With the new calendar year comes the start of the Texas Supreme Court’s 2009 Term. It may be a formality, but for the clerk’s office, it means a whole new slate of docket numbers.

This year’s “New Year Baby” petition — the one with the 09-0001 designation — is In re Charles Watkins, No. 09-0001 (DB), a petition for writ of mandamus involving an order to compel arbitration. (( The full text of the court of appeals’s memorandum opinion reads, “Relator, Charles Watkins, has filed a petition for a writ of mandamus complaining of Judge Patricia Kerrigan’s November 10, 2008 order compelling arbitration. After due consideration, we deny the petition for writ of mandamus.” ))

Yesterday, the Texas Supreme Court resolved two motions to participate in oral argument by amici — granting one request and denying the other.

In Gail Ashley v. Doris D. Hawkins, No. 07-0572 (DB), the Court granted the State of Texas’s unopposed motion to participate in oral argument as amicus curiae. The order indicated that the State’s five minutes of argument time was taken out of the Respondent’s original twenty minutes, leaving a split of 20 minutes for the Petitioner, 15 for the Respondent, and 5 for the State.

Meanwhile, in In re United Services Automobile Association, No. 0871 (DB), the Court denied a “motion to expand argument time” and a “motion to participate in oral argument” also filed by the State.

As I mentioned in my recent post “When can amici expect to get oral argument time?”, Texas practice requires both a party’s consent and that the consenting party share its time. I mentioned that the Texas Supreme Court has, on occasion, expanded the overall time for argument — what I called “an awkward way to proceed.”

Yesterday’s order again signals that the Court is loath to give more time to parties who are unwilling to share. The order list contained this explanation:

Pursuant to Texas Rule of Appellate Procedure 59.6, upon motion to the Court and with a party’s consent, the Court will grant amicus curiae leave to share up to five minutes of the twenty minutes allotted to that party for oral argument.

That puts a little flesh onto the bones of Rule 59.6, which merely says:

With leave of court obtained before the argument and with a party’s consent, an amicus may share allotted time with that party. Otherwise, counsel for amicus curiae may not argue.

The Court has clarified that, with a motion and a party’s consent, “the Court will grant amicus curiae leave to share up to five minutes of the twenty minutes allotted…” (emphases mine) (( Update 12/9: On Friday, after the Court initially denied permission for the amicus to argue, a revised motion was filed that no longer sought the “expansion” of time. The Court granted that motion and the State appeared as amicus at oral argument this morning. ))

The Court mostly likely did not intend to limit its discretion to deny a motion to participate, which it surely can do. (( This discretion was why I suggested in my earlier post that an amicus should have something different to say than the party they are supporting. If the Texas Supreme Court truly does not intend to exercise discretion over whether particular amici can appear, then you can safely ignore my previous post. Then again, why would you want to appear at oral argument if you didn’t have something to say that warranted the Court’s attention? )) But it has made plain that it does not expect any amicus to need more than five minutes and that it does not expect parties to seek extra time to compensate.

The practice tip remains: If you have a helpful amicus, consider giving them five minutes of your time.

Earlier this fall, the Texas Supreme Court heard oral argument in Tanner v. Nationwide Mutual Fire Insurance Co., No. 07-0760 (details on DocketDB).

This case asks if an intentional-acts exclusion in an automotive insurance policy gets the insurer off the hook when its policyholder was in a high-speed chase with police and was unable to stop his car at an intersection, ramming into another vehicle and seriously injuring its occupants, the Tanners. The Tanners say Nationwide should pay; Nationwide says that this sort of accident is not covered because the chain of events began with its policyholder’s intentional decision to break the law.

Over the past week, this case has gotten an increasing amount of press attention. In an article appearing just before Thanksgiving, the Austin American-Statesman offered a good summary including these snippets from oral argument:

“So,” [Justice Scott] Brister said, “if you are escaping the police and you run a stop sign, shouldn’t you ‘ought to know’ that bodily injury would result from that?”

[The Tanner’s lawyer, Don] Cotton: “But your honor, follow that logic. If you are not escaping the police, but you are simply going too fast and you run a stop sign, you ‘ought to know’ that bodily injury is likely as well. And we don’t want to exclude coverage in every case where that happens because, really, we wouldn’t have liability coverage.”

That argument seemed to catch the ear of Chief Justice Wallace Jefferson, who questioned Nationwide’s lawyer to determine how far the insurance company would take the Ohio exclusion.

“If I intentionally run a stop sign and I hit somebody, is there coverage under your analysis?” Jefferson asked.

