The local ABC affiliate in Dallas had an extended news story about the Court’s backlog that included interviews with Chief Justice Jefferson and Justice Wainwright.

The written story is is “Work ethics of Texas justices questioned”. The accompanying video clip, which includes fragments of several interviews, is linked off that page. (Via Texas Appellate Law Blog.)

The statistics given in the story focus on cases ultimately decided on written opinions, not those in which review is ultimately denied. With that in mind, the Texas Watch statistics say that it took 14 months for an opinion to issue after oral argument and an average of 2.3 years (I presume 27 months) overall for opinions to issue. (It’s not clear from the sourcing how Rule 59.1 per curiam decisions were folded into those statistics.)

The story places great emphasis on the Kallam v. Boyd case in which the Court dismissed ultimately dismissed the case as improvidently granted after the medical-malpractice plaintiff had died during the pendency of the case. The Court’s opinion dismissing the petition can be found here.

Correction: It has been pointed out to me by one kind reader that my original discussion of the case had a factual error — that I misread a key date on the docket and missed some of the time that the case spent on the docket. I apologize for the mistake, and my analysis has been changed accordingly.

Details about that case follow.

I thought it was worth looking up the docket sheet for that case.

Update: I misread the docket originally. There actually is a one-year gap in the handling of the case, which I discuss below. Up through the Court’s request for briefing on the merits, everything moves very normally according to process.

  • 1/11/2005: Petition for Review filed
  • 1/14/2005: Boyd waives a response to the first petition
  • 1/18/2005: Second Petition for Review filed
  • 1/24/2005: Boyd waives a response to the second petition
  • 1/25/2005: Both petitions are forwarded to the Court

Having made the strategic choice to waive a response, Boyd does the smart thing by waiving immediately rather than waiting the full thirty days permitted. But that gamble doesn’t pay off. The Court’s first action is to request Boyd to file that response.

  • 2/22/2005: The Court requests that Boyd respond to the petitions
  • 3/23/2005: Boyd files a response to the petitions
  • 4/11/2005: The medical providers file reply briefs supporting their petitions

About two months later, the Court requests full briefing on the merits, the next step in a case’s progress toward oral argument. Two months is a slightly longer than typical gap, but not an extraordinarily long one.

The briefing on the merits phase proceeds at a normal timeline. It does not look like either side sought extensions that delayed the process at all.

  • 6/6/2005: The Court requests briefing on the merits and requests that the record be sent from the lower courts
  • 7/5/2005 and 7/6/2005: Petitioners file their merits briefs
  • 8/1/2005: Respondent’s Brief
  • 8/11/2005: Petitioners file a reply brief

The Court’s next action — just one month after the Respondent’s Brief was filed — (( I originally misread the date as being 2005 instead of 2006. The ensuing discussion in the text above has also been amended. )) is granting the petition and setting the case for oral argument. I took a quick look at the online briefs, and I don’t see any briefs prior to the September 1, 20062005 grant in which the Court was informed of Ms. Boyd’s death.

  • 6/28/20062005: Boyd passes away.

  • 9/1/20062005: The Court grants the petition for Review granted and sets the case for oral argument

  • 12/7/20062005: Oral argument held

Added: The one-year wait between the end of the briefing on the merits and the Court’s decision to grant the petition and set it for argument is interesting, but not that unusual. The Court disposes of a significant portion of its cases through a summary per curiam decision, and when cases linger at this stage — some call it the “shadow docket”; I call it the “submarine docket” — that can be a signal that at least some Justices are interested in a summary disposition of the case. But the lower court decision here favored Ms. Boyd, and it is extraordinarily rare for the Court to summarily affirm a lower court decision. Respondents in that position should rarely be seeking a faster decision on the merits; they should instead be seeking the Court to simply deny review in the case.

When the Court ultimately did dismiss the case as improvidently granted, it left to the lower courts the task of first sorting out whether Boyd’s death affects her open-courts claim:

Boyd’s death does not affect the court of appeals’ judgment or the continuation of this appeal. But because of the change in the posture of the case, we decline to address the important constitutional issue that is presented. On remand, Boyd’s heirs or estate representative may, of course, continue the litigation. Although we have held generally that “wrongful-death and survival claimants cannot establish an open-courts violation because they ‘have no common law right to bring either,’” respondent’s counsel and amicus curiae contend that the rule should be different in this case because Boyd’s death while on appeal resulted directly from the negligent misdiagnoses, and denying Open Courts protection to her family’s statutory claims on these facts would subvert public policy goals. We believe prudence dictates awaiting a case in which this important issue has been fully litigated below “so that we will have the benefit of developed arguments on both sides and lower court opinions squarely addressing the question.”

It sounds to me like the Court left intact the court of appeals’s favorable ruling for Ms. Boyd and refused to reach the petitioners’ arguments that would have exploited that intervening death to win on the merits.

There’s no doubt that “the plaintiff died while the case was pending” makes great news copy — and the film footage in the story makes an emotional point — but the details of this case are, even with the time the case spent on the “submarine docket,” may still not be the best example of the Court moving too slowly.