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Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-41208
_____________________
VICTOR HUGO SALDANO
Petitioner - Appellee
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
v.
TOM O’CONNELL, Collin County Criminal District Attorney
Movant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
February 18, 2003
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
KING, Chief Judge:
In 1996, Victor Hugo Saldano was convicted and sentenced to
death for the capital murder of Paul King. On appeal, we are
asked to resolve whether the district court erred in holding that
the Collin County District Attorney’s application for intervention
presented it with non-justiciable political questions.
FACTUAL AND PROCEDURAL BACKGROUND
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The Collin County District Attorney’s Office (“District
Attorney”) represented the State of Texas in this case at trial and
on Saldano’s direct appeal of his death sentence to the Texas Court
of Criminal Appeals. During the punishment phase of the trial, the
District Attorney called clinical psychologist Dr. Walter Quijano
to testify as an expert regarding Saldano’s potential for being a
continuing threat to society. Dr. Quijano identified twenty-four
unweighted “factors” that he deemed appropriate to the jury’s
sentencing determination. One of Dr. Quijano’s statistical factors
was race. As to this factor, Dr. Quijano correlated the over-
representation of African Americans and Hispanics in the prison
population (when compared to their percentages of the general
population) with an increased susceptibility for “future
dangerousness” within these races.
Because Saldano is from
Argentina, Dr. Quijano further testified that Saldano would be
considered Hispanic.
During closing arguments, the District
Attorney reminded the jury to rely on the twenty-four factors
outlined by Dr. Quijano in determining “future dangerousness” and
to take the formula of twenty-four factors and “plug it in.”
Saldano’s trial counsel failed to object to Dr. Quijano’s testimony
or the evidence and argument offered by the District Attorney
regarding race.
The jury ultimately found that Saldano presented a continuing
threat to society (by answering “yes” to the “future dangerousness”
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The District Attorney tendered to the Supreme Court a
brief in opposition to the Attorney General; however, the Supreme
Court returned it unfiled and denied the District Attorney leave
to file a brief amicus curiae.
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special issue question) and Saldano was thereafter sentenced to
death by the trial court. On direct appeal to the Texas Court of
Criminal Appeals, Saldano challenged the admissibility of Dr.
Quijano’s testimony. In response, the District Attorney argued
that Saldano was procedurally barred from raising this claim. The
Texas Court of Criminal Appeals agreed with the District Attorney
and affirmed the judgment of the trial court.
On writ of certiorari to the United States Supreme Court,
however, the Attorney General of Texas (“Attorney General”) took
over the representation of the State.
The Attorney General
confessed error and declined to raise the procedural bar defense
previously argued by the District Attorney.
1
The Supreme Court
thereafter vacated the judgment of the Texas Court of Criminal
Appeals and remanded to the court for further disposition in light
of the confession of error by the State. Saldano v. Texas, 530
U.S. 1212 (2000).
On remand to the Texas Court of Criminal Appeals, the Attorney
General again confessed error in the trial court. The Texas Court
of Criminal Appeals, however, invited the District Attorney to file
a brief and to share in oral argument. The District Attorney again
argued that any error had been waived by Saldano. The court agreed
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and affirmed the judgment of the trial court. In so doing, it
found that evidence regarding the correlation of race and
recidivism did not constitute fundamental error and that “the
State’s confession of error in the Supreme Court of the United
States is contrary to our state’s procedural law for presenting a
claim on appeal, as well as the Supreme Court’s enforcement of such
procedural law when it is presented with equal-protection claims.”
Saldano v. State, 70 S.W.3d 873, 891 (Tex. Crim. App. 2002).
