On the Friday before this holiday weekend, the El Paso Court of Appeals issued its decision in a hotly contested local election case. The background was a series of local political initiatives about benefits for same-sex couples — the city approving them in 2009, a local ballot proposition in 2010 overturning that decision, followed by the city council voting in 2011 to restore them. (There is good background and a timeline in this El Paso Times piece.)

A local group then obtained signatures to force a recall election of the mayor and some city council members. Those officials, in turn, challenged whether the signatures had been obtained with corporate support that would be illegal under Texas law.

The El Paso Court of Appeals held that the petition signatures had been tainted an early supporter, which was a non-profit religious corporation. Cook v. Tom Brown Ministries, No. 08-11-00367-CV (Feb. 17, 2012). The key piece of evidence seemed to be a website that, regardless of who owned it, had been used by the corporation to help gather some names of supporters (pp. 3 & 15-16). The holding was that all the signatures had to be thrown out because of this early (and decidedly counterproductive) corporate support (p. 23).

The recall supporters said that they would appeal to the Texas Supreme Court.

The attorney for the elected officials, however, is saying that the Texas Supreme Court has no power to hear the appeal because Section 22.225(b)(3) of the Government Code generally gives the intermediate appellate courts the final say over “a case of a contested election.”

“My analysis is it can’t be appealed to the Texas Supreme Court,” Walker said, and he called the appellate ruling “a victory for the rule of law.”

What could happen next

Among other issues, the recall supporters argued, that the application of this Texas law violated Citizens United (pp. 17-20). It’s not inconceivable that they could ask for certiorari from the U.S. Supreme Court. They may take support from the serendipity that, the same day that the El Paso Court decided this case, the U.S. Supreme Court stayed a Montana decision that had (rather explicitly) held that the rationale of Citizens United did not hold in the (especially corrupt?) state of Montana.

If the opinion of the El Paso Court truly is final under Texas law, then the case could proceed directly to Washington, D.C. But if the parties see an open question about that procedural point, we may see an emergency petition of some sort of the Texas Supreme Court.

Source: “Court rules against recall: Organizers broke law, ruling says” (El Paso Times)

A recent issue of Texas Lawyer includes the article “Family Law Council Files Rare Amicus Over Mediation Issue”.

The case is In re Stephanie Lee, No. 11-0732. It’s a mandamus challenging a trial court’s decision not to approve a mediated settlement agreement in a custody dispute.

According to the article, this case is the first time in about twenty years that the family law section of the state bar has weighed in with a Texas Supreme Court amicus brief.

The State Bar argues in its amicus brief (PDF) that the statute allowing these mediated settlement agreements limits the trial court’s discretion to second-guess the decisions made about the child’s best interests. The practical concern is that litigants are less likely to choose mediation if they fear that the trial court will simply reject the conclusions.

The State itself (through OSG) filed an amicus brief (PDF) last month taking the opposite view, arguing that the trial court has an overarching duty to look out for the best interest of the child when entering family-law orders.

Hat tip: Disputing

I’ve recently come across two new appellate blogs with a Texas connection. If these strike your fancy, you may want to add them to your reading list.

Circuit Splits

Newly minted attorney Nicholas Wagoner has hit the ground running with Circuit Splits a blog focused on the U.S. Supreme Court. Well, to be more precise, it’s focused on cases in lower courts that show the kind of circuit split that might tempt the high court to grant review. The updates also flow through to the blog’s Twitter feed.

It’s reminiscent, both in name and content, of the “Split Circuits” blog by Professor Benjamin Spencer, which has been running since 2005.

It’s good to have multiple eyes on the same problem, and the early output is impressive. More importantly, the authors of Circuit Splits makes an effort (in the right-hand column) to break the cases down by circuit of origin and by topic — which is, after all, what a reader would care about. Will that scale? I don’t know. But I’m glad that the new blog is already focused on that key problem.

Texas Appellate Watch

The other new blog is Texas Appellate Watch, started by Scott P. Stolley and Richard B. Phillips Jr. of Thompson & Knight.

The emphasis so far is on the Texas Supreme Court (its weekly orders are noted) and the Fifth Circuit. The authors also pass along some articles they have written on more general appellate topics (like what words to avoid in a brief).

This Thursday, the regular luncheon for the appellate section of the Austin Bar will be hosting chief justices from across Texas’s fourteen courts of appeals. The moderator will be our own Chief Justice Woodie Jones, and the panel will include Chief Justice Terrie Livingston (Fort Worth), Chief Justice Brian Quinn (Amarillo), Chief Justice Sherry Radack (Houston [1st Dist.]), and Chief Justice Jim Worthen (Tyler). Some of Texas’s other chief justices may also be joining us for lunch.

If you have questions for the panel, Todd Smith is collecting suggestions on his blog post about this panel.

It was a short orders list today. Two of the entries involved cases that the Court had previously placed into “abated” status, removing them from the active docket.

The Ghazali laser-hair-removal case is done

The Court had set Basith Ghazali, M.D. v. Brown, No. 10-0232 for oral argument in September. The case asked how the Texas medical-malpractice statute applied to laser hair removal — an issue on which the Dallas Court has also weighed in.

When argument day came, the parties asked the Court to postpone the argument pending a possible settlement. Today, the Court granted the parties’ joint request to dismiss the case.

The Severance beachfront-takings case is back from the Fifth Circuit

In July, the Court removed the beachfront takings case, Carol Severance v. Jerry Patterson, et al., No. 09-0387, from its active docket until the Fifth Circuit spoke first about whether the underlying controversy had been mooted by Ms. Severance’s sale of her property. The Fifth Circuit concluded that there was still a live dispute between the parties and thus the dispute was not moot.

