Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 1 of 11

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1 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-788-OLG-JES-XR [Lead Case] RICK PERRY, et al., Defendants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), DOMINGO GARCIA, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-855-OLG-JES-XR [Consolidated Case] RICK PERRY, et al., Defendants. DEFENDANTS MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Defendants Rick Perry, in his official capacity as Governor, John Steen, in his official capacity as Secretary of State, and the State of Texas (collectively Defendants ) hereby move to dismiss all claims in this case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and 12(h)(3). In support of their motion, Defendants respectfully submit the following memorandum of points and authorities. 1

2 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 2 of 11 INTRODUCTION This is a redistricting case to prevent the implementation of electoral districts enacted by the Texas Legislature in The Legislature has repealed the 2011 Senate redistricting plan and established a new plan for 2014 and future elections. The Governor has signed that bill into law. As a result, the vacated 2011 plan can never be used to conduct any election. Because the plan will never be implemented, it poses no threat of injury to the plaintiffs. It follows that any order regarding the 2011 plan can provide no effectual relief. As far as the defunct 2011 plan is concerned, there is no relief to grant. This case no longer presents a live controversy. The Court therefore lacks subject matter jurisdiction. The only thing left to do is dismiss. FACTS The plaintiffs seek declaratory and injunctive relief to prevent Defendants from implementing the Senate redistricting plan (Plan S148) enacted by the 82nd Texas Legislature in On September 29, 2011, the Court entered an injunction against implementation of Plan S148 because it had not been precleared under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. 1 The Court ordered that the injunction would be effective as a permanent injunction, subject to being lifted by order of the Court as appropriate. 2 On June 25, 2013, the United States Supreme Court issued its decision in Shelby County, Alabama v. Holder, No , 2013 WL (U.S. June 25, 1 See Order Enjoining the Implementation of Voting Changes (Doc. 8) at 2. 2 Id. at 5. 2

3 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 3 of ), reversing 679 F.3d 848 (D.C. Cir. 2012), holding that the coverage formula in Section 4(b) of the Voting Rights Act is unconstitutional and can no longer be used as a basis for subjecting jurisdictions to preclearance. Id. at *18. On June 27, 2013, the Supreme Court vacated the D.C. District Court s judgment denying preclearance of the 2011 legislatively enacted redistricting plans and remanded the case for further consideration in light of Shelby County. See Texas v. United States, No , 2013 WL , *1 (U.S. June 27, 2013). On June 23, 2013, the Legislature passed a new redistricting bill for the Texas Senate. 3 In addition to enacting Plan S172, the newly enacted redistricting bill repealed the 2011 plan challenged in this case. 4 On June 26, 2013, the Governor signed the newly enacted redistricting bill into law. See Exhibit A ((June 26, 2013 Letter from Office of the Governor to Texas Secretary of State). LEGAL STANDARD Article III of the Constitution permits federal courts to adjudicate only actual cases or controversies. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). This means litigants must suffer, or be threatened with, an actual injury traceable to the defendant s actions, and that the federal court must be able to grant effectual relief. See id. This case-or-controversy requirement must be satisfied at every stage of judicial proceedings. Id. If it is not, the federal court lacks the power to adjudicate the case and must dismiss for lack of subject matter jurisdiction. E.g., 3 See Tex. S.B. 2, 83d Leg., 1st C.S. (enacting Plan S172). 4 See Tex. S.B. 2 3, 83d Leg., 1st C.S. ( Chapter 1315 (Senate Bill No. 31), Acts of the 82nd Legislature, Regular Session, 2011 (Article 193e, Vernon s Texas Civil Statutes), is repealed. ). 3

4 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 4 of 11 Home Builders Ass n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Plaintiffs generally bear the burden of establishing subject matter jurisdiction, see Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), including their own standing to sue, see Cobb v. Central States, 461 F.3d 632, 635 (5th Cir. 2006). When a party asserts that its own conduct has eliminated any live case or controversy, however, it bears a heavy burden to show that the change in circumstances makes it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). Governmental entities, however, are accorded a presumption of good faith because they are public servants, not selfinterested private parties. Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir. 2009), aff d, 131 S. Ct (2011). ARGUMENT AND AUTHORITIES As a result of the Legislature s enactment of a new Senate redistricting plan and its repeal of the plan enacted in 2011 by the 82nd Legislature, the claims asserted against the 2011 plan no longer present a live case or controversy. Because the 2011 plan has been repealed, the State cannot implement it. Nor is there any realistic threat that the State will reinstate the 2011 plan through future legislation. As a result, the plaintiffs alleged injury from the 2011 plan no longer exists, and this Court cannot provide any effectual relief on their claims. The case is moot, and the Court therefore lacks subject matter jurisdiction. 4

