Should have added these two bills to the “will be sued over” list.
Republican state leaders’ plan to create two new types of statewide courts is facing backlash from critics who say they are unconstitutional and will unfairly benefit large businesses and strip legal cases away from Democratic judges.
The courts — one for cases involving state agencies or laws and another for large-dollar commercial disputes — were approved by the Texas Legislature and signed into law by Gov. Greg Abbott last month.
Abbott was an early supporter of the business court, whose seven judges he will personally appoint, saying it would help keep Texas an attractive place to do business and also bring a more “intellectual, methodical, judicial approach” to complicated cases that can often drag on for years in other courts.
Bill author and state Rep. Andrew Murr, R-Junction, said it would help Texas “strengthen its reputation as the best state in which to do business.”
More than two dozen other states have some form of business or complex litigation court.
Some have argued that the Texas Constitution doesn’t give Abbott the power to appoint judges to the business court. Further, they say both the business court and the new appellate court for litigation affecting Texas state agencies have statewide reach that isn’t legal.
As civil suits typically require some kind of harm or impact for a litigant to have standing, a legal challenge to these laws likely won’t come until the courts open up Sept. 1, 2024.
The two courts are legally intertwined in that appeals in the business court would be heard by the new statewide appellate court. Judges in the appellate court would be elected by voters statewide.
Steve Vladeck, a constitutional law professor at the University of Texas at Austin, wrote in a letter to lawmakers in April that a new appellate court can only legally be created by constitutional amendment, not by legislation. Constitutional amendments must be approved by Texas voters.
As for the business court, Vladeck said if not by constitutional amendment, lawmakers would need to create multiple county-specific district courts, rather than a single statewide district with spread-out divisions, and with judges who are elected, not appointed.
“Reasonable minds can certainly disagree about the policy wisdom of creating a statewide business court,” he said. “The critical point for present purposes is that, for better or worse, the Texas Constitution does not empower the Legislature to create such a tribunal.”
Texas already has 14 appellate courts that hear challenges that come up from state district courts. The new 15th Court of Appeals, established under Senate Bill 1045, will hear cases involving any state agency, board or other entity or state officer if it relates to their official duties. Its five justices, including a chief justice, will be elected statewide.
State Sen. Joan Huffman, a Houston Republican and former prosecutor and judge, said the new appellate court will reduce the burden on the Austin-based 3rd Court of Appeals, which she said frequently transfers cases to other districts because of its heavy caseload. The Austin court, as well appellate courts in Houston and Dallas, flipped blue in 2018.
David Coale, a Dallas appellate lawyer who was among those who raised constitutionality concerns about the new courts, said it’s hard to say whether politics was the driving force behind the proposal, but there’s no doubt it was a “substantial factor.”
“Whether (it was) a well-founded factor or not is another matter entirely, but it’s a lot easier to get support for something if you can say, ‘Look, the other team is gaining on us,’” Coale said. “There’s no question it made it politically more attractive.”
Third Court of Appeals Judge Gisela Triana, who said she spoke on behalf of all five justices on the bench, said the state’s Office of Court Administration has no way to identify and count cases involving the state in order to analyze whether a new court is necessary.
Triana said she reviewed cases from 2016 to 2022 and found that state-related cases that will go to this new appellate court made up less than 10 percent of the court’s docket.
“The five-justice court would have approximately 130 cases total per year,” Triana said. “Right now, the 80 justices we have statewide carry a load of about 130 cases each. What that means is this court of five would basically be doing the work of one justice.”
See here for my increasingly incomplete list of bills expected to be sued. As the story notes, not everyone agrees with Prof. Vladeck, so you can be sure this one will make it to the Supreme Court, perhaps quickly for a temporary restraining order, likely in a few years for the merits. If there’s no TRO and the judges for these courts get appointed, then I think we can safely predict how the merits case will go, but still.
What is clear is that this is about partisan politics. You can make your constitutional arguments, your workload arguments, your “these issues should be decided by judges who were elected statewide” arguments, and your “other states do it like this” arguments. In the grand spectrum of Republican justifications for doing the thing they want to do, I’ve heard worse. In the end, the funniest and best resolution is for a bunch of Democrats to get elected to these benches. That will require the kind of statewide breakthrough we’ve been waiting for since the 90s, but it will happen someday. And when it does, remember that Republicans did it to themselves.