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In a first-of-its-kind suit, a group of Texas watchdog groups and individuals are challenging the Texas Supreme Court’s policy of not disclosing the justices’ votes on petitions for review. Four groups and six individuals filed Aguire, et al. v. Phillips, et al. on May 21 in the U.S. District Court for the Western District of Texas in Del Rio. The plaintiffs want the federal court to declare that the supreme court’s failure to make public the justices’ votes on appeals violates their rights under the First and 14th Amendments to the U.S. Constitution and federal common law. State and federal courts previously have addressed the public’s right to have access to the judicial process, but the question of whether that right extends to justices’ votes on petitions for review has not been asked before, says Bonita Tenneriello, lead counsel for the plaintiffs in the suit. Cris Feldman, attorney for Texans for Public Justice, one of the plaintiffs, says the state’s highest civil court currently rejects nine out of 10 appeals on a secret ballot. “In America, this system of secret justice is unacceptable,” Feldman says. Fourteen states — including California, Indiana, Louisiana, Michigan and Ohio — routinely disclose the voting records of justices on their supreme courts, he says. “The challenged procedure is the same practice used by the U.S. Supreme Court and by this court for over a century,” says Texas Supreme Court spokesman Osler McCarthy. Tenneriello, an attorney with the National Voting Rights Institute, a Boston-based nonprofit legal center that specializes in campaign finance litigation, says the accountability issues with an elected judiciary don’t apply to the U.S. Supreme Court, where the justices are appointed for life. In “Pay to Play,” a report released in 2001, TPJ cited a direct correlation between the amount of money an appellant contributes to state Supreme Court justices and the likelihood that the appellant’s case would be heard. TPJ, a nonprofit research and advocacy group, reported that 52 percent of the campaign contributions received by the 10 justices who faced election from 1994 through 1998 came from lawyers and parties with petitions before the court. Contributors were four times more likely to have their cases heard by the court during the period studied, the report said. In an analysis of the “Pay to Play” report, McCarthy says TPJ considered only campaign contributions and no other factors — such as the issues presented in the petitions accepted for review during the study period. According to McCarthy’s analysis, the report is “as worthless as a man-on-the-street survey.” A STRONG INTEREST Under the court’s policy, four of the nine justices must vote to hear a litigant’s petition for review before it can be considered. Chief Justice Tom Phillips, a defendant in Aguirre, defended the court’s practice of not announcing the votes in a 1992 opinion in The Dallas Morning News, et al. v. 5th Court of Appeals. In that opinion, Phillips said the court’s tradition of not publishing dissents or concurrences regarding decisions as to the composition of its docket has served it well. The court’s decision to decline to hear a case is not an adjudication on the merits, Phillips said in the opinion. “The only meaning of the ruling is that the case will not be heard,” he wrote. But Justice Nathan Hecht, in a 1996 dissenting opinion in Maritime Overseas Corp. v. Ellis, said there is less need for confidentiality in the votes on applications than in other aspects of the court’s deliberations. Hecht wrote: “If our votes on applications [for review] were always public, some would change. … I am forced to conclude that the time has come for the court to make public its votes on applications.” Tenneriello says every member of the public has a strong interest in “an open and transparent judicial process.” She says voters need information on Texas Supreme Court justices’ votes to accept or reject cases to make informed choices at the polls, and candidates for that court need the information to know how to run their campaigns. Lawyers need the information so they can advise their clients whether it’s worth taking an issue back to the supreme court when the composition of the court changes, she says. Says Tenneriello, “This public interest is what underpins the First Amendment right to know the votes on these petitions for review.”

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