In an unusual order, the Texas Supreme Court has transferred the Kim Brimer–Wendy Davis election dispute from the Fort Worth Court to the Dallas Court.
The unusual part is that the Justices of the Fort Worth Court made the request on their own. No reason was publicly specified for the move.
On Tuesday, 2nd Court of Appeals Chief Justice John Cayce requested that the case be moved to Dallas Countyâ€™s 5th Court of Appeals.
“Circumstances have arisen which warrant that the case be transferred to another court,” Cayce wrote to the Texas Supreme Court.
When reached for comment Wednesday, he declined to specify those circumstances, saying, “The court deemed it appropriate to do so on its own motion.” (( Fort Worth Star-Telegram at this link ))
It’s very possible that one of the Justices realized that there might be a conflict with one of the issues in the case. (These Justices, after all, have to file and run for election under the same statute involved in the case.) It’s also possible that some later events occurred in the political world that created a new situation that a Justice felt was a conflict of interest. I have no information at all. But it strikes me as unusual for a court to reject a case for conflict reasons when it has already scheduled oral argument and, indeed, has already handled an earlier case involving overlapping parties and issues. That suggests either new events or new information.
What next? This case has already made it to the Texas Supreme Court twice in the form of mandamus petitions, both times being turned back to the Fort Worth Court. In the most recent of those filings, Brimer’s camp argued that the Fort Worth Court’s schedule (under which oral argument was to be held this week) was not fast enough to grant meaningful relief because of ballot deadlines. The Court denied relief, presumably concluding that relief granted in September would be soon enough.
Now, the case is moving to a new court. We should know soon whether the Dallas Court intends to set the case for oral argument (which in this case, might actually speed up the learning curve for the Justices) or will take the case on the briefs. I’m sure they will try to handle the case quickly; they know when the election is, too.
Even so, if Brimer’s camp is unhappy with the new pace, they might again seek mandamus review from the Texas Supreme Court to speed things up. But that’s a little mechanically difficult to frame — unless the Dallas Court announces oral argument, it’s hard to attack any decision they have made, and it’s the Texas Supreme Court that granted this transfer. (( It’s also worth noting that petitions for mandamus relief are considered equitable in nature. For that reason, parties can be denied relief for reasons such as unclean hands (i.e., yourself being part of the problem). Without knowing the reasons behind the transfer, it’s really difficult to speculate on whether one of the parties to this case might be seen to have part responsibility for any delay caused by the transfer. ))
* “Brimer-Davis eligibility lawsuit is moved to Dallas County court” (Fort Worth Star-Telegram)
* “Sen. Kim Brimer’s challenge of opponent’s candidacy moved to Dallas” (Dallas Morning News).