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 See David M. Gunn, “Unpublished Opinions Shall Not Be Cited as Authority”: The Emerging Contours of Texas Rule of Appellate Procedure 90(i), 24 ST.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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