No, [Nationwide’s lawyer Chris] Heinemeyer replied.

“What if I’ve got a kid in the back seat and I intentionally turn to scold the kid and then run into somebody?” Jefferson continued.

Heinemeyer: “The policies are designed to cover inadvertence and negligence. In that situation, that’s an error of judgment … and that would be covered, I believe.”

Jefferson: “So anytime a driver runs a red light intentionally, there would be no coverage if you hit somebody in the intersection?”

Heinemeyer: “I think if they say, ‘I intentionally ran the red light,’ then there is no coverage.”

“Then,” Jefferson said, “there is a lot of noncoverage out there in Texas.”

From: “Case debates if man’s insurer should pay in wreck”

One saving grace for Texas drivers might be that this particular Nationwide policy was issued in Ohio, which seems to have particularly broad policy language.

Even so, the case sparked an editorial on Monday from the Statesman, which lumped this case together with other recent, high-profile cases in which, the Statesman says, “[t]he Supreme Court has embarrassed Texas with its demonstrable tilt toward insurers and other corporate defendants.”

Meanwhile, Texas Lawyer‘s blog Tex Parte took a more moderated tone:

[T]he Statesman editorial board made the case that the high court rules for the insurance industry far too often. I bet most insurance lawyers would disagree with this assessment. In Frank’s Casing and Lamar Homes — two recent high dollar decisions that are representative of many business/insurance disputes at the court — the justices pretty much told the insurance companies to get stuffed.

That debate won’t get settled anytime soon. And the Tanner case, despite its easy-to-grasp and sympathetic facts, may not be the best vehicle for advancing it. The wrinkle that this insurance policy was issued in Ohio may bring other factors into play, such as whether the Texas court has latitude to apply a definition inconsistent with Ohio law.

But the Tanner case might turn out to be very meaningful for Texas insurers if it prompts action by the Legislature or the Texas Department of Insurance to make sure those hypothetical questions at oral argument don’t become a reality here. (( This footnote is veering toward economics more than law, so stop reading if you don’t want my non-expert opinion. But it seems to me that Nationwide’s argument in the Tanner case destroys the insurance industry’s argument for why states should mandate that every driver buy liability coverage. If that coverage doesn’t protect me from cars that are speeding or changing lanes without signaling, then it probably doesn’t apply to half the cars on I-35.

I recognize that the Court is bound by the policy language here and that Ohio may have permitted its insurers to issue a policy that doesn’t really mean much. But if I were suggesting to Texas policymakers a fair balance between the moral hazards caused by “intentional acts” and the social benefits provided by mandating that all drivers have liability coverage, it might be that a broad intentional acts exclusion could prevent the policyholder from himself collecting but that it does not absolve the insurer from accountability to third parties. After all, in a system with mandated liability coverage, the insurance policy is what makes it legal for the policyholder to even get behind the wheel. The protection the system affords to the public at large shouldn’t be lost, even if just for a few moments, each time that driver changes lanes or makes an illegal right turn on red. ))

I wrote last month about the Texas Supreme Court’s recent decision in Kerlin v. Sauceda about the Texas tolling statute. That post noted the interaction between the Texas case and a pending Fifth Circuit case (Cadles of Grassy Meadows II, L.L.C. v. Goldner, No. 07-10711) in which the federal court had ruled that the Texas statute was unconstitutional.

Today, the Fifth Circuit granted the State’s motion for rehearing in that federal case and remanded to the trial court for it to interpret and apply Kerlin. This outcome should prevent a serious discrepancy between how this critical statute is applied in federal and state court.

The Fifth Circuit and the Texas Supreme Court were able to resolve this discrepancy so quickly because each happened to have a pending case about the same issue. Normally, it takes months or years for this sort of Erie problem to work its way through the courts. But because these litigants (and the courts) were on the ball, this one took only weeks.

Back in June, I wrote about the Texas Supreme Court’s religion clause decision in Pleasant Glade Assembly of God v. Schubert, No. 05-0916, a case that received substantial media coverage (usually as “the exorcism case”).

Laura Schubert has now filed a petition for writ of certiorari with the U.S. Supreme Court. Schubert’s lead argument echoes the dissents of Justice Green and of Chief Justice Jefferson, each of whom argued that the Texas Supreme Court should have applied Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990), to conclude that her claim did not violate the First Amendment because it turned on neutral principles of tort law.

Update: Links to the opinions and briefing at the Texas Supreme Court level are available here.

