognize the incongruity of depending cn

one's adversary for protection of contested rights as the anomaly

it would be: "The [proposed intervenor] cannot be required to look

for adequate representation to one who is his opponent ..." Jansen

v. City of Cincinnati, 904 F.2d 336, 343 (6th Cir. 1990) quoting 7C

Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d,

sec. 1909, at 321-23 (1986).

The Minority Applicants have different interests from the

Texas Appellants in this litigation. Their interests in securing

full voting rights for Mexican Americans is distinct from the

State's interest in defending the particular plan drawn by the

legislature, especially one drawn to serve the legislators' own

interests rather than to protect minority voting rights.

F As the attached chronology from the House Research Organiza-

tion demonstrates (Appendix Attachment 2), the Texas Appellants

fought the Minority Applicants every step of the way, from early in

the legislative process, through the process of gubernatorial

inaction, and all the way through the state court litigation.+4

Only when the writing was on the wall in early December did

the Texas Appellants finally enter into negotiations.

Further evidence of the Texas Appellants' hostility toward the

Mena judgment, and lack of ability to protect the Mena interests,

14 Indeed, the Texas Defendants sought to biock the temporary

injunction won by the Minority Intervenors in Mena on August 22,

1991, by a direct appeal to the Texas Supreme Court. Although

eventually unsuccessful, they effectively tied up the Mena litiga-

tion for nearly eight weeks, which, in turn, created the timetable

justification upon which the lower court relied for its interim

order.

is shown by the fact that, on February 5, 1992, they appealed the

Mena judgment in its entirety to the Corpus Christi Court of

Appeals (see Appendix Attachment 10). This, even though they asked

the trial court to enter the judgment on January 13, 1992 which

incorporated legislative action from the special session. This

kind of inconsistency and perfidy, in which the Texas Appellants

back away, and appeal, from a negotiated settlement shows that the

Minority Applicants cannot afford to rely on the Texas Appellants

to protect their interests.

The Texas Appellants cannot represent the Minority Applicants

while in fact they are attacking the very judgment that the

Applicants seek to protect.

Another indisputable example of the Appellants' lack of

interest in minority voting rights is their failure, in this

appeal, to raise fatal flaws in the district court's order adopting

an interim plan and rejecting SB-1. The district court action on

SB-1 was clear legal error and against the great weight of authori-

ty and should have been raised in the State's appeal. The State of

Texas fails in its responsibility to raise this issue except in the

limited context of Section 5 of the Voting Rights Act.

The Texas Appellants may have an interest in striving to pro-

tect their own legislatively-determined plan; but, as the history

of Mena demonstrates, that interest quite often has been antitheti-

cal to the Minority Applicants. And will continue to be so in the

future.

For example, if the Texas Appellants decide to enter into a

settlement or make a strategic decision about whether to appeal or

not, the Minority Applicants who won the redistricting plan under

attack by the three-judge court would have no party in the litiga-

tion to protect their interests. This, ironically, is the very

position that the Terrazas appellees took in their mandamus action

in the Texas Supreme Court, and upon which they prevailed. Terra-

zas_v. Ramirez, 35 Tex.S.Ct.J. 256 (Dec. 17, 1991). Surely, it

cannot be the rule of equity that the Minority Applicants may not

settle Mena in state court without the participation of the Terra-

zZas appellees, but the Terrazas parties can settle without the

participation of the Minority Applicants.

Further, in both attempts before this Court to stay the lower

court's interim election plan, the Texas Appellants did not rely

upon any of the evidence before, or judgment of, the Mena trial

court and declined to show that the Mena judgment was superior to

the Terrazas plan and thus more fully implemented the state

constitutional mandate and Congressional purpose with respect to

the Voting Rights Act. Nor did they argue, as the Minority

Applicarits attempted to do in pleadings struck by the lower court

on February 25, 1992, that the December 24 order actually was a

regression in minority voting rights when compared to the Mena

judgment and subsequent the legislative plan (SB-1).?5 In the

15 Indeed, the results of the run-off election in the Democra-

tic primary on April 14, 1992, demonstrate the inadequacy of the

Terrazas plan in contrast with the Mena plan. In the run-off elec-

tion, Roman Martinez, a Mexican American candidate, was defeated by

John Whitmire, an incumbent Anglo candidate, in Harris County.

Under the Mena plan, the Martinez/Whitmire contest would have

taken place in District 6, in which the Hispanic population is

62.6% and the Hispanic Voting Age population is 57.1% Hispanic and

which has a 31.6% Hispanic registered voting population (which,

rather importantly, indicates a higher-than-usual Hispanic voter

turnout).

view of the Minority Applicants, the Appellants' endeavors

undermined the integrity of their judgment.?®

Jansen, ‘supra, supports this position. There, a group of

black employees who filed suit against the city over discriminatory

employment practices entered into a consent decree with the city.

These employees sought and were denied intervention by the district

court in a subsequent action challenging the consent decree brought

by white employees. The court of appeals reversed, citing the

difference in interest and the adverse history between the parties.

Trbovich, supra, also supports the notion that an intervenor

seeking to protect a specific interest should be granted intervenor

status when the government agency party has broader and competing

interests to serve. Trbovich sought to intervene in an action

Under the Terrazas plan, the Martinez/Whitmire contest took

place in District 15, which has a smaller percentage of Hispanic

population (57.1%) and Hispanic voting age population (51.5%) and

Hispanic registered voters (26.0%) (which indicates a lower turnout

that than District 6).

Mena District 6 has about 2,300 more Hispanic registered

voters than Terrazas District 15 and, presumably, about that many

less non-minority voters.

Martinez lost the run-off by 1,600 votes. Even more telling,

however, is that he only missed winning the primary outright in

March by 400 votes. He had 49% of the vote; and Whitmire, 46%.

Thus, the data clearly indicate that, had Martinez run from

Mena District 6 rather than Terrazas District 15, he probably would

have won the election as the choice of the minority community.

