Electoral shenanigans


Jacka$$

How bad does one’s political blunder have to be to not only force the end of a previously promising gubernatorial bid, but to impact a presidential race almost two decades later? Very, very bad indeed.

Many here in Texas have distant and dusty memories of the West Texas oilcatter and Aggie, Clayton Williams, who ran unsuccessfully for governor against Ann Richards in 1990. His campaign was going fairly well until he started lobbing rape and drinking “jokes” against his opponent who had publicly acknowledged struggles with alcohol.

Classy

Perhaps almost as unforgivable as his tasteless broadsides against Governor Richards, Claytie also made headlines when he refused to shake her hand before a debate in Dallas.

Well, John McCain‘s army of vetting wizards apparently failed to uncover these obscure political nuggets in Claytie’s past when they scheduled a fundraiser for Senator McCain at Claytie’s house in Midland. Senator Obama‘s team was quick to point out Claytie’s unsavory past, and McCain rescheduled the fundraiser, but decided to keep the $300,000 or so already raised with Claytie’s assistance.

Thx to the Politico’s Jonathan Martin and Texas on the Potomac

President, Senator, Governor, GeneralWhat a lineage

Sixty-seven years ago today, Sam Houston‘s only surviving son–Andrew Jackson Houston–was sworn in to the U.S. Senate at the ripe old age of 87 to fill the vacancy left by the death of U.S. Senator Morris Sheppard.

Andrew’s father was sworn in as one of Texas’s first two senators almost one hundred years earlier.

Incidentally, General Houston’s colleague in the Senate was none other than the Republic’s first Chief Justice to actually preside over a session of the Texas Supreme Court: Thomas Jefferson Rusk. While Chief Rusk was, technically, Texas’s third Chief Justice, the first two Chiefs never actually convened a Court session during their eventful tenures (Texas’s first Chief Justice, James Collinsworth, committed suicide by jumping from a ship in Galveston Bay while on the ballot as a Republic presidential candidate). See James W. Paulsen, A Short History of the Supreme Court of the Republic of Texas, 65 TEX. L. REV. 237, 248-53 (1986).

While the father served in the Senate for some thirteen years from February 21, 1846, until March 4, 1859; the son’e tenure was fated to be much shorter, lasting only twenty-four days until he died on June 26, 1941.

Thx to Texas on the Potomac

Good night and good luck

You hear Keith Olbermann go off on one of his unhinged tirades, keep in mind that the insanely-mustachioed Geraldo impersonator pictured above is the man you’re listening to.

Have to admit though, he and Dan Patrick were probably the best sportscasting team ever to hit the airwaves.

Thx to Deadspin and Flash Sports Tonight

Oink

Few who read this blog may be old enough to remember Carole Keeton Strayhorn Rylander McClellan’s 1986 run for Congress, but I do.

Back in ’86, Carole “Keeton McClellan”–as she was then known–made enemies of her Democrat compatriots when she abruptly resigned from the State Board of Insurance with a full three years left on her term, and promptly switched parties so that she could run against the revered and longserving District 10 congressional representative, J.J. Jake Pickle. It wasn’t so much that people begrudged her ambition, but that she would so brazenly and inelegantly attempt to displace an LBJ-era icon in Central Texas politics who was literally beloved by his constituents.

In fact, so deserving of his constitutents’ affection was Congressman Pickle that I remember a tale told at his 2005 funeral that, throughout his years in Congress, he kept his home telephone number listed in the Austin phonebook so he was always—literally—just a phone call away from those who elected him.

Well, the Washington Times reports today that, ‘lo and behold, Mama Carole may have had something to do with her son’s recent partisan about-face with his former boss, 43.

Yesteryear

Lil’ Scotty’s on the left.

Thx to the Washington Times and the Austin Chronicle

Seventh Circuit Judge Richard Posner and his fellow University of Chicago Law School Professor William Landes have authored an article entitled, “Rational Judicial Behavior: A Statistical Study,” which devises a methodology to rank the forty-three Justices who have served on SCOTUS since 1937 from most conservative to least.

Their conclusion?

Four of the five most conservative [J]ustices to serve on the Supreme Court since Franklin Roosevelt [presidential term], including [Justices] Roberts and Alito, are currently sitting on the bench today.

Hmmmm

I always find it troubling when commentators (even ones as undeniably accomplished and talented as Judge Posner) attempt to assign political motives (i.e., Legislative or Executive branch motives) to the judiciary because I remain convinced that political labels like “conservative” or “liberal” are ill-suited to describing judicial philosophy. Originalist jurisprudence is not a per se politically conservative concept just as viewing foreign law as persuasive authority is not a direct descendant of politically liberal thought.

