The Court has fired the starting gun for clerkship applications. The brochure for 2014-15 clerkships at the Texas Supreme Court is now available.¹

I’ve written before about how much I valued my experience as a law clerk at the Texas Supreme Court (back when we had the more accurate but less nationally-portable title of “briefing attorney”). Remarkably, the Texas Supreme Court justices open their regular conferences to law clerks, who can watch how they work through the accumulated petitions for review and pending opinions.

The brochure describes what is needed for each application and lists out which Justices prefer paper applications and which prefer electronic ones. This vote is 5-4 in favor of paper.²

So what can applicants do to make the process easier for the Justices who have chosen to accept electronic applications? I would suggest paying attention to the Court’s expectations for e-briefs. Although the context is different, your goal of making the judge’s task easier is much the same. By all means, use natively-generated PDFs rather than scans. And consider using a healthy font size that might look good on a screen to readers with less fresh eyes than your own.³

1. The document notes that the Court does not follow the timelines of the “Federal Law Clerk Hiring Plan,” which this year has moved to a single June 28 kickoff that Above the Law speculates (hopes?) could lead to “an utterly shambolic process.” No worries about that here. [↩]
2. From the brochure: “Chief Justice Jefferson and Justices Willett, Guzman, Lehrmann and Devine prefer paper applications. … Justices Hecht, Green, Johnson, and Boyd prefer electronic applications.” [↩]
3. As one data point, the Court now requires at least 14-point font for briefs, a rule change that has been explained as making e-filed documents easier to work with on screens. That size might be constraining on a resume but surely would work for a writing sample. [↩]

Link: Texas Supreme Court Rejects Loss of Companion Damages For Pets (@jonathanturley) jonathanturley.org/2013/04/09/ave…

— SCOTXblog (@scotxblog) April 10, 2013

Link: Puppy love = priceless, but not compensable: Texas Supreme Court will not allow plaintiffs to r… (Tex Parte) texaslawyer.typepad.com/texas_lawyer_b…

— SCOTXblog (@scotxblog) April 5, 2013

Link: Texas Supreme Court rules against Fort Worth family whose dog accidentally eutha… (Fort Worth Star-Telegram) star-telegram.com/2013/04/05/475…

— SCOTXblog (@scotxblog) April 5, 2013

Link: Texas Supreme Court Holds Child Support Obligor Must be Current on All Child Supp… (Dallas Divorce Law Blog) dallastxdivorce.com/2013/03/articl…

— SCOTXblog (@scotxblog) March 19, 2013

The U.S. Supreme Court has released its decision in Gunn v. Minton, No. 11-1118 (opinion docket), reversing the decision from the Texas Supreme Court.

This is a legal malpractice suit about a patent issue. The defendant argued that the presence of an issue over which federal courts had special jurisdiction (patent law) meant that Texas state courts lacked the power to render a complete decision. The Texas Supreme Court agreed, concluding that the appeal raised an issue of federal law over which Texas courts had no authority and thus should defer to federal courts. The U.S. Supreme Court accepted the case for review and heard arguments in January.

Chief Justice Roberts wrote today for a unanimous Court, holding that federal law did not in these circumstances require the Texas legal-malpractice claim to have been brought in federal court. The Court thus reversed the Texas Supreme Court’s 6-3 decision in VERNON F. MINTON v. JERRY W. GUNN, INDIVIDUALLY, WILLIAMS SQUIRE & WREN..., No. 10-0141 and remanded to the Texas state courts for further proceedings.

The nub of the reasoning begins at page 8 of the slip opinion, which frames the relevant test as whether the particular issue of federal law involved here was substantial to the federal system (not to the parties):

Minton’s argument founders on [Grable & Sons Metal Products, Inc. v. Darue Engineering]‘s next requirement, however, for the federal issue in this case is not substantial in the relevant sense. In reaching the opposite conclusion, the Supreme Court of Texas focused on the importance of the issue to the plaintiff’s case and to the parties before it. … As our past cases show, however, it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim “necessarily raise[s]” a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.

Having thus reframed the dispute between these parties into a vastly bigger context — the federal system, and federal-state relations — the Court concluded that there was no bar to the Texas courts adjudicating this claim.

This may be, in part, because it was an unusually retrospective kind of claim — legal malpractice — which involves determining hypothetical questions in the past tense about what might have happened in litigation. Any holdings that state courts might reach in such a narrowly defined context are unlikely to disturb the uniformity of federal patent law. See slip op. 9-10.

