Adam Liptak of the New York Times has a column today about the influence of state supreme courts on each other: “Around the U.S., High Courts Follow California’s Lead.”

The column reports on a study that determined how many times the Shepard editors had used the “followed” designation to characterize one state supreme court’s citation of another. This sort of “citation analysis” is common among academics as a measure of prestige. Attempts to use it as a means to evaluate or rank courts have been met with more limited success. This study attempted to overcome some of those criticisms by focusing on the subset of citations that Shepards has classified as showing one court “following” another. ((Liptak explains:

The study counted only citations designated “followed” by Shepard’s. The designation is used relatively rarely and only for “controlling or persuasive authority,” meaning that the cited decision played a substantial role in shaping the later decision. A manual Shepard’s provides to the lawyers who work for it says that the “followed” designation should be used only if the citing decision “contains language beyond a ‘mere going-along’ with the cited case.”
))

The results: California was the most “followed,” by a mile. Liptak’s article notes that “New York comes in 10th and is only about half as influential as California, with 627 followed cases.” Barry Barnett at Blawgletter notes that Texas was 14th and that its “standing” falls to 20th in the time period 1986 to 2005. Blawgletter asks “We feel certain Their Honors have an excellent explanation.”

I don’t know, but I can offer one suggestion. ((I originally wondered whether the study took into account Texas’s bifurcated system in which criminal cases go to a different court, but that question is answered in footnote 18 of the study. The study data does in fact combine the decisions of the two courts. ))

By focusing on “follows,” the study gives greater weight to decisions that ground themselves in broad notions of the common law rather than some other source of authority, say, a statute passed by a legislature. My guess is that this means the study overweights decisions that expand common-law doctrines — such as tort law, privacy rights, and the like. By contrast, court decisions that contract such doctrines (such as tort reform) often cite as authority the state’s own idiosyncratic statutes rather than “following” another state’s lead.

With that in mind, it seems little wonder that the Supreme Court of California is the leader in “follows,” as it remains in the vanguard of creating new common-law doctrines. And for those who have followed the ebbs and flows of Texas politics, it also seems unsurprising that the Texas court is less likely to lead in that category in the 1990s and 2000s than it was in the 1960s and 1970s. (( Some of that change may reflect the judicial philosophy of the courts; much of it reflects the actions of the Texas Legislature. The California Supreme Court is, after all, presented with a very different set of statutes than is the Texas Supreme Court. ))

To me, this suggests a weakness in the study’s exclusive focus on the Shepards “followed” designation. While that measures something, it does not appear to be a useful measurement of overall influence.

(Via Blawgletter.)

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.

The local ABC affiliate in Dallas had an extended news story about the Court’s backlog that included interviews with Chief Justice Jefferson and Justice Wainwright.

The written story is is “Work ethics of Texas justices questioned”. The accompanying video clip, which includes fragments of several interviews, is linked off that page. (Via Texas Appellate Law Blog.)

The statistics given in the story focus on cases ultimately decided on written opinions, not those in which review is ultimately denied. With that in mind, the Texas Watch statistics say that it took 14 months for an opinion to issue after oral argument and an average of 2.3 years (I presume 27 months) overall for opinions to issue. (It’s not clear from the sourcing how Rule 59.1 per curiam decisions were folded into those statistics.)

The story places great emphasis on the Kallam v. Boyd case in which the Court dismissed ultimately dismissed the case as improvidently granted after the medical-malpractice plaintiff had died during the pendency of the case. The Court’s opinion dismissing the petition can be found here.

Correction: It has been pointed out to me by one kind reader that my original discussion of the case had a factual error — that I misread a key date on the docket and missed some of the time that the case spent on the docket. I apologize for the mistake, and my analysis has been changed accordingly.

Details about that case follow.

[Read more →]

A federal declaratory-judgment suit was filed yesterday challenging whether the Texas medical-malpractice caps violate the federal constitution. The suit was filed in Marshall and assigned to Judge Ward of the Eastern District of Texas.

A copy of the complaint is available through the post “Federal Suit Challenges Chapter 74 Damages Caps” on the Texas Appellate Law blog, which is where I learned of this suit.

I’ve only made a quick scan of the complaint, but its procedural complexity — proposing that the court certify both plaintiff and defendant classes a plaintiff class of those affected by the medical-malpractice caps statewide, as well as a third class of defendant Texas trial judges — appears to be the plaintiffs’ attempt to avoid both the State’s direct immunity from such a suit and the web of federal jurisdictional and prudential problems that might arise from the fact that at least some of the named plaintiffs have ongoing state lawsuits over this same subject matter with the named defendants. With that in mind, I’m also not quite sure how this federal suit will avoid duplicative litigation. One assumes that, as the plaintiffs’ state court cases proceed, they will be forced to raise or waive these same arguments.