Today, the Texas Supreme Court formally returned it to the active docket.

New Fifth Circuit blog

David Coale, former head of the State Bar appellate section, has started a new blog about the Fifth Circuit. It’s called 600 Camp, after the address of the John Minor Wisdom Courthouse in New Orleans.

Mandatory appellate mediation turns out to be mandatory

Disputing has a post about what happens when a party walks out before a court-ordered appellate mediation has run its course. The title gives away the ending: “Texas Court of Appeals Dismisses Appeal Because Appellant Walked Out of the Court-Ordered Mediation”

This happened in the Waco Court of Appeals. The court’s notice specified that dismissal would follow if the appellant did not attend the mediation. The court’s opinion is here.

Election season is underway

Morgan Smith of the Texas Tribune has the first piece I’ve seen about the 2012 court elections. Her story is about former Justice Steve Smith’s filing to, once again, run against Justice Willett for the Republican nomination.

Oral Arguments This Week

You can check out past and current arguments on the St. Mary’s video archives page.

Tuesday

• SafeShred, Inc. v. Louis Martinez, III, No. 10-0426. Are there exemplary damages for a Sabine Pilot claim (wrongful firing for an employee refusing to do an illegal act) and, if so, was the amount of exemplary damages awarded here excessive? (>> earlier post)

• Shell Oil Company, et al. v. Ralph Ross, No. 10-0429. Broadly, the case is about how the statute of limitations applies to royalty claims when there is an allegation of fraudulent concealment.

• Weeks Marine, Inc. v. Maximino Garza, No. 10-0435. A Jones Act (maritime) case about how to divide responsibility between the worker and the employer. >> earlier post

Wednesday

• Natural Gas Pipeline Company of America v. William Justiss, et al., No. 10-0451. In a nuisance claim about a reduction in property value alleged to have been caused by the gas pipeline: (1) how much worse must the condition get to re-start the statute of limitations and (2) what evidence is proper to show the reduction in property value? A potentially much broader issue here is the petitioner’s request for the Court to limit the “property owner rule” that (traditionally) lets an owner testify as to its value without the need to hire an expert witness.

• Hearts Bluff Game Ranch, Inc. v. The State Of Texas and the Texas Water Development Board, No. 10-0491. Can the State’s actions, which were alleged to have directly interfered with the issuance of a federal permit, constitute a taking under state law? >> earlier Texas Tribune article

• Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel, No. 10-0513. Do “health care liability claims” include allegations of assault or sexual assault by health-care providers? >> earlier post

Thursday

• Port Elevator-Brownsville, LLC V. Rogelio Casados, et al., No. 10-0523. Does the bar against lawsuits created by the workers compensation law apply equally to suits by temporary workers?

• In re United Scaffolding, Inc., No. 10-0526. How much specificity is needed in an order granting a new trial based on the great weight of the evidence?

• Rusk State Hospital v. Dennis Black, et al., No. 10-0548. What should courts do when a government agency raises sovereign immunity during a limited interlocutory appeal challenging something completely different?

The Court did not issue any opinions with today’s orders list. It did bring back one previously abated case to its docket, the Bison Building Materials arbitration case. (( I’ve written about it before, but it may mean less after the Court has spoken to Hall Street in the NAFTA Traders case. ))

The Court’s statistical year runs from September through August, so last week’s opinions were a year-end burst of activity.

How many argued cases are left to be decided?

Fewer than you may think. After combing through the numbers, I found four (yes, only four) argued cases that had not been decided by August 31st. That count excludes abated cases (such as Severance, which was abated to let the Fifth Circuit address mootness). This week, the Court returned the abated Bison Building Materials to its active docket. So that makes five:

• Bison Building Materials, Ltd. v. Lloyd K. Aldridge, No. 06-1084 (argued Jan. 16, 2008). Just reinstated to the docket today.

• City of Dallas v. David S. Martin & George W. Parker, et al., No. 07-0288 (argued Dec. 17, 2009).

• The Edwards Aquifer Authority and the State of Texas v. Burrell Day and Joel McDaniel, No. 08-0964 (argued Feb. 17, 2010).

• Sharyland Water Supply Corporation v. City of Alton, Carter & Burgess, Inc., Cris Equipment Company and Turner, Collie & Braden, Inc., No. 09-0223 (argued Mar. 24, 2010)

• Vernon F. Minton V. Jerry W. Gunn, individually, Williams Squire & Wren, LLP, James E. Wren, individually, Slusser & Frost, L.L.P., William C. Slusser, individually, Slusser Wilson & Partridge, L.L.P. and Michael E. Wilson, individually, No. 10-0141 (argued Mar. 1, 2011)

By this count, there was only one case argued last year that has not yet been decided (and it was argued just six months ago).

It’s once again the season that law students apply for judicial clerkships. I clerked at the Court about a decade ago and know that a judicial clerkship can change your whole perspective as an advocate. There isn’t much substitute for seeing how judges really read legal briefs before you try to write your own.

The Texas Supreme Court has posted its clerkship brochure. As the brochure quite rightly notes, the experience for its law clerks is unique:

Unlike most appellate courts, the Texas Supreme Court has discretionary review only of civil cases and almost exclusively among appellate courts permits law clerks to sit in conference for its deliberations. (( Those little words matter. The Court’s civil jurisdiction means that you don’t see death-penalty appeals and, except for the occasional juvenile-justice case, won’t see criminal issues. Discretionary review means, not just that the Court can focus on interesting issues, but that you can start to get a feel for what makes an issue interesting enough to hear. ))

The brochure has the needed details. The Justices are accepting applications now and, according to the brochure, interviews “will generally be scheduled no earlier than mid-September 2011.”