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What’s the Right Way To Explain a Request for Briefing on the Merits?

November 25th, 2008 · Comments Off on What’s the Right Way To Explain a Request for Briefing on the Merits?

A few days ago, the Texas Supreme Court requested full briefing in State of Texas v. Public Utility Commission, No. 08-0421 (DocketDB). Regular readers of the blog might have noticed this case appear as one of the “Recent Briefing Requests” in the sidebar.

Today, CenterPoint Energy released a press release about the status of the case. It mentioned the company’s earlier release about the filing of a petition in the case and then added:

Although the Supreme Court has not indicated whether or not it will grant review of the lower court’s decision, the Court’s request for full briefing on the merits will allow the parties to more fully explain their positions to the Court. Under the Court’s order, each party seeking review will submit its brief, and the other parties will be entitled to submit responses to those briefs. Any decision by the Court to grant or accept review is discretionary with the Court, and there is no prescribed timeline for action beyond the briefing.

I quote this rather dry paragraph to compliment it. The Texas Supreme Court’s process of requesting two stages of briefing before deciding whether to grant review is (perhaps) unique. (( I’m not aware of other examples. If you know of any, I’d appreciate hearing about them. )) At the least, it is different than the U.S. Supreme Court model with which more readers of the financial press might be familiar. This paragraph does a good job of explaining that the financial press should not get too excited about news that briefing is requested.

We, as appellate lawyers, like to try to read the tea leaves of what a particular briefing request might mean. We talk about the statistics — what percentage of cases get a briefing request; what percentage of those are granted or become “submarine docket” cases. Or we venture guesses as to what questions might have sparked the Court’s curiosity.

Thinking through these possibilities in detail can be very valuable. It can help shape the arguments or even inform settlement talks.

But what can you be certain of when the Court requests full briefing? The surest answer might the simple one given in that press release, namely, that it is another chance to make your best case to the Court.

How do you explain the Texas Supreme Court’s two-step briefing process to your clients?

Tags: News and Links · Practice Notes

Cases in the News 11-24-2008 [Updated 11-25]

November 24th, 2008 · Comments Off on Cases in the News 11-24-2008 [Updated 11-25]

Groundwater Litigation

From the Cameron Herald on Friday comes “Debate over ‘end lakes’ won’t end anytime soon”, an article about a local groundwater dispute in which ALCOA seeks to fill seven “lakes” necessitated by its mining operations with local groundwater.

Along the way, the article mentions two different groundwater cases pending in the Texas Supreme Court:

  • Rolling Plains Groundwater Conservation District v. City of Aspermont, No. 08-0591 (details at DocketDB). The Court has already requested briefing on the merits in that case, and it has attracted support from three amici groundwater districts.

    The Eleventh Court’s decision discussed how sovereign immunity applies to a suit between a city and a local groundwater conservation district. The court held that the city was immune for claims seeking damages or involving past actions but that a declaration could be sought on the question whether the city was bound by the groundwater’s rules going forward.

  • Edwards Aquifer Authority and State of Texas v. Burrell Day, No. 08-0964 (details at DocketDB). No petition for review has yet been filed, but both the State of Texas and the Edwards Aquifer Authority have obtained an extension of time to file.

    The Fourth Court’s decision discussed whether water that has emerged from the ground through an artesian well was “ground water” or “state water.” Among other rulings, the Fourth Court applied its recent holding that landowners have a vested property right in their groundwater and, thus, that state regulation of groundwater can be evaluated as a possibly unconstitutional taking.

Willacy County’s Indictment of the Vice President and Other Government Officials Hits a Snag

The Valley Morning Star has an article “Emotional Guerra issues demand” about Willacy County‘s indictments against numerous federal and state officials for the treatment of detainees at a local immigration facility: (( From the article: “Guerra obtained indictments Monday against a host of government officials, including Vice President Dick Cheney, former U.S. Attorney General Alberto Gonzales, state Sen. Eddie Lucio Jr., state district judges and special prosecutors on charges of official oppression and abuse of official capacity.” ))

Willacy County District Attorney Juan Angel Guerra pounded on a courtroom table and fought back tears Friday while demanding state District Judge Manuel Bañales remove himself from the high profile cases resulting from Monday’s grand jury indictments.

Guerra demanded that another judge be appointed and that Bañales rescind his appointment of Alfredo Padilla as special prosecutor in five of the cases.

Bañales delayed the trial and called the Texas Supreme Court, asking it to decide whether he should stay on the case or for the higher court to appoint another judge.

