The Dallas Morning News has an article titled “Texas attorney general, family-court judges battle over child support collection” that discusses the background of a new mandamus filing in the Texas Supreme Court.

The case involves a private child-support-collection business called Guardian Ad Litem, run by former Dallas judge Robert O’Donnell. Over more than 20 years, courts in the Dallas area have appointed that company to collect payments in more than 20,000 divorce cases. The firm charged each client $10 per month.

But in mid-February, the attorney general’s office announced that, according to federal and state law, it was obligated to take immediate control of about 2,300 of Guardian Ad Litem’s cases – an action that Mr. O’Donnell and some family-court judges believe will disrupt and delay child-support payments that are counted on by custodial parents to meet the needs of their families.

…

Since the state announced it would no longer send payments to Mr. O’Donnell’s business, the legal maneuvering has been fast and furious.

Judge Cherry, of the 301st Family District Court in Dallas, issued a temporary restraining order to prevent the attorney general’s office from redirecting child-support payments. A hearing on the order is set for March 14.

Meanwhile, the attorney general filed a request for a mandamus – an extraordinary judicial order – to the Fifth District State Court of Appeals. In stark and dramatic terms, the attorney general’s brief argued that the court’s intervention was needed to avoid the “choice between repeatedly violating federal law or violating each of these standing court orders” – referring to the divorce decrees that assigned child-support collection duties to Mr. O’Donnell.

The appeals court denied the mandamus in a decision late Thursday, and the attorney general immediately appealed to the state Supreme Court.

The currently pending mandamus action is In re the Office of the Attorney General, No. 08-0166 [docket sheet]. The mandamus petition was filed last Friday. The Texas Supreme Court has ordered that a response be filed by noon this coming Friday, March 7th.

In its first consolidation order since September of last year, the Multidistrict Litigation Panel has combined 77 lawsuits against Ford pending in 28 Texas counties. There is coverage of this order in the Detroit News in an article titled “Ford Faces Lengthy Lawsuits.”

The MDL opinion, written by Justice Lang of the Fifth Court of Appeals, is available here. Although these multidistrict reviews are decided by a special MDL panel, these cases are assigned docket numbers on the Texas Supreme Court’s regular docket. This case is No 07-0953.

MDL is governed by Texas Rule of Judicial Administration 13, which provides that:

The MDL Panel may order transfer if three members concur in a written order finding that related cases involve one or more common questions of fact, and that transfer to a specified district court will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of the related cases.

Texas Rule of Judicial Administration 13.3(l)

By my count, there are currently two other pending MDL petitions — both filed last week: In re Louis Dreyfus Pipeline LP Pipeline Tax Litigation, No. 08-0131 docket sheet, and In re Delta Lloyds Insurance Co., No. 08-142 docket sheet.

Late last week ((These requests were made on Thursday, which was too late to appear on the Court’s weekly event report database printout. They should be listed on this Friday’s upcoming event report.)), the Court requested full briefing on the merits in thirteen pending cases. And it was a particularly busy day for the San Antonio appellate bar, as six of those cases were from the Fourth Court of Appeals.

These are the lucky thirteen, along with links to the underlying court of appeals opinions:

• Adams v. TMCA of San Antonio, No. 07-0221. Docket COA: 04-04-00931-CV

  COA Dissent from Denial of En Banc — COA Majority — COA Dissent

• In re James Allen Hall, No. 07-0322. Docket COA: 04-07-00050-CV

  COA Memorandum

• Smith v. O’Donnell, No. 07-0697. Docket COA: 04-04-00108-CV

  Opinion on Rehearing

• Farmers Group, Inc. v. Geter, 07-0707. Docket COA: 09-05-00386-CV

  COA Opinion

• Spectrum Healthcare Resources, Inc. v. McDaniel, No. 07-0787. Docket COA: 04-06-00185-CV

  En Banc Majority — En Banc Dissent The Fourth Court has ordered the panel decisions removed from its website, which is somewhat odd. That seems to be a departure from prior practice, at least in other courts of appeals.