The Court also rejected the argument that the unique expertise of the Federal Circuit was a reason for the federal courts to be the exclusive forum for patent-malpractice cases. See Slip op. 11-12. The Court’s reasoning here again echoed the opinion’s theme: “[T]he possibility that a state court will incorrectly resolve a state claim [malpractice] is not, by itself, enough to trigger the federal courts’ exclusive patent jurisdiction …. [R]esolution of a patent issue in the context of a state legal malpractice action can be vitally important to the particular parties in that case. But something more, demonstrating that the question is significant to the federal system as a whole, is needed.”¹

The immediate effect of Gunn v. Minton is of course to clarify that state courts can resolve legal-malpractice issues that touch upon federal patent law.

More interesting to appellate lawyers, perhaps, is how the Court shifted the focus of a jurisdictional inquiry from analysis of the parties’ claims to a broader question that, to my eyes, reads more like a discussion of discretionary review. The focus in the Chief Justice’s opinion is on whether the issue is important to federal jurisprudence, something that echoes how the Supreme Court resolves cert petitions. Indeed, the opinion employs some argumentative devices that one might find in a solid Brief in Opposition arguing against the Court taking certiorari of a state-law patent issue:

• the evergreen argument that “If the question arises frequently, it will soon be [presented in a better case, in federal court]“, slip op. 10;

• explaining how rarely state court decisions about federal issues are viewed as authority in federal court or by federal agencies, slip op. 11; and

• explaining that, even if there were some issue preclusion from a mistake made by a state court about a patent-law issue, that effect would be limited to the parties and thus not important to the jurisprudence, slip op. 11-12.

I do not envy the state court having to guess which claims might, at the margin, meet that test.

But although the edges of this jurisprudential test are perhaps less crisply defined than before, the Supreme Court’s framing results in such a smaller zone of preemption that, for most cases involving routine disputes, it will not matter precisely where the line falls.

1. In that regard, this case is really about which funnel patent cases must follow toward uniformity. The patent issues present in some state claims may no longer have a direct path to the federal circuit. But an interesting enough substantive question about patent law could nonetheless make its way to the U.S. Supreme Court by means of certiorari to the state courts (just as in this case). [↩]

On Monday, a special event is being held at the Texas Supreme Court to mark the publication of “The Texas Supreme Court: A Narrative History, 1836-1986″ by James Haley.

The book begins around the time of Texas became an independent Republic in 1836 and ends in 1986, which is both an even 150 years and a smooth place to divide history from the present day.¹

The description on Amazon teases that the book “use[s] a lively narrative style rather than a legalistic approach.” I hope that won’t dissuade too many appellate readers from ordering.

It continues:

[Haley] focuses on the personalities and judicial philosophies of those who served on the Supreme Court, as well as on the interplay between the Court’s rulings and the state’s unique history in such areas as slavery, women’s rights, land and water rights, the rise of the railroad and oil and gas industries, Prohibition, civil rights, and consumer protection.

That’s quite a bit to pack into 344 pages.

The ceremony of the Court receiving a copy of the book will be held on Monday February 11, 2013 at 4:00 p.m. in the Texas Capitol Building’s historic courtroom (not the regular court chamber). Seating is limited, but the Court does plan to live-stream the ceremony, preserving the event for posterity — or at least for you to view it at your convenience later.

The author will also be speaking at the CLE program “The History of Texas Supreme Court Jurisprudence” (brochure) on April 11, 2013, jointly sponsored by the State Bar and the Texas Supreme Court Historical Society.

1. The modern Republican Court began to form in 1988, with the elections of Justice Hecht and former Chief Justice Phillips. [↩]

The year ended quietly at the Texas Supreme Court. The first orders list of 2013 included no opinions or grants.

The turning of the calendar also marked the end of Justice Medina’s service on the Court. His final signed opinion was in THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. NICO-WF1, L.L.C., No. 11-0312 on November 2, 2012.

Meanwhile, Justice Boyd (who had succeeded Justice Wainwright earlier in the month) hit the ground running. Each of the Court’s three signed majorities from December was joined by Justice Boyd.

The Court will be holding oral arguments this week in Austin, and next week will bring the formal investiture of new Justices (on Monday) and the Court’s first private conference of the year (on Tuesday).

Scott Henson of Grits for Breakfast published a history-centered post on Saturday that covers some interesting stories from the Texas Supreme Court’s past. If you’re a fan of history, or of habeas writs, you should check it out.

