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Scott Brister

Let’s get rid of Democratic appellate court justices

If that’s the Legislature’s goal, then this would be an effective way of accomplishing it.

A Texas Senate committee [heard] public comment Thursday on a controversial proposal to consolidate the state’s 14 intermediate appellate courts into just seven, a move opponents have criticized as gerrymandering but that supporters say will make the courts more efficient and cure knotty court splits.

A committee substitute to S.B. 11 proposes dramatic changes to the organization of the state’s appellate districts: It would combine Houston’s two appellate courts, merge the Dallas and Austin districts together, lasso Waco and Eastland into a division with Texarkana and Fort Worth, and move two San Antonio justices to Midland in a district that would span roughly 500 miles — from Kendall County just southwest of Austin to the state’s western edge and include El Paso — among other changes.

The state’s current number and location of appellate courts largely reflects the state’s demographics, economy and travel conditions of the late 19th and early 20th centuries,
Hunton Andrews Kurth LLP partner Scott Brister wrote in a 2003 Houston Bar Association article.

Brister, who formerly served as a Texas Supreme Court justice and chief justice of the Fourteenth Court of Appeals in Houston, told Law360 the districts need to be updated and consolidated.

“I just think 14 is too many,” he said. “They’re not located where all the people and the cases are.”

Yet opponents of the consolidation plan say it is blatant gerrymandering, and the worst instance of it they’ve seen in the Texas judiciary.

Elsa Alcala, a former justice on the First Court of Appeals in Houston and Texas’ Court of Criminal Appeals, took to Twitter to call out the plan, writing “This has nothing to do with justice and everything to do with electing Republicans to the bench.”

Since the 2018 general election, a wave of Democratic justices have ousted Republican from Texas appellate benches in record numbers, largely concentrated in urban population centers.

Alcala told Law360 that in the past the Legislature has changed jurisdictions one county at a time, but lawmakers have never proposed completely eradicating certain appellate courts like the proposed committee substitute bill does.

“This is the most significant and blatant change I’ve ever seen,” she said.

S.B. 11 originally called for a realignment of five counties that are currently under the jurisdiction of two appellate courts outside of the Houston district to eliminate overlapping jurisdiction between multiple courts.

Details for the new bill were leaked and spread on social media Tuesday, but the bill’s text [hadn’t] yet been made public. Law360 has reviewed a map detailing the new appellate districts as well as a bill summary and a table explaining how the 80 Texas justices would be distributed among the new districts.

According to the bill summary, consolidating the appellate districts would balance a “highly unbalanced” workload across the courts, an issue the Texas judiciary has dealt with for years through a docket equalization program that transfers cases when needed. The summary cites workload data showing that, between 2015 and 2019, the Eighth Court of Appeals in El Paso received an average of 79 appeals per justice compared to 158 appeals per justice in the Third Court of Appeals in Austin.

[…]

During her time on the First Court of Appeals, which has nine justices, Alcala said she would frequently review opinions handed down by her colleagues to make sure she didn’t have any qualms about their rulings. But on a court with 21 justices, it would be impossible to review all those decisions, she said.

Lawyers are also concerned that larger benches could cause issues at the ballot box.

Alcala said there’s already an issue with the public being able to make informed choices during elections about the various judges on the ballot. Expanding the court’s jurisdictions would mean more judges for the public to inform themselves about before voting.

Brister acknowledged that under the committee’s substitute, voting would look different. He would be concerned if he were a judge in Texarkana on the state’s eastern border with Arkansas, for example, because under the new district alignment, there’s a good chance voters from the more populous Fort Worth would control outcomes in the district and knock some small-town judges off the bench.

Christopher Kratovil, managing partner of Dykema Gossett PLLC’s Dallas office, told Law360 he can see both sides of the consolidation argument but believes the committee’s substitute isn’t the proper way to redistrict the state.

“I do think there are some good-faith efficiency arguments for reducing the number of intermediate appellate courts in the state,” he said. “That said, this is not based on efficiency. If we’re being honest about this, it is a partisan gerrymandered map to return control of the majority of the state intermediate appellate courts to the Republican party.”

Other attorneys, like solo appellate practitioner Chad Ruback, are upset that information about the committee substitute bill hasn’t been released ahead of Thursday’s public hearing. The original version of S.B. 11 is currently attached to agenda materials for the meeting.

“That doesn’t give the appellate judiciary — or appellate lawyers who regularly practice in front of them — much time to analyze the potential ramifications of the proposed changes in advance of the hearing,” he said. “That looks awfully suspicious.”

