Supreme Court of Texas Blog

In cases raising common law questions (or questions under uniform laws such as the UCC), it’s become very common (and often expected) for litigants in the Texas Supreme Court to conduct a “fifty state survey” of the relevant area of law. The Justices have even been known to request them to be filed in post-submission briefs when the litigants haven’t yet provided one.

The amount of work it takes to create an accurate fifty-state survey is hard to overstate. In statutory areas, different states have different quirky ways of wording things that make using online research tools very difficult. In common-law areas, those nomenclature problems are even worse. Lawyers are licensed state-by-state for a reason, and trying to make sense of all fifty at once is a real challenge — one that, for its tediousness, seems to be passed as far down the food chain of law firms as possible, often falling to interns and law clerks. Perhaps these surveys deserve more serious attention than they have traditionally received.

Because of its unique role, the United States Supreme Court has less need to look at fifty-state surveys. But in the recent Kennedy v. Louisiana child-rape case, the Court not only mentioned such a survey but based much of its reasoning on the idea of a “national consensus” having formed that capital punishment was in no circumstances appropriate for child rape.

It turns out, the Court messed up the count. The Court said that it had looked at all 50 states and at federal law, finding that “only six” jurisdictions permitted the death penalty for such an act. The Court counted federal law in the “no” column. But, as a military blogger pointed out (and the New York Times noticed, followed by several blogs in my feed, such as Volokh and Tyler Appeals), Congress actually did pass a bill in 2006 placing just such a provision in the Uniform Code of Military Justice. Oops.

Three things are worth noting.

First, it really is difficult to do a fifty-state survey. That echoes a point made more eloquently by others, but it’s worth saying again. Even Kennedy’s lawyers should have caught this statute and presented it to the Court, especially if they made representations in their brief about there being no such law. But no one saw it tucked away in an area of federal law in which none of them happened to practice.

Second, this particular error is huge. It’s not as if the Court misclassified Wyoming or Texas. The framework of the Court’s analysis was looking for national “consensus,” and in that sort of test, surely the national legislature represents at least one species of national consensus.¹ Saying this error just makes it “seven” instead of “six” jurisdictions is a category mistake; the misclassified jurisdiction contains all the others. And this bill passed overwhelmingly.²

The Court could have reached the same ultimate constitutional result even knowing what Congress had done. The Eighth Amendment is, after all, a very pliable thing, and the Constitution does trump statutes. But the Court would have had to confront that it wasn’t just scolding States it sees as retrograde; it was also striking down a fairly fresh federal statute.

Third, the most disturbing thing (at least to me) is that the pundits seem in agreement that a rehearing petition would be futile, even though this error made by the Court is both incontrovertible and goes to the heart of the Court’s reasoning. There seems to be no public confidence that the Court actually meant what its reasoning said and, instead, widespread belief that the decision was just a rationalization for a predetermined result. If that’s why Louisiana doesn’t file a petition for rehearing, that says something more than a little sad about the state of the federal courts.

Question: Would the five Justices in the majority actually welcome a petition for rehearing in this case to at least correct this part of their reasoning, or are they content to have a major constitutional case decided on a demonstrably false premise?

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Update #1: The U.S. Solicitor General’s office, which did not file a brief in Kennedy, has accepted a measure of responsibility for not locating that statute and notifying the Court. This is a nice illustration of the special role the SG’s office sees for itself in relation to the Supreme Court. It also shows the benefits to the SG’s office of such a relationship; the office was able to weigh in with its views on this question, even as a non-litigant, at a phase when only parties can file rehearing motions. ³

Update #2: On Saturday, the Washington Post editorial board called for the Court to rehear the case:

The Supreme Court’s legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That’s why we think the court needs to reopen this case — even though we supported its decision. The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority. The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

1. If your gut is saying, “Isn’t it a little circular to look at legislative enactments to measure constitutional boundaries when those constitutional boundaries are meant to constrain the legislature?,” my gut would agree. ↩
2. It looks to me like the bill permitting the death penalty for child rape under the UCMJ passed the Senate 98-0 before it was sent to conference committee. Depending on how you think about the two abstentions, that would be either 48 or 50 states in favor. The House vote was closer, but still overwhelming (374-41). ↩
3. The SG’s statement also suggests a way that the Court might find the UCMJ provision distinguishable and thus still valid even after Kennedy, noting a previous Supreme Court case that did not resolve whether the Eighth Amendment applied with full force to military punishments. ↩

The Court’s calendar shows a private conference scheduled for Monday but no regular order list this week because the Court will be closed for the Fourth of July.

