May 4, 2009
In a dark-paneled conference room in Austin, nine Texas Supreme Court justices meet at least once a month to decide whether the next batch of appeals will be accepted or declined.
Each decision carries the potential to change Texas civil law or maintain the status quo for decades to come, but nobody outside the court will know how each justice voted.
That would change under a bill by state Sen. Kirk Watson, D-Austin.
“I believe the public ought to know how those elected officials are voting,” Watson said. “My bias tends to be for giving the voters as much information as you can and letting people make their decisions.”
The court routinely receives appeals that could limit or expand patients’ ability to sue doctors, cause million-dollar swings in insurance company profits by changing coverage requirements, or affect earnings for businesses, big and small, from the oil and gas industry to auto repair shops.
It takes four votes to accept a case, though most are denied — including 87 percent of last year’s petitions for review.
Watson said the votes should be disclosed because most of the court’s decisions are on whether to accept petitions for review and because justices receive a large portion of campaign contributions from lawyers and litigants with business before the court.
“It’s pretty simple Government 101, if you ask me,” Watson said. According to Watson’s office, high courts in 11 states disclose such votes.
Watson’s bill passed the Senate Judiciary Committee unchanged, but it has languished for more than a month awaiting a floor vote. Only one pending bill has waited longer, and the session ends in less than one month.
Former Texas Supreme Court justices offer mixed reviews of Watson’s measure, Senate Bill 780.
Alberto Gonzales, the former U.S. attorney general who served as a justice for two years starting in 1999, said he worries about holding justices accountable for a preliminary vote that could mean almost anything — or nothing.
“They may not like the work of the lawyers; the briefs may be sloppy; they may think it’s appropriate for case law to mature or any number of reasons,” Gonzales said.
Austin lawyer Tom Phillips, chief justice from 1988 to 2004, said he thinks justices would feel pressured to file statements explaining their votes in anticipation of election-time attacks.
The paperwork, he said, could slow down a court that is already criticized for typically taking 14 months to render an opinion after oral arguments.
“Plus, that vote really says nothing about our legal philosophy or anything else that would cause the public to be able to cast a more intelligent vote,” Phillips said. “The work of lasting importance is in the opinions the court writes, not in the cases it chooses to take or not take. We don’t cite that 30 years ago the court refused to take Case X.”
Michael Schneider, a federal judge in Tyler, and Austin lawyers Craig Enoch and Rose Spector — all former justices on the state’s highest civil court — also oppose publicizing the votes, as does the current chief justice, Wallace Jefferson.
“If you are forced to disclose your vote, then I think it would be incumbent upon you to explain in a written opinion the vote you cast. And we have, depending on the year, 1,200 to 1,500 petitions that come through,” Jefferson said. “I think that would harm efficiency.”
But Bob Gammage, who served on the Supreme Court from 1991 to 1995, testified in favor of the bill at a Senate hearing. “Until we change the way we pick justices, the people need all the information they can get so they can make an intelligent selection,” he said.
U.S. Rep. Lloyd Doggett, D-Austin, a justice from 1989 to 1994, said Watson’s bill fits into his philosophy of increasing transparency of government functions.
Watson dismisses arguments about adding to the court’s workload.
“Time and extra work should never be an excuse for not being accountable to the public that elects you,” he said. “You should not become a Supreme Court justice and fear that people should know what your votes are.”