This election result validates the interest of the Minority Appli-

cants in preserving the Mena judgment (and SB-1).

16 This tact is further exemplified by the representation to

the court by the Texas Defendants in their January 9, 1992 Response

to Emergency Application for Temporary Stay and for Definite Stay

of State Court Proceedings (p.2) that they "... are not trying to

convince the Court that they enjoy the state court action; law

aside, an injunction from this Court might provide blessed relief

from the state action" (emphasis added). These are hardly the

words of parties on whom the Mena Citizens ought to be required to

depend to represent rights as fundamental as the right to vote and

to be free from the denial of equal protection.

brought by the Secretary of Labor under Sec. 402(b) of the Labor-

Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C.

sec. 482(b) to set aside an election of officers of the United Mine

Workers. In reviewing the district court's denial of intervention,

the Court reversed, specifically resting its decision on the com-

peting interests the Secretary of Labor had to serve. MTrbovich,

404 U.S. at 538-39.

This principle was affirmed in Smuck v. Hobson, 408 F.2d 175

(D.C. Cir 1969), in which a group of parents sought to intervene in

an appeal when the Board of Education, which represented their

interests below, chose not to appeal. In allowing the interven-

tion, the court noted that the possibility that the narrow

interests of the intervenor applicant may be different from those

of the Board of Education, which is buffeted by conflicting public

demands. Id. at 181.

Similarly in this case, the actual and potential conflicts

between the Texas Appellants and the Minority Applicants preclude

adequate representation of their interests and overcome any pre-

sumption of adequate government representation of the private

parties' interest.

Nor is Appellant Slagle a party who will protect the Minority

Applicants' interests in this litigation. Mr. Slagle's interests

lie in protecting the Democratic Party, which, in the contours of

this case, means protecting the incumbency interests of Democratic

Texas legislators (see December 24, 1991 Summary Opinion and Judg-

ment 24, Appellants' Appendix 48a). After all, it was the

incumbent Democrats who passed the original legislative plan that

has since been invalidated by state and federal forums as violative

of minority voting rights. The history of this and the Mena

litigation, and the concurrent legislative negotiations, amply

demonstrate that quite often the interests of incumbent Democrats

are antithetical to those of the Minority Applicants.

With respect to Appellees in this case, they too have a sig-

nificant conflict in representing the Minority Applicants' con-

cerns. The driving force of Appellees' participation is to secure

better legislative representation for the Republican Party of

Texas. As a vehicle to get to, and remain in, court, Appellees

purportedly have brought claims on behalf of minority voters. The

interests of the two groups are dissimilar in many respects, as

evidenced by positions taken by Appellees in this litigation with

respect to the plans offered by the Minority Applicants.

For example, the Appellees bitterly fought the relief the

Minority Applicants had won in state court (Mena and Quiroz). Even

though the Minority Applicants ultimately had settled the Senate

redistricting issues on October 7, 1991, the Appellees filed a

mandamus action in the Texas Supreme Court which then stayed

implementation of the negotiated Senate reapportionment plan.?’

Further, Appellees submitted proposed redistricting plans to

the lower court, which, in terms of protecting minority rights were

substantially inferior to the ones adopted by the court below or

17 It is telling that Appellees waited to file the mandamus

action until November 25, 1991, the day the Mena trial began as to

the House plan (HB-150).

won in Mena. ?8

Likewise, unless the Minority Applicants are allowed to inter-

vene, they may end up in the situation in which Appellees decide to

settle (as generally happens in Texas reapportionment cases), with

no input from the Minority Applicants, or simply decline to move

ahead with the litigation -- both of which events would severely

prejudice the Minority Applicants.

The Minority Applicants have met their burden of showing a

serious possibility that their interests may not be adequately

represented. "The burden [is then] on those opposing intervention

to show the adequacy of the existing representaticn," Nuesse, 385

F.2d at 702. No such showing has been made by the parties.

The Minority Applicants have made a timely petition for inter-

vention and have demonstrated a significant legal interest in the

subject matter of this appeal. Disposition of this case in their

absence would impair their interests, which no other party ade-

quately represents. Intervention is proper under Rule 24 (a) (2).

E. ALTERNATIVELY, INTERVENTION SHOULD BE ALLOWED

BECAUSE THE MINORITY APPLICANTS AND OTHER

PARTIES PRESENT COMMON QUESTIONS AND THERE WILL BE

NO UNDUE DELAY OR PREJUDICE TO EXISTING PARTIES

Even if they are denied intervention of right, the Minority

Applicants still should be granted permissive intervention. Fed.

R. Civ. P. 24(b)(2) sets forth a single criterion for permissive

intervention -- a common question of law or fact. The rule further

18 The lower court also noted in its December 24 Summary Opin-

ion and Judgment (Appellants' Appendix 34a) that Appellees had

developed less than a complete record at the December hearing --

hardly the harbinger of adequate representation of the Minority

Intervenors' interests.

specifies that, "In exercising its discretion the court shall

consider whether the intervention will unduly delay or prejudice

the adjudication of the rights of the original parties." Id.

This case clearly involves common questions of fact and law

between the Minority Applicants and the other parties. The issue

here is whether the redistricting plans currently in effect for

Texas legislative elections, resulting from the Mena litigation

concerning minority voting rights, deny or abridge the right to

vote on account of race and color or in contravention of 42 U.S.C.

Sec. 1973b(f) (2). The Minority Applicants are members of an ethnic

and a language minority group whose rights are protected under 42

y.8.¢C. See. 1973B(f) (2).

Further, there has been no showing that intervention will

delay the litigation or prejudice the rights of the parties, which

is a primary consideration in the exercise of a court's discretion.

Davis v. Board of School Comm'rs of Mobile County, 517 F.2d 1044

(5th Cir. 1975), cert. denied, 425 U.S. 944 (1976); United States

Postal Service v. Brennan, 579 F.2d 188 (2nd Cir. 1978).

