Justice Harriet O'Neill's Parting Shots

IN A DIFFERENT VOICE

Justice O'Neill's recent announcement that she will not seek re-election in 2010 adds something of a parting-shot quality to her vigorous dissent to the Court's disrespect for precedent and for trial courts' traditional discretion in deciding whether or not to grant a new trial in the interest of justice. In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted) (trial court judge ordered to state specific reason(s) for disregarding jury verdict and granting new trial; 'in the interest of justice' is no longer acceptable)

This is also the case in the which the attorney for the wrongful-death plaintiffs filed a motion to recuse four of the nine justices for the empirically documented proclivity of the court to favor tort defendants. The denial of the motion impugning the Supremes' [much-questioned] impartiality did not come as a great surprise. A blog post on Tex Parte - the Texas Lawyer Blog - summed it up succinctly: We don't need no stinkin' recusal.

QUITTING WITH ADVANCE NOTICE TO LET THE DEMOCRATIC PROCESS RUN ITS COURSE

Upon her announcement that she will step down, The Great Dissenter and only female member of the current Texas Supreme Court should be commended for her courage to stand up, speak her mind, and try to rein in (albeit unsuccessfully) a majority of her colleagues' power grab via mandamus-exhancement, and concomitant micro-management of the trial judges below.

Ironically the majority tries to justify its precedent-jettisoning decision with reference to the public's confidence in the judiciary. O'Neill's well-argued dissent deserves far greater public attention than it has so far received. And so does the empirical evidence of supreme pro-defendant bias cited to in the doomed motion to recuse in the case, which is at the core of the informed public's lack of confidence in the Court.

Hopefully Justice O'Neill's bold jurisprudence in dissent will add to the public debate over the legal and political role of the Texas Supreme Court and the wisdom of the Chief's idea to end the current judicial selection system and replace it with one that puts constraints on the role of the voters. If O'Neill serves out her term, her seat will be filled through the competitive electoral process in an open-seat race. Several would-be contenders are already entering the fray, or reported to be considering a run.

Both the Republican primary voters, and the general electorate, will thus get a chance to consider a choice of candidates and make a decision democratically, rather than a successor being hand-picked by the Gov. and bestowed with incumbency and fund-raising advantage just in time for election campaign season.

TEXT O'NEILL'S DISSENTING OPINION IN In Re Columbia Medical Center of Las Colinas, Subsidiary L.P., et al. (Tex. 2009) follows:

Justice O’Neill, joined by Chief Justice Jefferson, Justice Medina, and Justice Green, dissenting.

I agree that trial courts should not set aside jury verdicts without valid reasons. And I might agree that a change in the procedural rules to require trial judges to state good cause more particularly than “in the interests of justice and fairness” would be well advised, though the Legislature has only seen fit to impose such a requirement in criminal cases.

But declaring such a rule by judicial fiat on interlocutory review, and issuing mandamus relief against the trial court for not following it, turns our mandamus jurisprudence on its head. The Court recites that “exceptional circumstances” justify mandamus relief when the trial court shows “such disregard for guiding principles of law that the harm . . . is irreparable.” ___ S.W.3d ___, ___ (internal quotations omitted). Yet this case presents neither exceptional circumstances nor a departure from controlling law, as the trial court followed one of our most well-established legal principles.

We have long held, unequivocally, that a trial court may grant a new trial “in the interests of justice and fairness,”1 and trial and appellate courts have taken us at our word.2 The Court simply changes the rule and jettisons the law upon which the trial court relied. After today, I see no principled basis for denying mandamus review of any potentially dispositive but unexplained interlocutory ruling.

The Court’s premise is simple enough and, on first glance, compelling: public confidence in the judicial system will be enhanced if trial courts explain the reasons for their rulings. This premise, though, would surely apply with equal force to any number of interlocutory rulings, such as why the court impaneled jurors who were challenged for cause, granted or denied a motion for summary judgment, allowed or disallowed particular discovery, exercised its gatekeeping function as it did with regard to a key expert witness, or admitted or excluded potentially dispositive evidence. A trial court’s ruling on matters like these, if wrong, could ultimately lead to reversal on appeal and necessitate the expense and delay of a new trial. Yet we have never justified interlocutory review of such decisions on the trial court’s failure to expound its reasoning.