See here for the background. Not being transparent about the process or giving anyone the time to review the bill in question is on brand for the Republicans. To give you a sense of what this looks like, here’s a picture from the story:

This Twitter thread from Dylan Drummond gives you the data:

Maybe the new Fifth Circuit, with Dallas and Travis Counties, or the Third, with Bexar County and South Texas, would lean Democratic. I’d have to do a more in depth analysis. Katie Buehler, the reporter of the story linked above, attended the hearing and reported that Sen. Nathan Johnson said it would be a 5-2 split. Whatever the case, I guarantee you that someone with strong Republican credentials has already done such an analysis, and these districts are drawn in a maximally beneficial way for Republicans. What would even be the point from their perspective if that wasn’t the case?

You’ve read many bloviations from me over the years about why calls to change the way we select judges from the current system of partisan elections to something else were mostly a smokescreen to disguise complaints about the fact that Democrats were now winning many of those elections. It has never escaped my notice that we only began seeing those calls for change after the 2008 election, when Dems broke through in Harris County, and it moved to DefCon 1 following the 2018 election. If nothing else, I thank Sen. Joan Huffman for putting the lie to the idea that the motivating factor behind those calls for change was a fairer or more equitable or more merit-based system for picking judges, or that “taking politics out of the system” had anything to do with it. No, it is exactly what I thought it was from the beginning, a means to ensure that as many judges are Republican as possible. There may well be legitimate merits to rethinking the appellate court system in Texas – I’m not an appellate lawyer, I have no idea – but it’s crystal clear that this ain’t it. This is a full employment program for Republicans who want to be judges. That’s what we’ll get if this bill passes.

Which it has now done from the Senate committee, on a partisan 3-2 vote. For a report from the committee hearing, where multiple appellate court justices from both parties testified against SB11, see Law360 and The Texas Lawbook. This is easily the biggest redistricting matter going on right now it’s getting very little attention so far. (The DMN has a story, but it’s subscriber-only, which limits the impact.) Let’s not let this slip through without being noticed.

UPDATE: The Chron now has a story as well, and it contains this knee-slapper:

Sen. Nathan Johnson, D-Dallas, also an attorney, asked Huffman if she took partisanship into consideration when making the maps.

“Some people think this is going to result in five Republican courts and two Democratic courts,” Johnson said. “Do you think that would accurately represent the partisan breakdown of this state?”

Huffman said she did not consider political makeup in drawing the maps and didn’t know how her plan might alter that.

Yeah, that’s obvious bullshit. Anyone with a list of counties per appellate district and access to recent state election results could tell you in five minutes what the likely orientation of each district would look like. Joan Huffman isn’t stupid, but if that’s what she claims then she thinks the rest of us are.

One more thing:

Another bill introduced by Huffman would create a statewide Court of Appeals that would have exclusive jurisdiction over civil cases of statewide significance filed by or against state agencies or officials. The justices on the court, seated in Austin, would be elected on a statewide ballot. No Democrat has won statewide office since 1994.

That bill was met with similar opposition and accusations of partisan motivation. It, too, was referred to the full Senate on a 3-2 party line vote.

This appears to be SB1529, and I heard about it yesterday for the first time. I have no idea what problem (real, imagined, or political) this is intended to solve. Any thoughts from the lawyers out there?

Here comes the latest school finance report

I figure the smart money is always on efforts like this to fail, but you never know.

After hours of discussion Wednesday, a state panel studying school finance stripped its final report of language that blamed the state for inadequate education spending — and that added urgency to a need for more money to improve student performance.

The original version of the report, unveiled last Tuesday, included stronger language that held the state accountable for the lack of education funding and urged lawmakers to immediately inject more than a billion dollars of new funding into public schools. Scott Brister, the panel’s chairman and a former Texas Supreme Court justice, led the charge to make those changes, which he said would be more palatable to lawmakers and keep Texas from being sued in the future.

“I do have a problem several places where it says our school system has failed. I do think that’s asking for trouble,” he said.

Some lawmakers and educators on the panel pushed back before agreeing to compromise.

“I think we have failed our schools and we haven’t funded them, in my view, adequately or equitably,” responded state Rep. Dan Huberty, R-Houston, who chairs the House Public Education Committee.

Despite the conflict, the 13-member commission unanimously approved more than 30 recommendations on Wednesday aimed at boosting public education funding, improving student performance, cleaning up a messy funding distribution system — and providing property tax relief for Texans.