While discretion in considering application of permissive

intervention is broad, it is not limitless. Every factor to be

considered in connection with an application for permissive inter-

vention weighs heavily in favor of allowing intervention by the

Minority Applicants.

In view of the fact that no trial date has been set, and the

court below has indicated that the trial will not occur until after

the November elections (Appellant's Appendix 34a), the Minority

Applicants certainly have sought to intervene in a timely fashion.

In fact, the lower court allowed the intervention of Plain-

tiffs/Intervenors Stokes and Estrada on October 21, 1991, less than

eight weeks before the December 10 hearing. Stokes and Estrada

intervened much closer to the December 10 preliminary injunction

hearing than the period that will certainly transpire before trial

occurs, at least seven months away, if not more.

Nor are any of the current parties or the Court inconvenienced

or prejudiced by allowing intervention at this juncture. This case

has focused on the merits of the legislative redistricting plan won

by the Minority Applicants and whether it or the lower court's plan

(or a variant) is eventually adopted.

Given that the issue which the Minority Applicants bring forth

is whether their plan should be entitled to the dignity accorded by

principles of federalism, especially to a plan more protective of

minority rights under the Texas Constitution and federal law than

the Terrazas plan, that matter is postured already and introduces

no heavier burden on the parties and the Court than that which they

eventually must undertake in any respect.

F. CONCLUSION

For purposes of Federal Rule of Civil Procedure 24(a), the

Minority Applicants have vital and indisputable interests relating

to the Mena judgment that Appellees seek to avoid and they are so

situated that the disnoosition of this matter, as a practical

matter, will impair and impede their ability to protect those

interests. Their interests are not now adequately protected or

represented by the existing parties to this appeal.

For purposes of Rule of Civil Procedure 24(b), the interven-

tion of the Minority Applicants would not at all unduly delay or

prejudice the adjudication of rights of the original parties.

III. THE THREE-JUDGE COURT WRONGLY USED THE

VOTING RIGHTS ACT IN DEROGATION OF RELIEF AFFORDED

UNDER STATE CONSTITUTIONAL EQUAL RIGHTS GUARANTEES THAT

MORE ADEQUATELY PROTECTED MINORITY VOTING RIGHTS

THAN THE PLAN PROMULGATED BY THE THREE-JUDGE PANEL

The lower court wrongly used the Voting Rights Act in dero-

gation of relief afforded under state constitutional equal rights

guarantees (Tex. Const. art. I, secs. 3, 3a) that more adequately

protected minority voting rights than the Terrazas plan.

A survey of the Mena (SB-1) and Terrazas plans shows clearly

that the former is more protective of minority voting rights.

SENATE "HISPANIC" REDISTRICTING COMPARISONS

MENA PLAN (SB-1) TERRAZAS PLAN

District H-vap?? H-REG*° District H-VAP H-RBG

6 (Harris) 57.1% 31.6% 15 51.5% 26.0%

19 (Bexar) 58.2% 50.1% 24 54.2% 48.0%

20 (Nueces) 57.1% 50.5% 20 57.9% 50.9%

21 (Webb) 59.0% 52.6% 21 58.7% 50.0%

26 (Bexar) 59.7% 51.1% 19 56.3% 48.6%

27 (Hidalgo) 78.6% 66.9% 27(Cameron) 76.9% 64.3%

29 (El Paso) 67.3% 49.9% 29 67.1% 49.8%

SENATE "AFRICAN AMERICAN" DISTRICT COMPARISONS

MENA PLAN (SB-1 TERRAZAS PLAN

District B-VAP?! B/H-VAP?22 District B-VAP B/H-VAP

13 (Harris) 50.3% 62.4% 13 57.2% 71.2%

23 (Dallas) 46.3% 68.9% 23 46.0% 68.9%

19 Hispanic voting age population.

20 Hispanic registered voters.

21 Black (African American) voting age population.

22 combined Black and Hispanic voting age population.

SENATE "IMPACT"*? DISTRICT COMPARISONS

MENA PLAN (SB-1 TERRAZAS N

District B/H-VAP District B/H-VAP

12 (Dallas) 32.1% i2 48.5%

15 (Harris) 41.6% 6 28.8%

Thus, the trial court erred in supplanting the Mena plan (SB-

1) with its own and, in so doing, violated well-settled principles

of federalism as discussed in the following sections.

IV. THE DISTRICT COURT MADE WHOLLY ERRONEOUS

FINDINGS UNDER SECTION 2 OF THE VOTING

RIGHTS WITHOUT EVEN CONDUCTING AN

EVIDENTIARY HEARING THEREON

This motion to intervene is appropriate since Intervenors have

an unique interest in this litigation. The State of Texas seeks to

protect its own legislation. The Terrazas appellees seek to

protect partisan gains achieved from the trial court. Only the

Minority Applicants seek, exclusively, to protect minority voting

interests. The Minority Applicants secured an important victory in

Texas state courts, significantly enhancing minority voter poten-

tial for the Texas Senate elections. Yet, the trial court under-

mined these achievements while denying the Minority Applicants an

opportunity to participate.

Moreover, the State of Texas does not and cannot adequately

protect the minority communities' interest in these proceedings.

A glaring example of the State's lack of interest in minority

voting rights is its failure in this appeal to raise fatal flaws in

the district court's order adopting an interim plan and rejecting

23 Although not yet defined by the Supreme Court, for purposes

of comparison, we use 40%+ minority to define an "impact district."

SB-1. The trial court erroneously and without justification found

SB-1 "fails to satisfy the Section 2 requirements of the voting

rights act."- Order and Judgment, January 10, 1992, Appellants’

Appendix 13a.

The district court action on SB-1 was clear legal error and

against the great weight of authority and should have been raised

in the State's appeal. Moreover, the trial court erred by its

failure to follow clear and unambiguous precedent, establishing the

narrow grounds for adoption of an interim court plan.

