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In talking about Attorney General Alberto Gonzales as a possible Supreme Court nominee, conservatives and liberals alike have focused on the one abortion rights case he tackled as a justice on the Texas Supreme Court. While that decision may illuminate Gonzales’ views on a sensitive issue, it does little to advance an understanding of how Gonzales — if nominated and confirmed to replace retiring Justice Sandra Day O’Connor — would deal with the types of cases that come before the U.S. Supreme Court most often. On the surface, Gonzales’ two-year stint on the Texas high court could be categorized by some as a study in contradictions. In the 14 majority opinions he wrote, he sometimes ruled for plaintiffs and sometimes dramatically reduced their damage awards. He ruled in favor of insurance companies in coverage disputes and made them unwillingly honor the policies they issued. And he penned a now often-cited opinion that makes it harder to certify cases as class actions in Texas. While Gonzales’ conclusions weren’t always easy to predict, he seems to have been unerringly consistent in one respect: He rarely strayed from the law laid down by the legislative branch. “He always played by the rules, or by the rules of appellate decision-making,” says Deborah Hankinson, a Texas Supreme Court justice from 1997 to 2002 who led the court’s moderate bloc. “Sometimes he and I disagreed, and sometimes we agreed. But I never questioned that he was doing his job as a judge and nothing else.” DOWNGRADING DAMAGES Like many of the justices on the court at that time, Gonzales, in his opinions, often eliminated punitive damages in plaintiffs’ verdicts, finding that the evidence did not support such an award. But usually those opinions left awards of actual damages intact. The first opinion he wrote was General Motors Corp., et al. v. A.J. Sanchez, et al., a unanimous 1999 ruling in a products liability case. Gonzales reversed the intermediate appellate court’s ruling and eliminated the punitive damages a jury awarded to the family of a man who died when his pickup truck rolled into him, pinning him against a fence. Gonzales ruled that the award of punitive damages was not supported by the evidence, but he let the plaintiffs keep the actual damages awarded by the jury. The decision reduced a final judgment totaling $8.5 million to about $1.3 million. “It was one of those things where it could have been worse,” says Russell “Rusty” McMains, the Corpus Christi solo practitioner who argued the case to the high court on behalf of the victim’s family. McMains remembers that Gonzales asked few questions during the 1999 oral arguments in Sanchez. “He had some opportunities to do a lot more damage in my case, but he didn’t,” McMains says. “He could have held in such a way to essentially acquit GM of any liability, but he did not do that.” Ruth Malinas, a partner in San Antonio’s Ball & Weed who represented GM, says the opinion was in the mainstream of Texas Supreme Court jurisprudence at the time. “The way I’ve always looked at . . . Sanchez is [that the Texas Supreme Court] followed the law,” Malinas says. “Our problem was [that] the trial court and the appellate court didn’t.” One Gonzales opinion that favored the little guy was 1999′s Texas Farmer’s Insurance Co. v. Daisy Murphy. In a 7-2 majority opinion, Gonzales allowed an “innocent spouse,” Murphy, to recover insurance proceeds even though the insurance company had alleged that her husband, Robert Murphy, had intentionally set their house on fire, according to the opinion. Gonzales upheld the intermediate appellate court’s finding based on different reasons and allowed Daisy Murphy to recover the insurance policy proceeds based on a technicality, says Thomas Lee Bartlett, a Houston solo practitioner who represented Murphy. “What courts often do, they know the result they want to reach. They found a procedural technicality that allowed her to recover but maintain that an innocent spouse can’t recover under community property,” Bartlett says of the decision. “They did me a financial favor. But they didn’t do Texas jurisprudence a favor.” A Dallas plaintiffs lawyer was steamed when a 2000 decision written for the court by Gonzales, City of Fort Worth v. Julius Zimlich, reversed the intermediate appellate court’s opinion in a Texas Whistleblower Act case. A city employee had won a jury verdict against the city of Fort Worth after alleging the city wrongly denied him a promotion after he reported the illegal dumping of hazardous waste. The intermediate appellate court affirmed the jury award. But Gonzales, writing for a unanimous court, found that Zimlich had not produced enough evidence to support two of his three claims and, therefore, was not entitled to the punitive damages award. One of Zimlich’s discrimination claims, however, did survive under the ruling. The opinion reduced Zimlich’s damages award from about $2 million to $300,000. “We never understood the reasoning behind that opinion,” says Andrew Trusevich, of counsel at Quilling, Selander, Cummisky & Lownds in Dallas who represented Zimlich. “It was [affirmed] 3-0 