A final report will be sent to lawmakers, who are convening next month amid calls from state leadership to overhaul a long-embattled school finance system. Gov. Greg Abbott supported the panel’s vote in a statement Wednesday afternoon: “Today’s school finance commission report made clear that the state must reform the broken Robin Hood system and allocate more state funding to education. This session, we will do just that.”

[…]

Among the recommendations the commission plans to send to lawmakers are:

  • $100 million a year to school districts that want to develop their own teacher evaluation metrics and tie pay to performance. The total amount available should increase $100 million each year until it reaches $1 billion.
  • Up to $150 million to incentivize school districts to offer dual language programs, which instruct students in both English and Spanish, and to improve their dyslexia programs.
  • $800 million to incentivize school districts to improve students’ reading level in early grades and to succeed in college or a career after graduating high school.
  • $1.1 billion to improve education for low-income students, with school districts that have a higher share of needy students getting more money.
  • Create a new goal of having 60 percent of third-grade students reading on or above grade level and 60 percent of high school seniors graduating with a technical certificate, military inscription, or college enrollment without the need for remedial classes.
  • Cap local school district tax rates in order to offer property tax relief and a small amount of funding for schools — a proposal from Abbott.
  • No extra funding for special education programs until the state has completed overhauling those programs in line with a federal mandate.

The report hasn’t been published yet, so this is all we know. I don’t see any reason to trust Greg Abbott, who is more interested in cutting property taxes than in providing schools with the resources they need, and of course Dan Patrick will be heavily involved in whatever happens. I think the commission has generally good motives and for the most part the ideas are fine, but we could do a lot more, and that’s before we address the huge need for special ed funding. It’s all a matter of our priorities, and of our view of what “fixing” school finance looks like. The Chron has more.

Texas Watch on the Supreme Court

Texas Watch:

The Texas Supreme Court has a long history of favoring corporate defendants over families and small businesses, according to a decade-long review of the Court’s decision making by Court Watch, a project of the non-profit Texas Watch Foundation.

Court Watch reviewed the 624 cases involving consumers decided by the Court between 2000 and 2010. The report, “Thumbs on the Scale: A Retrospective of the Texas Supreme Court, 2000-2010”, finds that the state’s high court for civil matters “has marched in lock-step to consistently and overwhelmingly reward corporate defendants and the government at the expense of Texas families.”

“The Texas Supreme Court is an activist, results-oriented body that over the last 10 years has developed into a safe haven for corporate defendants at the expense of individuals, families, and small business owners,” said Alex Winslow, director of Court Watch. “The statistics speak for themselves. The court’s pro-defendant ideology cannot be disputed.”

Among the report’s findings are:

  • Corporate and government defendants prevail in an average of 74% of cases annually.
  • Consumers have lost 79% of cases in which they were pitted against a corporate or government defendant.

These findings lead Court Watch to conclude: “The Texas Supreme Court has become a reliable friend to those who seek to escape the consequences of their actions; its justices are the ultimate guardians for the moneyed and powerful who wish to shirk responsibility.”

The report is here. The Trib spoke to a couple of people who did dispute Winslow’s assertions about the Court.

Bill Peacock, vice president of research at the Texas Public Policy Foundation, said he doesn’t think the large percentage of defendant wins means that the Supreme Court favors corporations. He attributed the numbers to the court interpreting laws that the Legislature has passed to limit frivolous lawsuits, which are often brought by consumers against businesses.

“The fact that more corporations are winning before the Supreme Court shows that the Supreme Court is doing its job,” Peacock said.

[…]

Former Supreme Court Justice Scott Brister also said evaluating the Supreme Court isn’t as simple as compiling statistics. The justices, he said, only consider cases in which they might reverse the lower court’s decision.

“They only look at 10 percent of the cases. They’re not going to take a case that looks right, and the consumer won,” Brister said.

Brister denied Texas Watch’s assertion that the court favors corporations.

“We don’t look at a case and say, ‘Where can we help a company?’” he said. “We say, ‘Where does something look wrong?’”

I do think there’s something to what Peacock and Brister say. I mean, the laws the Supreme Court is asked to interpret are themselves generally anti-consumer and pro-corporate. So is the Legislature that writes those laws. For sure, the Supreme Court is part of the problem, but they’re not the extent of the problem. The remedy for each is the same, and that’s to elect people with a broader diversity of background, experience, and perspective to both the Lege and the Court. Which will be a little more difficult this year, as there are no Democrats running for the Supreme Court, but one must take the long view. Until we elect more people who share the experiences of the people that are getting shafted and want to represent them, very little will change. Trail Blazers has more.