Again, the State of Texas failed in its responsibility to

raise this issue except in the limited context of Section 5 of the

Voting Rights Act. The district court, however, acted contrary to

established law whether it was acting exclusively as a Section 5

court or a court reviewing state redistricting plans pursuant to

the Fourteenth Amendment and Section 2 of the Voting Rights Act.

The Minority Applicants seek to raise these critical errors in the

lower court's orders through this intervention.

A. THE DISTRICT COURT ERRED AS A MATTER OF LAW IN FINDING

SB-1 (MENA) FAILED TO MEET THE REQUIREMENTS OF SECTION 2

This case involves the implementation of an interim court-

ordered redistricting plan over a legislatively-enacted redistrict-

ing plan where no trial or hearing challenging the legislative plan

has been held and where the legislative plan had been reviewed and

precleared pursuant to Section 5 of the Voting Rights Act. 42

U.S.C. §1973c. The trial court gratuitously held that the legisla-

tively-enacted plan (SB-1) failed to meet the requirements of VRA

Section 2. Order and Judgment (January 10, 1992), Appellants'

Appendix 13a. Yet, the district court failed to inquire into the

facts that would support such a finding and failed to comport its

findings with the legal requirements for an analysis of minority

vote dilution detailed in Thornburg v. Gingles, 478 U.S. 30 (1986).

The clearly-erroneous test of Rule 52(a) normally is the ap-

propriate standard for appellate review of a finding of vote dilu-

tion. Rogers v. Lodge, 458 U.S. 613, 622-27 (1982). However, Rule

52(a) does not inhibit an appellate court's power to correct errors

of law, including those that may infect a "mixed" finding of law

and fact, or a finding of fact predicated on a misunderstanding of

the governing rule of law. Bose Corp. v. Consumer Union of U.S.,

Inc., 466 U.S. 485, 501 (1984). Here, the trial court failed to

inquire into any of the factual requisites delineated by Thornburg

to determine a finding of minority vote dilution.

Thornburg established a three-pronged test for evaluating

Claims of minority vote dilution. 478 U.S. at 50-51. First, the

minority group making the claim of vote dilution must be able to

demonstrate that it is sufficiently large and geographically com-

pact to constitute a majority in a single-member district.?4 Id.

at 50. Second, the minority group must be able to show it is poli-

tically cohesive. Id. at 51. Third, the minority must be able to

demonstrate that the white majority votes sufficiently as a bloc to

enable it usually to defeat the minority's preferred candidate. Id.

at 51. Examination of racial bloc voting is a key element of a

vote dilution claim. Id. at 55. The purpose of inquiring into the

existence of racially polarized voting is twofold: to ascertain

24 In Terrazas, the Republican Party of Texas is purporting

to make its claims under Section 2 on behalf of African American

and Mexican American voters of Texas.

a EEeEeEeEeEeEeEeEeEeEEEeEeeeee

whether minority group members constitute a politically cohesive

unit and to determine whether Anglos vote sufficiently as a bloc

usually to defeat the minority's preferred candidate. Id. at 56.

Finally, in a single-member district context, it is important to

examine the impact of the actual boundaries in cohesive minority

community neighborhoods. Id. at 46 n.1l. Therefore, a court

should examine whether districts in a districting plan have

fragmented or packed cohesive minority populations. Id.

These clear. unambiguous legal standards for reviewing a voter

dilution claim were ignored by the district court. Rather than

examine SB-1 for the impact of racially polarized voting on its

districts or to determine if Anglo bloc voting would frustrate

minority electoral potential in SB-1 minority districts, or to

examine SB-1 for fragmentation or packing, the lower court chose to

reject SB-1 because it came to the erroneous "conclusion [that]

having reviewed the Senate plan...{this court] sees no indication

that the Senate is attempting to devise a plan that would enhance

minority voting strength over that provided in this Court's interim

plan." Order and Judgment, January 10, 1992, Appellants' Appendix

5a. The court made this finding without an evidentiary hearing.

In its analysis, the trial court compared Mena/SB-1 minority

districts to the Terrazas interim minority districts. The major

difference the court found was that, although both plans provided

nine minority districts, only the district court's plan provided an

impact minority district. The district stretching from Mexican

American neighborhoods in South Dallas through Anglo neighborhoods

to mixed minority neighborhoods in Fort Worth was District 12.?5

Id. Yet, nothing in the record or in the lower court's order evi-

dences any cohesion between Hispanics in Dallas and African Ameri-

cans and Hispanics in Fort Worth.*° Moreover, no analysis of Mena/

SB-1 is made to determine whether fragmentation of minorities

occurred. The only packing of minority population in Mena/SB-1

intimated by the court was in District 27 where Hispanics comprised

83.1% of the population generally and 78.6% of the voting age popu-

lation. Id. at p. 6. Yet, the interim plan draws District 27 with

81% Hispanic population and 76.9% Hispanic voting age population

("VAP"). Thus, if District 27 in Mena/SB-1 is packed at 78.6% His-

panic VAP, so it must also be packed at 76.9% Hispanic VAP in the

court's interim plan. Id. In describing the various minority dis-

tricts in each plan, the trial court attempts to justify its pre-

ference for its own plan over Mena/SB-1. Where the court plan's

minority districts have slightly larger minority populations, the

district court characterizes them as "stronger." Id. For instance,

the court finds its Districts 20 and 21 with 59.7% Hispanic VAP and

59.4% Hispanic VAP, respectively, are "stronger" than Mena/SB-1

25 Although District 12 has a combined minority voting age

population of 48.5%, SB-1 has a minority "impact" district in Har-

ris County not contained in the court's interim plan. District 15

in SB-1 has a combined minority voting age population of 41.6%.

26 Ironically, this same district court in Overton v. City of

Austin rejected claims of minority voter cohesion between African

Americans and Mexican Americans in Austin where statistical evi-

dence showed Mexican Americans supported Black-preferred candidates

at a 73% rate and African Americans supported Mexican American pre-

ferred candidates at a 69% rate. See 871 F.2d 529, 536 (5th Cir.

