There have been significant developments in both of the election-related mandamus cases that were sent back to the intermediate courts of appeals last Monday.

• In re Cerda, Second Court of Appeals, No. 02-08-00018-CV. This is the case in which three Fort Worth firefighters are challenging Wendy Davis’s right to be on the Democratic primary ballot for Texas Senate District 10 (held by Sen. Kim Brimer). After the Texas Supreme Court dismissed the mandamus petition for failure to first go to the intermediate court of appeals, the Forth Worth Court has acted very quickly. It granted Relators’ motion to expedite and has set the case for oral argument in this order.

  A response is due Tuesday at 5:00 pm. Oral argument is set for the next day: Wednesday, January 23rd at 11:00 am. An article with more information (and some very disparately sized photographs of the two candidates) ran in the Fort Worth paper on Friday.

  Update 1-24-2008: The argument was held today and, as reported in the Fort Worth paper (but not yet on the court’s website), this afternoon the Second Court denied the writ of mandamus.

• Not to be outdone, the Houston First Court of Appeals is already finished with the case involving House District 147 (held by Rep. Garnet Coleman) that had also originally been denied without prejudice. In re LaRhonda Torry, No. 01-08-00031-CV. On Tuesday, the Court issued a stay. And on Friday, the Court denied the petition.

  As of Friday, In re LaRhonda Torry is back in the Texas Supreme Court under a new docket number (No. 08-0057). The Court immediately requested a response.

As reported by local Houston television here and here.

This isn’t the sort of news that I wanted to write about. In the past few hours, though, I have received several emails and phone calls about it. Before the story broke, I had been working on a normal (some might even say boring) post about a case just argued to the Court. It seemed strange to finish that post today. It also seemed strange that I might wake up tomorrow and write a “weekly orders” post without having at least mentioned today’s story.

As reported on Houston’s KHOU television station here, and in several newspapers a Harris County grand jury handed down an indictment today of Justice David Medina and his wife on charges related to the June 2007 fire that ultimately destroyed his house and damaged some of his neighbors’ houses.

The press reports linked above indicate that the district attorney intends to ask the court to dismiss the charges for lack of evidence. Given other recent press attention focused on that district attorney (see here for a flavor), I suspect that any action his office takes will drawn criticism. Whatever the outcome, this is undeniably a tragic situation for the Medina family.

In today’s decision in New York State Board of Elections v. Lopez Torres, available here, the United States Supreme Court reversed a Second Circuit decision that had invalidated the way New York selected judicial candidates for its trial court (known, in New York, as the “Supreme Court” because of its general jurisdiction).

The plaintiff was a judicial candidate who complained that she could not win the party’s nomination because of how New York structured its judicial-candidate selections — with party primaries a sort of indirect democracy, in which voters chose delegates who then chose a party nominee. The system also had a feature something like “super-delegates,” in which some delegates were picked by party bosses rather than primary voters. The plaintiff contended that this system deprived her of a fair shot to win the nomination over the wishes of the party bosses, who she contended were angry (among other reasons) because of her refusal to make patronage hires. The Supreme Court held, in essence, that there is no such constitutional right.

Although the majority opinion did not emphasize the fact that this happened to be a judicial election, two concurring opinions were written to do just that.

[Read more →]

In re LaRhonda Torry, No. 08-0026.

This election-related mandamus petition was filed in the Texas Supreme Court on Friday by former Representative Ron Wilson. In today’s Houston Chronicle, Clay Robison reports that:

Rep. Garnet Coleman, D-Houston, drew a last-minute challenger, LaRhonda Torry, in the Democratic primary, but a few days later Harris County Democratic Chairman Gerry Birnberg rejected Torry’s application. Birnberg said he couldn’t accept her filing fee because she had not yet designated a campaign treasurer.

The Texas Secretary of State’s Office disagreed with Birnberg but couldn’t order the party to put Torry on the ballot.

Torry then retained lawyer and former state Rep. Ron Wilson, who late last week filed a petition with the Texas Supreme Court seeking an order to have Torry placed on the ballot.

The Court has requested a response by 10:00 am this morning, January 14th. (( The response date in the other election-related mandamus filed last Friday (see this earlier post) was set for Friday, January 18th. That might or might not reflect the Court’s judgment about the strength of the petitions. One possibility is that — because the mandamus petition in that other case indicates that the relator was not even sure if the respondent had counsel — the Court was simply trying to ensure time for an adequate response. )) Given that the Court left several openings on its early-February calendar, it’s quite possible that the Court would decide to set this case for argument on February 6th or 7th.

[Updated evening of 1-14-2008: Late today, the Texas Supreme Court denied this petition without prejudice under Texas Rule of Appellate Procedure 52.3(e) — in essence, instructing the parties to first seek relief from the intermediate court of appeals.]

Current (and past) cases featured in the press.
This may not become a regular feature of the blog, but here are some articles I saw this week that didn’t yet warrant their own separate posts.

• In re Cerda, No. 08-0028. In the first second election-related case to reach the Texas Supreme Court this year, three firefighters from Fort Worth filed a petition for writ of mandamus on Friday against the Chairman of the Texas Democratic Party to require him to remove Wendy Davis from the primary ballot for Texas Senate District 10. Somewhat unusually, the relators are voters asking the Court to remove the only candidate for Senate District 10 from their primary ballot. The Court has asked for a response by this Friday, January 18th, at 10:00 am. Article from the Fort Worth Star-Telegram. The relators’ press release and the mandamus petition itself were published on Quorum Report. [Updated 1-14-2008: Another election-related mandamus was filed earlier the same day. See this post for more.] [Updated 1-14-2008, 2:15 P.M.: The Texas Supreme Court denied this mandamus today. See this post for more.]

