The Chief Justice wrote this op-ed advocating merit selection for judges in Sunday’s Houston Chronicle.

The piece echoes the call for merit selection and retention elections that the Chief Justice made in his state of the judiciary address kicking off the legislative session.

The comment thread, as usual for newspapers, degrades pretty rapidly.

Limiting When Rules Can Be Made

Proposed House Bill 2702 tries to bring the Court’s rulemaking power under more fine-grained Legislative control. To keep the Court from taking actions the Legislature cannot immediately review, it restricts the Texas Supreme Court’s power to promulgate rules to “the first 95 days of a regular session of the legislature.”

The Court’s proposed rules would then go into effect only if approved by joint resolution of the legislature.

The latter change isn’t too big; the Legislature can always pass a statute in the next term to undo a rule change. But restricting the Texas Supreme Court’s rule-making power to such a short window could seriously impede its ability to manage the courts and make it even harder for the rules to keep up with the changing way litigation is conducted.

Making Permissive Interlocutory Appeal Easier

The federal courts have a procedure in 28 U.S.C. §1292(b) for a district court judge to single out the “controlling question of law” in a case to go up for early, interlocutory appeal if that would speed resolution of the case. This does not require agreement of the parties, but it does require the agreement of the court of appeals.

The Texas equivalent in Texas Civil Practice and Remedies Code §51.014(d) requires that everyone agree — the district court, both sides of the litigation, and the appellate court.

Proposed Senate Bill 1384 would loosen this requirement, removing the language saying all litigants have to agree.

I haven’t done a survey of these permissive interlocutory appeals in about two years, but at that time, they were extraordinarily rare in Texas state courts. Perhaps the requirement that all parties agreed to the interlocutory appeal removed the best candidates from the pool.

If Texas law is again amended to make that process even easier, it will be interesting to see if trial and appellate courts will accept more of them.

This week, the State Bar of Texas launched its own Texas Bar Blog. There are already some announcements about this year’s YouTube contest and some profiles of Texas lawyers (including a friend getting some justified attention for her restaurant reviews).

The State Bar also is ramping up a new twitter account (so far, the tweets are mostly about the legal aid funding crisis) and is developing its own Facebook application.

Now if only the State Bar could get the official statutes moved to a wiki…

A reader points me to Senate Bill 780 introduced by Senator Kirk Watson of Austin that would open up many of the Texas Supreme Court’s internal votes to public scrutiny. This bill seems to respond to last May’s Texas Watch report about “anonymous” decisionmaking.

The proposed language:

Government Code Sec. 22.0071. DISCLOSURE OF INDIVIDUAL VOTES OF MEMBERS.
In an order granting, refusing, dismissing, or denying a petition
for review, the supreme court shall state how each member voted on
the petition or application.

That would be a dramatic departure from current practice, where the Court only notes if a Justice has recused himself or herself, not how each member voted.

For practitioners, this would be a wealth of new data — but I’m not sure it would actually help make better strategic litigation decisions. If the Court does start disclosing votes, I would certainly give analyzing them a go (and you’ll read about it here on this blog). But I suspect that, at least in early years, there would be far more noise than signal. (( The bill does exclude one of the key steps in the current Texas process — the Court’s vote to request full briefing on the merits under Texas Rule of Appellate Procedure 55.1. ))

But it’s easy to see the political value of disclosing individual votes. If this bill passes, then over a six-year term, a typical Justice’s exposure to attack ads would go from dozens of opinions with their name as author to thousands of individual petition dispositions with their name attached. Find a particularly juicy set of facts in a petition denial, run a political ad about how Justice So-and-So voted against it, wash, rinse, repeat. (I’m not a political pro. I’m sure the pros have more sophisticated ideas.)

I don’t know how many other state supreme courts disclose all of their conference votes, but I’d be interested to learn how appellate lawyers have used that information to help their clients.

Paul Burka of Texas Monthly

Burka wrote a post Thursday morning suggesting that bare-knuckle Texas politics either would corrupt any merit selection system — or would prevent it from ever being enacted.

The comments have some back-and-forth about what sort of criteria would be appropriate for a true merit-based system.

The Austin American-Statesman

The newspaper’s editorial board generally praised the speech, concluding “The chief justice is right, and the Legislature should act.”

I do think, however, that the editorial board placed a little too much hope in the pending U.S. Supreme Court case Caperton v. A.T. Massey Coal, which I’ve mentioned before. The editorial board said:

Change may be coming, Jefferson said, because the U.S. Supreme Court has before it a case, Caperton v. Massey, in which it “will decide whether due process requires the recusal of an elected judge who has benefited from a litigant’s campaign expenditures.” The court is scheduled to hear oral arguments in this case from West Virginia on March 3.

If the court rules for recusal, the Texas Supreme Court could be put out of business, as could the state’s appeals courts and many district judges.

Read a little more about Caperton v. Massey

Earlier today, I watched Chief Justice Wallace Jefferson’s “State of the Judiciary” address to the Texas Legislature (PDF). (( In case you’re curious, no, the Chief did not complete the sentence that forms the title of this post. ))

The address began by recounting the accomplishments of recent years. The Chief Justice spoke about the Commission on Children, Youth, and Families and the task force on emergency preparedness. He addressed the ongoing concerns about a lack of resources for criminal defense and for ensuring that innocents are not wrongfully convicted. And he noted that the national economic downturn was putting pressure on Texas legal services for the poor, asking the Legislature to pitch in.