Unlike many other jurisdictions, Texas has no statutory or procedural rule that requires a trial court to further explain its ruling on a new trial motion or that permits interlocutory review of that decision, presumably because the benefits of a relatively prompt retrial if the judge perceives unfairness in the proceedings outweigh the detriments of prolonging final judgment pending interlocutory appellate review. After all, this case has been on review for over four and one half years since the new trial was granted.

The Court purports to justify its misadventure on the principle that trial courts may not substitute their judgment for that of the jury. While undoubtedly true, it is equally true that an appellate court may not substitute its discretion for that of the trial court, which is charged with ensuring the fairness of the proceedings and safeguarding the integrity of the judicial process.

Because trial courts are in a unique position to observe the proceedings and participants firsthand, we have afforded them broad discretion in assessing whether “in the interests of justice and fairness” a new trial is warranted. If abuse of the privilege that such broad discretion affords is a concern, then Rule 320 should be amended to mirror the federal requirement that a court “specify the reasons in its order.” Fed. R. Civ. P. 59(d). Until then, no jurisprudential imperative compels us to overturn more than a century of clear precedent and erode the broad discretion we have traditionally afforded trial courts in granting new trials when they perceive good cause to do so. Because the Court ventures far beyond the boundaries of our mandamus jurisprudence, I respectfully dissent.

I. Background

Donald Creech, Jr. was admitted to Columbia Medical Center for difficulties with kidney stones. While at the hospital, he received the pain medication Dilaudid, a narcotic, intravenously. When he increasingly complained of severe pain, the licensed vocational nurse (LVN) attending to Donald increased the amount and frequency of his doses. Several hours after his largest dose, Donald died. Donald’s widow, Wendy Creech, brought this suit, alleging that the hospital staff violated the standard of care in administering such a large amount of Dilaudid to Donald when he suffered from sleep apnea. She alleges that the medication, a respiratory depressant, interacted with Donald’s sleep apnea to cause his death by asphyxiation.

After a four-week trial, the jury returned a verdict in favor of all defendants. Wendy moved for a new trial, arguing that the evidence conclusively proved the defendants’ negligence, the verdict was against the great weight and preponderance of the evidence, the verdict was manifestly unjust and conflicted with evidence that established Columbia’s negligence as a matter of law, and a new trial was warranted in the interests of justice and fairness. The motion contained twenty-eight evidentiary points, including a challenge to the reliability of Columbia’s expert testimony. The trial court, “in the interests of justice and fairness,” granted the motion as to the LVN, her supervising registered nurse, and Columbia in its capacity as their employer (collectively, “Columbia”), presumably on the grounds urged in the new trial motion. The court entered judgment in favor of all other defendants3 in accordance with the verdict. Relying on our precedent, the court of appeals held that the trial court’s explanation for granting the new trial was sufficient. ___ S.W.3d ___. Under our well-established jurisprudence, it clearly was.

II. Standard of Review

Trial courts have always been afforded broad discretion in the granting of new trials, and may exercise such discretion “in the interests of justice and fairness” without stating any other reason. See Champion Int’l Corp., 762 S.W.2d at 899; Johnson, 700 S.W.2d at 918. Over a century ago, this Court emphasized the point:

In ordinary cases the judge has a discretion to grant a new trial whenever, in his opinion, wrong and injustice have been done by the verdict; and it is upon this ground that courts have refused to interfere to revise the granting of new trials.

Goss, 17 Tex. at 115. In this case, the trial court did precisely what we have long said it could. Yet the Court concludes the trial court abused its discretion in not stating a more specific reason for its ruling, creating new law on mandamus and overturning a long line of precedent in the process.

