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In the heat of the Austin summer, one of the best places to catch a breeze in the Capital is near the front door of the Texas Supreme Court building where justices come and go at a furious pace. The 2003-2004 term saw the retirement of Justice Craig Enoch; Gov. Rick Perry’s appointment to the court of Justice Scott Brister; the Republican primary election defeat of Justice Steven Wayne Smith; and President George W. Bush’s nomination of Justice Michael Schneider to a U.S. District Court bench. But the announced departure of the court’s longest-serving member, Chief Justice Tom Phillips, amounted to one of the term’s most significant moments. Phillips, who was appointed by then-Gov. Bill Clements to the high court in 1988, will join the increasingly long list of former Supreme Court justices when he steps down on Sept. 3. In his 16 years on the high court, Phillips has served with 29 different Supreme Court justices. The consistent departures have turned junior justices into senior justices in a matter of years. For example, Justice Harriet O’Neill, who joined the court in January 1999, will become third in seniority next term, behind Justices Nathan Hecht and Priscilla Owen. “It’s amazing,” O’Neill says of her rapid ascent in seniority. “It’s not a good thing.” The constant turnover has made a big impact on the court’s opinion production, O’Neill says. As of Aug. 26, the court has issued 48 majority opinions during the 2003-2004 term — down from its annual average of just more than 60 majority opinions during the mid- to late-1990s. The court also had to extend the present term into the first week of September so Phillips could vote on some key cases, several justices say. “Turnover has a dramatic effect. It takes time for a new judge to get up to speed,” O’Neill says. But there are other reasons for the slowdown, she says. “The Legislature did require us to do some rule-writing, and the Legislature cut our staff. So we have to do more with less staff.” There are various reasons why justices have departed from the court over the years. But for those who left the court willingly, the overriding issue seems to be pay, O’Neill says. Supreme Court justices make $113,000 a year — a pay level that hasn’t changed in more than seven years. Most of the justices’ law clerks easily exceed an annual salary of $113,000 when they leave their yearlong clerkship at the high court and join a large law firm. “You see people whose kids are getting college in sight and they can’t afford it anymore,” O’Neill says of justices who serve on the court. Phillips’ decision to leave the court, which he announced on April 29, partly was over his frustration at the Texas Legislature’s refusal to pass legislation replacing partisan judicial elections with a system in which the governor would appoint judges who later would face voters in retention elections. And after reaching a certain point in his career it was just time to go, says Phillips. He’ll become a professor at South Texas College Law in the fall and teach constitutional law. “It was time for the system to absorb a change in leadership,” Phillips says. “I just didn’t have the heart for another legislative session. The Young Ones The turnover at the court also is due in part to a youth movement — a trend that Phillips started 16 years ago when he became chief justice of Texas’ highest civil court at the tender age of 38. “The judicial system is not designed with 30-year-old judges in mind,” Phillips says. “Thirty years ago, people came to the court in their 50s and 60s” after a full legal career, Phillips adds. Now young, energized lawyers with a desire for public service are running for benches all across the state. A job on a bench is no longer a career-capping move, he says. “Not to dump on a good thing, but the whole pension structure encourages young judges to retire . . . beyond 20 years,” Phillips says, who has 23 years of judicial service under his belt, including seven years he spent on a state trial bench. Judges can reach retirement age after 20 years of service, allowing them to collect a majority of their judicial salary and collect a private-practice paycheck at the same time. “It makes no monetary sense to stay after you reach 20 years,” Phillips says. Many court observers wonder if justices such as Dale Wainwright will be willing to stick it out at the court long enough to collect a pension. Wainwright — a young, bright justice who was 41 when voters elected him to the high court in 2002, likely would have his choice of top firms to join should he decide to step down anytime soon. But Wainwright says he doesn’t plan to leave the court in the near future. “I like being a judge and expect to be here a long period of time, the people of Texas willing,” Wainwright says. Wainwright was elected to the high court after serving as a civil trial court judge in Houston and practicing as a litigator in the Houston offices of Haynes and Boone and Andrews Kurth. Wainwright, who has three children who range in age from 6 to 17, says his family is happy with his decision to forego a higher salary to serve on the Supreme Court. “Am I saying the judiciary of Texas is adequately compensated? No,” Wainwright says. “No one forced me to do it. I decided and had choices. You don’t often get the chance to serve in this position.” Justice Wallace Jefferson is in much the same career position as