• Sells v. Drott, No. 07-0848. Docket COA: 12-07-00020-CV

  COA Opinion

• In re Sun Flynn, LP, No. 07-0868. Docket COA: 04-07-00596-CV

  COA Memorandum

• In re United Services Automobile Association, No. 07-0871. Docket COA: 04-07-00464-CV

  COA Memorandum

• In re Luis Alonzo Alvarez, No. 07-0911. Docket COA: 01-07-00569-CV

  COA Memorandum

• In re SSP Partners d/b/a Circle K, No. 07-0913. Docket COA: 13-07-00291-CV

  COA Opinion

• In re Millenium Jaguar of Texas, Inc., No. 07-0946. DocketCOA: 05-07-00574-CV

  COA Opinion

• Smith v. Patrick W.Y. Tam Trust, No. 07-0970. Docket COA: 05-06-00356-CV

  COA Opinion

• Atasocita/Boone JV v. El Sabor De Mi Tierra, Inc., No. 07-0971. Docket COA: 14-06-00652-CV

  COA Memorandum

The Texas Lawyer blog has a post titled “Strike two” about the Third Court’s disposition of a petition for writ of mandamus filed by Karyl Krug, who is running for the 427th District Court in Travis County. Her complaint, as reported by Texas Lawyer blog, is “that Democratic primary foe Jim Coronado, the Travis County criminal magistrate, is violating state election law by calling himself a judge in campaign materials.” I wrote about her previous petition to the Texas Supreme Court in the post “Another Election-Related Mandamus, Another 52.3(e) Dismissal.”

Krug filed a petition for writ of mandamus in the Third Court yesterday — and it was denied with a memorandum opinion later the same day.

The Texas Lawyer blog reports that Krug has filed a petition for writ of mandamus today with the Texas Supreme Court that, the article suggests, is focused on how the Third Court procedurally disposed of her petition:

she is asking the Supreme Court for a writ of mandamus against the 3rd Court for denying her writ petition “without due consideration, oral argument, or explanation.”

The docket information for this new mandamus petition is not yet online. The docket number is 08-0111. If, as this article suggests, it really is only challenging the internal procedures that the Third Court used to dispose of her case, then this second trip to the Texas Supreme Court may also be a short one. [Update: It appears from the docket information that the Texas Lawyer may have been placing undue emphasis on the petition’s rhetoric about the Third Court rather than its substance.]

This post completes my coverage of last Friday’s order list, which began here.

Standing is one of those arguments that only an appellate lawyer could really love. It’s apparent that both sides of Friday’s opinion in DaimlerChrysler v. Inman , No. 03-1189 (majority dissent), have expressed equal measures of affection for the principle. They just disagree about what standing is.

In this case, three putative class representatives sued DaimlerChrysler over defective seatbelts. These three plaintiffs had not yet been physically injured by a seatbelt failure. Instead, they argued that the fact that the products were defective was itself a breach of warranty. They sought relief including the value of replacement seatbelts and the loss of use of their vehicles while the seatbelts were replaced.

The district court certified a nationwide class action, after which DaimlerChrysler appealed under a statute permitting interlocutory appeal of a class certification. The court of appeals reversed that certification and remanded. Nonetheless, DaimlerChyrsler filed a petition for review seeking additional relief — dismissal of the entire action for want of standing.

A five-Justice majority of the Court held that the plaintiffs lacked standing because

DaimlerChrysler argues that the claimed injury is so hypothetical, so iffy, that the plaintiffs do not have standing to assert it and the court does not have jurisdiction to hear it. The issue is important because courts must not decide hypothetical claims. Practically speaking, the timing is important, because a disagreement over $2,400 is one thing and a disagreement over $8 billion is quite another.

DaimlerChrysler … argues that whatever the plaintiffs’ causes of action may require, they have not suffered the kind of injury to give them standing to invoke the trial court’s subject-matter jurisdiction. If there is no injury sufficient for jurisdiction, surely there is no injury sufficient for a cause of action. But if the plaintiffs have no standing, the trial court has no more jurisdiction to deny their claims than it does to grant them. Without jurisdiction, the trial court should not render judgment that the plaintiffs take nothing; it should simply dismiss the case.

