In cases raising common law questions (or questions under uniform laws such as the UCC), it’s become very common (and often expected) for litigants in the Texas Supreme Court to conduct a “fifty state survey” of the relevant area of law. The Justices have even been known to request them to be filed in post-submission briefs when the litigants haven’t yet provided one.

The amount of work it takes to create an accurate fifty-state survey is hard to overstate. In statutory areas, different states have different quirky ways of wording things that make using online research tools very difficult. In common-law areas, those nomenclature problems are even worse. Lawyers are licensed state-by-state for a reason, and trying to make sense of all fifty at once is a real challenge — one that, for its tediousness, seems to be passed as far down the food chain of law firms as possible, often falling to interns and law clerks. Perhaps these surveys deserve more serious attention than they have traditionally received.

Because of its unique role, the United States Supreme Court has less need to look at fifty-state surveys. But in the recent Kennedy v. Louisiana child-rape case, the Court not only mentioned such a survey but based much of its reasoning on the idea of a “national consensus” having formed that capital punishment was in no circumstances appropriate for child rape.

It turns out, the Court messed up the count. The Court said that it had looked at all 50 states and at federal law, finding that “only six” jurisdictions permitted the death penalty for such an act. The Court counted federal law in the “no” column. But, as a military blogger pointed out (and the New York Times noticed, followed by several blogs in my feed, such as Volokh and Tyler Appeals), Congress actually did pass a bill in 2006 placing just such a provision in the Uniform Code of Military Justice. Oops.

Three things are worth noting.

First, it really is difficult to do a fifty-state survey. That echoes a point made more eloquently by others, but it’s worth saying again. Even Kennedy’s lawyers should have caught this statute and presented it to the Court, especially if they made representations in their brief about there being no such law. But no one saw it tucked away in an area of federal law in which none of them happened to practice.

Second, this particular error is huge. It’s not as if the Court misclassified Wyoming or Texas. The framework of the Court’s analysis was looking for national “consensus,” and in that sort of test, surely the national legislature represents at least one species of national consensus. (( If your gut is saying, “Isn’t it a little circular to look at legislative enactments to measure constitutional boundaries when those constitutional boundaries are meant to constrain the legislature?,” my gut would agree. )) Saying this error just makes it “seven” instead of “six” jurisdictions is a category mistake; the misclassified jurisdiction contains all the others. And this bill passed overwhelmingly. (( It looks to me like the bill permitting the death penalty for child rape under the UCMJ passed the Senate 98-0 before it was sent to conference committee. Depending on how you think about the two abstentions, that would be either 48 or 50 states in favor. The House vote was closer, but still overwhelming (374-41). ))

The Court could have reached the same ultimate constitutional result even knowing what Congress had done. The Eighth Amendment is, after all, a very pliable thing, and the Constitution does trump statutes. But the Court would have had to confront that it wasn’t just scolding States it sees as retrograde; it was also striking down a fairly fresh federal statute.

Third, the most disturbing thing (at least to me) is that the pundits seem in agreement that a rehearing petition would be futile, even though this error made by the Court is both incontrovertible and goes to the heart of the Court’s reasoning. There seems to be no public confidence that the Court actually meant what its reasoning said and, instead, widespread belief that the decision was just a rationalization for a predetermined result. If that’s why Louisiana doesn’t file a petition for rehearing, that says something more than a little sad about the state of the federal courts.

Question: Would the five Justices in the majority actually welcome a petition for rehearing in this case to at least correct this part of their reasoning, or are they content to have a major constitutional case decided on a demonstrably false premise?

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Update #1: The U.S. Solicitor General’s office, which did not file a brief in Kennedy, has accepted a measure of responsibility for not locating that statute and notifying the Court. This is a nice illustration of the special role the SG’s office sees for itself in relation to the Supreme Court. It also shows the benefits to the SG’s office of such a relationship; the office was able to weigh in with its views on this question, even as a non-litigant, at a phase when only parties can file rehearing motions. (( The SG’s statement also suggests a way that the Court might find the UCMJ provision distinguishable and thus still valid even after Kennedy, noting a previous Supreme Court case that did not resolve whether the Eighth Amendment applied with full force to military punishments. ))

Update #2: On Saturday, the Washington Post editorial board called for the Court to rehear the case:

The Supreme Court’s legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That’s why we think the court needs to reopen this case — even though we supported its decision. The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority. The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.

I saved back one case from Friday’s order list for a separate post.

• Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., No. 03‑0647.