The Houston Chronicle reports on the Waller school bonds litigation. On Friday, the Texas Supreme Court denied the pending petition for mandamus in In re Waller Independent School District, No. 08-0079 [docket], along with the pending motion for emergency relief in that case. The article explains:

The Texas Supreme Court refused today to order the attorney general to release the Waller school district’s $49.3 million bond package — effectively allowing state and federal legal challenges to unfold in court before the school district can sell its bonds.

“That’s big news. It affirms the law with regard to the Attorney General’s Office and their role in the bond,” said Sylvia Cedillo, an attorney representing opponents to Waller’s bond issue. “This means the civil rights process has to play out.”

The Court has not yet ruled in the case now captioned Charleston v. Waller Independent School District, No. 08-0123 [docket], which is a petition for review being pursued by the same underlying plaintiff. It’s not immediately clear if that petition has ongoing significance. (( The underlying opinion from the First Court of Appeals being challenged in that petition is available here. It’s opening paragraph reads:

In this accelerated bond validation suit, appellant, DeWayne Charleston, appeals the judgment of the trial court that granted a final judgment in favor of appellee, Waller Independent School District (“WISD”) and the orders of the trial court requiring him to post security and dismissing him from the proceedings. In five issues on appeal, Charleston argues that (1) the bond election and sale of the bonds should be voided; (2) the trial court lacked authority to enjoin proceedings in federal court; (3) the trial court erred by ordering the Attorney General to approve the bonds; (4) the trial court erred in declaring that WISD was entitled to state debt-relief funds; and (5) the trial court should not have required Charleston to post bond. ))

Analysis of Fairfield: Does It “Raise More Questions Than It Answers”?

Todd Smith of the Texas Appellate Law Blog has a thoughtful post today about last week’s Texas Supreme Court decision in Fairfield Insurance Co. v. Stephens Martin Paving — the case in which the Court answered the Fifth Circuit’s certified question about whether certain insurance against punitive damages was against Texas public policy.

Todd points out the narrowness of the Court’s actual holding in Fairfield — that even the Court’s expanded policy discussions didn’t provide a definitive resolution to how the Court would resolve future cases:

Folks who were hoping for ultimate resolution of whether punitive damages are insurable in Texas are undoubtedly disappointed. Although the Court said more than was needed to answer the Fifth Circuit’s certified question, it stopped well short of adopting a bright-line rule. Indeed, just about everything other than worker’s compensation coverage remains open for further debate under the framework announced in this case.

An Insurance Perspective on Fairfield

The blog Law and Insurance also discusses Fairfield in a post titled “Supreme Court Finds No Broad Prohibition of Insurance Covering Punitive Damages — But …”. That article’s take: “[I]t appeared to me that all nine justices were in general agreement that insurance coverage of punitive damages would offend Texas public policy in some circumstances.”

And a (Very) Long View on Long-Pending Cases

The Sophistic Miltonian Serbonian Blog gives some historical perspective on the length of time that cases are pending before the Texas Supreme Court. It turns out that the average case took 738 days to decide over about a 40 year time period extending into the 1950s.

With such an amazing piece of statistics, I’d say that blog is certainly living up to its slogan — “A vaguely legal-tinged ode to arcana.”

The New York Times and the Wall Street Journal Law Blog both are covering a 2003 Texas appellate decision that “referred a divorce case to a local tribunal called the Texas Islamic Court.” ((That’s the New York Times‘s description. The Law Blog repeated that description, inserting the caveat “reportedly referred.”))

The Texas case is Jabri v. Qaddura, from the Second Court of Appeals in Fort Worth. It is an arbitration case, not a pure family-law case. One party sued to enforce an arbitration clause; the district court refused; and the court of appeals ordered compliance. The text of the opinion is available here.

Adam Liptak’s New York Times article, titled “When God and the Law Don’t Square”, places the Texas case against the backdrop of a larger debate — extending to the Archbishop of Canterbury’s recent comments about accommodation of islamic law. And the article quotes critics who believe that courts should be leery of enforcing such agreements if they leave women worse off than would civll law.

The article then uses the Texas case to provide its twist:

In the Texas case, however, it was a woman, Rola Qaddura, who sought arbitration in a dispute over a dowry and the distribution of assets after a divorce. The parties had signed an agreement to arbitrate their case “according to the Islamic rules of law by Texas Islamic Court” in Richardson.