The Court points to a number of jurisdictions that require a trial court to articulate the reason when granting a new trial sua sponte. In this case, though, the trial court did not rule sua sponte but granted the plaintiff’s motion for new trial, presumably for the reasons that the plaintiff explained. Although one of the plaintiff’s new trial grounds cited “the interests of justice and fairness,” another challenged the verdict based on “the great weight and preponderance of the evidence,” a ground we have no jurisdiction to review. We do not know whether the trial court’s “in the interests of justice and fairness” ruling was based on perceived unfairness in the proceedings, on factual insufficiency of the evidence to support the jury’s verdict, or on both. For this reason alone, we should deny mandamus relief. But even if the trial court had acted sua sponte, the rule in nearly all jurisdictions that require an explanation is codified in a statute or procedural rule.4 In none of the remaining jurisdictions was the rule promulgated on mandamus or its equivalent, and for good reason.

First, to warrant mandamus relief the trial court must have committed a “clear abuse of discretion,” which we have defined to include failure to apply the law correctly. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992). Because the trial court here did exactly what we have clearly said it could, the trial court can hardly be said to have abused that discretion. Second, our Legislature is well aware that trial courts may grant new trials “in the interests of justice and fairness” and has not seen fit to change the law. The Legislature did decide to allow interlocutory review of new trial orders in criminal proceedings, but declined to extend such review to the civil arena. See Tex. Code. Crim. Proc. art. 44.01(a)(3). In civil cases, our procedural rules expressly permit a trial court to grant a new trial on its own motion for any good cause. Tex. R. Civ. P. 320. Presuming, as the Court does, that a change in procedure is warranted, it would be far more appropriate to effect that change by amending the rules rather than implementing new law on mandamus.

Even if mandamus were an appropriate vehicle to overturn precedent, there is no cause to do so here. There is a “strong presumption” against overruling our precedent. Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex. 1979). Absent compelling reasons, courts should avoid overturning established law because “the legitimacy of the judiciary rests in large part upon a stable and predictable decisionmaking process;” without adherence to precedent, no question of law would ever be considered resolved. Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex. 1995). Compelling reasons to overturn precedent may exist in limited circumstances, such as when the preceding decision itself was incorrect or unconstitutional, there is conflicting precedent, the decision has been undercut by the passage of time, the precedent created inconsistency and confusion, or the decision consistently creates unjust results. See Hammock v. State, 46 S.W.3d 889, 892–93 (Tex. Crim. App. 2001); see also Bowman Biscuit Co. v. Hines, 251 S.W.2d 153, 155 (Tex. 1952) (Garwood, J., dissenting). None of these circumstances are presented here. The well-established principle that a trial court does not abuse its discretion by ordering a new trial “in the interests of justice and fairness” is clear, we have followed it as recently as 2000, see In re Bayerische Motoren Werke, AG, 8 S.W.3d 326; In re Volkswagen, 22 S.W.3d 462, and there is no conflicting precedent over the course of the 150 years it has been in place. Our precedent is not unconstitutional, as I will later explain, nor was it incorrect in the first instance.

In sum, none of the factors we have considered in those rare instances when we have found it necessary to overrule precedent exist in this case.

Although the Court purports to rely on good policy in support of its new rule, there are also good reasons why a trial court’s failure to provide a more specific explanation does not warrant extraordinary relief. For example, it would likely be fundamentally unjust to uphold a verdict when jurors have been inattentive or their perceptions impaired, but our procedural and evidentiary rules only contemplate the development of an evidentiary record when outside influence has been asserted. See Tex. R. Civ. P. 327; Tex. R. Evid. 606(b). In Tanner v. United States, the jury was allegedly under the influence of alcohol and drugs, including marijuana and cocaine, for much of the trial. 483 U.S. 107, 115–16 (1987). That evidence was inadmissible under Federal Rule of Civil Procedure 606(b), which is almost identical to Texas Rule of Civil Procedure 606(b). Id. at 125. Under the Court’s decision today, it is not clear how extended the trial court’s explanation for a new trial in similar circumstances would have to be, nor is it clear what a reviewing court should do with that information. For the Court’s rule to have meaning, the trial judge would likely need to identify which jurors were impaired, how much so, and when, all without the ability to develop an evidentiary record. The party challenging the new trial order would surely counter that the jury was not impaired, or at least not so impaired as to taint the verdict. It is unclear how an appellate court could effectively review such an order, or whether such a reason, though probably “good cause” to order a new trial under Rule 320, would be sufficient to survive mandamus review.

