Today, Judge Sharon Keller filed a petition asking the Texas Supreme Court to vacate and expunge the “public warning” she was given by the State Commission on Judicial Conduct.

You can read an annotated copy of her petition for mandamus relief online. It outlines her basic theories, which are:

• the remedy imposed by the Commission was not among those listed in the Texas Constitution;

• any sanction required a vote of seven members, not six;

• some of the members of the Commission were not eligible to serve together because of requirements for geographic diversity; and

• that the Court should issue mandamus relief because there is no adequate appeal available to Judge Keller.

I’m sure more will be written about this case. But not by me tonight. (I have a short-deadline brief due tomorrow.)

Today, the Fifth Circuit certified a set of questions to the Texas Supreme Court about the construction of some oil & gas pooling agreements.

You can view the Fifth Circuit’s opinion and order certifying these questions (PDF). (Link now fixed!)

From within the governing contracts, the Fifth Circuit identifies this provision (which it calls the Royalty Provision) as “the language principally at issue here”:

“During the period of time Consenting Parties are entitled to receive Non-Consenting Party’s share of production, or the proceeds therefrom, Consenting Parties shall be responsible for the payment of all production, severance, excise, gathering and other taxes, and all royalty, overriding royalty and other burdens applicable to Non-Consenting Party’s share of production ….”

Barnes argues that Tawes, as a Consenting Party, is responsible for “all royalty” owed to her.

As with all respectable oil & gas cases, this one features its share of property transfers, side contracts, and payments disputes. It eventually took a detour through bankruptcy court and up to the Fifth Circuit, and now back to the Texas Supreme Court for a definitive construction of these oil & gas contracts under Texas law.

With that combination of messy facts, unsettled law, and procedural wrinkles, the only surprise is that it didn’t show up as the oil & gas question on this week’s Texas Bar Exam. (There’s always next year.)

This afternoon, the Texas Supreme Court issued a stay to the Green Party of Texas, suspending the injunction that was preventing it from certifying candidates for today’s general-election ballot deadline.

The mandamus petition remains pending, and the Texas Supreme Court apparently will accept expedited merits briefs and issue a final decision soon. There is plenty of press coverage; see the docket page above for my most current list.

Last week, a district court ruled in favor of the Texas Democratic Party in a challenge to the Green Party’s attempt to get its nominees on the fall statewide ballot. The clock is running; Friday is the deadline to certify candidate names for the ballot.

The mandamus petition is not yet available in electronic form online. But the docket sheet indicates that the Court has already requested a response from the Texas Democratic Party by tomorrow at 3:00 pm.

The Green Party is represented, among others, by former Texas Supreme Court Justice Steven W. Smith (wikipedia), who served from 2002-2004 and also ran for the Court in 1998, 2004, and 2006.

Some more background on the ballot dispute is in this Wall Street Journal link (get it while it’s still there) or this story printed in the Statesman. The core issue seems to be whether corporate funding that supported signature-gathering efforts was permitted under Texas law.

According to the court of appeals:

Brumbaugh requested that the trial court declare certain Supreme Court rulings unconstitutional and restore civil liberties, stop or fix the drug war, outlaw all mind control technology, declare martial law unlawful, and collect $10,000 from each justice for dereliction of duty and fraud.

The court of appeals affirmed the trial court’s dismissal of the case, and Brumbaugh has just filed his petition for review with the Texas Supreme Court. (There doesn’t appear to be any online version of the petition; self-represented litigants are not required to file electronic courtesy copies.)

The en banc panel’s opinion was released in this PDF. The original split decision of a three-judge panel (which is now partially superseded) was published at Ojo v. Farmers Group, Inc., 565 F.3d 1175 (9th Cir. 2009).

The central issue is whether an allegedly discriminatory provision of a homeowners insurance policy can be challenged under the federal Fair Housing Act or, instead, is “reverse-preempted” by conflicting state law under the McCarran-Ferguson Act.¹

The en banc panel of the Ninth Circuit determined that, absent a conflicting state law, the FHA would indeed prohibit a discriminatory provision in a homeowners insurance policy. But to take its next step — which would involve construing Texas law — the panel decided to formally certify the question.

Having resolved these issues, in a separate order filed concurrently with this opinion we certify to the Supreme Court of Texas the dispositive question of whether Texas law permits an insurance company to price insurance by using credit-score factors that have a racially disparate impact that, were it not for the McCarran-Ferguson Act, would violate the FHA.

The “separate order” was not posted on the Ninth Circuit’s website, so that’s all I know (so far) about how the question was framed.

Background

The district court had interpreted Texas law to conflict with the federal FHA and, accordingly, to “reverse-preempt” it under the McCarran-Ferguson Act. In particular, it held that a 2003 Texas statute relating to credit scoring in the issuance of insurance policies was meant to affirmatively bless that practice, even if it had a disparate impact. (See the discussion in the original panel opinion at 1184-85.)

The original Ninth Circuit panel held that the Texas and federal statutes were harmonious, not in conflict: “the goals of the federal FHA and Texas FHA, including the 2003 credit scoring law, are to prevent unlawful discrimination based on race, regardless of whether the discrimination involves disparate treatment or disparate impact.” Id. at 1189; see also id. at 1184-87 (discussing the statutes).

