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Mark Werbner and Christopher Hogue quoted in Texas Lawyer Newspaper article

Voting Independent: Shifting Majorities, Vigorous Dissents Characterize Court’s Term

Texas Lawyer

By John Council

It wasn’t long ago that Texas Supreme Court Justice Harriet O’Neill’s name most commonly was affixed to dissenting opinions, as she flailed against a conservative majority on the court that often outvoted her.

So it came as a surprise to several appellate lawyers when they learned that O’Neill — once a member of a moderate group of justices who often controlled the court nearly a decade ago — topped her colleagues with 12 signed majority opinions. That’s the most issued by any of the nine justices during the 2007-2008 term, which ended Aug. 31.

“She had been the lead dissenter the last two years,” says Kurt Kuhn, a partner in the Austin office of Brown McCarroll who studies voting trends on the court. “And now she’s re-emerged as a power on the court.”

“I suppose I’m getting persuasive in my old age,” says O’Neill, who is second in seniority on the court and also wrote three dissenting opinions during the term. “Some you win, and some you lose. And I guess I just had a bunch in one corner.”

Kuhn and three other appellate lawyers believe there’s another reason why O’Neill spoke for the court more often than any other justice during the past term. Up until August 2005, there was near constant turnover of the nine justices on the court. But as the court enters its fourth year with no turnover, newer justices are becoming more confident and independent in their judicial philosophy, they say. It’s the longest the court’s membership has stayed constant since 1967, says Nathan Hecht, the court’s most senior justice.

“As the court matures, different people take on different roles. And, given the opportunity, she’s found the chance to become the voice of the court more often,” Kuhn says.

“She’s pulling off one or two people to have a moderate opinion,” Kuhn says. “And the dissent will say ‘This is not what the statute says.’ ”

A good example of that is O’Neill’s Jan. 11 majority opinion in PAJ Inc. v. Hanover Insurance, one of the slew of contentious insurance coverage cases the court issued during the term. That 5-4 opinion made it more difficult for insurance companies to deny coverage to policyholders who fail to report claims against them, as long as the delay does not prejudice the insurer. A few years ago, O’Neill may not have won the votes to get a majority opinion in that case, Kuhn says.

“It’s not a strict-constructionist type of case. It’s more of a reasoned approach,” Kuhn says, calling the PAJ Inc. opinion “classic O’Neill.”

Warren Harris, a partner in the Houston office of Bracewell & Guiliani, agrees with Kuhn about O’Neill’s influence. And one of Harris’ clients benefited from O’Neill’s persuasiveness.

Harris represented Frank’s Casing Crew & Rental Tools Inc. in one of the term’s most anticipated decisions of 2008: a rehearing of a 2005 decision finding that insurers have an extracontractual right to reimbursement from an insured for settlements paid to a third party without the insured’s express consent. After numerous amici screamed about the decision and the havoc it created in the settlement process, the court reversed course in a Feb. 1, 5-3 decision in Excess Underwriter’s at Lloyd’s, London, et al. v Frank’s Casing Crew & Rental Tools Inc. — another majority opinion O’Neill wrote.

The most recent Frank’s Casing ruling returned the court to a holding that more closely resembles O’Neill’s 2000 majority 7-2 opinion in Texas Association of Counties County Government Risk Management Pool v. Matagorda County. That ruling found that for an insurer to have a right of reimbursement, it must obtain the insured’s clear and unequivocal consent.

Three justices who had been in the majority in the 2005 decision changed their minds on rehearing to reach their decision in the 2008 Frank’s Casing decision [See “Justices Reverse Course in Frank’s Casing After Amici Outcry” Texas Lawyer, February 11, 2008, page 1].

That majority opinion — like many others O’Neill authored — shows the appellate bar that there aren’t many voting blocks into which the justices are locked. And that makes it easier for O’Neill to pick up votes, Harris says.

“Instead of having five or six votes that were of a particular mindset, you’ve got more independent judges now,” says Harris, who adds that O’Neill has “always been a leader on the court.”