Saldano subsequently filed a petition for writ of habeas
corpus in federal district court contending that the District
Attorney’s use of race as a factor in the jury’s evaluation of
future dangerousness constitutes fundamental error requiring
reversal of his death sentence. In response, Respondent Janie
Cockrell, through the Attorney General, acknowledged that “the
infusion of race as a factor for the jury to weigh in making its
determination violated [Saldano’s] constitutional right to be
sentenced without regard to the color of his skin,” and “seriously
undermined the fairness, integrity, or public reputation of the
judicial process.” The Attorney General did not raise, as a
defense, that Saldano had waived this alleged error. The District
Attorney moved to file a brief as amicus curiae; this motion was
granted by the district court. While acknowledging that the
Attorney General is the proper respondent for the State in this
civil case, the District Attorney also filed an application to
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intervene as of right. On July 16, 2002, the district court held
that the District Attorney’s application for intervention presented
it with non-justiciable political questions. The District Attorney
appeals this order.
JURISDICTION and STANDARD OF REVIEW
Although the district court here styled its order as a denial
of the District Attorney’s application for intervention, it, in
fact, did not opine on the merits of the application because it,
sua sponte, found jurisdiction lacking. See, e.g., Gordon v.
Texas, 153 F.3d 190, 196 (5th Cir. 1998)(“We do not interpret the
district court’s opinion, however, to be a formal disposition of
the plaintiffs’ cases on these other bases. The court held that
the plaintiffs’ claims were nonjusticiable under the political
question doctrine. Having concluded that it lacked the power to
adjudicate the plaintiffs’ claims, logically the district court
could not then proceed to address the merits of the other defenses
raised by the defendants.”).
Instead, the district court
specifically held that it had no jurisdiction to review the merits
of the application.
The Supreme Court has ruled that an
“abstention-based stay order [i]s appealable as a ‘final decision’
under [28 U.S.C.] § 1291 because it put[s] the litigants
effectively out of court, and because its effect [i]s precisely to
surrender jurisdiction of a federal suit.” Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 713 (1996) (internal quotations and
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citations omitted). Likewise, as the district court order here
concluding that it had no jurisdiction to review the District
Attorney’s application for intervention “put the litigant[]
effectively out of court,” id., the order “conclusively
determine[d] an issue that is separate from the merits,” Id. at
714, and is thus a “final decision” under § 1291.
The district court’s order regarding its lack of jurisdiction
to review the District Attorney’s application for intervention is
a “final decision” for purposes of this court having jurisdiction
to hear the appeal under 28 U.S.C. § 1291. The relevant question
of law that this court must review de novo, therefore, is whether
the district court properly held that the District Attorney’s
application for intervention presents non-justiciable political
questions. See Guillory v. Cain, 303 F.3d 647, 650 (5th Cir. 2002)
(holding that questions of law are reviewed de novo).
ANALYSIS OF THE DISTRICT COURT’S ORDER and THE POLITICAL QUESTION
DOCTRINE
The district court sua sponte held that this case presents
political questions, stating that:
Although the movant frames the issue as controlled by
Fed. R. Civ. P. 24, whether to allow intervention under
that rule cannot be separated from a political question.
In other words, the question of whether a district
attorney, who originally represented the state in
criminal litigation, has a sufficient interest in the
death sentence obtained in that litigation to allow him
to intervene in collateral litigation about the
constitutionality of the sentencing procedures employed
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in that litigation is inextricably bound up with the
question of whether the State of Texas would prefer to
preclude the federal court from considering the merits of
Saldano’s constitutional claim, or would instead prefer
to allow the federal court to address the claim. The
court must abstain from deciding political questions.
See Public Citizen v. Bomer, 115 F. Supp. 2d 743, 746
(W.D. Tex. 2000), aff’d on other grounds, 274 F.3d 212
(5th Cir. 2001); see also Baker v. Wade, 769 F.2d 289,
299 (5th Cir. 1985), cert. denied, 478 U.S. 1022 (1986)
(Rubin, J., dissenting).
Upon review, we conclude that the questions presented by the
District Attorney’s application for intervention are justiciable.
Whether an issue presents a non-justiciable political question
cannot be determined by a precise formula. The doctrine is
primarily rooted in the constitutional separation of powers among
the three branches of the federal government. See Powell v.