Judge Posner and Professor Landes describe how they classified the conservativeness of the Justices by reasoning “[t]hat characteristic is usually proxied by the party of the President who appointed the judge—if it was the Democratic Party the judge is deemed ‘liberal’ and if the Republican Party ‘conservative.’” See Landes, William M. and Posner, Richard A., “Rational Judicial Behavior: A Statistical Study” (April 2008 ) at 2. U of Chicago Law & Economics, Olin Working Paper No. 404 Available at SSRN: http://ssrn.com/abstract=1126403.

While this may be a seemingly rational way to crudely guess the favored political affiliation of a Justice (particularly in the modern, post-Roe era), one need look no further than Justices Stevens or Souter–both appointed by Republican presidents–for evidence controverting this assumption.

Thx to How Appealing, U.S. News & World Report, and the Legal Theory Blog

Legally sufficient

I just posted a response to a thoughtful comment made regarding my earlier jeremiad aimed at Texas Watch‘s recent report entitled, “In the Shadows: A look Into the Texas Supreme Court’s Overuse of Anonymous Opinions.” Of course, after my recent discourse with someone purporting to be Adam “Bulletproof” Reposa, pretty much anything is–by comparison–civil, restrained, and respectful.

Please permit me to plagiarize myself and reprint some of my response here as I think it bears directly upon the merits–or lack thereof–of the most recent Texas Watch “study.”

[O]ne of the main thrusts of my argument is that the very jurisprudential purpose of a per curiam opinion negates the central tenet of Texas Watch’s argument that per curiams are being inappropriately used to dispose of legally complex cases that should be issued as an authored opinion.

Instead, I posit that the more likely cause of the undisputed rise in per curiam disposition of cases is attributable to the Court’s desire to clear its undenied backlog of cases—of which Texas Watch has previously complained. My point is that it wholly undermines what little credibility may be initially afforded Texas Watch to knock the Court for utilizing the only determinative tool at its disposal to address an urgent problem of which Texas Watch has publicly ridiculed the Court. Texas Watch can’t have it both ways.

To believe otherwise is not just to merely accuse the six Justices who vote to issue a given per curiam opinion of being complicit in flouting the very appellate rules they are charged with drafting, but it is to accuse all nine Justices of intentional malfeasance because every such per curiam opinion is authored en banc. No serious observer or critic of the Court would accuse every single Justice of being either so incompetent or malicious as that. That is why such claims cannot be taken seriously.

However, if your objection is really that I didn’t refute the individual merits of the fourteen cases incorrectly cited by Texas Watch in their report, let me indulge you.

At the outset, however, one should note that the political agenda (as opposed to legal analysis) of Texas Watch is revealed by their “[i]mpact” headings under each case’s discussion in the report. The political impact of any particular decision is, of course, constitutionally beyond the purview of the Court to decide. Indeed, that is why Texas has a legislative branch. But if the legal merits (or lack thereof) of a case demand a certain result, that result can very well have political impacts that are distasteful to the public at large. That is precisely how the system is supposed to work; so that the public can then go to their elected representatives in the Legislature and demand a change in the law to remedy the odious effect. But it is not constitutionally up to Court to masquerade as a super legislature. To assume otherwise is to reveal a basic and fundamental misunderstanding of not only remedial civics but of the constitutional function of the judicial branch.

Now to the cases, none of which are even vaguely legally controversial on their merits.

In In re RLS Legal Solutions, LLC, 221 S.W.3d 629, 630 (Tex. 2007) (per curiam), the Court hinged its holding on its earlier, authored opinion in In re FirstMerit Bank, N.A., 52 S.W.3d 749, 756 (Tex. 2001). Indeed, that is likely why this case was issued per curiam, because the central legal issue had already been decided by a previous, authored opinion.

In Schaub v. Sanchez, 229 S.W.3d 322, 322 (Tex. 2007) (per curiam), the “only theories under which the patient could recover were dismissed by agreed order in the trial court.” Error was not preserved by agreement of the parties; clearly a case hugely appropriate for per curiam disposition.

In Ed Rachal Found. v. D’Unger, 207 S.W.3d 330, 331 (Tex. 2006) (per curiam), the Court again referred to two earlier, authored opinions that resolved the determinative legal issue on appeal. See Austin v. HealthTrust, Inc.-The Hosp. Co., 967 S.W.2d 400, 401-02 (Tex. 1998 ); Winters v. Houston Chronicle Publ’g Co., 795 S.W.2d 723, 723 (Tex. 1990.