Population and voting trends: 2004 and 2008 judicial elections

So we’ve seen how county returns changed in the Presidential election between 2004 and 2008. Obviously, there are many factors that can affect a Presidential election, even when there’s not really an active campaign going on in the state. How do things look at the judicial level, which is probably a closer reflection of party ID? To try to answer that, I compared two races for the Supreme Court, and two for the Court of Criminal Appeals: Scott Brister versus David Van Os in 2004 and Dale Wainwright versus Sam Houston in 2008; Mike Keasler versus JR Molina in 2004 and Tom Price versus Susan Strawn in 2008. My observations:

– Houston improved on Van Os’ percentage by six and a half points, going from 40.76% to 47.31%; Strawn did a bit less than five points better than Molina, 42.14% to 46.86%. (Note that both 2008 races included a Libertarian candidate, while neither 2004 race did. All percentages are based strictly on R/D vote totals only.) In doing so, Houston cut the 2004 deficit by 875,000 votes, while Strawn improved by 616,000 votes over 2004.

– One corollary to that is that Houston gained in more counties than Strawn did. There were only 28 counties in which Houston’s deficit was greater than Van Os’, with Montgomery and Parker being the places he moved backwards the most. Strawn did worse in 69 counties, adding Orange and Jefferson to the biggest loser list. Recall that there were 107 counties in which Barack Obama lost ground compared to John Kerry.

– The 20 counties in which Obama lost the most ground from Kerry differed somewhat from the counties in which Houston and Strawn combined did worse than Van Os and Molina. Counties that appeared in the former list but not the latter were:

Bowie: Obama’s deficit increased by 3436 votes; Houston gained 1303 while Strawn lost 867.
Galveston: -3082 for Obama, +2720 for Houston, and -1307 for Strawn.
Jasper: -1488 for Obama, +866 for Houston, and -656 for Strawn.
Liberty: -1416 for Obama, +1185 for Houston, and +155 for Strawn.
Harrison: -1385 for Obama, +530 for Houston, and -11 for Strawn.
Johnson: -1280 for Obama, +2745 for Houston, and +2005 for Strawn.
Henderson: -1239 for Obama, +1076 for Houston, and +427 for Strawn.
Tyler: -1094 for Obama, +501 for Houston, and -260 for Strawn.
Van Zandt: -1075 for Obama, +656 for Houston, and +178 for Strawn.
Lamar: -993 for Obama, +2185 for Houston, and +1208 for Strawn.

Obviously, the worst 20 counties for Houston and Strawn were not identical to those for Obama, but I did not find any examples where Houston and Strawn combined to lose votes while Obama gained them.

The ten best counties for Houston and Strawn:

County Brister W'wright Change Van Os Houston Change Dem net ================================================================== FORT BEND 87,872 96,887 9,015 66,748 95,069 28,321 19,306 DENTON 132,244 138,359 6,115 56,112 86,738 30,626 24,511 COLLIN 165,017 167,840 2,823 64,159 100,302 36,143 33,320 HIDALGO 39,076 32,270 -6,806 60,122 87,197 27,075 33,881 EL PASO 62,780 50,627 -12,153 93,239 118,844 25,605 37,758 TRAVIS 142,841 127,796 -15,045 190,168 228,493 38,325 53,370 BEXAR 234,526 222,471 -12,055 212,415 260,152 47,737 59,792 TARRANT 327,136 320,585 -6,551 201,026 266,375 65,349 71,900 DALLAS 328,697 280,688 -48,009 324,165 406,857 82,692 130,701 HARRIS 555,454 523,101 -32,353 464,815 577,134 112,319 144,672 County Keasler Price Change Molina Strawn Change Dem net ================================================================== WILLIAMSON 77,666 80,967 3,301 42,377 61,373 18,996 15,695 DENTON 130,850 139,868 9,018 57,294 83,774 26,480 17,462 EL PASO 58,240 53,893 -4,347 99,152 115,154 16,002 20,349 HIDALGO 35,930 33,109 -2,821 64,087 86,441 22,354 25,175 COLLIN 164,805 169,377 4,572 64,188 96,476 32,288 27,716 TRAVIS 140,473 125,335 -15,138 190,769 228,492 37,723 52,861 TARRANT 321,497 322,531 1,034 206,841 263,585 56,744 55,710 BEXAR 224,983 215,807 -9,176 220,717 267,444 46,727 55,903 DALLAS 319,890 283,343 -36,547 329,484 402,483 72,999 109,546 HARRIS 540,632 521,753 -18,879 474,278 574,945 100,667 119,546

Williamson was Houston’s eleventh-best county, with a net gain of 18,502, while Fort Bend was Strawn’s eleventh-best county, with a net gain of 13,574. Not much variance on this end, in other words.