McCormack, 395 U.S. 486, 518 (1969); Baker v. Carr, 369 U.S. 186,
210 (1962). As observed by the Supreme Court in Baker v. Carr,
each of the varying formulations which may be used to describe a
non-justiciable political question “has one or more elements which
identify [the question] as essentially a function of the separation
of powers.” Id. at 217. The Baker Court outlined the scope of the
political question doctrine by reviewing several of these varying
formulations:
Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially
discoverable and manageable standards for resolving it;
or the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial
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discretion; or the impossibility of a court’s undertaking
independent resolution without expressing lack of the
respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political
decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.
Id.
Threading the issues raised by the District Attorney’s
application for intervention through the prism of non-justiciable
formulations provided for in Baker v. Carr reveals that the issues
here are extricable from those barred from justiciability by the
doctrine.
The dominant consideration in any political question inquiry
is whether there is a “textually demonstrable constitutional
commitment of the issue to a coordinate political department.”
Id.; see also Nixon v. United States, 506 U.S. 224, 252-53 (1993)
(“Whatever considerations feature most prominently in a particular
case, the political question doctrine is essentially a function of
the separation of powers, existing to restrain courts from
inappropriate interference in the business of the other branches of
the Government, and deriving in large part from prudential concerns
about the respect we owe the political departments.”) (Souter, J.,
concurring) (internal citations and quotations omitted). Here, the
issues raised by the District Attorney’s application for
intervention are not issues that have been constitutionally
committed to coordinate branches or political departments. Cf.
Dickson v. Ford, 521 F.2d 234, 235-36 (5th Cir. 1975) (per curiam)
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(dismissing as non-justiciable an Establishment Clause challenge to
a statute authorizing $2.2 billion of emergency military assistance
to the State of Israel because authority for such action rested in
a coordinate branch of the federal government). Further, this
application for intervention does not present the district court
with a situation where it will lack judicially discoverable and
manageable standards for resolving the intervention question
because the federal rules and case law governing intervention will
serve as the benchmark for a disposition of the District Attorney’s
application. See generally Nixon v. United States, 506 U.S. 224,
228-29 (1993) (stating that these two concepts (the textual
commitment concept and the judicially discoverable and manageable
standards concept) are “not completely separate,” and that “the
lack of judicially manageable standards may strengthen the
conclusion that there is a textually demonstrable commitment to a
coordinate branch”); Chisom v. Roemer, 501 U.S. 380, 402-03 (1991)
(rejecting claim that vote dilution case was non-justiciable
because there are no judicially manageable standards for deciding
vote dilution); United States v. Munoz-Flores, 495 U.S. 385, 395
(1990) (“The Government also suggests that a second Baker factor
justifies our finding that this case is nonjusticiable: The Court
could not fashion ‘judicially manageable standards’ for determining
either whether a bill is ‘for raising Revenue’ or where a bill
‘originates.’ We do not agree . . . To be sure, the courts must
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develop standards for making the revenue and origination
determinations.”); cf. Trujillo-Hernandez v. Farrel, 503 F.2d 954,
955 (5th Cir. 1974) (“The question for decision is nonjusticiable.
The naturalization power is conferred on Congress in Article I,
Section 8, along with war power . . . It has never been supposed
that there are any judicially manageable standards for reviewing
the conduct of our nation’s foreign relations by the other two
branches of the federal government.”). Nor does the application
for intervention present the district court with a situation where
it will be required to make a “policy” determination of the kind
clearly for non-judicial discretion simply because the
determination may touch on political issues. See, e.g., League of
United Latin Am. Citizens v. Clements, 999 F.2d 831, 838 (5th Cir.
1993) (en banc) (reviewing the “political” dispute challenging the
single-district system of electing state trial judges in Texas in
a voting rights action involving the Attorney General of Texas and
the Texas Judicial Districts Board).
