That was the question raised in ZYZY Corporation v. Gloria Hernandez, No. 04-10-00311-CV (Tex. App.—San Antonio Jan. 26, 2011). And it’s one that should interest lawyers with newsworthy cases and newspaper reporters alike (and, of course, the law bloggers who live in both worlds).

The plaintiff in this libel case is Gloria Hernandez, a lawyer who represented the Kickapoo Traditional Tribe of Texas over several years. On April 26, 2006, she testified at a hearing in tribal court. When asked how much of her legal practice involved work for the Tribe, Hernandez testified “I make roughly about ten percent of my income from the tribe.”

The next day, the local newspaper Eagle Pass News-Guide (owned by ZYZY) reported this:

The most damning of testimony came when Hernandez admitted on the stand that she rakes off a 10% share of Lucky Eagle Casino profits for her services to the handful of remaining Kickapoo insurgents. This admission is a clear cut violation of National Indian Gaming Commission rules and regulations which require approval of any management contract by an outsider hired to oversee an Indian casino operation. And Hernandez leaves little doubt she intended to defraud to [sic] the federal governmental agency when she has never listed herself as anything but a legal representative to the Kickapoo Tribe of Texas.

A year later, this lawsuit was filed. (( This appeal also involved a statute-of-limitations question that’s perhaps of less interest to readers. If you worry that a local holiday that leads to a court closing won’t extend the deadline — here, the courthouse was closed for “Battle of Flowers” holiday festivities — then this case should allay your fears. )) Among other arguments, the newspaper sought summary judgment on the ground that Hernandez was a limited-purpose public figure and, thus, would have to show “actual malice” to prove libel. The trial court disagreed, and the newspaper filed the interlocutory appeal permitted by Texas law. Tex. Civ. Prac. & Rem. Code §51.014(a)(6).

The newspaper’s primary argument was that Hernandez, through her role with the Tribe, had injected herself into the dispute itself to become a limited-purpose public figure. There is a three-part test under Texas law:

(1) the controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution;

(2) the plaintiff must have more than a trivial or tangential role in the controversy; and

(3) the alleged defamation must be germane to the plaintiff’s participation in the controversy.

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). The court of appeals focused on the second element, Hernandez’s role.

As the court of appeals framed the newspaper’s argument: “ZYZY contends Hernandez played more than a trivial or tangential role in the dispute because she injected herself into the controversy beyond her role as an advocate for one side.” As support, the newspaper introduced a significant number of newspaper articles from the time period — both from its own archives and from nearby newspapers — which cover the Tribe and mention Hernandez by name. But at oral argument, we are told, “counsel for ZYZY acknowledged that the Eagle Pass papers’ reporting alone could not make Hernandez a public figure.”

The newspaper also relied on Hernandez’s testimony about her role with the Tribe, which apparently involved speaking with public officials on the Tribe’s behalf. The court of appeals was not impressed: “We hold that merely accompanying a client to meet with elected officials to discuss matters of importance in his district or to meet with representatives of agencies that have some oversight authority over the lawyer’s client does not make a lawyer a public figure.”

And the newspaper pointed to other newspaper articles (including from other publishers, such as the San Antonio Express-News and Dallas Morning News) in which Hernandez had been quoted by name. After examining those articles, the court of appeals concluded that the way she was quoted suggested only that she was “responding to press inquiries regarding legal matters affecting the tribe.”

Having walked through the newspaper’s summary-judgment evidence, the court of appeals held that it

does not show that [Hernandez] became involved in the controversy regarding the tribe leadership beyond her role as a legal advocate, that she thrust herself into the public eye by engaging the media, had any special access to the media, or that she used the media in an attempt to influence the outcome of the controversy. On this record, we cannot say that ZYZY established as a matter of law that Hernandez is a limited-purpose public figure.

Hat tip: “Newspaper in the Hot Seat for Hatchet Job on Lawyer” (Courthouse News Service)

With both Christmas Eve and New Year’s Eve falling on Fridays this year, it is no surprise that the Texas Supreme Court has not issued its regular orders list since December 17, 2010.

The Court did issue some briefing requests on the 17th (see the sidebar or my list of recent briefing requests) and, on Wednesday, the Court dismissed the mandamus petition filed by Representative Larry Taylor seeking better answers to a public information request (see more details).

The Texas Supreme Court next hears oral arguments on January 4, 2011. It’s a one-day argument sitting because the Court did not select enough petitions to fill out the original three-day argument schedule.

Yesterday was (now former) Texas Solicitor General Jim Ho’s last day.