1989). Yet, here, without any evidence of dual minority cohesion,

the district court rejected Mena/SB-1 and preferred a combined

minority impact district stretching over two distinct counties.

Districts 20 and 21 with 57.9% and 58.2% Hispanic VAP, respective-

ly. Yet, the trial court ignores the fact that, with respect to

District 21, Hispanic voter registration is actually higher in

Mena/SB-1 (53%) than in the court's interim plan (50%). In fact,

the trial court ignores altogether Hispanic registration as a

measure of minority voting strength of a district and it is not

difficult to understand why. Mena/SB-1 contains 6 majority His-

panic registration districts, the Terrazas plan has only 427;

Mena/SB-1 Plan Terrazas Interim Plan

District % Hispanic Comparable % Hispanic

Registered Voters District Registered Voters

21 52.6% 21 50.0%

19 50.1% 24 48.0%

26 51.1% 19 48.6%

20 50.5% 20 50.9%

He 66.9% 27 64.3%

29 49.9% 29 49.5%

The superior protections of Mena/SB-1 over the court's plan

with respect to minority voter interests is also shown from examin-

ing other districts. In Harris County, for example, the Terrazas

interim plan reduces the Hispanic voter registration proportion of

the new “Hispanic” district by 6%. District 6 in Mena/SB-1 is the

new Harris County Hispanic Senate District; it compares to District

15 in the Terrazas plan:

Mena/SB-1 Dist. 6 Terrazas Plan Dist. 15

% Hispanic population 62.6% 57.1%

% Hispanic VAP 57.1% 51.5%

% Hispanic registered voters 31.6% 26.0%

The court's plan, thus, weakens the so-called Hispanic

district in Harris County to the point where an Anglo incumbent has

27 District 29 is counted as a 50% Hispanic registered dis-

trict for both plans.

323

a greater chance of success, which indeed is what occurred in the

March primary and April run-off (see n.15 above). Finally, the

District Court admits that both plans contain two. "Black dis-

tricts." Order and Judgment, January 10, 1992, pp. 7-8.

Thus, even if the appropriate measure for review of Mena/SB-1

for compliance with Section 2 was comparison with the Terrazas

interim plan, Mena/SB-1 could not have been found to "fail the

requirements of Section 2" since it provides greater protection to

minority voters than does the interim plan.

Another reason for the district court's rejection of Mena/SB-1

appears not to be minority voter dilution at all, but rather "time-

consuming partisanship." Order and Judgment, January 10, 1992,

Appellants' Appendix 8a. The lower court improperly rejected the

partisan advantage gained in Mena/SB-1 as a basis for using its own

plan. Id. Disturbingly, however, the trial court had earlier

found that the Republican Plaintiffs had failed to make a partisan

gerrymandering case as required py Davis v. Bandemer, 478 U.S. 109

(1986). Summary Opinion and Judgment, December 24, 1991, Appel-

lants' Appendix 34a. Under any circumstance, however, it is clear

that the lower court did not review Mena/SB-1 for minority vote

dilution pursuant to the appropriate legal standard as articulated

in Thornburg, and should not have brushed aside Mena/SB-1 in favor

of its own inferior plan. The orders of December 24, 1991 and

January 10, 1992 should be reversed.

B. THE LOWER COURT ERRED AS A MATTER OF LAW BY

IMPOSING ITS OWN PLAN OVER THE LEGISLATIVELY

ENACTED AND APPROVED SB-1

The trial court also erred by ignoring clear legal principles

established to guide courts in substituting their plans for legis-

latively-enacted redistricting plans. The district court failed to

abide by the principle that reapportionment is primarily the duty

and responsibility of the state legislature rather than that of a

federal court. e s vy. Sims, 377 U.S. 533, 587 (1964).

More-over, the trial court ignored the rule that it errs if it

overrides state apportionment policy without solid constitutional

or equi-table grounds. White v. Weiser, 412 U.S. 783, 796 (1973).

Thus, when fashioning a temporary plan, the district court

should not have preempted the legislative task or “intrude[d] upon

state policy any more than necessary." Whitcomb v. Chavis, 403

U.S. 124, 160 (1971). The trial court, in fact, chose to proceed

with its own plan over one that better protected minority voting

interests and was a legislatively aun plan in order to ensure

that primary elections would proceed as scheduled. Yet, a state

district court in Hidalgo County, Texas in Mena v. Richards had

already cleared the way to ensure that SB-1 could proceed without

interrupting the scheduled March primary elections. Final Judg-

ment, January 13, 1992, Appendix Attachment 3. Moreover, the

State, through legislation, had made a policy choice that proceed-

ing with SB-1, even if a new primary date was necessary, was

preferable than proceeding with the interim court plan.

The lower court chose to proceed with its own plan rather than

defer to the legislative plan because the Court plan "enhanced mi-

nority voting rights to a greater degree than provided in a Quiroz-

style plan (Mena/SB-1]}."7® However, even were this rationaliza-

tion true, which it is not, it hardly rises to the level of the

“solid constitutional or equitable grounds" necessary to brush

aside state reapportionment policy. White v. Weiser, supra.

In the 1980 re-districting process, for example, a three-judge

court in Texas refused to reject wholesale the legislative re-

districting enactment even though it had failed Section 5 preclear-

ance. Terrazas v. Clements, 537 F.Supp. 514, 540 (N.D. Tex.,

Dallas Div., 1982), stay denied, 456 U.S. 902 (1982). Instead of

making whole-sale changes, the district court, in the 1980 litiga-

tion, began with the legislative enactment of the Legislative

Redistricting Board plan, and adopted plans for only two counties

proposed by minority plaintiffs to enhance minority voting strength

and in which the Department of Justice had specifically found

objections under Section 5. Id. Here, the trial court not only

refused to use Mena/SB-1 as a base, but also ignored the wholesale

alteration of the state apportionment policy caused by its own

plan. Order and Judgment, January 10, 1992, Appellants' Appendix

13a-15a.