• Livestock Weekly covers the water-rights case Guitar v. Hudspeth Co. UWCD No. 1, No. 06-0904, which was argued on December 5, 2007. The article includes significant excerpts from the oral argument.

• After the Texas Supreme Court reversed and remanded in the breach-of-contract case Pyramid Constructors, Inc v. Port-Neches Grove I.S.D., No. 04-0737, the case eventually went to trial resulting in a $460,000 attorney’s fee award — but no contract damages — against the school district. The article is in the South East Texas Record.

This week’s installment (the blog’s first) of “We’re taking it all the way to the Supreme Court!”
Highlighting a lower court case in which the parties have already said as much.

• The City of Waco tells KCEN television in Waco (yes, there is a video) that it may appeal an adverse ruling from the Tenth Court of Appeals to the Texas Supreme Court. Here’s the 10th COA Opinion. The opinion notes that “Chief Justice Gray dissents without a separate opinion but notes that there are many reasons he can join no part of the majority opinion or judgment.”

  The case concerns whether the Recreational Use Statute (part of the Texas Tort Claims Acts) extends the waiver of immunity to injuries caused when a person fell from a cliff. The City of Waco argued that liability was precluded under the Texas Supreme Court’s precedents Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004), State v. Shumake, 199 S.W.3d 279 (Tex. 2006), and Stephen F. Austin State University v. Flynn, 228 S.W.3d 653 (Tex. 2007), because the City of Waco was not itself involved in creating this dangerous condition. The Tenth Court disagreed with the City’s reading of those cases and instead held that it:

  must determine whether Kirwan’s allegations of structurally unstable cliff rock constitute a hidden or latent condition for which a premises defect claim may be brought. The City argues that “the recreational user needs no warning to appreciate the dangers of walking or sitting on crumbling limestone ‘more than 60 feet’ above the ground at the base of the cliff.” According to the City, the ground was not composed of “solid rock ground,” as evidenced by crumbing rocks depicted in its photographs. In his affidavit, Black described Circle Point Cliff as consisting of “loose rock and natural cracks.” He stated that the “danger of slipping on the loose rock and falling off the cliff, as well as the danger that the limestone could continue to crack, should have been obvious to anyone who might walk or sit on the limestone cliff.”

  The court of appeals concluded that the condition was not obvious enough to support summary judgment for the City.

  The case also involves a dispute over the adequacy of the City’s warning. The City built what the opinion calls “a low wall obstructing access to the cliff” and posted a sign “for your safety do not go beyond wall.” The court of appeals held that “these signs not only fail to warn of structurally unstable ground, but they fail to warn of any potential hazard.”

Yesterday’s Austin American-Statesman has a feature article delving into the background of a pending Texas Supreme Court case — Exxon Corp. v. Emerald Oil & Gas Co., No. 05-0729 [docket sheet] and No. 05-1076 [docket sheet].

The Statesman article, titled “A Texas tale: Oil, business meet history, sabotage“, places this case against a larger backdrop of oil, land, and politics in Texas. It also gives a quick overview of the policy debate raging about who should bear these risks:

The bottom line, the one the state’s petroleum industry is focused on, is not whether Exxon sabotaged the wells. It’s whether Exxon was required to plug the wells in a way that minimized re-entry problems for the next operator.

Jerry Patterson, chairman of the Texas General Land Office, urged the Supreme Court to rule against Exxon, arguing that its method of plugging denied access to an essential natural resource and deprived the state of tax money.

Reopening old wells is the only economical way to extend the life of many Texas oil fields, Patterson said in a brief. If Exxon ‘is allowed with impunity to submit false reports to the Railroad Commission,’ companies may decline to reopen plugged wells for fear of incurring unexpected costs, he added.

But Exxon argued that existing law and court precedent require it to plug a well in ways that preserve the environment, not preserve access for other companies. It warned the Supreme Court that siding with Emerald could create a flood of lawsuits against oil field operators that file public records containing mistakes.

In addition to the Texas Land Commissioner, other amicus curiae briefs have been submitted by the Texas Alliance of Energy Producers, the Texas Land and Mineral Owners’ Association, the Texas Oil & Gas Association (which also submitted an amicus letter earlier in the case), the Texas and Southwestern Cattle Raisers Association

On February 13, 2007, the Court heard oral argument in two segments. ((The Court elected not to consolidate these related petitions for purposes of argument, instead permitting counsel for the various parties more latitude in advancing their divergent arguments. One would, however, expect the Court to consolidate the two cases for purposes of issuing a single global decision in the case.)) The oral argument in docket No. 05-0729 focuses on the common-law background rule and the governing substantive statute. [audio] The oral argument in docket No, 05-1076 focuses on Exxon’s statute-of-limitations defense and the fraud-related claims against Exxon. [audio]

According to a news release earlier this week that had escaped my attention, former Justice James Baker’s law firm (Hughes & Luce) is merging with the impressively named Kirkpatrick & Lockhart Preston Gates Ellis LLP — which even the firm’s own press release chooses to define as a short form (“K&L Gates”) to avoid typing fatigue. ((The press release also contains 50 or more prepositions. That surely means that it did not cross Justice Baker’s desk. When I clerked, Justice Baker was famous for taught us that his campaign against prepositions could be eliminated.))

Although the merger apparently didn’t warrant further lengthening the new firm’s name, the press release does allude to Justice Baker as among those being added to the soon-to-be 1500 lawyer operation.