The interregnum did not last long. Today, Jonathan Mitchell of George Mason Law School is being introduced as the (new) Texas SG.

Update: I’ve looked at a few of his online research papers. One seems like it might be of particular interest to readers of this blog. In this short piece, Mitchell argues that the U.S. Supreme Court should consider abandoning its view that it lacks jurisdiction to reverse a state court solely on state-law grounds (the Murdock rule). (( The extended argument appears in this paper. )) It’s not a paper with which I agree, but it suggests that he has spent some time thinking about the role of state courts.

Relevant links: OAG press release – faculty bio page – captured screenshot – CV (PDF) – his Rate My Professors page

First, Justice Willett’s concurring opinion in the Robinson case attracted attention from notable appellate geeks and other geeks more likely to read Wired for the opinion’s passing reference to Star Trek. (( I’m not sure I’ve ever seen an opinion attract as many different short blog posts as did this passing reference. But contrary to some of the more hyperbolic headlines, the opinion does not, of course, adopt Spock’s maxim as Texas law. Instead, it explains that the “Vulcan” notion of utilitarianism is “cabined by something contrarian and Texan.” But the loving care of footnote 21 reveals genuine affection for the Star Trek movies if not for the their legal system. ))

Now, that same Robinson concurring opinion has gotten attention from still a third species of geek — the policy wonk.

In a syndicated op-ed piece about the constitutionality of healthcare reform, George Will writes about the proper role of judges in reviewing legislative acts. He singles out Justice Willett’s Robinson concurrence — which explained why Justice Willett agreed that a Texas tort-reform bill had overstepped the constitutional line — as “an opinion that provides pertinent clarity about the tension between judging and majoritarianism.”

Will’s article quotes extensively from that opinion; you may not need to read both. In the end, Will borrows a distinction suggested by Justice Willett “between an activist judge and an engaged judge.” and expresses his hope that “the [United States] Supreme Court justices are engaged when considering the insurance mandate.”

For more context about the Robinson case, links to all the opinions, briefs, and some related articles are collected on this DocketDB page.

Late this afternoon, the special appellate panel issued its decision in the matter of Chief Judge Sharon Keller of the Texas Court of Criminal Appeals.

As you may remember, Chief Judge Keller had been given a “public warning” by the State Commission on Judicial Conduct. She then filed a petition for mandamus with the Texas Supreme Court; that request was eventually denied. So her case proceeded to appeal within the state judicial-conduct system before a panel of specially appointed appellate judges from around the state.

In short, Chief Judge Keller argued that “public warning” was not on the menu of remedies available in a formal State Commission on Judicial Conduct hearing. The commission could have formally censured her (but did not). But if it found that a full censure was unwarranted, its only choice was to dismiss the charges because there was no lesser sanction available.

Today, the special appellate panel agreed. You can read its opinion (PDF) here. The appellate panel concluded that, because the commission had already held an evidentiary hearing, there was no need for a second one. The commission’s original decision refused to impose any of the valid remedies (censure, removal from office, etc.). Having concluded that there was no basis for those valid remedies, the commission’s only choice should have been to dismiss the charges.

See also: “Appellate Court Vacates Sanction of Keller” (Texas Tribune)

You may have seen the “stat pack” offered by SCOTUSblog with voting statistics for the Justices.

Its wedge-shaped voting chart is familiar — and, for a time, it became a staple of Texas CLE programs as well. Following that path, I prepared some of these charts for an Austin appellate bar program in March.

The experience made me more conscious of two weaknesses in these charts.

First, the author often must choose what universe of cases to show — all opinions, all signed opinions, only divided opinions. The easy choice is “all opinions,” but it gives very little signal compared to noise. In other words, the unanimous opinions push up the percentages and hide disagreements in the more challenging cases.

Second, even with a background in economics and math, I was bothered just seeing a percentage showing that two Justices agreed 60% of the time. That top-level statistic is fine for people who just want to make a broad-brushed assertion about the general makeup of the Court. But as an advocate I wanted to know which cases led to that disagreement. That is where a serious advocate can start to learn how two Justices might approach a problem differently.

Announcing DocketDB voting tables for 2010

I finally have a set of voting charts that make me happy. The basic layout should look familiar.

But this chart is dynamic — you can choose to focus on the scope of cases you want (all opinions? only signed opinions? only those with a dissent?):

You can also choose the types of disagreement you want to highlight (disagreements in opinion? or only in judgment?):

And the real kicker for me: You can click on a cell in the table and drill down to a page that shows — for each pair of Justices — the specific cases on which they agreed in the opinions, agreed in the judgment, or did not agree in the judgment.

