Texas Supreme Court's Ad Hoc Jurisprudence Up For a Secret Vote

Houston Chronicle Endorses Justice Dale Wainwright, the Court's Stealth Dissenter

Almost every supreme court opinion provides one if not more reasons to vote against the current Court. Most members of the general public, of course, don't read them, although the opinions along with the appellate briefs are now more accessible via the Internet, and even oral arguments can these days be watched post-facto on-line - a change for which the Chief takes credit.

Nor do most Texans otherwise have much opportunity to learn about the Supremes' important work in curtailing the legal rights of the people of Texas. Not enough, to be sure, to form an informed opinion about the current incumbents' job performance and their contributions to the state's evolving jurisprudence and its business climate. Newspapers have much wider a readership, both in print and on-line. That's were reports about payola justice -- and newspaper endorsements -- come in.

But how useful are they?

Earlier this year the Houston Chronicle recommended Sam Nuchia for reelection in the Republican primary, praising the First Court incumbent and former Houston police chief for having been rarely reversed by the Supreme Court, -- a widely shared honor among the state's 80 appeals court justices given that the Supremes decide less than a couple hundred appeals on the merits annually.

The editorial board of Houston's monopoly Daily failed to mention that the local bar had given Nuchia one of the worst marks for his public service on the appellate bench - in a poll in which attorneys were asked to rate only those incumbents who they actually knew. While most local judicial candidates promote themselves on yard signs and posters by name only, Nuchia did not suffer from lack of name recognition. And as a longtime incumbent, majorities of the voting public had previously expressed their confidence in him.

Nuchia was defeated. Fellow Republican Ed Hubbard now faces Democrat Jim Sharp in an open-seat contest.

Such are the pitfalls of partisan election of judges. Sitting on the bench provides no insurance against being bumped off by a newcomer from within the ranks of one's own party - endorsement by the hometown paper or not.

In the general election campaign, the same paper now comes out in support of Justice Dale Wainwright - a former Harris County District Court Judge - on even more dubious grounds: He is billed as a jurist who adds a much-needed dissenting voice to an ideological court. To wit:

Wainwright counts among his strengths his willingness to offer a dissenting voice on the court. That's an important attribute on this GOP-dominated body, often criticized for returning decisions that appear to follow ideology over the merits of individual cases.
Houston Cronicle Editorial 10/9/08

If only that were true.

According to the opinion production tally for FY 2007-08 published by THE TEXAS LAWYER in its September 15, 2008 edition, Jurist Wainwright boasts a total of two (2) dissenting opinions one (1) concurrence and one (1) classified as concur/dissent. All in all, Wainwright wrote few opinions, period. Only Medina - who has personal concerns more serious than reelection - turned in fewer than Wainwright. That's why the Dallas Morning News did not endorse him, and they weren't shy about saying so. The laurels for proven want of orthodoxy on the high court go to Willett, Brister, Hecht and O'Neill this year. Fresh thinking may be needed, but it's not been coming from Wainwright.

Picking Winners and Loosers

Nor did the Chronicle get it right about the much criticised bias in the decisions of the Court. It's not about ideology. Anything but.

It is about the Court's rather consistent pattern of picking cases to reverse judgments rendered against corporate defendants, malpractice defendants, government defendants, and insurance companies.

Ideology is all about ideas and their consistent and coherent application in act taken. If decisions were driven by principled application of ideas (jurisprudential principles) the court would have to let the cards fall where they will, and victories and losses would be more evenly spread among different categories of litigants.

But it ain't so.

There are consistent decisional patterns with respect to winners and losers in the Supreme Court, but there is no consistent ideology on the Court, which happily legislates from the bench and creates new legal precedents, - invocations of the gospel of strict constructionism and disavowals of judicial activism notwithstanding. - At times even outraging bill authors in the Legislature with creative distortions of legislative intent and policy goals, such as turning the Payday Act into a trap for the unwary, - workers who have not been paid by their employers, for whom the Legis provided a easier and quicker process to collect what is due without going to court.

Diversity that Delivers

Indeed there is much ingenuity and creativity on the Court. On Texas highest bench, the legal theories that are pressed into service to produce the "right" outcome are varied, giving a whole new meaning to diversity. - Diversity that time and again commands the needed majorities on the all-Republican court to deliver the goods for deserving constituencies.

Republican Justice Texas-Style: Responsive to Industry Needs, Flexible, and Adaptable

When it comes to overturning jury verdicts and otherwise favor governmental, corporate, and other defendants, the Court impresses with its pragmatism and flexibility: It will rely on or adapt whatever legal theory will do the job and devise new theories and forge new precedents as necessary when the ones inherited from the predecessors will no longer do. That means that disfavored parties can't win in the Court when existing law favors them, because the Court is prepared - if need be - to simply change the govering law, and then honor the looser by putting his name on the precedent that will be invoked by counsel and lower courts throughout the state for years to come to inflict similar injury to others in the same position.