It’s this last part that draws the attention of this blog.

Guerra contends that the local judge is biased, in part, because of how that judge handled an indictment against Guerra:

“When I got indicted, I went to this honorable court and asked to expedite it very quickly — I went to Kingsville — I filed motion after motion after motion to dismiss the indictment or give me a hearing and this court refused,” Guerra said.

“And now, all of a sudden, there is urgency! It’s an emergency! … 18 months you kept me indicted,” Guerra said.

The judge would not give him a fair hearing for his own case, Guerra said, and let the proceedings drag out, ensuring his re-election chances would be ruined.

“After the election, I said please, Judge, dismiss it on a technicality,” Guerra said. “You refused. … You ignored me. You said, ‘I can’t talk to you. I don’t have time for you.’ This is urgent? What is the difference?”

I suspect you could teach an ethics seminar based on this case. As it is, the judge has submitted some paperwork to the Chief Justice and, the article relates, is waiting to be told what to do:

After calling the Texas Supreme Court, Bañales said the hearing will resume at 10:30 a.m. Wednesday and the Supreme Court will decide whether he remains on the case or another judge takes over.

Updated 11/25: The Texas Supreme Court’s role in this case appears done for good, as the Chief Justice has appointed District Judge Michael Peden to decide the disqualification question with a hearing set for December 1, 2008.

Other coverage: New York Times; Texas Lawyer‘s Tex Parte Blog; Brownsville Herald via Michael Moore (Yes, that Michael Moore); Associated Press via the Houston Chronicle.

Some case documents, including the indictments. have been collected by the news department of KGBT 4

Tags: News and Links

Clerking at the Texas Supreme Court Doesn’t Always Make You Famous

November 21st, 2008 · 1 Comment

Texas Lawyer has a piece this week profiling some of Texas’s “baby lawyers” (their term, not mine) — “First Steps: Baby Lawyers Set Off on Disparate Professional Paths.”

One of the profiled lawyers is Josh Fogelman, now a clerk for Justice Harriet O’Neill. The article contains some of Josh’s thoughts, as well as those of Justice O’Neill and her staff attorney Ginger Rodd, about the clerkship experience:

Law clerks will do an in-depth analysis and draw up an opinion on cases the court is considering, she says. O’Neill says she allows her law clerks a lot of diverse experience. …

“I will sit down with the clerks, and I will prepare a memo on how the case should be decided and how it should be written,” she says. “They will go do a draft, and I will work with them on the draft. We have a very hands-on chambers where we all heavily edit and are involved in the opinions.”

The law clerks are also allowed to sit it on conference, when the justices are reviewing and deliberating cases, opinions and petitions, she says.

“It’s a tremendous learning tool,” O’Neill says. “They hear all of the judges express opinions on cases. When clerks leave, they always say that was one of the highlights, watching the court deliberate.”

This is absolutely true. Watching nine Justices discuss petitions for review and draft opinions gives you a totally different appreciation for the appellate process. (Many other courts don’t open that process up to the clerks.)

Once you have clerked, you never think about a brief the same way. You’ve been a consumer of briefs, having to rely on briefs of widely varying quality to give answers on a range of questions. You start to realize how to be helpful to the Court (and how it can help your client if you are helpful to the Court). And you start to get a feel for what makes a legal argument persuasive and what makes an issue important enough to warrant review.

Fogelman agrees. “It’s interesting to take in the discussion and see how your writing struck them,” he says. “It’s great direct feedback.” He adds that the justices occasionally ask the law clerks for more information. “Sometimes, if there is an issue they recognize that you have not fully addressed or they are more curious about, they will ask you in conference,” he says. “They let you know what is on their mind.”

The law clerks also prepare study memos for the court that recommend whether the court should grant petitions for review, says Elizabeth V. “Ginger” Rodd, staff attorney for O’Neill. The clerks review the case arguments and make a recommendation about whether the court should hear the case. “It’s a whole lot of writing and analysis,” she says. Except for an occasionally busy week, the law clerks generally work from 8:30 a.m. to 5:30 p.m., Rodd says.

I’m told that three Justices still have openings for clerkships beginning in August 2009. The Court’s website describes the position in a more formal job posting and also has a brochure with other information.

If you’re a third-year law student with the grades to impress a Justice (or perhaps a young associate looking to shift gears toward appellate law or litigation), a one-year clerkship at the Texas Supreme Court is well worth it.

