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