Saldano v. Cockrell , 322 F.3d 365 ( 2003 )


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  •                       REVISED MARCH 14, 2003
    
                   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
    
         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.
    
    
    
    
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         The jury ultimately found that Saldano presented a continuing
    
    threat to society (by answering “yes” to the “future dangerousness”
    
    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
    
         1
              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.
    
                                       3
    argued that any error had been waived by Saldano.           The court agreed
    
    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
    
                                       7
           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)
    
    
                                              8
    (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
    
    develop     standards     for        making       the    revenue      and     origination
    
                                                  9
    determinations.”); cf. Trujillo-Hernandez v. Farrell, 
    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
    
    when its resolution is committed by the Constitution to a branch of
    
    the Federal Government other than this Court.           Thus, ‘it is the
    
                                        10
    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 non-justiciable 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
    
    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
    
                                               11
    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.
    
           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
    
           2
              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.
    
                                                  12
    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.
    
    
    
    
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