Judge Bea, dissenting from that original panel decision, would have concluded that Texas law did not contain a “disparate impact” claim and thus Ojo’s pleading failed because he challenged only the racially disparate results without alleging that the insurer’s methodology improperly took race into account. Id. at 1192 (Bea, J., dissenting).

1. The McCarran-Ferguson Act is the looking glass through which we view insurance regulation. Most famously, it creates special exceptions to antitrust laws for insurers. It also gives state legislatures the first crack at regulating insurers. Congress can specifically state its intention to have a federal statute override conflicting state regulations. But if it does not, then the general principle is that state laws — unlike almost any other field of law — trump any conflicting federal statute. If you’re following along, you’ll see that this “reverse preemption” is itself just an expression of Congress’s intent.

The question was framed whether an injury caused by a defective hospital bed was covered by that statute or whether, instead, it was a question of premises liability. I wrote about the case in this previous blog post.

Divided 5-4, the Texas Supreme Court held that this narrow claim was not covered by the medical-malpractice statute and thus the plaintiff was exempted from the added requirements (such as the ever-popular expert report requirement).

Justice Medina wrote for the five-vote majority. Four Justices joined three dissents. Chief Justice Jefferson also wrote a concurrence.

Justice Brister, who is no longer on the Court, was a member of the five-Justice majority.

The Court’s order today does not set the case for re-argument; all it does is extend the Court’s time to act beyond the 180-day limit on motions for rehearing that I have written about in the past.

This case turned on a subtle but important distinction in personal jurisdiction.

Here, Zinc is a Mexican manufacturing company that ships paper to New Mexico, Nevada, and Florida for reprocessing. Along the way, these goods were carried by Bouché Trucking, a Texas corporation that had been subcontracted to carry the merchandise.

In transport, one of the trucks rolled over, injuring its driver. He sued his employer, Bouché, who in turn sued Zinc.

The court of appeals looked (in part) to whether Zinc had other customers in Texas when determining whether Texas courts could exercise specific personal jurisdiction over this claim.

The Texas Supreme Court rejected that reliance on contacts that were “unrelated to the accident in this case.”

Although Zinc does have three or four customers for its other products in Texas, and does receive some raw materials from Texas, these facts are unrelated to the accident in this case and are thus irrelevant to the question of specific jurisdiction. However, they may have some bearing on the existence of general jurisdiction, an issue the court of appeals did not consider.

Divided 6-3, the Texas Supreme Court held that the Texas Arbitration Act

… allows an appeal from a trial court’s order that denies confirmation of an arbitration award and instead, vacates the award and directs that the dispute be arbitrated anew.

The relevant statutory provision, section 171.0898(a) of the Texas Arbitration Act (TAA), lists the situations when a party may appeal a district court’s order affecting arbitration. Two of those items are orders:

… (3) confirming or denying confirmation of an award; … (5) vacating an award without directing a rehearing

Today, the Texas Supreme Court concluded that the district court’s order fit within category (3) and thus supported appellate jurisdiction.

The Court rejected the company’s counterargument that the narrow framing of category (5) was meant to exclude this situation.

Justice Hecht delivered the opinion of the Court, in which Justice O’Neill, Justice Wainwright, Justice Johnson, Justice Willett, and Justice Guzman joined. In addition, Justice Willett wrote a concurring opinion going into more detail about why the company’s statutory construction should be rejected.

Chief Justice Jefferson delivered a dissenting opinion, in which Justice Medina and Justice Green joined.

The dissent argued that the order here was still just an interlocutory order and was not yet a final enough under general background principles of appellate jurisdiction:

The Court and the concurrence fear that a trial court can avoid confirmation by simply ordering rearbitration until the court likes the result, or one or both parties have given up. I share that concern. But a trial court’s rehearing order does not confer jurisdiction where the Legislature has said none exists.

The dissent would have held that the district court proceeding was not final for purposes of the statute until after the new arbitration hearing was concluded and the district court took further action.

Reconveyance Services brought suit seeking a declaration that a fee imposed by TDI was outside the scope of Texas law. The court of appeals concluded that this claim against the state was within the trial court’s jurisdiction. The Texas Supreme Court held that it was not properly framed and ordered it dismissed.

In a per curiam opinion, the Texas Supreme Court held that this claim was in the nature of an ultra vires claim and thus had to be leveled at state officials in their official capacities — not at the agency for which they worked.

Those familiar with the Ex parte Young doctrine (case wikipedia) in federal courts will recognize the jurisdictional difference between suing the state directly and suing a state official. Texas immunity law draws a similar distinction.

Citing its recent decision in City of El Paso v. Heinrich, 284 S.W.3d 366 (Tex. 2009) (blog post), the Court held that this suit was improper because it named only the agency as a defendant and was thus barred by sovereign immunity. Accordingly, the Texas Supreme Court reversed and rendered a judgment of dismissal.¹

1. The first footnote also explains that “Reconveyance has filed neither response nor brief in this Court.”