– Finally, I said in my previous entry that if 2012 is to 2008 as 2008 was to 2004, Texas would be a tossup state at the Presidential level. That’s true, but all else being equal, the Republican candidate would still win Texas by a bit more than 200,000 votes. That same level of improvement would be more than enough to win both of these judicial races, however. Sam Houston would win by more votes in 2012 than he lost by in 2008, while Strawn would win by about 150,000 votes. Given that even Republicans think the political landscape in Texas could be quite favorable to Democratic candidates, we may see as much interest in Supreme Court and CCA nominations as we saw in Harris County this year for district and county benches. All standard disclaimers apply, of course, but keep that in the back of your mind.

Next in the series will be a closer look at the 2002 and 2006 judicial elections, which will be done in two parts. As always, your feedback is appreciated.

Moody to run for Supreme Court again

Good news for Democratic statewide prospects.

A veteran state district judge who walked across Texas three years ago in pursuit of a seat on the state Supreme Court plans to go airborne next year for another shot at the high court.

Judge Bill Moody, of El Paso, plans to charter a blimp and make two daily stops in the state’s 70 most populated counties to grab the attention of voters. An amateur historian, Moody says no Texan has campaigned from a blimp before, although Lyndon Johnson created a buzz by using a helicopter during his 1948 U.S. Senate campaign.

The blimp idea came to Moody during a walk in the hot sun near the Johnson ranch east of Fredericksburg.

“I saw a blimp flying through the sky, and I said, ‘There might be an easier way to do this and to get out the message,’ ” he said Thursday from the state Capitol. “The blimp is important as a messaging tool.”

A Democrat, he hopes to break into the nine-member, all-Republican court.

Moody was the leading votegetter among Dems in 2006, collecting 1,877,909 tallies in a 51-45 loss to appointed Justice Don Willett. He collected a lot of newspaper endorsements along the way, which I believe helped him. Two Democratic judicial candidates from 2008 – Sam Houston and Susan Strawn – received a higher percentage of the vote than Moody did in 2006, so with his name ID and qualifications, he has a real shot next year.

Individual workers, home owners and consumers have lost nearly every case before the court when opposed by insurance and pharmaceutical companies, Moody said.

“These large political contributors have been so overpowering and loud in exercising their speech and influence before the Republican court that everyone else’s voices have been drowned out,” he said.

If you want to know who those big contributors are and who their beneficiaries were in the last election, read this report (PDF) from Texans for Public Justice.

According to Postcards (whose individual entry link is broken), Moody will run against Justice Paul Green. I don’t know yet who will run for the seat that was vacated by Justice Scott Brister, which has now been filled by Justice Eva Guzman of the 14th Texas Court of Appeals, but I’m sure someone will. For that matter, I’m sure someone will run against Guzman and whoever her appointed replacement is on the 14th Court in the Republican primary as well. And I know that whoever wins that latter primary will face Tim Riley, who ran against Tom DeLay in CD22 back in 2002, in the general election. I think that about covers it.

Brister retiring from Supreme Court

A second State Supreme Court justice will not be on the ballot next fall.

Texas Supreme Court Justice Scott Brister will leave the court for private practice next month, he announced Monday.

Brister, a former Harris County civil district court judge and a former judge on the 14th District Court of Appeals in Houston, opens the door for Gov. Rick Perry to appoint someone to fill the rest of his term. That appointee could then run for office as an incumbent in November 2010.

Perry appointed Brister to the Texas Supreme Court in 2003 to fill an unexpired term. Then he was elected to a six-year term that runs through 2010.

[…]

Brister will stay in Austin, heading the appellate practice for Andrews Kurth. The firm’s news release states Brister will also have a litigation and alternative dispute resolution practice.

“It was time for me to move on and give someone else the opportunity to serve,” Brister said in a news release from the court.

As the story notes, Brister’s colleague Harriet O’Neill is not running for re-election but will serve out her full term. Brister had very little money in his campaign coffers, so this should not come as a surprise. As with O’Neill’s retirement, it is another opportunity for the Democrats.

UPDATE: Perry has more.