Wainwright. Jefferson was 38 when Gov. Perry appointed him to the high court in 2001. Jefferson left a successful appellate practice as a partner in San Antonio’s Crofts, Callaway & Jefferson when he took the bench. “The point is, everyone realizes that it’s public service,” Jefferson says. “To become wealthy is not part of the job. But the other question is can you live on the salary? And I think most judges will do it for as long as they can.” No Crystal Ball The turnover and meager opinion production at the all-Republican Texas Supreme Court makes appellate lawyers’ jobs more difficult, several practitioners say. Those factors make it tough to predict how a particular judge will view a particular case, they say. [See "Texas Supreme Court Caseload," page 39.] “We don’t know who is going to be there for cases that are in the clay,” says Chip Orr, an appellate lawyer and associate with Dallas’ Haynes and Boone. “Over time, you get a sense of what interests certain judges. And for some of the new judges, there’s not a lot out there to tell how they view a case. It’s a much more difficult process for that very reason.” Take one of the biggest decisions of the court’s most recent term, Coastal Transport Co. v. Crown Central Petroleum Corp. On May 14, the court held that a party that fails to object to the admissibility of expert testimony before or during trial nevertheless may challenge the legal sufficiency of the evidence in a subsequent appeal. The Coastal decision could cut into every aspect of civil litigation in Texas. And it followed a 1998 opinion, Maritime Overseas Corp. v. Ellis, in which the high court held that an objection to the admissibility of expert testimony before or during a trial is required only when the challenge to the expert testimony is due to the underlying methodology used by the expert witness. Then-Justice James Baker wrote Maritime Overseas. Then-Justices Enoch, Rose Spector, Greg Abbott and Deborah Hankinson joined Baker in the opinion. “Not a one of them left on the court,” says David Keltner, an appellate lawyer and partner in Fort Worth’s Jose, Henry, Brantley & Keltner, referring to the Maritime Overseas majority. “And that’s an interesting situation.” It’s much the same with Coastal, which was a unanimous opinion written by Justice Schneider. “It’s written by Schneider, who’s leaving the court, joined by a whole lot of people who may not be there” in a few years, Keltner says. While Coastal tracked Maritime Overseas by following similar reasoning, appellate lawyers still worry about who will be on the court the next time the expert witness issue comes up, Keltner says. The court is comprised of intelligent and experienced justices, he says. But who’s to say that will be the case in four years? Keltner asks. “It’s a compliment to this court that people are worried about that,” Keltner says. “We just don’t know where everything is going to end up.” Warren Harris, an appellate attorney and partner in Houston’s Bracewell & Patterson, says the court has remained consistent in its decision-making in cases such as Coastal even though the court’s justice roster rotates frequently. That’s largely because the court consistently has been comprised of nine capable and intelligent justices, he says. “One way to look at it is to say when you have smart judges and they get the right answer [then] a different set of smart judges should also get the right answer,” Harris says. “But for the last decade we’ve got a conservative court that some would say has gotten more conservative. So you don’t have an ideological split. It’s a narrower swing of opinion.” Conference Calendar While appellate lawyers lament the court’s lack of opinion production and the fact that it sometimes takes one or two terms for the court to issue decisions in difficult cases, the court has taken steps to correct that during the next term, Phillips says. [See "Texas Supreme Court Cases to Watch," page 39.] This summer the court voted to change its argument and conference calendar. Instead of holding conferences every Monday, the justices will gather monthly for conference every third Monday. Conferences could extend into the next day, Phillips says. Arguments will be scheduled during one week of the month in which the court will hear three cases each day on consecutive Tuesdays, Wednesdays and Thursdays. Phillips says the change in the court’s calendar should help the justices push out the difficult and backlogged cases. The court used a similar calendar from 1994 to 1999, he adds. The justices have difficult questions to answer, Phillips says. “And it’s very hard when you meet every week and hear cases every week where you don’t have the time to wrestle those difficult cases to the ground and write a satisfactory opinion.” “We used to have conferences that lasted two-and-a-half days and three days. But the trade-off for that is two or three full weeks to write,” Phillips says of the monthly conference schedule. “I think that next year the court will reduce this backlog.” But Justice O’Neill, who opposed the calendar change, isn’t so sure the modification will help the court move cases. Justices who supported the change argued that the court produced more opinions when it conferenced once a month in the 1990s, she says. But that was also a different time, O’Neill says. “When we where conferencing monthly, we didn’t have as much turn over” of justices, O’Neill says. “But we’ll have to see.”