The lower court erred by failing to abide by clearly estab-

lished principles governing the appropriate circumstance for

implementation of court-ordered interim redistricting plans; its

orders should be reversed.

28 Because Quiroz v. Richards adopted a revised Senate redis-

tricting plan before Mena, "Quiroz" is sometimes used, especially

by the lower court, to encompass the Mena litigation. Mena and

Quiroz produced, and then ratified, the 1992 revised Senate reap-

portionment plan (SB-1).

V. ARGUMENT AS TO LEGAL IMPROPRIETY OF TERRAZAS

INJUNCTION AGAINST TEXAS STATE COURT ACTION

A. INTRODUCTION

The January 14, 1992, preliminary injunction (Appendix Attach-

ment 8) issued by the Terrazas panel enjoining further activity in

the Mena litigation (or any similar litigation, for that matter)

effectively transferred from the Texas state courts to a federal

court the entire responsibility for reviewing challenges to Texas'

legislative districts. That injunction undercuts the federal

system of justice, of which the state courts play an essential

role. If a federal district court may preempt and enjoin a state

court from construing and implementing a state redistricting law,

only the federal courts will be left to construe and define state

policy on redistricting. This would be true not only of Texas but

of all fifty States as well.

Texas was one of the first States to have a state court review

its 1991 legislative redistricting plan a process encouraged by

Scott v. Germano, 381 U.S. 407 (1965) (per curiam). This reflects

a trend begun a decade ago when state courts considered about one-

third of nearly 90 challenges to legislative or congressional

redistricting plans during the 1980s. See National Conference of

State Legislatures, Reapportionment Update (April 1987). If the

trend toward state court involvement in redistricting continues in

the 1990s' round of redistricting litigation, many more cases will

be filed in the state courts, than in federal court. The lower

court's preemption and injunction would reverse that legitimate and

desirable trend.

B. THE DISTRICT COURT'S PRELIMINARY INJUNCTION OF ALL STATE

COURT PROCEEDINGS VIOLATES THE ANTI-INJUNCTION ACT

The Terrazas court did not have authority to preempt and en-

join the state court redistricting action. Its order exceeds the

boundaries established by Congress for the country's dual federal

and state court systems and intrudes upon the jurisdiction of the

Texas and its courts in derogation of rights of the State's

minority community.

The sole reason that the panel gave for using the preliminary

injunction was that "confusion ... might result with the issuance

of state district court orders that conflict or interfere with the

orders entered by this Court ...." Preliminary Injunction, Appen-

dix Attachment 8, p.2. This speculative finding was not based on

an evidentiary hearing, and the order recited no case authority.

Congress recognized the limits on federal court authority to

enjoin state courts when it enacted the Anti-Injunction Act (28

U.S.C. § 2283), which embodies the constitutional requirement of

joint sovereignty that includes a federal government and judiciary

with limited powers as found in the Tenth Amendment. Grego Vv.

Ashcroft, 111 S. Ct. 2395, 2399-2402 (1991).

When a reapportionment issue is a state constitutional prero-

gative, the Tenth Amendment controls; and the state retains respon-

sibility. Sugarman v. Dougall, 413 U.S. 634, 648 (1973). Further,

to protect the "Republican Form of Government" guaranteed by the

U.S. Constitution (Article IV, § 4) elected state judges should

review the apportionment plan passed by the legislature barring any

exclusive jurisdiction for the federal court.

The Anti-Injunction Act establishes a general prohibition

against federal court interference with state court proceedings.

The exceptions contained in the Anti-Injunction Act are

"narrow and are not [to] be enlarged by loose statutory construc-

tion." Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146 (1988),

quoting Atlantic Coast Line R.R. v. Brotherhood of Locomotive

Eng'rs, 398 U.S. 281 (1970). The Act does not convey "a broad

general policy for appropriate ad hoc application," but rather is

"a clear-cut prohibition qualified only by specifically defined

exceptions." Id. at 287, quoting Amalgamated Clothing Workers v.

Richman Bros., 348 U.S. 511, 515-16 (1955). If a federal court's

power to enjoin a state court action is in doubt, the federal court

should not intrude upon the state court's authority. Atlantic

Coast Line R.R., 398 U.S. at 297.

The Terrazas court, without citing any authority, concluded

that an injunction of the state court redistricting action was

necessary because competing judgments might cause "confusion". It

recognized that the state court's orders might be inconsistent with

its orders and held that such a situation should not continue.

Rather than defer to the state court's exercise of concurrent

jurisdiction, see Scott v. Germano, 381 U.S. at 409, the federal

court concluded it was necessary to enjoin the state court. 3°

29 The risk of inconsistent orders existed from the time the

federal action was filed in May 1991. On August 2, 1991, the trial

court denied a motion to enjoin the state court action. However,

the court reversed this position and issued its injunction in the

very late stages of the state redistricting litigation without any

notice, hearing, or additional briefing.

39 In enjoining the state court proceeding, the federal court

apparently assumed that it had exclusive jurisdiction over chal-

lenges under section 2 of the Voting Rights Act, 42 U.S.C. § 1973.

This assumption was erroneous, as state courts have concurrent

The “aid of jurisdiction" exception to the Anti-Injunction Act

is extremely narrow and applies almost exclusively to in rem pro-

ceedings. or to cases where a state court action "would interfere

with ongoing federal oversight of a case, such as school desegrega-

tion orders." 1A pt. 2 J. Moore, W. Taggart, A. Vestal, J. Wicker

& B. Ringle, Moore's Federal Practice § .209[2] at 2340 (2d ed.

1991). This narrow exception does not apply simply because paral-

lel actions are proceeding in both federal and state courts, even

where resolution of the matter by both courts would be inconsistent

and unworkable. Atlantic Coast Line R.R., 398 U.S. at 295-96;

Phillips v. Chas. Schreiner Bank, 894 F. 2d 127, 132 (5th Cir.