I wrote about this case in February, when the Court — on rehearing — changed its judgment from 9-0 in favor of the insurer to a new judgment that largely favored the insured.

After that decision, both sides were dissatisfied and filed motions for rehearing, and Friday the Court issued a revised opinion while granting one of those motions for rehearing. (( I haven’t done a line-by-line comparison, but the email sent by Court’s public-information officer identified only two minor changes made by Friday’s substituted majority opinion. According to that email, the reissued opinion changes the following on page 2:

We affirm the judgment of the court of appeals to the extent that it resolves the coverage dispute in favor of the additional insured, and to the extent that it binds the insurer to the amount recited in the settlement agreement, but we reverse the court of appeals’ judgment regarding damages and attorney’s fees under article 21.55 and render judgment that because the additional insured is not entitled to recovery of such damages and fees.

And it also changes the disposition in the last paragraph of the opinion:

We reverse the court of appeals’ judgment permitting ATOFINA to recover attorney’s fees and damages under article 21.55 of the Texas Insurance Code and render judgment that because ATOFINA is entitled to no such damages or fees. We remand the case to the trial court for further proceedings on ATOFINA’s other claims for attorney’s f

)) This is the revised majority opinion.

Here is the procedural point that warrants a separate post: This was a motion for rehearing filed after the Court’s grant of a first motion for rehearing — making this a second motion for rehearing.

Why is that significant? Texas Rule of Appellate Procedure 64 governs motions for rehearing in the Texas Supreme Court. Unlike the rule applicable in lower courts, this one has a provision that says: “64.4 Second Motion. The Court will not consider a second motion for rehearing.”

I have always found that rule too simple for its own good because it overlooks the Court’s two-step review process, in which the Court’s decision whether to review a case is often made months or even years apart from its decision how to resolve a case. While it makes sense to prevent parties from piling on additional motions for rehearing in seriatim after a merits decision — the process must at some point end — it would make less sense to prevent a party from seeking rehearing on the merits merely because the Court also had to be prodded to take the case through a motion for rehearing at the petition stage.

Out of an abundance of caution, I have always read the rule to prevent such a motion, but I would understand if the Court were (either through decision or rule-making) to clarify that the bar on “second motions for rehearing” applies separately to “motions for rehearing of a petition” and to “motion for rehearing of a cause.” Such a distinction, while somewhat metaphysical, would make good practical sense.

But the procedural posture of Evanston v. ATOFINA does not fit even that more liberal reading of the rule. Here, the Court issued a decision on the merits. One party was dissatisfied and filed a motion for rehearing, which was granted. Then the Court issued a second merits decision. And the parties filed yet more motions for rehearing. One of which was … granted. (( At first, I thought the Court might have denied both motions or might even have granted the motion by Evanston, which itself had not previously filed any motion for rehearing. But the Court’s order list says that ATOFINA’s motion was granted. The order list does not suggest that the Court considered ATOFINA’s motion to be untimely or barred by Rule 64.4. ))

As I said, this is just a procedural observation. But it raises an important question — when can parties file a motion for rehearing under Rule 64.4 and when are they barred doing so?

Some clarification of Rule 64.4 might be on the agenda for the Court’s next rules attorney.

Last Friday was interesting for the Texas Supreme Court’s “submarine docket” — the set of cases that the Court resolves without oral argument and without a former prior order “submitting” the case for decision, as might happen in a court without discretionary review.

When a petition lingers, that’s valuable information

Some have complained that they need the Texas Supreme Court to create a formal “submission on written briefs” process so they can tell what issues might be of interest to the Court. But some clues are already there in how the Court handles its petitions. Cases that linger on the docket are likely to get more attention from the Court. And when the Court’s docket starts to accumulate a group of petitions that raise similar issues, it’s a safe bet that some part of the Court is thinking seriously about them.

This week, the Court answered an open question about using mandamus to review the 30-day extension of time on expert reports that trial courts can offer medical-malpractice plaintiffs. The Court resolved that question in In re Roberts (discussed here). This was a “submarine” decision — no formal submission was made, and the case was decided without oral argument after having been pending on the Court’s docket for some time. This one, in fact, was pending for about two and a half years after full briefing was completed. There should have been little doubt that this issued was on the Court’s mind.