Tags: News and Links

U.S. Supreme Court To Address West Virginia Recusal Case

November 14th, 2008 · Comments Off on U.S. Supreme Court To Address West Virginia Recusal Case

This afternoon, the U.S. Supreme Court granted certiorari in Caperton v. A.T. Massey Coal Co. — the West Virginia case questioning whether it is a violation of the federal due process clause if a judge fails to recuse himself from a case in which a major campaign donor is a party. (Here are SCOTUSblog’s links and writeup).

Because partisan election of judges is a recurring issue in Texas, I’m betting this blog talks about Caperton again. My initial thoughts follow the break.

Read more

Tags: Elections · News and Links

Texas Supreme Court RSS Feeds

November 14th, 2008 · 1 Comment

This funny picture now appears on the Texas Supreme Court’s home page:

rss.jpg

That’s the icon used to denote RSS feeds. And it quietly announces that the Texas Supreme Court has started publishing its own set of RSS feeds. A list of feeds and an explanation is here. One of those feeds is for the Court’s “Latest News and Updates.”. (( It would have saved me some work if the Court had done this years ago. I had to write a computer program to automatically check for new order lists; now I can just check the RSS feed. ))

Don’t use RSS and don’t want to learn? No problem. I have added the Court’s feed to the sidebar of my blog — just to your left, below the RSS feed for recent briefing requests — so that you can see the updates from this page. You can click on those entries and go directly to the relevant pages on the Court’s website.

Tags: Legal Tech · News and Links

Appellate Symposium Sponsored by the Texas Review of Litigation

November 13th, 2008 · Comments Off on Appellate Symposium Sponsored by the Texas Review of Litigation

The Texas Review of Litigation, a student-edited journal at UT Law, is sponsoring a two-day symposium this January focusing on appellate litigation. The title is “The Rise of Appellate Litigators and State Solicitors General.”

The speaker list is impressive and includes its share of Texas appellate luminaries, including four current or former Texas SGs and four current or former members of the Texas Supreme Court.

The first day’s topics include some directed at the private bar, such as a panel on “Appellate Litigation from the Client’s Perspective.” The second day’s topics are more focused on the public role of the State SGs. A list of confirmed and tentative panelists and topics is online.

The event is January 22nd and 23rd in the Eidman Courtroom at UT Law. Attendance is free but asks prior registration. (I registered this morning.) CLE credit is available for a small fee.

Tags: News and Links

A Blog About the Court Across the Hall

November 11th, 2008 · 1 Comment

As Texas appellate lawyers know, there are two highest courts in Texas — the Texas Supreme Court and the Court of Criminal Appeals. Their courtrooms are located across the hall from each other; the court chambers are on different floors in the same building. But litigants in the two worlds rarely cross.

This weekend, I came across the “Texas Court of Criminal Appeals blog” covering, you guessed it, the CCA. The author is a prosecutor, and his blog reports on each set of orders handed down.

If criminal cases are on your plate, then you should definitely check it out.

Tags: News and Links

The Chief Joins the Push To Curb Partisan Judicial Elections

November 9th, 2008 · Comments Off on The Chief Joins the Push To Curb Partisan Judicial Elections

When Tom Phillips was Chief Justice, he spent a substantial amount of energy pushing for reform of how Texas picks judges.

It looks as if Chief Justice Jefferson will soon be taking up the same fight. In an email sent to supporters a few days ago, he suggests calling for “a summit of public citizens, officials, the media, lawyers, and various interest groups” to debate judicial selection and campaign financing for judicial races, with the results sent to the Legislature:

This is a strange way to select those who guard our legal rights. It is time to decide whether partisan election is the best means to ensure judicial competence. … I will convene a summit of public citizens, officials, the media, lawyers, and various interest groups, and will ask them to debate judicial selection. I will also ask them to consider how best to finance a judicial campaign. We will present our conclusions to the Legislature, which is the only democratic body vested with the power to initiate any required constitutional reforms. Even if the Legislature elects to retain our current system, I hope that we can recommend reforms so that a vote for a judicial candidate is closely correlated with merit rather than political affiliation or other irrelevant factors.

The Houston Chronicle has an article in today’s paper about the same thing. The article quotes a number of Houston-area politicians who seem uninterested in changing the system.

We know the public hates the fund-raising that is required to run a campaign (and that may well be constitutionally protected so long as there are campaigns). But we know the public likes being asked its opinion about things through elections.

Framing this issue in a way that captures the Legislature’s and the public’s attention sounds like a job for an appellate lawyer. I’ll report here on any public findings that come out of the Chief’s summit, as well as any legislation introduced on this subject.

Tags: News and Links