1990); Texas v. United States, 837 F.2d 184 (5th Cir. 1988).

Moreover, a federal court lacks authority to enjoin the state

court action even where the state action interferes with the fe-

deral action. A federal court "does not have inherent power CO .e-

enjoin state court proceedings merely because those proceedings

interfere with a protected federal right or invade an area pre-

empted by federal law, even when the interference is unmistakenly

clear." Atlantic Coast Line R.R., 398 U.S. at 294. Instead, the

issue should be raised in the state court action and that court

should determine the limits of its own jurisdiction. Chick Kam

Choo, 486 U.S. at 149-50 (when "a state proceeding presents a

federal issue, even a pre-emption issue, the proper course is to

seek resolution of that issue by the state court").

jurisdiction over such claims. See Hathorn v. Lovorn, 457 U.S.

255, 269 (1982); see also Gulf Offshore Co. v. Mobil Oil Corp., 453

U.S. 473, 477-78 (1981) (concurrent state court jurisdiction

presumed absent provision by Congress to the contrary or disabling

incompatibility).

The Terrazas court exceeded its authority in issuing an in-

junction against the Texas state court redistricting action. Its

order should-be reversed.

C. THE DISTRICT COURT'S REFUSAL TO DEFER

TO THE STATE COURT ACTION VIOLATES THE

DOCTRINE ESTABLISHED IN SCOTT V. GERMANO

The lower court's injunction not only exceeds its authority

and violates principles of comity but also contravenes the mandate

of Scott v. Germano, which made clear that the exceptional nature

of redistricting requires federal courts to defer to state reappor-

tionment efforts, including those undertaken by a state judiciary:

The power of the judiciary of a State to require valid

reapportionment or to formulate a valid redistricting

plan has not only been recognized by this Court but

appropriate actions by the States in such cases has been

specifically encouraged.

381 U.S. at 409.

Germano states a broad rule of deference to states and state

courts in redistricting matters which extends to the circumstances

of this case.°?

In Germano, parallel challenges to the redistricting plans for

the Illinois legislature were brought in state and federal court.

Before the state court even began to work on a valid redistricting

plan, the state defendants asked the federal court to stay its

31 It should be noted that the Circuit Judge sitting on the

panel recognized the federalism concerns at stake when he

dissented from the December 24 interim order because he believed

that deference should be given to the legislative process and Texas

courts to address the reapportionment ills highlighted by the court

before the federal panel imposed its own interim plan (Summary

Opinion and Judgment 27), citing McDaniel v. Sanchez, 452 U.S. 130,

150 n.30 (1981). Appellants' Appendix 5la.

He restated his dissent in even stronger terms to the panel's

supplemental Order and Judgment (10) of January 10, 1992.

proceedings. The federal court refused to defer to the parallel

state proceedings, in part because the federal action had been

filed before the state action had reached the merits. Germano v.

Kerner, 241 F. Supp. 715, 719 (N.D. Ill.), vacated sub nom. Scott

v. Germano. On direct appeal, this Court ordered the federal court

to stay its hand unless and until it became clear that the state

court would be unable to develop a plan before the election. Ger-

mano, 381 U.S. at 409-10. %?

Deference to state redistricting efforts in this case is even

more appropriate than the deference required in Germano. The Texas

state court had assumed jurisdiction and rendered a final judgment

which would have been implemented but for the federal court stay.

Despite the federai court's contentions to the contrary, it was

clear that the agencies of Texas, including the Supreme Court of

Texas, would have been able to approve a redistricting plan in time

for’ the 1992 elections. The state court action, which was filed

months before the federal action, proceeded- rapidly. The state

court completed its substantive work in late November and issued a

final redistricting order on January 13, 1992. That judgment would

have been reviewed immediately by the Texas Supreme Court, had the

state defendants appealed. Tex. Const. art. V, §3-b; Tex. Govt

Code §22.001(c) (Vernon 1988). The federal court injunction, how-

32 Federal courts repeatedly have recognized the clear ab-

stention requirement set forth in Germano and have deferred to par-

allel state court redistricting actions. p Vv. =

fing, 393 F.2d 457, 461 (2d Cir. 1968); Badham v. March Fong Eu,

568 F. Supp. 156, 158 (N.D. Cal.), aff'd sub nom, Badham v. United

States Dist. Court, 721 F.2d 1170 (9th Cir. 1983); Av v. W

320 F. Supp. 677, 686 (W.D. Va. 1970); Mahoney v. Burkhardt, 299 F.

Supp. 787, 789 (D. N.J. 1969).

ever, disrupted the timely and orderly operation of Texas' judicial

system, stopping it in its tracks.

This Court has expressed approval of state court review of

legislative redistricting plans:

We applaud the willingness of state courts to assume

jurisdiction and render decision in cases involving

challenges to state legislative apportionment schemes.

Maryland Comm. for Fair Representation v. Tawes, 377 U.S. 656, 674

(1964), citing a Kansas Supreme Court redistricting decision as a

"commendable example of an exercise of judicial responsibility by

a state court." Id. at 674 n.18 (citing Harris v. Shanahan, 192

Kan. 183, 387 P.2d 771 (1963).

The state court must be given an opportunity to formulate and

approve valid redistricting plans without interference from the

federal courts. See, e.g., 17 A.C. Wright, A. Miller, & E. Cooper,

Federal Practice and Procedure § 4247, at 127.

No one disputes that redistricting is essentially a legisla-.

tive function and that the judiciary, both state and federal,

should give appropriate deference to the Legislature. What is at

issue here, however, is the proper relation between Texas state and

federal courts. This Court has emphasized that the federal courts

must give the utmost deference to the state courts where redistric-

ting matters are at stake. The trial court has not only refused to

defer to the courts of Texas, it has prevented the state court from

carrying out the very role this Court has encouraged state courts

to undertake. The lower court's order violated the important prin-

ciple established by Scott v. Germano and should be vacated. 7?