You will find:

• An account given by former Justice A.W. Terrell of a dramatic showdown during the Civil War between Chief Justice Moore and a confederate general who refused to acknowledge a writ of habeas corpus issued to save some accused union sympathizers from military punishment.

• The five Justices of the Texas Supreme Court (including Moore) who were removed from office by the U.S. military during reconstruction, and what became of them.

• “The Semicolon Court”: the derisive name given to the Reconstruction-era justices who wrote Ex part Rodriguez, an 1874 decision holding invalid the 1873 gubernatorial election that the Democratic candidate (former Justice Coke) had appeared to win 2-1 over the Republican incumbent. The Rodriguez appeal arose from a prosecution for voter fraud — Rodriguez was charged with voting twice in that election. His defense? That the whole election had been unconstitutional. Rodriguez won his defense, but the Governor ignored the ruling.

Source: “Habeas writs that helped define Reconstruction-era Texas” (Grits for Breakfast)

Today, Governor Perry appointed Jeffrey S. Boyd to fill the vacancy on the Texas Supreme Court created when Dale Wainwright stepped down from the bench. Boyd will take the bench on December 3, 2012.

With this appointment, the Court now has a full complement of Justices. The Texas Senate will have a chance to confirm the appointment when it next convenes. This term will then run through the end of 2014 (when the next statewide general election is held).

Before this appointment, Boyd had most recently served as Perry’s chief of staff, and before that, his general counsel. His career before that included stops in the private bar (at Thompson & Knight) and senior positions in the Texas Attorney General’s Office.

Coverage:

• Texas Tribune

• Texas Lawyer

• Statesman

Justice Dale Wainwright has announced that he is stepping down from the Texas Supreme Court in the next two weeks.

The news was circulated today by the Court’s public information officer.

Justice Wainwright had been elected to the Court in 2002, and his current term runs through 2014. Given the timing, a replacement Justice named by the Governor could complete the two remaining years of the term before standing for reelection in 2014.¹

Justice Wainwright will be joining Bracewell & Giuliani’s office in Austin.

1. Under the Texas procedures for judicial vacancies, the appointment would take effect immediately if made while the Texas Senate is still in recess. The Senate will then have an opportunity to confirm the appointment when it reconvenes in January 2013. [↩]

News articles are still appearing about the Court’s opinions from August 31st:

• Michael Maslanska writes “Texas Supreme Court refuses to engraft Ledbetter Act onto the Texas Commission on Human Rights Act”, discussing PRAIRIE VIEW A&M UNIVERSITY v. DILJIT K. CHATHA, No. 10-0353 .

• The Energy Law Blog writes: “Texas Supreme Court Holds JOA Exculpatory Clause Applicable to All Activities of Operator” about WENDELL REEDER v. WOOD COUNTY ENERGY, LLC; WOOD COUNTY OIL & GAS, LTD.; NELSON OPERATING..., No. 10-0887 .

• Legal Newsline reports: “Texas SC orders judge to clarify why he disregarded verdict” about IN RE UNITED SCAFFOLDING, INC., No. 10-0526

• The Texas Tribune writes: “Texas Sees Rising Tide of Property-Rights Cases”, which while discussing larger trends, mentions “four decisions on land-use issues” from August 31, as well as TEXAS RICE LAND PARTNERS, LTD. AND MIKE LATTA v. DENBURY GREEN PIPELINE-TEXAS, LLC, No. 09-0901 .

• And the team at Texas Appellate Watch continues its series summarizing cases from the August 31st orders list.

Justice Rose Vela drops out of the race to challenge Thirteenth Court Chief Justice Roy Valdez

The article from the Corpus Christi paper is here: “Justice Rose Vela bows out of race : Incumbent Chief Justice Roy Valdez, a Democrat, will be unopposed in the November election”

It offers this account of the reasons:

Fil Vela, who beat former Solomon P. Ortiz staffer Denise Saenz Blanchard in the Democratic congressional runoff with almost 67 percent of the vote, is in a strong position to take the Rio Grande Valley-centric seat over Republican candidate Jessica Puente Bradshaw.

He said the potential of having a sitting state chief justice and U.S. representative in the same household posed challenges to their time and schedules.

“Logistically, it’d be a nightmare,” he said.

Oral arguments begin this week

The Court will hear its first oral arguments of the term on Wednesday and Thursday of this week. After a late cancellation, there are seven cases scheduled for this September sitting.

The Court publishes a complete list of the upcoming arguments on this page.