Articles from the Past Week

• Court Names New Rules Attorney

• Free Exercise Clause Bars False Imprisonment Claim. Pleasant Glade v. Schubert, No. 05-0916. Unless you have a very interesting practice, you won’t be citing this for the religion issue. You’ll be citing it to say that the doctrine of judicial estoppel has now been exorcised from Texas courts.

• Even Temporary Grandparent Visitation Orders Require Due Process to the Parent. In re Chambless, No. 07-0767 (per curiam).

• In re Office of the Attorney General, No. 08-0165. The child-support system case out of Dallas.

• Order List for 6-27-2008

• Catching Up on Links 6-27-2008

Osler McCarthy has just sent out an email advisory announcing Kennon Peterson as the Court’s new rules attorney. She has been working at Baker Botts since clerking for the Chief Justice in 2004-2005.

The current rules attorney, Jody Hughes, is returning to the Office of the Solicitor General.

I’ll update this post with a link to the Court’s advisory (which has some quotes, a photo, and a little more info) when it shows up on the Court’s website.

Pleasant Glade Assembly of God v. Schubert, No. 05‑0916. Majority opinion by Justice Medina, joined by Justice Hecht, Justice O’Neill, Justice Wainwright, Justice Brister, and Justice Willett. Chief Justice Jefferson dissenting, joined by Justice Green and (in part) by Justice Johnson. Separate dissents were also written by Justice Green and Justice Johnson.

Decided: June 27, 2008

Divided 6-3, the Texas Supreme Court ruled that a former church member could not recover emotional damages flowing from intentional torts allegedly inflicted as part of a religious practice.

The plaintiff (then a teenager) attended several church events at which members “laid hands” on her and prevented her from moving as she thrashed about struggling to get free. It was disputed whether the pinning down or the thrashing was cause or effect. When she later developed emotional problems related to the incident, she and her family sued. In a mandamus proceeding that percolated up to the court of appeals before trial, the court of appeals found most of her claims to violate the First Amendment, leaving in place only those claims the church did not challenge.¹

At trial, she won a jury verdict on her remaining battery and false imprisonment claims. The jury awarded damages for pain and suffering, loss of earning capacity, and medical expenses. The trial judge rendered judgment for her on the false imprisonment claim. The court of appeals reversed in part, reducing the total damage award by eliminating the award for loss of future income as being too speculative. The court of appeals affirmed the remainder of the judgment. The court of appeals did not reach the constitutional questions because it held that the positions taken by the church in its prior mandamus proceeding were inconsistent with the constitutional arguments that the church advanced in this appeal.

The Texas Supreme Court disagreed and dismissed the entire case for violating the First Amendment. It held that tort claims seeking emotional damages for church practices would improperly require the courts to inquire about the church’s belief. [Read more →]

1. As the majority here described it, that prior court of appeals decision threw out the plaintiffs’ claims for “negligence, gross negligence, professional negligence, intentional infliction of emotional distress, child abuse, and loss of Laura’s consortium.” None of those claims were before the Texas Supreme Court in this appeal. ↩

In re Chambless, No. 07‑0767 (per curiam)

Decided: June 27, 2008

The Texas Supreme Court frames the question as “whether the trial court abused its discretion in awarding temporary grandparental visitation without affording the custodial parent an opportunity to be heard. See Tex. Fam. Code § 153.433.”

The Court’s answer is that — at least when all parties “concede [the custodial parent] is a fit parent” — a trial court must afford that parent a greater level of due process before granting grandparent visitation, even on an interim basis.

The “interim” order in this case was a strange one as well. It was issued after a hearing was held about whether or not to permanently grant grandparent visitation. [Read more →]

In re Office of the Attorney General, No. 08‑0165 (per curiam)

Decided: June 27, 2008

Earlier coverage: “Mandamus About Texas’s Child Support System” (3-3-2008) and “More Action on the Pending Child Support Mandamus” (3-21-2008)

The Texas Supreme Court granted mandamus relief against certain “temporary” orders from a Dallas County district court about the Office of the Attorney General’s child support collection operations. [Read more →]

In today’s order list, the Court issued four decisions and granted two new cases to be argued this fall.

I’ll post updates as I have summaries.