The Chief Calls for Reforming Judicial Elections

The Chief Justice then turned to his main point — a call for the Legislature to reform how Texas picks judges. The Chief Justice discussed the public’s belief that campaign dollars drive judicial decisions, citing a statistic that 80% of Texans have that view. (( Based on a few conversations I have had with trial lawyers lately, it seems like a distressingly large percentage of the bar may share that view. ))

Read more…

I’m clearing out the blog’s inbox. Here’s what I wanted to pass along:

The U.S. Supreme Court turns down the Laura Schubert cert petition

The order list is here. The Fort Worth Star-Telegram has this short article.

Law Review Article About Westbrook v. Penrey

The Texas Supreme Court’s decision Westbrook v. Penrey has been written up in another law review article.

The article was written by Roberg Joseph Renaud and Lael Daniel Weinberger and is titled “Spheres of Sovereignty: Church Autonomy Doctrine and the Theological Heritage of the Separation of Church and State.”

Texas’s Newest “Same-Sex Divorce” Case

I’m sure you’ve seen it mentioned elsewhere, but a Texas court is again being asked to decide whether it can “divorce” a same-sex couple when Texas law would not permit that couple to marry.

I’ll be curious to see how the parties frame this one as it moves along.

To take one possibility: It might be odd to find out that Texas law really prohibits divorces in all cases where Texas law would not have permitted the marriage. (What about a couple with a bride who was too young for Texas but qualified in, say, Ohio?)

The NYT discusses judicial pay raises

All this seems a little out of place in an era of tight budgets, but Adam Liptak’s column a couple of weeks back in the New York Times does have some interesting thoughts about judicial pay hikes.

The piece, titled How Much Should Judges Make?, discusses two recent research papers that conclude that the quality of judging doesn’t vary based on salary.

Liptak quotes Prof. Frank Cross of UT Law School, a critic of this view:

Frank B. Cross, a law professor at the University of Texas and a sophisticated empiricist, said the new studies went off the rails. “I love these economic tools,” Professor Cross said. “But we don’t have a good measure of judicial quality.”

“Given the anecdotal evidence, economic logic and the great importance of a quality judiciary,” he wrote in a reply to Professor Baker, “the case for a judicial pay raise is reasonably strong.”

Sounds fair enough. The studies I have seen try to pin down judicial “quality” with things like quantity of opinions, quantity of citations, quantity of other states’ law cited, quantity of times the opinion is cited by sister courts, etc.

These are measures of quantity, but not necessarily “quality.” That is easy to understand; the analytical tool used in these studies is econometric and feeds on numbers. (( My suspicion is that this choice of numbers had a special degree of verisimilitude for the professors doing the study because they echo what “matters” in the tenure process. ))

But seasoned observers know that the longest judicial opinions are often the least useful (and least well-reasoned), the longest briefs are often the least persuasive, the most densely cited argument passage that brings in authorities from around the country is often — perhaps always — a sign that there is no clear authority on point.

The Texas Supreme Court issued an advisory today about setting a new interest rate for IOLTA accounts.

IOLTA programs — “Interest on Lawyer Trust Accounts” — gather together small amounts of interest on certain accounts in which lawyers hold client funds, building a much larger pool of funds that can be used to fund legal services for the poor. Because it collects small sums that the clients otherwise wouldn’t miss, it’s somewhat like the banking software from Superman III copied by the guys in Office Space. But legal. And used for a good purpose.

In Texas, banks holding IOLTA accounts have had the option of pegging the interest they pay on these accounts to the Fed Funds rate.

You don’t have to be watching CNBC every day to know that the Treasury and Fed have been trying their hardest to lower interest rates, while investors have been fleeing to the perceived safety of government bonds. The result is a Fed Funds rate hovering around 0.10%. (( According to numbers provided by the New York Fed, the Fed Funds rate stood at 5.25% when 2007 began. During 2007, the Fed knocked 1.00% off the Fed Funds rate. In 2008, it knocked another 4.00% to 4.25% off the Fed Funds rate. Before December 16, 2008, the Fed Funds rate was a fixed amount. When the Fed cut the rate that day, it created a new “target” range of 0.00% to 0.25% rather than a fixed rate. The market determines the rate, and it’s now trading at around 0.10%. ))

Which means that the banks have been paying less interest on these IOLTA accounts, too. How much less?

Revenue from the lawyer-trust accounts has fallen from $20 million in 2007, to slightly more than $12 million last year, to projected revenue this year of $1.5 million without the amendment. Justice O’Neill predicted the amended benchmark calculation will raise this year’s projected yield to $3 million, still far below what is necessary to meet the increasing needs.

According to the advisory, banks who had been lowering their IOLTA interest rates down close to zero may have to raise those rates to 0.65%. (( Banks had the choice of offering the same competitive market interest rates that they offered depositors or — as a “safe harbor” — a rate pegged to the Fed Funds rate. Now, banks who choose the “safe harbor” option will have to pay the greater of 0.65% or 65% of the Fed Funds rate. So, until the Fed Funds rate again exceeds 1%, the banks may face a floor of 0.65%. )) The order itself contains more details.

The sharp drop in IOLTA revenues projected for 2009 is stunning. I hadn’t given thought to how these rate cuts would affect IOLTA accounts. This could be a crisis situation for Texas and the other states that fund legal services for the poor at least partially through IOLTA accounts. And, if you trust Wikipedia, that means everybody — “every state in the country, the District of Columbia and the U.S. Virgin Islands operate IOLTA programs.”

The bad news is that lawyers may be making less money themselves in this down market pitch in. The good news, such as it is, is that they may have more time to offer.