O’Neill’s success as a majority opinion writer was really more dependant on the random cases she drew during the court’s conferences, says Justice Scott Brister, who wrote 11 majority opinions during the term, just one shy of O’Neill’s total.


“It’s that each case is different,” Brister says. “I don’t think it’s that Justice O’Neill changed or the majority of the court changes. It’s just the people make up their own minds.”

Vigorous Dissent

The independence of the justices on the court is also translating into more vigorous dissents in opinions, four appellate lawyers say.

“People are getting their sea legs under them,” says Jeff Levinger, a partner in Dallas’ Hankinson Levinger, of the rising dissent on the court. “As the cases get tougher, the language gets more emotional, and that’s to be expected.”

One topic that sparked colorful dissent was the court’s willingness to loosen standards on when to grant mandamus review.

The biggest opinion on that issue was the 6-3 May 16 decision in In Re: McAllen Medical Center Inc. The court expanded its jurisdiction for interlocutory review of petitions for mandamus when the purposes of the state’s pre-2003 heath-care statute otherwise would be defeated.

Justice Dale Wainwright began his dissenting opinion with lyrics from the Disney song “A Whole New World” to emphasize that the majority’s opinion in the case means “a whole new world of mandamus practice” is here.


Such dissents show that while the court may be all-Republican, it is not monolithic, Wainwright says.

“If anybody could be a fly on the wall during conference . . . the views on any particular case are not particularly aligned. We can write an opinion that honestly reflects that,” Wainwright says. “Keep in mind we don’t trade votes. To get someone to join an opinion, you have to have the right analysis and the right result. That’s a matter of convincing the intellects of the correct analysis, not trading votes.”

Justice Paul Green wrote an even stronger dissent in June 13’s General Electric Co. v. Moritz, a 5-3 opinion in which the high court overturned Fort Worth’s 2nd Court of Appeals by affirming a trial court’s decision to dismiss a premises liability suit the defendant won on summary judgment.

Green’s lengthy dissent in that case marked the first time in recent memory that the majority was accused of abandoning long-standing legal principals to “shield” defendants from liability.

Green points out that the dissent wasn’t personal.

“Outside observers might have thought it was more strident, but whatever,” Green says of his dissent in Moritz. “I wouldn’t write an opinion that would damage any relationships, and I certainly didn’t do that.”


And there was dissent in the most politically charged case of the term, Perry Homes, et al. v. Cull, et al. That case received attention from the media and consumer groups, because Bob Perry, the owner of Houston-based Perry Homes, has donated thousands of dollars to the campaigns of each of the justices on the court. The homebuilder is also a well-known leader in the tort reform movement in Texas.

Perry Homes won a 5-4 decision on May 2 that overturned an $800,000 arbitration award against the company. The majority ruled that the homeowners who sued the company in a construction-defect case waited too long to compel arbitration, thereby prejudicing the defense.

In separate dissenting opinions, Justices Phil Johnson and Don Willett wrote that there was no reason to overturn the trial court’s ruling approving arbitration in the case, even though the parties had completed considerable discovery.

“It’s hard to see how the discovery of facts, witness names, documents and testimony about the controversy can prejudice either party,” Johnson wrote.

“If I can get the majority, I will. And if I can’t, I speak up,” says Johnson, noting there’s nothing personal about his dissents. “That’s my job.”

And Willett, who received a total of $75,000 from Bob Perry and his related political action committee — the most of any of the justices — also wrote that the trial judge’s ruling ordering arbitration should have been be upheld, because the judge did not act arbitrarily.

Willett considers his dissent in Perry Homes “as gentle as a lamb.” And the tenor of dissents depends on the issues the court faces, he says.

“In terms of perceived rancor, one term may resemble ‘The Osbornes,’ and the very next term may resemble ‘Little House on the Prairie,’ ” Willett says. “It turns in large measure on the nature of the cases we’re deciding, not on the nature of the judges deciding them.”

Bucking the Backlog

One of the court’s biggest accomplishments of the term was simply reducing the big backlog of decisions in cases that had been argued but had pended for as many as three years without a corresponding opinion.

