In today’s order list, the Texas Supreme Court denied the petition for review in Jerry Gurkoff, D.O. v. Jersak, No. 08-0398 (DB). But two Justices wrote a dissent from the Court’s denial of review, arguing that the Court should actually have taken up the issue. (( By way of background, it would have taken four votes for the Court to grant the petition. Normally, when a petition only receives two or three votes after being discussed at conference, it comes to a quiet end with the very same notation of “petition denied” that is given to petitions that receive no interest at all. For a Justice to publicly note their dissent is an additional step. ))

Opinions dissenting from the denial of review are somewhat rare. They can sometimes be a helpful signal to counsel in other cases that at least some members of the Court are interested in seeing the same issue raised in some future case. (( If you want to read more about them, you might see Dylan Drummond’s article A Vote by Any Other Name: The (Abbreviated) History of the Dissent from Denial of Review at the Texas Supreme Court that was published in the Spring 2006 Appellate Advocate. ))

I broke this out for special attention today because of the pending bill in the Texas Legislature that would require all of these intermediate votes to be disclosed.

A dissent from the denial of review is how the current system permits Justices to express their views about petitions, even if the Court as a whole is not interested. If Justices feel strongly enough that they want to dissent, they may. They do not even need to pen an opinion to make their objections known; there are many examples of a Justice simply “noting his [or her] dissent” in the Court’s published orders. (( To see for yourself, you can use the search box in the left column called “Search Opinions and Orders.”

If you want the gory technical details, this is just a form that submits a Google search for you limited to the part of the Court’s website containing its published orders. I’ve found this to be a very handy technique to search opinions and orders less than 10 years old. ))

Reasonable people can want more data to analyze. But criticism of the current system should acknowledge that it does offer this outlet for Justices who disagree with the Court’s handling of petitions.

In fact, there is a case to be made that the current system offers better information to future litigants. As an appellate advocate, I would rather have a system in which the Justices can signal that they are particularly interested in an issue instead of a raw report of all their “yes” and “no” votes.

If you’ve sat through Texas Supreme Court conferences before, (( Law clerks on the Texas Supreme Court are permitted to sit through the conferences as the Justices handle petitions. It’s part of what makes that clerkship such a great learning experience. )) you know that “yes” votes come with different levels of enthusiasm. A Justice or two may think that a petition presents a reasonable argument but they may acquiesce when others do not think it is as important to the jurisprudence as other cases on the Court’s plate.

But there is the occasional issue that really motivates a few Justices and sparks serious discussion and disagreement, even if it doesn’t result in a grant. That last category of cases particularly interests me as an appellate lawyer and Court-watcher — and it’s those cases that are highlighted when Justices have to choose in each case whether to note their dissent.