In In re DuPont de Nemours & Co., 136 S.W.3d 218, 227 (Tex. 2004) (per curiam), the Court reversed a trial court’s discovery order as to one subset of withheld documents. While this opinion was a little more legally complex than those discussed above, it is far more likely that the Court issued it per curiam because it dealt with only a pretrial matter and involved some 530 documents out of the more than 55,000 pages produced.

In Old Am. County Mut. Fire Ins. Co. v. Renfrow, 130 S.W.3d 70, 72-73 (Tex. 2004) (per curiam), the Court held that driving a company truck to the house of the employee’s girlfriend, and then later some forty miles away to a night spot was a “material deviation from any implied permission he may have had to use the vehicle.” The facts aren’t even close here on the scope of the permission involved—hence the per curiam disposition.

In Dallas Metrocare Servs. v. Pratt, 124 S.W.3d 147, 149 (Tex. 2003) (per curiam), the Court again relied upon a previous, authored opinion’s holding that “mere incorporation of … [a] definition” from another statute “does not by itself manifest a clear legislative intent to waive immunity.” See Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692 (Tex. 2003).

In Speed Boat Leasing, Inc. v. Elmer, 124 S.W.3d 210, 213 (Tex. 2003) (per curiam), the Court referenced several prior, authored opinions each of which that held a common carrier is an entity whose “business … is public transportation,” but not one to whom “such transportation is ‘only incidental’ to its primary business.”

In Tiller v. McLure, 121 S.W.3d 709, 714-15 (Tex. 2003) (per curiam), the Court held that a series of contentious, callous, and unprofessional contacts by the petitioner regarding two commercial construction contracts– while reprehensible–was not so atrocious as to qualify as “extreme and outrageous.” This one involved a little more legal analysis and might have been a somewhat closer question than those discussed above, but was clearly not so outside so the purview of the Court as to be labeled an “inappropriate” use of a per curiam opinion.

In Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 nn.7, 8 (Tex. 2003) (per curiam), the Court relied upon a multitude of previous, authored opinions that plainly held “some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence,” and “an inference stacked only on other inferences is not legally sufficient evidence.” No great jurisprudential stretch that.

In In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 208-11 (Tex. 2001) (per curiam), the Court vacated a pretrial consolidation order after relying upon the diagnostic framework established by a previous, authored opinion. In re Ethyl, 975 S.W.2d 601 (Tex. 1998 ). Once again, a pretrial dispute, the merits of which were plainly governed by a prior, authored opinion.

In Walls Regional Hosp. v. Bomar, 9 S.W.3d 805, 807 (Tex. 1999) (per curiam), the Court again relied upon several prior, authored opinions that established the record did not support the appellees’ contention that the conduct complained of originated and was then “transported into the place of employment from [their] private or domestic [lives],” or that the appellant intentionally injured the appellees.

As with many per curiam opinions, the Court in In Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 156-57 (Tex. 1999) (per curiam) appeared to have rejected the proposed application of a well established recovery doctrine to novel yet simple fact-pattern.

In In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 574 (Tex. 1999) (per curiam), the Court hardly stretched its jurisprudential limits by relying upon a Fifth Circuit Court of Appeals case and the seminal authority on contracts that the mere fact the real parties in interest possessed “no bargaining power or ability to change the contract terms” is not, in and of itself, legally “automatically unconscionable or void.” See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Security Pac. Corp., 961 F.2d 1148, 1154 (5th Cir. 1992) (citing 6A ARTHUR CORBIN, CONTRACTS § 1376, at 20-21 (1962) & 7-9 (Supp. 1991)).

Finally, Texas Watch bemoans a per curiam opinion which is only six lines long. See Am. Home Assur. Co. v. Stephens, 982 S.W.2d 370, 370 (Tex. 199 (pre curiam). Moreover, the opinion itself is an answer to a certified question from the Fifth Circuit Court of Appeals, and defers to the lengthy legal analysis contained in a Fifth Circuit dissent—hence it’s brevity (and per curiam nature).

That’s it, that’s the sum total of juristic outrage of which Texas Watch complains. While Texas Watch has every right–and to the extent that it may even be correct–to complain of the political effect of these decisions, Texas Watch’s ire is misdirected. The legal bases for these per curiam decisions are sound and entirely appropriate for per curiam disposition. Texas Watch would do far better to publicly harangue and chastise the true arbiters of the perceived misery against which Texas Watch rails—the Texas Legislature.