At the end of the court’s 2006-2007 term, it had 60 cases left on its docket that had been argued or submitted but not decided. At the end of the 2007-2008 term, it had 47 such cases pending, ending an eight-year trend of having more argued or submitted cases awaiting a decision at the end of a term than the previous term, according to a report by Austin solo Pamela Stanton Baron, which she presented to the State Bar of Texas Advanced Civil Appellate Practice in Austin two weeks ago.

In fact, the court issued a staggering 22 opinions during its last hand-down of the term on Aug. 29.

The lack of turnover on the court helped the court concentrate on getting opinions out the door, Wainwright says. It takes a new judge on the court a considerable amount of time to get up to speed with the court’s work, several of the justices say.


“The cases that are around a long time are not sitting in a corner gathering dust. They are being discussed,” Wainwright says. “And with no turnover, we can get that process completed more simply now.”

The court has 40 to 60 draft opinions pending at any one time, Wainwright says, and Chief Justice Wallace Jefferson kept the court focused on completing smaller groups of opinions that were close to resolution.

“I think the chief provided some good leadership,” Wainwright says.

“I put [out] a priority list, as a matter for discussion at conference, and we tried to tackle the ones that were close and tackle the ones that had been on the docket a while,” Jefferson says.

Two justices also experienced some out-of-court distractions during the term, including a complaint filed in January with the Texas Ethics Commission by citizen’s group Texas Watch against Green, alleging he violated state election law by reimbursing himself $16,761 from political contributions for travel between Austin and his home in San Antonio. [See “Texas Watch Files Ethics Complaint Against High Court Justice” Texas Lawyer, Jan. 1, 2008, page 1.]

Green denies violating the law and says he has resided in Austin since he took office in January 2005. The complaint hasn’t affected his work at the court, he says.

And Justice David Medina was also the focus of media attention when his wife, Francisca, was indicted by a Harris County grand jury on April 30 on three felony arson charges in connection with a fire at their home in Spring. Another grand jury had indicted both David and Francisca in January, but the charges were later dropped by a state district judge at the request of the Harris County District Attorney’s Office. The second grand jury declined to indict David Medina. Both have denied any wrongdoing. [See “Second Grand Jury Indicts Justice David Medina’s Wife; Judge Dismisses First Grand Jury’s Declaratory Judgment Suit” Texas Lawyer, May 5, 2008, page 5.]

Medina, who declined to discuss the criminal case in detail, says the matter has not affected his work at the court.

“Not at all,” he says. “That’s certainly reflected in that all my assignments are turned in and done,” Medina says of his assigned opinions.

And on the final day of the term, when the court pushed out a crushing number of opinions, a group of lawyers and clients gathered in a Dallas law office to celebrate the release of one of the court’s longest-pending cases: Columbia Medical Center of Los Colinas v. Hogue, et al.

Not only was the decision a rare win for a plaintiff at the court, it also represented an even rarer circumstance of the court upholding punitive damages in a medical malpractice case in which a hospital was hit with a multi-million dollar jury verdict.

One of the plaintiffs in that case, Christopher Hogue, was in his first year at Texas Tech Law School when the case was tried in 2001. Hogue is now an associate with Sayles | Werbner, the plaintiff’s firm that represents him and his family in the case. In that case, they allege the hospital committed gross negligence that resulted in his father’s death. Hogue and his family waited nearly three years for the high court to rule on the case [See “Justice Delayed,” Texas Lawyer, September 17, 2007, page 1].

“It was special because of the fact that he’s in the firm now. We got a bottle of champagne. And we haven’t been able to do that very often in appellate decisions,” says Mark Werbner, a partner in Sayles | Werbner “But there were some tears there. It was bittersweet for Chris.”

“I think everybody was a little bit surprised,” Hogue says of the decision. “You want to stay as positive as possible. But my Mom summed it up pretty well. She said it was a vindication of my father. ”

And Werbner believes the decision may say something else about the high court.

“I hope that this breaks a trend,” Werbner says. “And that the dispute that existed in the court on this case signifies some independence of the justices from some of the extreme rulings of the past.”?

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