The appeals court said the agreement was valid. Ms. Schattman, who represented Ms. Qaddura, said the appeals court’s ruling was proper and unexceptional. “An agreement to arbitrate is an agreement to arbitrate,” she said.

In the end, though, the parties could not agree on a panel of arbitrators and the effort collapsed, Ms. Schattman added, saying of the Islamic court: “It was kind of a new thing.”

This same Texas case was featured in a post on the Volokh Conspiracy earlier this month titled “Sharia law enforced in Texas!” That post generated some interesting academic commentary about freedom of contract and whether it should be bounded in this area.

The WSJ Law Blog piece is titled “When the Law of Religion Meets the Law of the State” and also has a lively commentary stream, albeit with a fixation on how the Archbishop came to acquire the title “the Most Reverend.”

Current cases in the news

• The Denton Record-Chronicle reports on the Texas Supreme Court’s denial of review in JNC Partners Denton, LLC v. City of Denton, No. 06-0266. Ed Snyder, the city attorney, told the paper that the city was expecting that favorable result after last month’s decision in City of Rockwall v. Hughes (coverage here).

• The Houston Chronicle has an article titled “HISD asks opponents to drop bond lawsuit” that makes reference to an ongoing Texas Supreme Court proceedings involving a Waller ISD bond package (previous coverage here). The ongoing Texas Supreme Court cases are In re Waller Independent School District, No. 08-0079 and Ex Parte Waller Independent School District, No. 08-0123.

  The school district is urging the opponents of a $805 million bond package to drop their suit. The article explains:

  Critics say the plea was made because of the implications of a recent statement from the state attorney general’s office, which has said it won’t approve bonds that are the subject of pending litigation. The agency’s statement was part of its explanation to the Texas Supreme Court why the attorney general cannot yet approve the Waller school district’s bonds, approved by voters in May 2007.

  “The Attorney General would ‘default his obligation to the state’ if he approved bonds whose validity was not apparent,” the office wrote after Waller officials asked the high court to order the attorney general to release the money.

  No ruling has been made, but the state’s response gives opponents of the bond issues hope of having their day in court.

  “If they think they’re going to browbeat us or the AG into bending to their will, they can take a flying leap,” said lawyer Ty Clevenger, who represents opponents of both bond issues.

Who says this blog has a narrow geographic reach?

On Friday, the Court’s order list answered two sets of certified questions from the Fifth Circuit. Meanwhile, half a world away, Justice Hecht’s answer to a very different sort of question was reprinted in the Sydney Morning Herald.

The question posed to Justice Hecht: “Why do grown-ups get to do what they want?” His answer is here (about half-way down the page). (( If you’re curious, this exchange was printed as part of “an edited excerpt” from a book in which the author sought to pose to real authority figures the kinds of questions asked by small children:

I planned my strategy. Should I open books or cruise the internet? Too easy. No, I’d give myself a challenge: I’d get each answer from a real person who knows it by heart, someone whose very livelihood depends on the knowledge that he carries in his head. I’d make nothing up, tempting as it might be. I’d call fire chiefs and astronauts and ships’ captains and movie directors and magicians and anyone else who might know a thing or two about something a seven-year-old wants to know.
))

This week’s two-part installment of “We’re taking it to the Supreme Court”

• The Monitor (McAllen) reports about a recent Thirteenth Court decision involving an election contest over a school-board seat for the La Joya ISD. The court of appeals decision is Gonzalez v. Villareal, No. 13-07-00704-CV, from February 8, 2008.

  From the article:

  Ochoa said Friday that she believed the May election was valid, and that the 13th Court of Appeals did not take the evidence into consideration when it affirmed Hinojosa’s verdict last week. …

  Her attorney, Adam Poncio, said he is planning to file an appeal with the Texas Supreme Court on Monday. Opposing attorney Oscar Longoria has argued that the Supreme Court does not have jurisdiction to hear the case because there has been no other case decided on an election challenge that could be used to show that the appeals court did not follow established precedent.

• The Daily News (Galveston County) reports about the First Court’s decision in City of Galveston v. Saint-Paul, No. 01-06-00580-CV . This case challenged the adequacy of the city’s public notice that it was leasing 185 acres of Pelican Island that was to be used by BP Energy for what the article calls “a controversial liquified natural gas terminal.”
  

  … Mark Stevens, who represents Saint-Paul, said he was disappointed about Thursday’s ruling by a three-judge panel and that his client likely would request a rehearing before the appeals court’s entire membership or go to the Texas Supreme Court.