With today’s orders list, the Texas Supreme Court issued one opinion in a (still) pending case. It did not grant any new petitions for review.

Severance v. Patterson, No. 09-0387 (reh’g pending)

The Texas Supreme Court issued an interesting opinion today, announcing that it was formally abating this case. (( An appeal is commonly abated when the Court is waiting on some event in the outside world before proceeding. An example is when one party to an appeal files for bankruptcy. To accommodate the federal court’s jurisdiction, the Texas appeal is abated until the jurisdictional question can be resolved. Another example is when the parties notify the Court that a settlement negotiation is ongoing that would beenfit from an abatement. )) The opinion invites the Fifth Circuit to answer a question about the mootness of the case to resolve the Texas Supreme Court’s doubts about its own jurisdiction.

The Severance case was a high-profile challenge to the Texas Open Beaches Act, brought by a homeowner whose land was brought within the zone of open beaches by the moving shoreline. The lawsuit was brought in federal court. The Fifth Circuit certified a question about Texas law to the Texas Supreme Court. Last November, the Texas Supreme Court announced a complex decision largely siding with the landowner. The State filed a motion seeking rehearing, supported by many amicus groups. (( My DocketDB system shows 34 amicus filers in this case, and many of their briefs are available. How many is that? It’s the most of any currently active case. For comparison, the case in third place on that list has only 5 amicus filers. )) The Court granted rehearing in Severance and heard arguments in April.

Last month, the Court was notified by the State that Carol Severance had sold the land at the heart of this suit. It requested some briefing from the parties on the question of mootness — and whether it should vacate its opinion. (You can read a little more at Land Use Prof Blog, or you can read the State’s brief on mootness or the Severance brief on mootness.)

Musings about mootness

This mootness argument put the Texas Supreme Court in an unusual position. Because this is just a certified question from the Fifth Circuit, it only has a very limited kind of jurisdiction — to answer legal questions posed to it about a pending federal case. E.g., Lucas v. U.S., 757 S.W.2d 687 (Tex. 1988) (first certified question accepted by the Texas Supreme Court, explaining its jurisdiction to do so).

In one way of thinking about it, the questions that come to the Court as certified questions stand on a different jurisdictional footing than conventional appeals. They are always advisory in the sense that the Texas court cannot resolve the underlying merits of a federal lawsuit. On the other hand, judges still watch out for prudential reasons to limit what they say. Even in Lucas, the Court explained that it was declining to answer one of the federal court’s questions because it was “moot” in light of how it had answered the other question. (( There are different flavors of mootness. The use of the word “moot” in Lucas really seems to be about the prudential doctrine that courts should decline to answer questions not strictly necessary to their decision — in other words, that courts should avoid dicta. In this case, the State is arguing that the Texas court was deprived of jurisdiction to decide any part of the case when the land was sold. ))

If the Texas Supreme Court had been the one to declare the Severance case moot, it could have put the Fifth Circuit in an awkward position. What if the Fifth Circuit disagreed and concluded that, under the federal law governing the case, it was not moot? The Fifth Circuit would then have to answer this contentious question of Texas law without the benefit of the Texas Supreme Court’s guidance. (( Actually, it would be far more convoluted than that because there was an opinion issued. Would the Fifth Circuit look to the November 2010 opinion for guidance when making its Erie guess about Texas law, which asks it to speculate about how the Texas Supreme Court would decide the question? The Texas Supreme Court order granting rehearing did not withdraw the opinion. If a future order did withdraw the opinion, it would no longer be cited by judges — but surely would be the touchstone for commentators or others critical of whatever answer the Fifth Circuit reached. It would be a little cruel to ask the federal judges to cover their eyes to the opinion and still make an Erie guess what the Texas Supreme Court would have done. The Texas Supreme Court’s order today politely avoids that possibility. ))

The Fifth Circuit will get to decide

Today, the Texas Supreme Court decided to let the Fifth Circuit move first. The short per curium opinion does not hint as to the Court’s view about mootness (or the merits of the pending rehearing). Instead, it simply notes the procedural posture and concludes:

The determination whether the federal lawsuit is moot must be made by the Fifth Circuit. We abate our consideration on rehearing of the certified questions pending this mootness determination.

There really isn’t a procedure for a question to be certified in reverse, from the Texas courts to the Fifth Circuit. This per curiam opinion is about as close as you get.

If the Fifth Circuit rules that the federal case is not moot, then the Texas Supreme Court will resolve the pending rehearing motion.