at the Court of Appeals and it was [reversed] 9-0 at the Supreme Court. It was a terrible message that Gonzales sent with that opinion. [I]f you’re thinking about blowing the whistle, especially about hazardous waste, a jury of your peers might protect you, but Al Gonzales will not protect you. So don’t blow the whistle.” CLASS CRITICISM Although Gonzales was known as a justice who followed the law, he was accused of disregarding the court’s jurisdictional limits when he wrote an opinion on class action certification, arguably the most important majority opinion Gonzales authored while on the Texas Supreme Court. Southwest Refining Co. v. Bernal (2000), a 6-3 decision, involved 900 plaintiffs who were mounting a class action in connection with a 1994 refinery explosion that allegedly exposed them to varied levels of toxic chemicals. The defense filed an interlocutory appeal challenging the certification of the class and alleging the class members didn’t have similar claims. In Bernal, the majority opinion penned by Gonzales reversed the intermediate appellate court’s decision modifying the certification order, and it established rules making it harder for judges to certify a plaintiff class. This opinion brought Texas’ class certification rules more in line with the federal rules at the time, three appellate lawyers say. Out of Gonzales’ 14 majority opinions, Bernal is the one that is most often cited in state appellate court briefs and decisions, the appellate lawyers say, because it set the standard in Texas for how to correctly certify a class action. The three dissenting justices in Bernal argued that the majority had no business deciding the class certification issue because, at that time, interlocutory appeals were only supposed to be handled by intermediate appellate courts. Andres Pereira, a member at Houston’s Fleming & Associates who represented the plaintiffs in Bernal, says she believes Gonzales’ majority opinion “did show a bit of judicial activism because on the issue of whether a class certification could be reviewed by the Supreme Court, it was fairly clear that it could not.” Craig Enoch, a former justice who sat on the Texas Supreme Court for 11 years before resigning in 2003, wrote the dissent in Bernal. “It was an excellent opinion. But the problem was, the state of Texas said we didn’t have the right to review an interlocutory appeal,” says Enoch, now a partner in the Austin office of Winstead Sechrest & Minick. “I was out-gunned on it. And so be it,” Enoch says. “The court agreed with Al that it ought to be reached, and that’s about all I can say.” DEBATING JANE DOE But it is a concurrence Gonzales wrote in one of a series of abortion notification cases — In Re Jane Doe — that has garnered the most attention of activists on both the right and the left. In that June 22, 2000, opinion, the Texas Supreme Court struggled over a newly enacted Texas law, the Parental Notification Act. The act allowed for a “judicial bypass,” whereby a minor could avoid telling her parents she was getting an abortion if she could convince a state district judge that she had a good reason. The majority in In Re Jane Doe allowed the minor to obtain a bypass, finding she was sufficiently mature, demonstrated the necessary level of knowledge, and was informed about the consequences. But conservatives on the court resisted granting bypasses to minors by construing the act narrowly. In his concurrence, Gonzales criticized a dissent in which Justice Nathan Hecht wrote that he would not have allowed the bypass. Gonzales wrote that Hecht’s views on the act didn’t mesh with Texas law. Then-Justice Priscilla Owen wrote a separate dissenting opinion similar to Hecht’s that also would not have allowed the judicial bypass. It was Gonzales’ criticism of the dissenters that senators brought up time and again during the four-year confirmation battle over Owen’s nomination to the U.S. Court of Appeals for the 5th Circuit. The Senate finally confirmed Owen in May. “To construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism,” Gonzales wrote. “As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot write the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the legislature has elected not to do so.” In a 2002 interview with Texas Lawyer, Gonzales said it was unfortunate that so much was made of his concurring opinion in In Re Jane Doe. He supported Owen’s nomination to the 5th Circuit, saying he believed she was well qualified. “Judges disagree all the time,” Gonzales said. “Even judges who approach cases the same way are going to come out with different results sometimes.” It is his Jane Doe concurrence that offers a clear picture of Gonzales’ judicial philosophy, says David Keltner, a partner in Fort Worth’s Jose, Henry, Brantley & Keltner. The concurrence also echoes the promise then-Gov. George W. Bush made when making nominations to the Texas bench: He chooses people who will follow the law and “not make law from the bench,” Keltner says.
John Council is a senior reporter for Texas Lawyer , the ALM publication where a version of this article first appeared.

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