5 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 5 of 11 The Constitution confines the judicial power to actual cases or controversies. See U.S. Const. art. III 2. The Supreme Court has explained that the triad of injury in fact, causation, and redressability constitutes the core of Article III's caseor-controversy requirement. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, (1998) (footnote omitted). To invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990); see also Iron Arrow Honor Soc y v. Heckler, 464 U.S. 67, 70 (1983) (per curiam) ( To satisfy the Article III case or controversy requirement, a litigant must have suffered some actual injury that can be redressed by a favorable judicial decision. ). When a lawsuit no longer presents a live controversy, the court loses subject matter jurisdiction and can proceed no further: Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. Steel Co., 523 U.S. at 94 (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). Because this case no longer presents a live case or controversy the plaintiffs claims against the 2011 redistricting plan are moot. [A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). A case is moot when the issues presented are no longer live or the parties lack a legally cognizable 5

6 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 6 of 11 interest in the outcome. City of Erie v. Pap s A.M., 529 U.S. 277, 287 (2000) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). The issues presented by the plaintiffs challenge to the 2011 plan are no longer live because the plan has no prospect of enforcement. A suit challenging the validity of a statute generally becomes moot when the statute is repealed. In that event, the challenge to the statute no longer presents a live controversy, and the case must be dismissed: If the challenged statute no longer exists, there ordinarily can be no real controversy as to its continuing validity, and an order enjoining its enforcement would be meaningless. In such circumstances, it is well settled that the case should be dismissed as moot. Ne. Florida Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 670 (1993) (O Connor, J., dissenting); see also McCorvey v. Hill, 385 F.3d 846, 849 (5th Cir. 2004) ( Suits regarding the constitutionality of statutes become moot once the statute is repealed. ). Similarly, the demise of the 2011 redistricting plan eliminates the plaintiffs concrete stake in the outcome of the case because they face no realistic threat of injury from Plan S148. To maintain a live case or controversy: [t]he parties must continue to have a personal stake in the outcome of the lawsuit..... This means that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision. Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, (1990)). For this reason, the doctrine of mootness is often characterized as the doctrine of standing set in a time frame: The requisite 6

7 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 7 of 11 personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness). 5 E.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997); cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (explaining that Article III standing requires the plaintiff to identify a concrete and imminent invasion of a legally protected interest that is neither conjectural nor hypothetical ); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) ( The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. ). Because the claims asserted by all plaintiffs are directed at legislation that has now been repealed and replaced, the plaintiffs cannot demonstrate that they are likely to be harmed by the challenged redistricting plan. Plaintiffs inability to identify any threat of injury deprives them of a concrete stake in the outcome of this case, rendering the case moot and divesting this Court of subject matter jurisdiction. 6 It follows from the repeal of the 2011 plan that this Court can no longer provide any effectual relief on the plaintiffs claims. The case or controversy requirement of Article III of the United States Constitution prohibits federal courts 5 This shorthand description of mootness doctrine, first expressed in Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363, 1384 (1973), is not comprehensive in the sense that it does not reflect certain exceptions to mootness, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000), none of which vest the Court with jurisdiction in this case. 6 Plaintiffs claims for attorney s fees are insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim. Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990) (citing Diamond v. Charles, 476 U.S. 54, (1986)). [A] determination of mootness neither precludes nor is precluded by an award of attorneys fees. The attorneys fees question turns instead on a wholly independent consideration: whether plaintiff is a prevailing party. Murphy v. Fort Worth Ind. Sch. Dist., 334 F.3d 470, 471 (5th Cir. 2003) (per curiam) (quoting Doe v. Marshall, 622 F.2d 118, 120 (5th Cir.1980)). 7