Four Decisions

Two majority opinions by Justice Medina and two per curiams in mandamus cases:

• Pleasant Glade Assembly of God v. Schubert, No. 05‑0916 The Court reverses the court of appeals’ judgment and dismisses the case. Justice Medina delivered the opinion of the Court, in which Justice Hecht, Justice O’Neill, Justice Wainwright, Justice Brister, and Justice Willett joined. Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green joined, and which Justice Johnson joined in part. Justice Green delivered a dissenting opinion. And Justice Johnson delivered a dissenting opinion.

• JCW Electronics, Inc. v. Garza, No. 05‑1042. The Court reverses the court of appeals’ judgment and renders judgment. Justice Medina delivered the opinion of the Court. Chief Justice Jefferson delivered a concurring opinion, in which Justice O’Neill joined.

• In re Chambless, No. 07‑0767 (per curiam). Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion

• In re Office of the Attorney General, No. 08‑0165 (per curiam). Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion

Two Grants

• State of Texas v. Lueck, No. 06-1034.

• City of Dallas v. Greg Abbott, No. 07-0931

Spanking

“Justice of peace has immunity over spankings” from today’s Houston Chronicle.

State District Judge Abel Limas issued the ruling after a one-hour hearing involving Los Fresnos families complaining of spankings in Justice of the Peace Gustavo “Gus” Garza’s courtroom. Limas said they cannot recover damages in a civil suit filed against Garza.

The lawsuit alleges that Garza told a 14-year-old girl’s stepfather that she would be found guilty of a criminal offense and fined $500 for truancy unless the stepfather spanked her in the courtroom. The lawsuit filed by Mary Vasquez and her husband, Daniel Zurita, described the paddle provided by Garza as large and heavy and fashioned from a thick piece of lumber.

“The freedom of decision is part of the judicial system,” said Limas, who presides over the 404th state District Court, the Brownsville Herald reported Friday in an online edition.

Here’s the Brownsville Herald article.

The Onion’s Legal Coverage

That image of a judge demanding to witness corporal punishment in the courtroom is only slightly more dignified than the Onion’s coverage of the Supreme Court’s Baze v. Rees decision, in which it upheld the legality of the method of capital punishment used by most states.

I won’t embed the video here (you can find it on Sophistic Miltonian Serbonian Blog), and it’s not for anyone who would have been offended by George Carlin’s seven dirty words. But what’s striking (to me, as an appellate geek) is how effectively the Onion subverted the very devices that the Court uses to shield the “dignity” of its oral arguments. The dignified courtroom drawings (because the Court prohibits video) were turned into cartoonish grotesques. The written transcript of the argument (which is often all the court releases on argument day) itself becomes a punch line.

Insurance Disclosure Rules

“Texas Supreme Court to decide on lawyer disclosure proposal: Proposed rule would compel lawyers to tell clients whether they have malpractice insurance”, from today’s Austin American-Statesman.

Are there lawyers who currently advertise this as a way to draw clients? Are there clients who choose lawyers based on their malpractice carrier or limits? I’ve just never seen ads of that nature. (Would such ads even be allowed?) If the market doesn’t demand (or even reward) this, does that say anything about the information’s value to the process of choosing lawyers?

Legal malpractice insurers estimate that at least half of all Texas lawyers — and about two-thirds of sole practitioners — don’t have insurance. That leaves clients who been harmed by malpractice without much recourse.

This makes more sense. “At least half of all Texas lawyers” is a bunch of new customers.

On Monday, the Court is scheduled to hold a private conference. Any cases decided or petitions set for argument should be noted on the Court’s regular Friday order list.

Articles from the Past Week

• Former Justice Baker Has Passed Away. That title says it all.

• Cases in the News 6-21-2008. The Austin Court’s “pet custody” decision and the Fort Worth Court’s decision permitting public disclosure of diocese sex-abuse records after the settlement of a lawsuit.

• Order List for 6-20-2008. Decisions in In re Fleetwood Homes of Texas, L.P., No. 06‑0943 (per curiam) and In re Lyon Fin. Servs., Inc., No. 07‑0486 (per curiam), as well as a grant of review in In re Collins, No. 07-0377.

• Cases in the News 6-20-2008.

The sad news that former Justice James A. Baker has passed away has just been reported by Quorum Report. (Here is coverage from the Houston Chronicle.)

My thoughts are with his family and members of his Court family.