Going, Going, Gone Former and Soon-to-Be Former Supreme Court Justices Since 1988 Chief Justice Thomas R. Phillips (R) – Retiring in September 2004 Place 2 Ted Robertson (D) – defeated in his bid for chief justice in November 1988 Lloyd Doggett (D) – did not seek re-election in 1994 Place 3 James P. Wallace (D) – resigned in September 1988 Eugene A. Cook (R) – defeated in the November 1992 general election Rose Spector (D) – defeated in the November 1998 general election Place 4 Raul A. Gonzalez (D) – retired in January 1999 Alberto R. Gonzales (R) – resigned in December 2000 to become White House counsel to President George W. Bush Place 5 Robert M. Campbell (D) – resigned in January 1988 Barbara Culver (R) – defeated in the November 1988 general election Jack Hightower (D) – retired in January 1996 Greg Abbott (R) – resigned in June 2001 to run for lieutenant governor, then later ran for Texas attorney general Xavier Rodriguez (R) – defeated in the 2002 primary election Steven Wayne Smith (R) – defeated in the 2004 primary election Place 6 William W. Kilgarlin (D) – defeated in the 1988 general election Place 7 Franklin S. Spears (D) – retired in January 1991 John Cornyn (R) – resigned in October 1997 to run for Texas attorney general Deborah Hankinson (R) – did not seek re-election in 2002 Place 8 C.L. Ray Jr. (D) – retired in January 1991 Bob Gammage (D) – retired in September 1995 James A. Baker (R) – retired in September 2002 Place 9 Oscar H. Mauzy (D) – defeated in the November 1992 general election Craig T. Enoch (R) – retired in October 2003
Texas Supreme Court Cases to Watch The Texas Supreme Court has plenty of interesting cases in the hopper. The trouble is, the more interesting or controversial the case, the longer it takes the court to write an opinion. Turnover among the court’s justices has a lot to do with that. In fact, the Supreme Court has extended its 2003-2004 term into the first week of September so that retiring Chief Justice Tom Phillips can participate in a last-ditch effort to push out some of the more difficult opinions. The court typically does not end its term in September. The following is a list of some of the pending cases — as of Texas Lawyer’s presstime on Aug. 26 — for which attorneys are eagerly awaiting opinions: * Excess Underwriters at Lloyds v. Frank’s Casing Crew and Rental Tools Inc., argued on Sept. 24, 2003: This case deals with an insurance company’s ability to seek reimbursement from the insured for monies paid when there is a later determination that there was no coverage for the insured. * FFE Transportation Services v. Fulgham, argued on Oct. 29, 2003: This case shows the court’s continuing interest in the admissibility and use of expert witness testimony. The main issue deals with when expert testimony is required and the standard of review for when expert testimony is needed. * New Times v. Isaacks, argued on Dec. 3, 2003: This case involves an issue of first impression concerning whether satire is a protected form of free speech. At issue is whether two public officials may sue a Dallas alternative newspaper for libel for attributing admittedly made up and absurd quotes in the article to the plaintiffs. * Harry Joe and Jenkens & Gilchrist v. Two Thirty-Nine Joint Venture, argued on April 14: This case could decide whether a lawyer-legislator can be sued for failing to inform clients of any pending legislation that might affect their interests adversely. * Tooke v. City of Mexia, argued on April 21: This case deals with the waiver of sovereign immunity, a constant issue at the Texas Supreme Court. At issue is whether language in civil enabling statutes that says a government entity may “sue and be sued” waives sovereign immunity. ” Volkswagen v. Ramirez, argued on April 23: This case deals with the trial court’s ability to grant a motion for new trial. The issue is whether an order granting a new trial is reviewable on appeal after a second trial. Numerous amicus briefs have been filed in this case. — JOHN COUNCIL
Texas Supreme Court Case Workload 2003-2004 Term Justice — Majority — Per Curiam — Concur — Dissent — Concur and Dissent Scott Brister — 4 — 2 — 1 — 2 — 0 Craig Enoch* — 1 — 0 — 0 — 0 — 0 Nathan Hecht — 6 — 6 — 4 — 2 — 0 Wallace Jefferson — 5 — 0 — 1 — 1 — 0 Harriet O’Neill — 6 — 5 — 3 — 0 — 1 Priscilla Owen — 7 — 4 — 0 — 0 — 1 Thomas Phillips — 7 — 4 — 0 — 1 — 0 Michael Schneider — 4 — 5 — 2 — 2 — 0 Steven W. Smith — 3 — 2 — 1 — 1 — 0 Dale Wainwright — 5 — 3 — 2 — 1 — 0 Totals — 48 — 31 — 14 — 10 — 2 * retired on Oct 1, 2003 Source: clerk of the Texas Supreme Court

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