A lamentable example is Everett Tooke, who, with his wife was denied the right to enforce his contract with the city for leaf removal services in the name of sovereign immunity. To produce that outcome, the Court not only held that the statutory language authorizing a city to "sue and be sued" does not mean that the city may actually be sued, but that leaf collecting was a governmental function and thus properly protected by an expanded doctrine of governmental immunity. Presumably that's why the city saw fit to contract out the menial task to a private mom-and-pop operation, rather than using its own workers, not to mention officials.

Tooke v. City of Mexia is now routinely cited for the countersensical proposition that "may be sued" language in a city charter or statute means that governmental defendant enjoys immunity and may NOT be sued. - Intellectual ingenuity that honors the memory of George Orwell.

His book 1984 was fiction. So is the new precedent. But it is now "the law" and is applied by the courts every day throughout the state to the detriment of people who cannot enforce contracts against governmental defendants and are kicked out of court instead as a matter of jurisdiction.

That makes the legal fiction created by the Supreme Court very real in its consequences. Which is true of many other new precedents for which we have the Supremes to thank.

Jurisprudential Decision Tools a la Carte

Beyond sovereign and sundry immunities, other recent favorites the Court has employed to reverse plaintiff's verdicts are: No duty-no liability, no standing-no case, federal preemption, the-jury-should-not-have-been-told (that the Defendant has deep pockets; that the Nazis did not value human life); variations of the see-hear-know-nothing doctrines: the ostrich defense (look the other way and escape liability, don't let kids drown on your watch, let them drown while you sleep), and the perennial no-evidence favorite: the jury relied on evidence that did not exist (or had to hear from an expert).

But it is very true that the court does not always rule against consumers, injured individuals, or the families of victims of negligence. After all, there are cases that don't involve consumers but two corporations or insurance companies at legal loggerheads.

Nor is it true that Court always favors defendants. Just recently, the Court ruled in favor of a Plaintiff and overturned a court of appeals decision favorable to the Defendant - a cash strapped consumer who got sued for not paying his credit card bill and represented himself pro se. Apparently he could not afford a lawyer and got outfoxed on a procedural issue. Never mind that the debt claim may have been barred by limitations. The guy got his day in court, in the Supreme Court, no less, -- if he wanted to or not.

Access to justice is taken seriously in Texas.

But let's not dwell on sob stories and on statistical patterns. After all, each case is different. Each case deserves to be considered on its merits and on its own terms. That is the seemingly uncontroversial mantra that incumbents do not hesitate to pay homage to on the campaign trail, and which they use to dismiss the weight of the statistical evidence and a certain empirical study of decision trends published in certain law review based on that evidence.

Indeed, the Court's critics might even chime in and agree, to an extent:

Each petitioner that does get the High Court's attention has a good shot at getting the Court to apply the best judicial doctrine that will produce the "right" result under the circumstances of the case. A single judicial philosophy clearly does not and wouldn't fit all.

Ad hoc jurisprudence is the name of the game

If the Court were ideological, it would be more constrained. Who wins would be more predictable based on issues in the case in light of existing precedents. As it is, the best predictor of Texas Supreme Court decisions, based on well-established empirical decisional patters, is the identity of the litigant. Corporate and governmental defendants will generally win. Consumer and tort plaintiffs will generally lose.Legal precedent will not control case disposition, because if it stands in the way, the court will either ignore it, frame the issue differently so as to bring the controversy outside the purview of existing precedent, or throw out existing case law and replace it with a new leading decision, as it did in Tooke v. City of Mexia.

That generalization, of course, does not mean that the Court won't throw a bone or two at the plaintiff's bar come election time, or that one justice will not occasionally dissent to take the high road, leaving the majority to do what needs to be done.

After all, our judges are savvy politicians.

If they did not at times rule for an underdog (like a jail inmate that could not avail himself of the mailbox rule literally for reasons of lack of mobility), Justice Wainwright could not as confidently seek to bolster his reelection bid by protesting loudly that he has written opinions both for plaintiffs and defendants.

The incumbents would be left with the lame argument that there are more jury verdicts out there that were undisturbed compared to the number of those reversed by them on the Texas Supreme Court.

Justice Wainwright would have to concur with his chief that it means nothing if 100% of all TexasSupreme Court decisions went against consumers. After all, statistics are all lies, and all cases are decided on a case-by-case basis.

Presumably, if hiring decisions for positions in government resulted in a workforce consisting of Caucasian men only, it would not be indicative of any bias against Blacks, Hispanics, Asians and women either. - The mere suggestion that it did would impugn the integrity of the hiring authority.

Worse in the case of judges. They have sworn an oath to be impartial, and the suggestion that they are anything but may not only foment umbrage on the bench, but may be construed as defamation per se.

Given the ramifications of that, there is something to be said for judicial elections and secrecy of the ballot. Heck, it even allows the plaintiff's bar to vote for change without risk backlash from the bench at the next docket call or oral argument -- or worse -- career suicide.