The procedural history of this case aptly demonstrates another reason why extraordinary relief is not warranted for the trial court’s failure to provide a more specific explanation. During the pendency of this Court’s review, the trial judge who ordered a new trial, the Honorable Merrill Hartman, left office and a new judge succeeded him. We abated the original proceeding to allow the successor judge to reconsider Judge Hartman’s ruling. See Tex. R. App. P. 7.2(b). The new judge did so, and reaffirmed Judge Hartman’s order. The Court today sends the case back to the successor judge to specify the reasons why a new trial was granted. To the extent the successor judge is able to make an independent assessment based on the record, this may be feasible. But if Judge Hartman based his decision in whole or in part on unfairness that he perceived during the proceedings, which until today he was not required to articulate on the record, then the successor judge is faced with an impossible task. In such a circumstance, changing the rules in midstream produces a substantial injustice. And if the successor judge reviews the transcript of the proceedings and reaffirms the new trial order because the jury’s verdict was against the great weight and preponderance of the evidence, the Court today opens the door to interlocutory evidentiary review of that decision which heretofore has only been afforded on appeal from a final judgment. See Champion Int’l Corp., 762 S.W.2d at 899; Johnson v. Court of Civil Appeals for the Seventh Supreme Judicial Dist., 350 S.W.2d 330, 331 (Tex. 1961).

The Court purports to preserve the discretion traditionally afforded trial courts in issuing new trial orders, but the practical effect of its decision will be more frequent appellate intervention and delay. See Johnson, 700 S.W.2d at 918; see also Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). Moreover, without the vetting that the Court’s rule-making process would afford, the parameters for reviewing the trial court’s explanation are murky at best. For example, the rules contemplate a trial court’s discretion to grant a new trial for “good cause” based on “insufficiency or weight of the evidence.” See Tex. R. Civ. P. 320, 326. Will a judge’s statement that a new trial is ordered “because of insufficiency or weight of the evidence” satisfy the court’s requirement? Tex. R. Civ. P. 326. Or must the trial judge, like an appellate court, review the entire record and expend its resources “detail[ing] the evidence relevant to the issue in consideration and clearly stat[ing] why the jury’s finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias?” Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). If upon reflection the judge believes that a particular witness should not have been allowed to testify, or a piece of evidence should not have come in, or a requested instruction should have been included in the charge, are those reasons subject to interlocutory review before a new trial may proceed? If the appellate court considers an articulated reason invalid, will the case go back down for the judge to consider alternative grounds that were urged in support of the new trial motion? And if a new trial is granted based upon the judge’s personal observations, to what extent may those observations be tested? Is it sufficient for the judge to explain that the jury was generally inattentive, or must the judge identify the particular jurors and allow the making of a record for purposes of challenging the judge’s perception?

Such micromanagement of the trial process diminishes the important role trial courts play in making decisions with the benefit of observing firsthand the demeanor of the witnesses, parties, attorneys, and jurors, and any other aspect of the trial that may not be reflected on a cold record. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex. 2006)). The discretion afforded trial courts is particularly broad in the area of jury management. For example, we have frequently stated that trial courts have “wide latitude” in conducting voir dire proceedings and determining whether a juror is impartial. Id. We have noted that an interpretation of juror behavior “turns on the courtroom context, and perhaps the looks on their faces.” Hyundai, 189 S.W.3d at 755. Given the trial court’s observational advantage, it is in a better position than a reviewing court to discern whether the parties received the fair trial that our laws guarantee, which is why we have long said “[a]n appellate court may not substitute its discretion for that of the trial court.” Johnson, 700 S.W.2d at 918.