D. THE STAY IS NOT AUTHORIZED BY 28 U.S.C. §1651(a)

Nor would the All Writs Act, 28 U.S.C. § 1651(a), apply to

this case.

The Act permits a federal court to issue writs to protect its

own judgmer*s or its own orders. See, e.g., Pennsylvania Bureau of

Correction v. United States Marshals Service., 474 U.S. 34, 40-43

(1985). The ¢ srpose and office of the Act is to protect already

issued judgments or orders about to be issued. Baker v. Gotz, 415

F. Supp. 1243, 1247 (D. Del.), aff'd, 546 F.2d 415 (3d Cir. 1976).

The phrase "in aid of" does not vest or create a general restrain-

ing power in the federal courts.

As this Court noted in Kline v. Burke Construction Co., 260

U.S. 226, 230 (1922):

[A] controversy is not a thing, and a contraversy over a

mere question of personal liability does not involve the

possession or control of a thing, and an action brought

to enforce such a liability does not tend to impair or

defeat the jurisdiction of the court in which a prior

action for the same cause is pending. Each court is free

to proceed in its own way and in its own time, without

reference to the proceedings in the other court. When-

ever a judgment is rendered in one of the courts and

pleaded in the other, the effect of that judgment is to

be determined by the application of the principles of res

judicata by the court in which the action is still pend-

ing in the orderly exercise of its jurisdiction, as it

would determine any other question of fact or law arising

in the progress of the case.

In reversing an injunction granted under the All Writs Act,

Kline quoted with approval from Baltimore & Ohio R.R. v. Wabash

33 Interestingly, throughout the course of the Mena proceed-

ings the state district court deferred to the state legislature to

correct the deficiencies the court found. The Terrazas court made

no such deference at all, although Judge Garwood did dissent on

that point.

.R. Co., 119 Fed. 678, 680-81 (7th Cir. 1902), cert. denied, 187

U.S. 650 (1903):

It is settled that, when a state court and a court of the

United States may each take jurisdiction of a matter, the

tribunal whose jurisdiction first attaches holds it, to

the exclusion of the other, until its duty is fully per-

formed, and the jurisdiction involved is exhausted ....

The rule is not only one of comity, to prevent unseem-

ingly conflicts between courts whose jurisdiction em-

braces the same subject and persons, but between state

courts and those of the United States it is something

more. It is a principle of right and law, and therefore

of necessity. It leaves nothing to discretion or mere

convenience.

260 U.S. at 231.

This is not a case where federal court judgment has been

entered and the state court seeks to prevent its enforcement. See,

e.g., Travia v. Lomenzo, 381 U.S. 431 (1965). Rather, the state

court acquired jurisdiction first, held four evidentiary hearings,

a trial, undertook painstaking and detailed review of varied

legislative plans, reached judgment, and entered injunctive orders

before the lower court acted. *4

In this case, there was no need for injunctive relief to

protect the federal court's jurisdiction. To the extent that the

federal court has jurisdiction over the subject matter of state

legislative redistricting, it is concurrent with that of the Texas

state courts. See Scott v. Germano. Concurrent federal jurisdic-

tion will not disappear based upon any state court order. On the

other hand, granting a preliminary injunction against implementa-

34 puring the course of Mena v. Richards, the Texas Supreme

Court also twice reviewed the action.

By contrast, the Terrazas court held only one hearing, and

that for a preliminary injunction, which the court set for hearing

sua sponte on its own motion without the request of any party.

tion of the state court judgment defeats the very concept of con-

current jurisdiction.

Issuance of a preliminary injunction below was not "agreeable

to the uses and principles of law." 28 U.S.C. § 1651(a). Nor to

the principles of comity or federalism. It is not agreeable to the

principle set forth in Scott v. Germano, 381 U.S. at 409, and not

consistent with the concept of concurrent jurisdiction. It would

not permit even the Texas Supreme Court to order implementation of

the trial court's final judgment.

The Texas state court judgment in Mena does not seek to inter-

fere with or impede the imposition or effectuation of any federal

court plan. The "principle of federalism" to which the court below

gave no attenticn would require only that the federal court stay

its hand until "the appropriate agencies of the State ... including

its Supreme Court, may validly redistrict ...." Scott v. Germano,

381 U.S. at 409. In this case, the temporary injunctive order of

the district court should be vacated and the case remanded with in-

structions that the trial court retain jurisdiction pending imme-

diate action by the Texas appellate courts. See Scranton v. Drew,

379 U.S. 40 (1964); Maryland Committee for Fair Representation v.

Tawes, 377 U.S. at 674.

D. CONCLUSION

This preliminary intenntbens affects not only a state court in

Texas, but state courts throughout the country that are undertaking

the 1990s round of redistricting. If this preliminary injunction

is allowed to stand, it will discourage all state courts from

becoming involved in redistricting and throw the entire burden on

the federal courts. Every appeal of a district court decision will

straight to this Court, bypassing the State's own highest court.

This is completely at odds with this Court's oft-repeated concern

for the role of state courts in our federal system. The prelimi-

nary injunction should be vacated forthwith.

PRAYER FOR RELIEF

THEREFORE, the Minority Inte

vention Applicants respectfully

pray that the Court allow them to intervene in this appeal.

Dated: May 11, 199

Respectfully submitted,

C Page

re a8 C. Harrington

(Cgunsel of Record)

PEXAS CIVIL RIGHTS ee

227 Congress Ave (Suite 340)

Austin, TX 78701-4021

(512) 474-5073

FAX (512) 474-5273

Judith Sanders-Castro

MEXICAN-AMERICAN LEGAL

DEFENSE & EDUCATION FUND

140 E. Houston (Suite 300)

San Antonio, TX 78205

(512) 224-5476

FAX (512) 224-5382

ATTORNEYS FOR INTERVENTION-

APPLICANTS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.