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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?

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4 Comments

  1. Kibitzer says:

    CHANNELING GOVERNMENTAL ENTITY LITIGATION TO GOP COURT

    Re: “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.”

    Here is the partisan calculus for this:

    Many such lawsuits are filed in Travis County(Austin) because of mandatory or permissive venue rules specific to governmental entities. Leaving aside the matter of docket-equalization transfers, all appeals from Travis County go the Third Court of Appeals (Austin), which has recently turned Democratic.

    See Angela Morris, “3 Incumbent Republicans Ousted as Austin-Area Voters Pick Democratic Judges.” TEXAS LAWYER (Nov. 4, 2020) https://www.law.com/texaslawyer/2020/11/04/3-incumbent-republicans-ousted-as-austin-area-voters-pick-democrat-judges/

    Additionally, when Attorney General Paxton sues to subdue local officials in metropolitan counties (e.g. County Clerk Chris Hollins re: voting by mail promotion, County judges of El Paso and Travis County re: COVID mitigation), he has to file in a local metropolitan district court, with appeals going to the court of appeals in the same city/county (1st/14th for Harris County, 8th and 3rd for El Paso and Travis, respectively), where he is not assured of winning.

    If a special statewide appellate court were to be created for governmental entity cases, its composition would reflect the composition of the SCOTX, i.e. all Republican until the Democrats start winning statewide races. So, government-entity cases would come under the exclusive control of Republican justices at the first level of appeal, thereby relieving the pressure on the Texas Supreme Court to reverse decisions of lower courts.

    That’s on the assumption, of course, that each member of such special appellate court will be elected in a statewide race, rather than from an appellate district, or hand-picked by the Republican Governor.

  2. Mike Honig says:

    The key question here is, What is to be done by average Texas folks that are terrified at this prospect?

  3. Kibitzer says:

    UPDATE: As of Monday morning, April 5, 2021, the Committee Substitute Bill [that provides for a massive redistricting of the appellate courts] has *not* been posted.

    https://capitol.texas.gov/BillLookup/BillStages.aspx?LegSess=87R&Bill=SB11

    A “SOLUTION” IN SEARCH OF A PROBLEM TO PROVIDE A PRETXT FOR A MASSIVE GERRYMANDER TO FACILITATE A GOP TAKE-OVER OF THE APPELLATE COURTS

    It should additionally be pointed out that the two bills are at loggerheads.

    SB 11 is supposed to simplify the appellate system and make it more efficient thru consolidation of existing COAs, but does the opposite by (1) calling for the creation of 2 additional courthouse seats/locations and by increasing travel distances within the enlarger districts, and (2) by complicating the en banc review process in the merged appellate mega courts, making it much more time-consuming because more justices have to review many more en banc motions associated with larger caseloads of larger courts.

    SB 1529 provides for the creation of an entirely new court with additional personnel expenses (judges and staff) on top of physical infrastructure and will also aggravate the problem of case transfers and unequal dockets, which to address is the articulated rationale for the reorganization plan in the latest version of SB 11. That’s because it cannot be predicted how many cases will each year fall within the exclusive jurisdiction of the specialty court and from where in Texas they will come from.

    Based on existing estimates (the OCA does not even keep systematic data granulated by appellate case type except civil vs. criminal), the number of qualifying government-entity appeals is somewhere between 100 and 200, while the typical caseload for a court of appeals with five justices would be in excess of 600 (for FY 2018 the average N of opinions per justice was 9,909/80=124).

    The members of the proposed specialty appellate court would accordingly not be very productive, compared to their peers. Nor is docket-equalization as currently practiced by the SCOTX an option when the jurisdiction of the would-be transferee court is strictly limited to legal disputes that meet narrow criteria. And there would be no discretion to make more cases eligible for transfer to an under-worked specialty court.

    Messing with 100% of COA cases to address an alleged problem with 5 or 6%

    As for the size of the “problem”, the N of transferred cases in FY 2018 was 605 out of a grand total of 10,277. That’s 5.9%.

    Furthermore, the Third Court of Appeals in Austin already handles the larger part of the appellate caseload involving governmental entities and administrative law matters. If there is merit to the proposition that the average Texas appellate justice is not competent enough to hear such cases (dubious as it is, if not offensive), and that specialization in this areas of jurisprudence is therefore imperative, these cases should not be taken away from the justices on the Third COA that already have developed the requisite expertise from handling a disproportionate number of such (allegedly more complex) cases. And have accumulated a substantial body of caselaw over the years.

    There is an obvious incremental fix

    And if the workload demands on the Third COA are impermissibly higher relative to the 13 sister COAs due to the challenges of government-entity litigation, such problem would most logically be addressed by adding more staff attorneys and/or by enlarging the membership of that court by one or two positions. It would also be cheaper.

    If only logic and efficiency were really driving the content of the purported appellate “reform” legislation!

    —————————–
    BILL ANALYSIS

    Senate Research Center

    S.B. 11

    87R3485 YDB-D

    By: Huffman

    Jurisprudence

    3/9/2021

    As Filed

    AUTHOR’S / SPONSOR’S STATEMENT OF INTENT

    The current intermediate courts of appeals system is not efficient from a judicial standpoint and causes confusion for litigants, attorneys, and district judges. Workload distribution among appellate districts is unbalanced, which leads to docket-equalization case transfers which are costly and confusing for litigants. Additionally, Texas has appellate courts of overlapping jurisdiction, which causes inconsistency and unpredictability within the state’s jurisprudence.

    S.B. 11 addresses these problems by restructuring the current courts of appeals to improve judicial efficiency, distribute workload more evenly across the state’s 80 appellate justices, and improve consistency and predictability in the state’s jurisprudence.

    As proposed, S.B. 11 amends current law relating to the composition of the court of appeals districts.

  4. […] here and here for the background. Everything about this, from the lack of information about the bill before it […]