8 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 8 of 11 from considering questions that cannot affect the rights of litigants in the case before them. C&H Nationwide, Inc. v. Norwest Bank Texas NA, 208 F.3d 490, 493 (5th Cir. 2000) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)). A case no longer presents a live case or controversy, and thus becomes moot, when it is impossible for a court to grant any effectual relief whatever to the prevailing party. Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013). The fact that the challenged statute has been repealed provides an absolute assurance that the conduct sought to be enjoined implementation of Plan S148 will not occur. To be sure, a party urging mootness based on voluntary cessation of the challenged conduct bears a heavy burden to demonstrate that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to occur. Friends of the Earth, 528 U.S. at 189. But a governmental entity s conclusive abandonment of the challenged policy is sufficient to demonstrate that the threat of injury has abated, even when the change in policy is not accomplished by a statutory repeal or amendment. See, e.g., Sossamon, 560 F.3d at 325 (holding that the TDCJ director s affidavit explaining a revision to the policy in question was sufficient to establish that the plaintiff would no longer be subject to the challenged restrictions on attendance at religious services); Coalition of Airline Pilots Ass n v. F.A.A., 370 F.3d 1184, (D.C. Cir. 2004) ( [T]he agencies commitment to draft new regulations that will provide additional administrative review procedures a commitment made both to this court and in the formal entry in the TSA rulemaking dockets provides sufficient assurance that the agencies will never return to [the] 8

9 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 9 of 11 allegedly unlawful procedures. ). Government entities are entitled to a presumption of good faith when a change in policy eliminates the case or controversy. See Sossamon, 560 F.3d at 325 ( Without evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing. ). The Legislature s formal repeal of the statute at issue in this case demonstrates beyond any doubt that the State will not reanimate the challenged redistricting plan. With no prospect that the 2011 plan will be used to conduct elections, any order enjoining its use or declaring it unlawful would serve no purpose, as it would not change the plaintiffs position. Because ruling on the validity of the repealed 2011 plan can provide no relief to the parties, any such ruling would constitute an advisory opinion, which the federal courts lack power to issue. E.g., Prieser v. Newkirk, 422 U.S. 395, 401 (1975) ( [A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them. (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971))). This case no longer presents a live controversy because the Legislature has repealed the redistricting plan challenged by the plaintiffs. The statute that created Plan S148 will not take effect. That plan will not be used to conduct any election. Any order to prevent its implementation would be an advisory opinion. The case should be dismissed as moot. 9

10 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 10 of 11 CONCLUSION For the reasons stated above, the case should be dismissed for lack of subject matter jurisdiction. Dated: June 29, 2013 Respectfully submitted. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General /s/ David C. Mattax DAVID C. MATTAX Texas Bar No Deputy Attorney General for Defense Litigation J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General PATRICK K. SWEETEN Chief, Special Litigation Division ANGELA COLMENERO Assistant Attorney General MATTHEW H. FREDERICK Assistant Solicitor General P.O. Box 12548, Capitol Station Austin, TX (512) (512) (fax) ATTORNEYS FOR THE STATE OF TEXAS, RICK PERRY, AND JOHN STEEN 10

11 Case 5:11-cv OLG-JES-XR Document Filed 06/29/13 Page 11 of 11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this filing was sent on June 29, 2013 via the Court s electronic notification system and/or to the following counsel of record: David Richards Richards, Rodriguez and Skeith 816 Congress Avenue, Suite 1200 Austin, TX davidr@rrsfirm.com Attorney for Davis Plaintiffs Donna García Davidson Attorney at Law P.O. Box Austin, TX Donna@dgdlawfirm.com Attorney for Defendant Steve Munisteri Chad Dunn Brazil & Dunn 4201 FM 160 West, Suite 530 Houston, Texas chad@brazilanddunn.com Attorney for Defendant Boyd Richie J. Gerald Hebert Attorney at Law 191 Somervelle Street, #405 Alexandria, VA Hebert@voterlaw.com Attorney for Davis Plaintiffs Eric Opiela Attorney at Law 1122 Colorado, Suite 2301 Austin, TX eopiela@ericopiela.com Attorney for Defendant Steve Munisteri Luis Vera 1325 Riverview Towers 111 Soledad San Antonio, Texas Lrvlaw@sbcglobal.net Attorney for LULAC Plaintiffs /s/ David C. Mattax DAVID C. MATTAX 11