Here, according to the plaintiffs themselves, DaimlerChrysler received only fifty complaints from ten million vehicle owners and lessees over ten years — five per year, one for every 200,000 owners and lessees. By comparison, in Cole, GM received 306 reports in two years, one for every 732 owners and lessees. In any event, evidence of such complaints cannot prove defect.

The four-Justice dissent, penned by Chief Justice Jefferson, disagreed with the approach of the majority:

Today the Court inverts traditional standing doctrine, focusing not on the party but on the issues to be adjudicated. …

Absent a full record, in which the claim’s contours can be thoroughly vetted, I am not prepared to say the plaintiffs’ claims of economic injury are conclusively unsound. …

Moreover, crafting new standing rules creates a host of problems, not the least of which involves collateral attacks on judgments. Without standing, a court lacks subject matter jurisdiction to hear the case. … Because “a judgment will never be considered final if the court lacked subject-matter jurisdiction,” … the Court’s holding “opens the way to making judgments vulnerable to delayed attack for a variety of irregularities that perhaps better ought to be sealed in a judgment.” … Additionally, by holding that standing requires the plaintiff to establish the validity of its claim, and because standing may be raised for the first time on appeal, a class-action defendant could—on interlocutory appeal of a certification order—seek dispositive rulings on all of the plaintiffs’ claims, even without first asking the trial court to determine the merits of the claims and absent any sort of evidentiary record. Defendants who lose at trial may now, under the guise of standing, raise affirmative defenses that were never pleaded in, or considered by, the trial court.

Proposals to modify class action procedure present serious questions of policy. Standing is different. It implicates a court’s fundamental power to adjudicate a claim, rather than an assessment of whether the claim will ultimately succeed. Today, the Court conducts an extraordinary and unworkable reading of both pleading and precedent to conclude that the plaintiffs “lack[s] standing because [their] claim of injury is too slight for a court to afford redress.” We have never before stretched the doctrine this far.

The big question for practitioners is whether the Court’s discussion of standing applies equally outside of the class-action context. In a passage that has been noted elsewhere, the Chief Justice’s dissent suggested that the majority’s “opinion reveals a visceral distaste for class actions.” Some of the majority’s reasoning also seems to hinge on the heightened stakes that flow from having a class action. There is some possibility that the Court may decline to extend the same strict standing requirements to conventional litigation, although it is not immediately clear what constitutional line would support such a distinction.

In the class-action context, it’s easy to imagine a savvy lawyer arguing that a prior adverse judgment — even a prior settlement — does not preclude a new suit because the theory of the prior case did not satisfy this new standing requirement and, thus, the prior judgment is a nullity.

Time may tell. It seems equally likely that this case will effectively become limited to its facts. The majority does not spell out how “iffy” a plaintiff’s claims must be to fail to plead standing — it’s not clear where such a numerical threshold might fall. Without a crisp test, future defendants (or perhaps plaintiffs seeking to avoid adverse judgments) will be reduced to drawing statistical comparisons with the facts of this case. And, as those facts illustrate, it is very hard to express constitutional requirements in statistical terms.

The Texas Supreme Court requested briefing on the merits in four cases last week:

• In re Gonzales, No. 07-0554. Docket sheet. This originally pro se mandamus petition was referred by the Court to the State Bar’s pro bono program. On the same day that Rebecca A. Copeland (who I am guessing was appointed through that program) filed an appearance as counsel for the relator, the Court requested briefing on the merits. ((To my knowledge, this is the first appearance by a lawyer appointed through this new pro bono program. The Court made a similar request in another pro se mandamus action, In re Hall, No. 07-0322, but no lawyer has yet made an appearance for the relator in that case.))

• Marks v. St. Luke’s Episcopal Hospital, No. 07-0783. Docket sheet. COA opinion. This medical-expert-report case is on its second trip up to the Court. The first judgment by the court of appeals was vacated and remanded in light of intervening precedent.

• In re Columbia-Valley Healthcare System, L.P., No. 07-0914. Docket sheet.