Although acknowledging that orders granting new trials are rare, Columbia warns that without careful interlocutory scrutiny judges will be free to substitute their opinions for those of the jury. Even accepting the premise that some stray trial courts may intentionally abuse their discretion in this regard, I doubt that requiring wayward courts to explain their decisions will bring them back into the fold; a judge intent on granting a new trial without good cause can surely construct a plausible reason capable of withstanding appellate scrutiny. While I agree that trial courts should, when feasible, explain to the parties why a new trial is being granted, imposing such a requirement threatens to impede the conscientious trial judge’s ability to correct errors or unfairness that may have occurred in the proceedings, and ultimately result in fruitless expense and delay.

III. Columbia’s Constitutional Challenge

Columbia contends our precedents allowing trial courts to grant new trials “in the interests of justice and fairness,” without further explanation, violate federal and state constitutional guarantees of due process and the state constitutional guarantee of trial by jury. Specifically, Columbia claims the lack of meaningful appellate review of new trial orders violates substantive and procedural federal constitutional rights to due process and state constitutional rights to due course of law.5 See U.S. Const. amend. XIV, § 1; Tex. Const. art. I, § 19. According to Columbia, its substantive due-process rights are violated because it is deprived of its property, the jury verdict, in an arbitrary and capricious manner, see Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 215, 225 (1985), and its procedural due-process rights are violated because it did not have the opportunity to contest the new trial order at a hearing on appeal, see Mathews v. Eldridge, 424 U.S. 319, 333 (1976). These alleged constitutional violations, Columbia argues, would be cured by effective appellate review of new trial orders.

Neither type of due-process right that Columbia describes is implicated unless a party is deprived of a protected property or liberty interest. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999); Mathews, 424 U.S. at 332. Columbia claims deprivation of a property interest, which is only constitutionally protected if the right is independently guaranteed by state or federal law. Leis v. Flynt, 439 U.S. 438, 441–42 (1979). Columbia does not argue that any federal statute or the common law creates a property right in a particular jury verdict, and we have held that “[n]o party to a civil action has a constitutional right of appeal from an order of the trial court granting a new trial.” Plummer v. Van Arsdell, 299 S.W. 869, 870 (Tex. 1927). Under Texas law, although there is a property interest in a legal claim or contractual right, Tex. Prop. Code § 111.004(12), there is no property interest in a particular non-final judgment, Burroughs v. Leslie, 620 S.W.2d 643, 644 (Tex. Civ. App.—Dallas 1981, writ ref’d n.r.e.). Furthermore, the Supreme Court has held that no property rights are implicated when a trial court makes a decision that is discretionary under state law, even if the trial court provides no reasoning for its decision. Leis, 439 U.S. at 442–44. Because Columbia was not deprived of any protected property interest when the trial court issued its new trial order, Columbia’s due-process and due-course-of-law rights are not implicated.

Columbia further asserts that allowing trial courts to issue new trial orders without appellate review deprives it of its state constitutional right to trial by jury. See Tex. Const. art. I, § 15, art. V, § 10. I agree that the Texas Constitution guarantees Columbia a right to a trial by jury in this health care liability case. But new trial orders, even if shielded from interlocutory review, do not infringe on that right. We upheld the constitutionality of such orders in Plummer, and I see no reason to revisit the question here. 299 S.W. at 870. Columbia has had a trial by jury and will have another; it does not have a constitutional right to a particular jury or a particular jury verdict. Indeed, the discretion afforded a trial court in granting new trials does not deprive parties of the right to a fair trial by jury; to the contrary, it helps to guarantee that right when circumstances of the first trial were unjust or unfair to one of the parties. See Hon. Scott Brister, The Decline in Jury Trials: What Would Wal-Mart Do?, 47 S. Tex. L. Rev. 191, 221 (2005) (“If the first jury was correct, then a second can confirm it.”). Given that the merits of Creech’s claims and Columbia’s defenses will ultimately be decided by a jury, Columbia has not been deprived of its right to a trial by jury.