And it was not the only petition that raised this question. In Friday’s order list, the Texas Supreme Court also resolved a few other long-pending cases that raised the same question. One of them — like Roberts itself — was among the Court’s very longest-pending fully briefed cases: In re Benavides, No. 05-0784. In Benavides, like Roberts, the defendant sought to use mandamus to review a trial court’s decision to grant a 30-day extension. Consistent with its decision in Roberts, the Court simply denied review in this case. The Court also denied review today in In re Temple, No. 05-0817, and In re Zimmerman, No. 05-0826, two cases out of the Sixth Court raising the same question. Both of those petitions were pending for more than two years after the petition briefing was complete but before any request for full merits briefing. (( The Court sometimes lets cases linger at that stage so that it can resolve some legal issue in the case through another pending case. That way, if the Court decides it does want to see merits briefing, the parties can write briefs more helpful to the Court that address the Court’s new guidance. Cases lingering at the petition stage can be an interesting indicator of what the Court is thinking about in other cases. ))

The odds are better, but they’re not perfect

Friday’s order list resolved six of the Court’s very longest-pending cases — five of which dealt with the same question about medical-malpractice expert witnesses.

But the very longest-pending case did not result in a merits decision at all.

Admiral Insurance Co. v. Westchester Fire Insurance Co, No. 05-0028, a case between two insurance companies raising questions under the Stowers doctrine, was (by my count) the longest pending petition that had not yet been granted, at about 2 years and 10 months since the Respondent’s Brief on the Merits. In Friday’s order list, the Texas Supreme Court denied review without comment, letting the case return for trial consistent with the court of appeals’s judgment.

Imagine a Fifth Circuit courtroom…

Judge: What do you do about Morgan?

Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.

Judge: You don’t know Morgan?

Phipps: Nope.

Judge: You haven’t read it?

Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t think it applies.

Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?

Phipps: They didn’t teach me much, Your Honor.

What happens after such an exchange? You get a per curiam opinion like this one (see page 14) and an order requiring you to give a copy of it to your client.

Thanks to Above the Law, which in turn credited this post on Legal Profession Blog.

The Texas Appellate Law Blog writes Tuesday about the proposed rule changes that were circulated by the Court a few weeks ago. The proposed rules are here.

I largely agree with Todd’s comments but wanted to add a few thoughts about some of the proposed rules.

A proposed new TRAP 38.1(e) expressly authorizes counsel to include a heading in their court-of-appeals briefs describing the reasons why oral argument should (or should not) be granted. A change to TRAP 39 describes what factors a court of appeals should weigh when deciding whether to hold argument. (( Neither of these rules applies to filings in the Texas Supreme Court. ))

Todd’s reaction (( His reaction to the new TRAP 39: “While well intentioned, this change is meaningless as a practical matter because the court of appeals doesn’t have to give the parties a reason for denying oral argument.” )) echoes his post from a few weeks back lamenting what he saw as capriciousness in the Third Court’s oral-argument settings. His comments then:

I’m handling a case in the Third Court that involves a seven-figure judgment rendered after a rare Travis County District Court jury trial. The case turns on three main issues, all of which the Texas Supreme Court has written on in the past few years. Both parties requested oral argument in their briefs. …

I filed a motion highlighting the mistake and setting out the reasons why the case should be heard on oral submission. The other side opposed the motion on the basis that it would delay a decision, even though the parties had not been notified of a submission date and the case has not appeared on the Third Court’s submission calendar. Per this postcard, the Court denied the motion without comment.

How many seven-figure judgments on jury verdicts with good issues will the Court be asked to review in 2008? Has the Court already decided how the case will come out, thus rendering any argument futile? If not, why did the Court deny argument in this (or any other) case?

I feel for him; we’ve all had cases we felt were sure candidates for oral argument be sent to a submission docket. Once in awhile, we are equally surprised when the reverse happens. And I don’t know anything about whether his particular case deserved argument.

What strikes me about the new rules is that they focus on somewhat different factors than the very common-sensical ones Todd mentioned about his case. New TRAP 38.1(e) and TRAP 39 focus on the decision-making process of the Court, not how the argument will benefit litigants (or how it may appease the many counsel who — as do we all — enjoy the give-and-take of appellate argument). Proposed TRAP 38.1(e) asks counsel to explain in their brief “how the court’s decisional process would, or would not, be aided by oral argument.” Proposed TRAP 39, in turn, asks the court of appeals to consider four factors, including whether “the decisional process would not be significantly aided by oral argument.”

It remains to be seen if the TRAP 38.1(e) statements will meet that lofty goal. It seems more likely that litigants will take the easy approach and just treat this page of their brief as a mini-summary, missing the chance to persuade the court that an oral argument might add a dimension to the case that the briefing cannot. If litigants instead take new TRAP 38.1(e) seriously, they will have to write statements that embrace the complexity of the issues in the case — perhaps acknowledging that both sides have a point to make — and going beyond merely trying to sell their side as being “clearly right” or their cause as “important.”