These detail pages show keywords about each case (when they are present in DocketDB). You can also navigate directly from here to each relevant opinion that led to the split.

Where to find the voting charts

The dynamic 2010 Texas Supreme Court voting analysis charts are available to anyone who has registered for DocketDB. (If you registered before and have forgotten your login, you can get access through this link. If you haven’t registered, you can register here.)

Once you’ve logged in, look under your “Research Tools” menu in the top left of the menu bar. You should see the new “Vote Analysis” option.

I’ve always reserved some of the DocketDB features for the professional subscribers who help support the site financially. With this set of voting tables, I have reserved the data for 2006 to 2009 for those supporters.

For the future…

I haven’t yet decided on a next step, but I’ll mention two further enhancements that could be built on this same set of data:

1. Choosing cases by subject matter, rather than a whole term. Back in March, I was asked if it was possible to look just at the cases involving a particular issue. The answer now is that, yes, it is possible. A chart can be made for any set of cases, defined on any characteristic in the database. (The trick is defining those sets of cases, or creating a tool that lets users create their own sets of cases.)

2. Graphic representation of voting patterns. I’m thinking of the slides that I presented in March 2010, showing the relative voting position of the Justices in 5-4 cases. (Here’s the slide (PDF) I made for the U.S. Supreme Court, to give you an idea.) The data that powers today’s dynamic voting tables should be able to power those same graphics. (I used a different computer to build those charts, and the trick here would be folding this into the main DocketDB code in a way that works for the web.)

Those two enhancements could be combined to show, for example, a graphic representation in how the Justices vote on cases about statutory construction, or civil procedure, or medical-malpractice cases.

As always, I very much welcome your input about what new features would be helpful to your practice.

You may remember the (ultimately unsuccessful) petition to the Texas Supreme Court recently filed by the Chief Judge of the Texas Court of Criminal Appeals, Sharon Keller.

Her appeal before a specially appointed panel of Texas judges continues. Yesterday in Austin, the panel heard oral arguments about her motion to dismiss (which made some of the same arguments she had advanced to the Texas Supreme Court).

There was particularly good coverage on Grits for Breakfast, with an article title that probably could be adapted to all press stories about appellate arguments: “Keller Appeal Marked by Byzantine Legal Debates”.

The Statesman story followed up with the added detail that a decision is expected by October 8, 2010.

The Texas Supreme Court is about to start its first argument sitting of the fall. The cases set for argument are listed below; you can watch live webcasts (or archived videos) of these oral arguments through this link.

The SCOTXblog coverage of these arguments will be getting off to a slow start. I am attending today’s arguments in my capacity as counsel not as a blogger (I’m on the briefs in one case), and tomorrow morning I have a conflicting oral argument in a different court.

Two cases that deserve note are DPS v. Cox Newsapers (to be argued Wednesday) about whether the Governor’s security detail’s travel receipts are protected from disclosure or are public information, and March USA, Inc. v. Cook (to be argued Thursday) about what consideration from an employer is needed to support a covenant not to compete against an employee.

September 14, 2010

• Anglo-Dutch Petroleum International, Inc. and Anglo-Dutch (Tenge) L.L.C. v. Greenberg Peden, P.C. and Gerard J. Swonke, No. 08?0833 (DDB) (Justice Guzman not sitting)

• Offshore Specialty Fabricators, Inc., et al. v. Wellington Underwriting Agencies, Ltd., et al., No. 08?0890 (DDB)

• Hyde Park Baptist Church v. Tara Turner and Terry Curtis, Individually and As Next Friends of P.C., a Minor, No. 09?0191 (DDB)

September 15, 2010

• Betty Yvon Lesley, et al. v. Veterans Land Board of the State of Texas (VLB), et al., No. 09?0306 (DDB) (Chief Justice Jefferson not sitting)

• Texas Department of Public Safety v. Cox Texas Newspapers, L.P., and Hearst Newspapers, L.L.C., No. 09-0530 (DDB) (Justice Medina and Justice Willett not sitting)

September 16, 2010

• In re Joseph Charles Rubiola a/k/a J.C. Rubiola, Gregory Allan Rubiola, Catherine Rubiola, JGL Design-Build, Llc a/k/a JGL Design Build and Michael Cortez, Individually and d/b/a the Heights Design and Construction, No. 09?0309 (DDB)

• Aaron Glenn Haygood v. Margarita Garza De Escabedo, No. 09?0377 (DDB)

• Marsh USA Inc. and Marsh & McLennan Companies, Inc. v. Rex Cook, No. 09?0558 (DDB)