IV. Conclusion

This case does not present exceptional circumstances to warrant overturning clear and longstanding precedent on mandamus review. Because the Court concludes otherwise, I respectfully dissent.
___________________________________
Harriet O’Neill
Justice

OPINION DELIVERED: July 3, 2009

[footnotes omitted]

See full text of O'Neill's dissenting opinion in pdf html version on the Supreme Court's web site.

RELATED SEARCH TERMS: TEXAS SUPREME COURT PRO-DEFENDANT PRO-BUSINESS ANTI-CONSUMER AND PERSONAL INJURY TORT-PLAINTIFF BIAS, DECISIONMAKING PATTERNS, WHO, WHICH CLASS OF LITIGANTS PLAINTIFFS DEFENDANTS DOES THE TEX. SUPREME COURT FAVOR? MOTION TO RECUSE RECUSAL CASES AND CASELAW

Video of Texas Supreme Court Candidate Debate Now Online

Houston PBS has put a recording of its recent Supreme Court candidate forum, in which all six candidates (3 Republican incumbents and three Democratic challengers) participated, on its
Great Debate Series 2008 webpage. (click link)

It offers a vivid argument why election of judges (minus votebuying with campaign contributions) may not be such a bad idea after all, though opposed by several participants. As lamented by one of the incumbents, if we did not have to run for election, we would not (have to) be here today. Nor would there be any opponents to debate were the Chief to have his way with Missouri Plan and retention elections. Alas, on the bench, having voters decide on judicial personnel is seen as an "encroachment" on "judicial independence," rather than a mechanism that may provide some accountability within a system of checks and balances, may potentially curb excesses, and allow for the removal of underperformers. Could initial partisan appointment by the Governor to a vacancy have anything to do with disapproval of the involvement of the voters and with calls for a constitutional amendment to end the judicial elections system as we know it in Texas?

==============================================
Red, White and Blue: The Great Debate Series 2008

Houston PBS and the Houston Area League of Women Voters team up to bring you an unprecedented round of political debates to help create a more informed and educated electorate.
Texas Supreme Court Candidate Forum
(Chief Justice Jefferson & Judge Jim Jordan; Justice Dale Wainwright & Mr. Sam Houston; Justice Phil Johnson & Justice Linda Yanez)
Moderated by Ernie Manouse
Aired October 12, 2008 at 6 pm
See video part 1 part 2 part 3

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.

Does the need to campaign for re-election undermine judicial productivity?

Statistics on current opinion production by the Texas Supreme Court could certainly be interpreted that way. They show a notable disparity in the number of opinions delivered by members of the Texas Supreme Court who face a reelection contest this year, compared to those who do not.

MAY IT PLEASE THE VOTERS, NOT JUST THE COURT

Although many members of the Texas judiciary are first appointed to the bench by the Governor to fill a vacancy, they must win elections to remain on the bench. True also of the Texas Supreme Court, the state's court of last resort in noncriminal matters. Three current members of the nine-seat tribunal are up for reelection this year: Chief Justice Wallace B. Jefferson and two associate justices: Dale Wainwright and Phil Johnson. Although none of the incumbents was challenged in the Republican primary, all three face Democratic opponents in November.

HOW MANY OPINIONS DID THE JUSTICES OF THE SUPREME COURT OF TEXAS TURN OUT THIS YEAR?

From January through the end of June 2008 the Texas Supreme Court issued 45 signed deciding opinions. The combined total of concurring and dissenting opinions written by individual justices was 36, bringing the total tally to 81.

For the group of justices facing elections, the average number of signed opinions was 3.3, while the mean for those of their peers who do not face the voters this year is 5.8 .