I’ve had some posts about oral argument at the Texas Supreme Court simmering on the back burner, but I’ll ask this question for now — a question that seems equally applicable at the court of appeals level: In what circumstances does oral argument “aid” an appellate court’s “decisional process”?

It looks like there may only be one slot left for a case to be argued this term.

In its March 7, 2008 order list, the Supreme Court of Texas set two cases to be argued on April 22, 2008 in Lubbock (at Texas Tech). And that’s the last scheduled oral-argument date on the Court’s calendar as it is posted today.

When the Court sits in Austin, it usually hears three cases. But when the Court last heard arguments at a university campus (at Baylor University last December), it heard only two cases.

I haven’t had a chance to check with the clerk’s office to see if there is another oral-argument slot remaining for the Lubbock sitting (and I’m not sure they’d be at liberty to say).

A friend pointed out to me that there is a new job listing on the Supreme Court of Texas website for a “Central Staff Attorney.” This job title is new for the Court — indeed, this listing (unlike the other listings on the page) does not currently link to a PDF file providing more details. Instead, the only information is:

Summary: Assist in preparation of opinion drafts and memoranda to Court. Applicant must have excellent legal research and writing skills, at least three years experience as a practicing attorney and strong familiarity with appellate procedure. Law journal or equivalent writing experience preferred. Texas license required.

Currently, each of the nine Justices has his or her own staff attorney and two law clerks. The only “central” attorneys are the General Counsel (a position that, I believe, still remains open), the Attorney for Original Opinions (the mandamus attorney), the Attorney for Public Information, and the Rules Attorney. Of those, only the mandamus attorney works on written opinions for the Court.

The courts of appeals have taken a variety of approaches to assigning their staff attorneys, with some (notably the Dallas Court) preferring a large central staff while others (recently the Austin Court) have assigned staff attorneys to particular chambers. The Court may be experimenting with ways to smooth out the workload across chambers by providing additional staff resources where needed.

I’m curious to see whether the Court hiring a “central staff attorney” signals a broader change in the Court’s internal practices or if this is merely a single position for which the Court has found some funding. If any readers have some insight, please let me know. [Update: I’ve been advised that this new “central staff attorney” position is indeed a separately funded position that came out of the last legislative session aimed at helping the Court deal with its workload.]

In re Karyl Anderson Krug, No. 08-0082. This petition for mandamus relief was denied in today’s order list — just two days after it was filed. This is another election-related case. This one concerns an allegation that a candidate is improperly using the title “judge” in campaign materials. The Texas Lawyer Blog suggests that “Krug’s effort to force the Texas Ethics Commission to act immediately [on this complaint] … was short-lived.”

I think that probably overreads the Texas Supreme Court’s action today. The order list cites to Texas Rule of Appellate Procedure 52.3(e), which generally requires mandamus petitions to first be presented to a lower court. That’s the same rule that the Court cited a few weeks ago in dismisslng the first mandamus petition filed by LaRhonda Torry. After Ms. Torry did go through the lower courts (a process that took just a few days), the Texas Supreme Court subsequently granted her mandamus relief in a second proceeding. In re Torry, No. 08-0057.

The Court retains discretion over whether to invoke this aspect of Rule 52.3(e). Here’s what the rule says:

(e) Statement of jurisdiction. The petition must state, without argument, the basis of the court’s jurisdiction. If the Supreme Court and the court of appeals have concurrent jurisdiction, the petition must be presented first to the court of appeals unless there is a compelling reason not to do so. If the petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals.

The Court’s action in dismissing these election-related mandamuses speaks volumes about its faith in the ability of the lower courts of appeals to handle mandamus petitions expeditiously. So, an election looming weeks or months away may not be sufficient grounds to skip the lower courts, without some particularly “compelling reason.”

The practice tip is this: Unless yours is a truly exceptional case, take your mandamus petition to the court of appeals and follow whatever procedures that court’s clerks office says are appropriate to signal to the court that expedited action is needed. (That may be a certain notation on the cover, a separate motion, or arranging with the clerk’s office in advance for a courtesy copy to be sent electronically in addition to the paper filing. Each clerk’s office may have different expectations, and calling to ask these questions is itself a good signal to the court that your petition is a time-sensitive one.) The lower court will almost certainly act expeditiously. If it for some reason does not, then present your petition to the Texas Supreme Court with an explanation of the steps you have taken.