Just don’t masquerade as legal experts presenting a sober and thorough analysis of the Court’s recent per curiam practice seriously testing what may indeed turn out to be a fair thesis. Instead, Texas Watch has manifestly either been incapable of attracting or hiring a seasoned appellate expert to conduct such an analysis, or they have more likely just not bothered to even attempt such an endeavor. Neither motive is a fair or rational basis to impugn the professional integrity and legal acumen of those who have garnered the electoral support of a majority of the voters in our Great State.

Thx to Lefty

SCOTX

SCOTX Blog has a great post today regarding the latest screed from Texas Watch in their ever-vigilant quest to find new ways to sound imbecilic (my description only).

Texas Watch has apparently prepared a new “report” which purports to shine the light of truth on SCOTX‘s “penchant for secrecy” by “using per curiam opinions inappropriately to avoid accountability for some of the tough decisions.

Before I delve into the nonexistent merits of Texas Watch’s revelation, there is something curious going on here. Both the Houston Chronicle and the AP have published news accounts describing a report that Texas Watch has not even yet issued. Does anyone else find it odd that supposedly objective news outlets would be writing articles concerning PR dossiers that haven’t even been released to the public yet?

As to the merits, as any lawyer knows (which perhaps explains Mr. Winslow‘s ignorance), per curiam opinions are a remedial tool used by SCOTX (and the courts of appeals for that matter) to more quickly dispose of cases that require only relatively straightforward error correction. See Hon. Robert H. Pemberton, One Year Under the New TRAP: Improvements, Problems and Unresolved Issues in Texas Supreme Court Proceedings, in State Bar of Tex. Prof’l Dev. Program, Advanced Civil Appellate Practice Course B, B-18 (1998).

In fact, SCOTX first began to increase its use of per curiam opinions as early as 1925, when–not coincidentally–the Court was suffering from such a severe backlog of cases that a separate judicial body was created to assist in the mass adjudication of pending cases. See David M. Gunn, “Unpublished Opinions Shall Not Be Cited as Authority”: The Emerging Contours of Texas Rule of Appellate Procedure 90(i), 24 ST. MARY’S L.J. 115, 117 (1992) (describing how, beginning in 1925, the Texas Supreme Court began to increase its issuance of per curiam opinions, “perhaps as a corrective device”); see also Act of Apr. 3, 1918, 35th Leg., 4th C.S., ch. 81, 1918 Tex. Gen. Laws 171 (made effective April 3, 1918, and reestablishing the Texas Commission of Appeals); Tex. S.J. Res. 8, 49th Leg., R.S., 1945 Tex. Gen. Laws 1043 (adopted at election held Aug. 25, 1945 eliminating the Texas Commission of Appeal).

Accordingly, per curiam opinions are used to more efficiently dispose of those cases upon which there is little or no disagreement, and which present fairly straightforward legal issues. In other words, if the Court is issuing more per curiam opinions, it is probably more accurately an indicia of an increased determination to reduce the Court’s backlog (previously bemoaned by Texas Watch) of appropriate cases than it is a Machiavellian attempt to shroud the deciding members from public scrutiny.

To the contrary, the use of such a jurisprudential mechanism actually INCREASES the scrutiny upon the Justices because a per curiam opinion is–by definition–issued by the entire Court. Every Justice is given equal praise/blame for the failings or triumphs of the decision, as compared to an authored opinion which can be attributed only to the majority of Justices who sign it.

Moreover, because the only type of case that is appropriate for per curiam disposition is one in which the legal issues are clear, straightforward, and non-controversial, Winslow’s claim that “[a]ll too often, the Texas Supreme Court uses per curiam opinions as a shield to hide behind when they render decisions that are controversial, leaving them unaccountable to voters” can simply not be taken seriously. Any decision likely to cause controversy or which demands the Court clarify a muddled or disputed area of the law is precisely the type of opinion least likely to be issued per curiam. And, as explained above, a per curiam opinion subjects every single Justice on the Court to elevated scrutiny, not just the authoring few.

Again, any basic analysis of the different types of opinions SCOTX is empowered to issue is a bit dry and legally complicated so I can’t really fault a group of non-lawyers (save for the one four-year lawyer Texas Watch recently hired) for failing to comprehend the finer points of the practice.

Most interesting to me is SCOTX Blog‘s noting that the official statistics published annually by the Office of Court Administration track the per curiam opinions written by each Justice (see page four of the .pdf file).

While it is of course obvious that a single Justice must be logistically tasked to author a per curiam opinion, the identity of that Justice should remain anonymous because it is the Court as a whole that is issuing the opinion. The fact that OCA tracks and publishes this data, tying these opinions to the chambers which issue them (by number of opinions only) is more troublesome than any flotsam trotted out by Texas Watch.

Thx to SCOTX Blog

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