This is the second of three posts about the Texas Supreme Court’s recent decision in Marks v. St. Luke’s Hospital, No. 07-0783 (DDB). The first post puts the case in context and discusses how a rehearing like this fits into the Court’s practice. The third post will discuss “zombie opinions,” the opinions that linger as controlling law after rehearing is granted.

This post is about the holding — or lack of one — in Marks v. St. Luke’s, which was last term’s most divided case. If you’re looking for more background on the case, you should see the first post of this series.

Part 2: Is there a holding here at all?

To be sure, we know who won and lost the case. The judgment of the court of appeals was affirmed (with five votes), which affirms the underlying dismissal of Marks’s claim against the hospital.

That is perhaps everything that matters to the litigants. But what matters to the rest of us, and the jurisprudence, is the holding to be applied in future cases.

This is how the Court broke down:

• The lead opinion was written by Justice Medina, who also announced the judgment of the Court. His opinion was joined in full by Justice Hecht, and in part by Justice Johnson, Justice Wainwright, and Justice Willett.

• Justice Wainwright wrote a concurring opinion

• Justice Johnson also wrote a concurring opinion, joined in full by Justice Willett and in part by Justices Hecht and Wainwright.

• Chief Justice Jefferson wrote an opinion concurring and dissenting opinion, joined by Justice Green, Justice Guzman, and Justice Lehrmann.

• And Justice Guzman also wrote a concurring and dissenting opinion.

Although five Justices joined Justice Medina’s lead opinion, at least in part, this is a case where those pesky “joined in part” descriptions are critical.

The only parts of this opinion with five votes were the description of the procedural history (Part I) and the discussion about remedy (part IV). The substantive heart of the opinion — the part that construed the statute — had only two votes. (( I’m not completely sure how to reconcile Justice Hecht joining this portion of the opinion with him also joining with Justice Johnson’s concurrence. ))

So is this a “majority” opinion at all? Perhaps in name, but not in the main holding. Justice Johnson and Justice Wainwright, in their concurring opinions, and Chief Justice Jefferson in dissent call the lead opinion a “plurality.” (( That nomenclature also doesn’t quite fit, if “plurality” carries its usual meaning of the opinion in favor of the judgment that attracted the most votes. That would be Justice Johnson’s concurring opinion, which had four votes. ))

The question dividing the Justices is what to make of the health-care-liability act’s use of the word “safety.” Both Justice Medina and the dissenters would frame the test in a similar way. As Chief Justice Jefferson writes:

A plurality repeats our earlier holding that the safety prong is implicated only if the underlying claim directly relates to a patient’s care and treatment. Now, however, the Court concludes that the hospital bed is an inseparable part of the treatment Marks received. . . . The Court’s previous opinion describes in great detail why the footboard was not integral to St. Luke’s delivery of health care services to Marks, and I have attached it as an appendix.

The dissenting Justices would have applied that test to conclude that this defective hospital footboard was not integral to the patient’s care and treatment. Meanwhile, Justice Medina applied the same test to conclude that it was integral.

These five Justices (( The tally might be six, depending on how you think about Justice Hecht’s vote here. )) would all frame the test as fact-specific, driven by whether a particular claim implicated the patient’s care and treatment.

Meanwhile, four other Justices would apply a blanket rule that all claims relating to “safety” are covered, regardless whether they also implicated a patient’s medical care. In those Justices’ view, the statute’s language suggests that “safety” can be entirely distinct from health care; the liability protection, they would conclude, extends more to the health-care provider than to the nature of the claim.

This type of deeply split opinion has happened before

I began my clerkship at the Texas Supreme Court in August 1999. That September, the Court issued its judgment in Mellon Mortgage Co. v. Holder, 5 S.W.3d 654 (Tex. 1999). In that case, the Court split 3-1-1-3 (with one Justice not sitting). Five Justices favored reversing; three Justices favored affirming. But no more than three could agree on a rationale.

This stuck in my memory because, in my second year of law school, I had studied how the U.S. Supreme Court handled these split opinions (what is, strangely enough, called “the Marks rule”). These deeply unsettled issues tended to lead to moot court topics (and thus show up on the radar of a law student). And the logic puzzle of how to piece together these holdings appealed to the former math major in me.

In later years, when I was working for OSG, I had to work with similarly split decisions on questions of sovereign immunity. In Texas A&M University—Kingsville v. Lawson), 87 SW 3d 518 (Tex. 2002), the Court split 4-1-4, with the one pivot vote (Justice Enoch) having a completely different view of sovereign immunity than either the plurality or dissent. And in Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004), one of the often-cited passages in the case (about whether repleading should be permitted) only had the support of four Justices because of partial joins in the majority opinion.

How do you count up the Justices?

A quick math quiz

Here is the problem:

• At least five Justices frame the test as fact-specific

• At most four Justices frame the test as being a bright-line exclusion

So which is it? The answer, it turns out, is that we still do not know. Because no majority in Marks v. St. Luke’s Hospital could agree about the rule and the judgment, we are left to wait until the next case.

The (other) Marks rule

The U.S. Supreme Court has a rather obscure body of cases that discuss how to extract a holding from a fragmented set of opinions in which there is no clear majority. The so-called Marks rule is that:

“[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”

Marks v. United States, 430 U.S. 188 (1977) (( The Marks rule is most useful in cases where — usually for reasons of criminal procedure, which sometimes hinges on whether an argument should have been made in the past based on then-existing precedent — a court needs to answer the historical question of what the law was at a prior time.

Lower courts have also looked to the test to determine what the law is today, but that’s mostly just reading tea leaves. The U.S. Supreme Court has not held itself bound by its own Marks analysis of prior cases; because there was no majority, the Court considers itself more free to change its mind (or make up its mind) than if there had been a prior majority that might be afforded stare decisis. ))

Notably, the Texas courts have not adopted the Marks reasoning as a way to resolve splits on the Texas Supreme Court. Instead, the Texas rule is that the plurality is just not binding at all on future courts. Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994) (“Because the principles of law involved have not been agreed upon by a majority of the sitting court, the plurality opinion is not authority for determination of other cases, either in this Court or lower courts.”).

And a remarkable amount of the time, the Marks rule cannot resolve a split. It works only on a subset of fairly simple cases, where the Court’s attention is focused on just a single issue with an obviously “narrower” or “broader” answer.

In this case, the federal Marks rule wouldn’t shed much light on the Texas Marks case — even if Texas courts had adopted that approach.

The next petition looks critical

The old saying is that hard cases make bad law.

The truth is that, sometimes, hard cases make no law at all.

When the Texas Supreme Court cannot muster five votes for any single legal test, then it has resolved the dispute between the parties without resolving the underlying disagreement in the jurisprudence.

In this rare situation, the other pending petitions that raise the same issue — normally just along for the ride, awaiting the outcome of the lead case — suddenly become critical. As I will discuss more in Part 3 of this seemingly never-ending series of blog posts, the Court’s procedures for rehearing have created a few of those candidate petitions in the pipeline.