If concurring and dissenting opinions are included in the computation, the respective averages for justices facing and not facing elections are 7 and 10 respectively. See Mid-Year Tally of Texas Supreme Court Opinions and Breakdown by Author . [revised 8/26/08]

The 45 per curiam opinions released over the course of the same time period are not included as their authorship is unknown. See previous post regarding the criticism that Texas Supreme Court Justices "hide" behind per curiam opinions).

One Justice who is currently on the campaign trail has only two court opinions to his name (plus three dissents and one concurrences), which averages out to one opinion written per month. At the other end of the spectrum, the most productive jurist who does not currently face reelection authored more than twice that many.

With a total of 15 signed opinions the only female member of the Court, Justice Harriet O'Neill, led the court in opinion output. O'Neill also disagrees with the other members of the court more than any of her brethren. Indeed, the number of separate dissenting and/or concurring opinions penned by O'Neill is not only the highest for the Court as a whole; it also exceeds the number of deciding opinions Jusitce O'Neill authored on behalf of the Court.

Justices Scott A. Brister and Don R. Willet rank second on the productivity scale. Each delivered eleven. With seven separate opinions out of the total, Justice Willett - like Justice O'Neill - often finds himself at odds with the majority.

At the other extreme, Justice David Medina, wrote no dissents or concurrences at all. While not up for re-election yet, Medina is under an ethics cloud as a result of the suspected arson at his Houston area home, for which his wife has been indicted. In view of his uncertain professional and personal future, Medina needs all the support he can marshal among his peers and has every reason to eschew acrimony.

DOES THE NEED TO CAMPAIGN AND SEEK VOTER APPROVAL AFFECT JUDICIAL JOB PERFORMANCE?

The observed discrepancy in opinion output based on whether a justice faces reelection pressures does not compel the conclusion that judicial elections are necessarily a bad thing. Indeed, it could be argued that justices would have every reason to work harder, not less, during the election season, lest the voters punish them for being laggards. That is, if job performance measured in terms of productivity becomes an issue in the campaign. There are some signs that this happening. Delay in decision-making in cases pending before the Supreme Court is one of the criticisms recently aired in the media, which have put the Chief and his associate justices on the defensive.

But the exigencies of partisan campaigns and elections can also be made a convenient culprit when the true reasons for institutional shortcomings - or those of individual office holders - lie elsewhere. Productivity figures have historically varied among the justices serving on the Texas Supreme Court - even in non-election years. This suggests that individual variations in role conception or work ethic may play a more significant role than institutional constraints. Not to mention that the justices of the fourteen courts of appeals routinely churn out vastly larger numbers of opinions per year - whether they are in campaign mode or not - thus demonstrating that there are no inherent limits for the Supreme Court to increase its opinion output by a multiple of its current rate.

A final caveat should also be added: It is expected that the Supremes will release a ream of opinions at the end of the current fiscal year, a practice for which there is solid precedent. The opinions expected for the end of August may yet alter the mid-year tally, and may thus also require reconsideration of any conclusions derived from preliminary numbers.

Texas Supreme Court Justice Dale Wainwright takes re-election campaign to YouTube

TEXAS JUDICIAL CAMPAIGNS ON THE WEB

8/5/08 Update: It appears that someone other than the candidate is responsible for the uploading of the Cruz campaign speech to YouTube. Click here for more.

Following the example of Baltasar Cruz , unsuccessful Democratic would-be candidate for seat no. 7 on the Texas Supreme Court, Republican incumbent Dale Wainwright has opened up a campaign presence on YouTube.

See Justice Wainwright's Video Bio on YouTube
Also see Baltasar Cruz's primary campaign speech on YouTube

No word on whether Democratic challenger Sam Houston will soon follow suit. All seats on the nine-member court are currently occupied by Republicans. Three of them face Democratic opponents - and the electorate - this Fall.

Terms: Texas judicial campaigns and elections, re-election campaign, Texas Supreme Court races, Incumbent Republican justices vs. Democratic challengers in the 2008 general election contest, contested race for Texas Supreme Court Place 7