The opinion of the court was delivered by: STANLEY SPORKIN
The State of Texas filed this suit seeking relief under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1988) ("section 5"). It originally asked this Court to preclear four of its newly enacted reapportionment plans. Questions involving preclearance for the plans governing elections to the Texas House, the Texas Board of Education and the United States Congress have since been resolved. Only the reapportionment plan for the Texas Senate remains at issue.
Reapportionment for the Texas Senate has been the subject of extensive litigation in both state and federal courts. See Texas v. United States, 785 F. Supp. 201, 202-203 (D.D.C. 1992). Several plans have been proposed or adopted by the legislature and the courts in the course of these law suits; however, this Court has previously determined that only two are relevant to this case. The first is the plan that Texas is asking this Court to preclear: SB 1 which was enacted by a special session of the state legislature on January 8, 1992. The second is the plan that will serve as the benchmark for a section 5 preclearance analysis: the "Terrazas" plan which was ordered into effect for the primary elections by a three-judge federal court in Texas on December 24, 1991. See id.
On July 10, 1992, the State of Texas filed a motion for summary judgment asking the Court to declare SB 1 precleared. It also filed a motion to reconsider the order granting permissive intervention to Louis Terrazas, Tom Craddick, Ernest Angelo, and Robert A. Estrada ("Terrazas intervenors")
and a motion for judgment on the pleadings. The Terrazas intervenors simultaneously filed their own motion for summary judgment asking the Courts to declare that SB 1 is not entitled to preclearance. Responses were filed on July 24, 1992. The Court has considered the arguments of all the parties and is now prepared to rule on the motions.
Summary judgment may be granted where the Court finds that there is no genuine issue of material fact left to be resolved. See Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Fed. R. Civ. P. 56(c). Neither the moving party nor the opponent is required to submit affidavits or to point to other materials in the case to demonstrate that no genuine issue of material fact exists. However, a summary judgment motion may not be opposed by "the mere pleadings themselves." Celotex Corp., 477 U.S. at 324.
All parties agree, with one exception,
that there is no genuine issue of material fact in dispute in this case. See Responses of Defendant-Intervenors Louis Terrazas, et al, to Motions of Plaintiff State of Texas, 9; Defendant-Intervenor Negrete's Response to Plaintiff's Motion for Summary Judgment, 3; Memorandum of the United States in Response to Plaintiff's Motion for Summary Judgment, 1-2; Texas's Opposition to Terrazas Intervenors' Motion for Summary Judgment, 1 n. 2. However, they disagree over the relevance of particular facts. The Terrazas intervenors have not submitted any supporting materials in conjunction with their motion for summary judgment nor have they filed a statement of material facts which are not in issue as required by the local rules of this Court. See Local Rule 108(h). Instead, the Terrazas intervenors merely state in their motion, "There is no genuine issue of material fact necessary to establish that SB 1 is not entitled to section 5 preclearance." They also oppose the State of Texas' motion for summary judgment on purely legal grounds. The Terrazas intervenors have staked their position entirely on the legal claim that this Court is bound by a statement of the three-judge court in Terrazas v. Slagle, Nos. 91-425, 91-426 (W.D. Tex., Jan. 10, 1992) declaring SB 1 in violation of section 2 of the Voting Rights Act. In sum, they argue that facts pertaining to the relative merits of SB 1 and the Terrazas plan are not material because the Court is legally compelled to conclude that SB 1 cannot meet the standards for preclearance.
The State of Texas does believe that there are material facts which must be found in order to grant judgment in its favor, but it believes those facts are not in dispute. In support of its motion for summary judgment, the State of Texas has submitted affidavits from experts attesting to the ability of their plan to meet the standards for section 5 preclearance. The United States has filed papers stating that it does not oppose Texas' motion for summary judgment; the Negrete intervenors have filed in support of it. No party has filed any affidavits or pointed to any interrogatories, documents or other factual items in the record to contest Texas' statement of facts. The Court will address both motions simultaneously because they present the same legal questions.
A. Legal Significance of the Statement by the Terrazas Court
on January 10, 1992, the Terrazas three-judge court issued an opinion denying a motion by the defendants in that case to modify or stay the judgment of December 24, 1991 ordering the court's own reapportionment plan into effect. Judge Garwood dissented. Near the end of the majority's opinion, the following statement appears:
Until formal comment on the substitute Senate plan . . . has been made by the Department of Justice, elections cannot proceed under the Legislature's proposed plan as scheduled under current state law. Alternatively, should the opinion of the Department of Justice issue in the next few days, the Court has already reviewed testimony and other evidence on the Senate's substitute plan during the December hearings and finds it fails to satisfy the Sec. 2 requirements of the Voting Rights Act. Terrazas v. Slagle, Nos. 91-425, 91-426, sl. op. at 12 (W.D. Tex. Jan. 10, 1992).
The Terrazas intervenors claim that this Court is bound by this statement under the doctrine of collateral estoppel. See Connors v. Tanoma Mining Co., 293 U.S. App. D.C. 286, 953 F.2d 682, 684 (D.C.Cir. 1992); United States v. Sherman, 912 F.2d 907, 909 (7th Cir. 1990). The Court rejects this contention on several grounds.
Collateral estoppel applies where four conditions are met:
(1) There is identity of issues between the first and ...