Additionally, as demonstrated by the case law, an important
overlay exists to the formulations discussed in Baker v. Carr. The
parameters of the political question doctrine generally extend to
cover the federal judiciary’s relationship to the federal
government, and not the federal judiciary’s relationship to the
States. See Elrod v. Burns, 427 U.S. 347, 351 (1976) (“A question
presented to this Court for decision is properly deemed political
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when its resolution is committed by the Constitution to a branch of
the Federal Government other than this Court. Thus, ‘it is the
relationship between the judiciary and the coordinate branches of
the Federal Government, and not the federal judiciary’s
relationship to the States, which gives rise to the political
question.’ That matters related to a State’s, or even the Federal
Government’s elective process are implicated by this Court’s
resolution of a question is not sufficient to justify our
withholding decision of the question.”) (quoting Baker v. Carr, 369
U.S. 186, 210 (1962) (emphasis added)). Here, it is undisputed
that there is simply no question that presents a conflict between
the federal judiciary and a coordinate branch of the federal
government.
In Gordon v. State, 153 F.3d 190 (5th Cir. 1998), this court
reversed the district court’s holding that issues relating to the
erosion of beachfront property presented nonjusticiable political
questions. Id. at 196. There, the plaintiff property owners filed
suit in federal district court against the Gulf Coast Rod, Reel and
Gun Club, the State of Texas, and various state agencies, alleging
that the defendants negligently constructed, dredged, and
maintained the Rollover Fish Pass (an easement located in Galveston
County that had been granted to the State of Texas by the Gulf
Coast Rod, Reel and Gun sportsmen’s club). Id.
They sought an
injunction ordering the State to fill in the Pass and to pay money
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The district court did not base its political question
holding on the Guaranty Clause and the District Attorney, on
appeal, does not contend that this case raises issues implicating
the Guaranty Clause.
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damages. Id. The district court held that the issues were “far
more appropriate for resolution by Congress or agencies within the
Executive Branch” because the case presented policy decisions far
afield of the court’s practical capacities. Gordon v. Texas, 965
F. Supp. 913, 916 (S.D. Tex. 1997), rev’d, 153 F.3d 190 (5th Cir.
1998). Disagreeing, this court concluded that the district court
erroneously analyzed the political question issue.
In so concluding, we stated that “it is fair to say that,
Guaranty Clause cases aside, the potential for a clash between a
federal court and other branches of the federal government is
fundamental to the existence of a political question; a simple
conflict between a federal court and state agencies does not
implicate the doctrine.” Gordon, 153 F.3d at 194 (emphasis in
original).
2
Because “the plaintiffs [there] ha[d] requested no
action be taken by any unit of the federal government,” Id., we
held that “the district court erred when it dismissed the
plaintiffs’ claims as nonjusticiable political questions.” Id. at
196.
Our reasons for disagreeing with the district court’s
conclusion regarding the application of the political question
doctrine in Gordon similarly apply to the facts of this case.
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In sum, we see nothing about the District Attorney’s
application that removes it from the competence of the judiciary.
The reasons that supported the justiciability of challenges to
state legislative districts, Baker, 369 U.S. at 234-37, as well as
state districting decisions relating to the election of members of
Congress, Karcher v. Daggett, 462 U.S. 725 (1983), as well as the
constitutionality of apportionment schemes, United States Dept. Of
Commerce v. Montana, 503 U.S. 442, 458 (1992), as well as landowner
suits against various Texas agencies, Gordon, 153 F.3d at 193,
likewise support justiciability of the “political” issues presented
by the resolution of the District Attorney’s application for
intervention. The district court’s “alternative” holding in Public
Citizen v. Bomer, 115 F. Supp. 2d 743 (W.D. Tex. 2000), aff’d on
other grounds, 274 F.3d 212 (5th Cir. 2001), and a statement that
is not necessary to the reasoning of the dissent in Baker v. Wade,
769 F.2d 289, 299 (5th Cir. 2001) (en banc) (Rubin, J., dissenting)
– both relied on by the district court to support its determination
that the District Attorney’s application presents it with non-
justiciable political questions – do not persuade us otherwise.
CONCLUSION
We REVERSE the district court’s order holding that the
political question doctrine prevents it from considering the merits
of the District Attorney’s application to intervene in this case
and REMAND the application to the district court for disposition on
the merits.
Former Raza Unida gubernatorial candidate Ramsey Muñiz has been transferred from a federal corrections institute in Three Rivers six months after arriving at the facility. 
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