• The Court also requested expedited briefing in In re K.C.B., No. 07-1068 [docket sheet], a parental termination case. The Seventh Court’s opinion is here. The court of appeals refused to reach the parent’s arguments because of a procedural rule that it acknowledged was “harsh[],” explaining that the rule “needs to be addressed by the legislature.”:

  However, before we may address any of the contentions of appellant, we must determine if they are properly before this court. This appeal is governed by the rules of the Supreme Court regarding accelerated appeals and the procedures set forth in Subchapter E of Chapter 263 of the Texas Family Code. Tex. Fam. Code Ann. § 263.405(a) (Vernon Supp. 2006). The Department was named as the managing conservator of K.C.B. in the trial court’s final order. As such, this order is an order pursuant to Subchapter E, Chapter 263. Accordingly, any appeal of this final order must comply with the terms of Chapter 263. Chapter 263 requires that a statement of points on which the party intends to appeal be filed with the trial court not later than the 15th day after the trial court enters the final order. § 263.405(b). …

  Applying this statutory scheme to the current situation results in the inability of this court to consider any of the issues raised by appellant. The only statement of points for consideration on appeal was filed, not after the final order was entered but rather, after the associate judge’s order was entered. Subsequently, appellant requested and received a trial de novo by the referring court. … There was never a statement of points to be relied upon on appeal filed after the referring court’s final order. Therefore, we may not consider any of appellant’s issues on appeal. …

  We again join our sister appellate courts in pointing out the harshness of this procedure. It has once again denied a parent a meaningful right of appeal and needs to be addressed by the legislature.

In re Karyl Anderson Krug, No. 08-0082. This petition for mandamus relief was denied in today’s order list — just two days after it was filed. This is another election-related case. This one concerns an allegation that a candidate is improperly using the title “judge” in campaign materials. The Texas Lawyer Blog suggests that “Krug’s effort to force the Texas Ethics Commission to act immediately [on this complaint] … was short-lived.”

I think that probably overreads the Texas Supreme Court’s action today. The order list cites to Texas Rule of Appellate Procedure 52.3(e), which generally requires mandamus petitions to first be presented to a lower court. That’s the same rule that the Court cited a few weeks ago in dismisslng the first mandamus petition filed by LaRhonda Torry. After Ms. Torry did go through the lower courts (a process that took just a few days), the Texas Supreme Court subsequently granted her mandamus relief in a second proceeding. In re Torry, No. 08-0057.

The Court retains discretion over whether to invoke this aspect of Rule 52.3(e). Here’s what the rule says:

(e) Statement of jurisdiction. The petition must state, without argument, the basis of the court’s jurisdiction. If the Supreme Court and the court of appeals have concurrent jurisdiction, the petition must be presented first to the court of appeals unless there is a compelling reason not to do so. If the petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals.

The Court’s action in dismissing these election-related mandamuses speaks volumes about its faith in the ability of the lower courts of appeals to handle mandamus petitions expeditiously. So, an election looming weeks or months away may not be sufficient grounds to skip the lower courts, without some particularly “compelling reason.”

The practice tip is this: Unless yours is a truly exceptional case, take your mandamus petition to the court of appeals and follow whatever procedures that court’s clerks office says are appropriate to signal to the court that expedited action is needed. (That may be a certain notation on the cover, a separate motion, or arranging with the clerk’s office in advance for a courtesy copy to be sent electronically in addition to the paper filing. Each clerk’s office may have different expectations, and calling to ask these questions is itself a good signal to the court that your petition is a time-sensitive one.) The lower court will almost certainly act expeditiously. If it for some reason does not, then present your petition to the Texas Supreme Court with an explanation of the steps you have taken.

The political reporter for the Fort Worth Star-Telegram not only covered the oral argument today in the Second Court of Appeals on the mandamus challenge to Wendy Davis’s place on the ballot — he put pretty extensive notes of it online. Here’s a sample:

And from the “who could have seen that analogy coming” department: Hicks compared Davis to Jesse Owens. How? Because she resigned earlier than she needed to out of an abundance of caution, in the same way Owens, in the 1936 Olympic long jump, jumped from well behind the foul line to avoid any chance of being charged with cheating and still won the gold medal.

An article about the court of appeals’s decision this afternoon is here. The court denied mandamus relief on the ground that the firefighters lacked standing to bring this particular challenge. The court’s order is not yet available on its website.