Douglas K. Brocail v. Detroit Tigers, Inc., No. 08-0926 (DocketDB) (direct link to COA opinion)

A petition for review has been filed involving a major league pitcher, Doug Brocail, who lives in Texas and has pitched for both of Texas’s major league clubs — but who is actually suing the Detroit Tigers. (( I mentioned the court of appeals opinion very briefly when it was issued. ))

Brocail is suing for compensation for an injury he suffered during the 2000 season. The trial court granted summary judgment in favor of the Detroit Tigers. The appeal asks whether Brocail’s claims are preempted, either under the Federal Labor-Management Relations Act or Michigan labor statutes. The court of appeals ultimately concluded that the trial court’s summary judgment in favor of the ball club should be affirmed.

Brocail’s common-law claims arise under Michigan law, which is out of the Court’s usual strike zone, as is the question of how to construe a Michigan statute. On the other hand the federal question may be of broader interest to Texans. And there is at least some precedent for the Court taking a case involving substantial questions about a sister state’s law, if the Court is sufficiently interested in the subject matter. (( One example is Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., No. 03-1066 (Tex. 2008), in which the liability turned on questions of Virginia law. ))

I think that’s a 2-2 count. Next pitch is the Tigers’.

In re Justice Jan P. Patterson, Justice, Third District Court of Appeals, in Her Official Capacity, No. 08-0858

A few weeks back, the Third Court released its denial of rehearing en banc in Ex parte Colyandro, a criminal case involving former associates of Tom DeLay. At the time, Justice Diane Henson released an opinion dissenting from that denial of review. (See “Dissension in the Third Court” ) The court’s original order indicated that Justice Jan Patterson also dissented from the Court’s decision not to hear the case en banc, but that she had not yet finished her opinion.

In the meantime, the prosecutor filed a motion to recuse, suggesting that a member of the panel should have been recused. The Court denied that motion without requesting a response on October 8th.

It turns out that the Court has now refused to publish Justice Patterson’s opinion dissenting from that decision. And Justice Patterson has taken the question up to the Texas Supreme Court in the form of a mandamus against Chief Justice Kenneth Law of the Third Court.

This is a very unusual filing related to a remarkably divisive case. The Texas Supreme Court’s docket sheet does not yet provide details, but it does confirm that some filing has been made.

Source: “Dissent blocked in DeLay case, justice says” (Austin American-Statesman)

Today’s revised opinion in Kerlin v. Concepcion Sauceda, No. 05-0653 addresses the Texas tolling statute — under what conditions the statute of limitations is tolled while a defendant is physically absent from the state. (The changes made by the revised opinion are noted in my previous post.)

The Court’s changes to the opinion seem directly responsive to
this post-decision amicus brief filed by the State of Texas.

The State was concerned about the effect of the Court’s broad language on a pending rehearing in the Fifth Circuit — Cadles of Grassy Meadows II v. Goldner and Goldner, in which the Fifth Circuit held Texas’s statute to be unconstitutional under the dormant Commerce Clause.

Some more details are available in this Texas Lawyer article, which summarized the relationship between these two cases (neither of which mention the other):

As noted in the 5th Circuit’s opinion in Cadles, the [Texas Office of the Attorney General (OAG)] argued that an out-of-state defendant can appoint a resident agent and not be subject to the state’s general jurisdiction. [Judge Jerry] Smith wrote that the OAG suggested that the Goldners could have included an appointment of an agent to accept service in the contract for the debt. But, as Smith noted, Texas courts have never addressed whether designating a resident agent in debt agreements can avoid tolling. That remains an open question, according to the opinion.

“So long as that is so, it would be mistaken to say that the Goldners were unburdened by the tolling provision just because they could have done something the Texas courts might — or might not — in the future deem sufficient to avoid tolling,” Smith wrote. Judges Eugene Davis and Harold DeMoss Jr. joined Smith in the decision. …

The OAG argues in its motion for rehearing to the 5th Circuit that if the state Supreme Court revises its decision in Kerlin so that the statute still applies when a defendant cannot be found for service of process, that will resolve the 5th Circuit’s concerns about the statute.

Although published before today’s revised opinion in Kerlin, the article contained this prediction about how these cases might play out:

Charles “Rocky” Rhodes, a South Texas College of Law professor and state constitutional law scholar, says he thinks the state Supreme Court’s decision in Kerlin makes sense. Rhodes, who says he has studied §16.063 and talks about the statute in his classes, points out that the Supreme Court tried to narrow what the statute does to avoid constitutional problems.

Rhodes says it is pretty unlikely that the state Supreme Court will revise its decision, as suggested by the OAG. But he says the 5th Circuit just might take another look at Cadles, in light of the state Supreme Court’s interpretation of the statute.