High court votes should be public
By CRAIG McDONALDDallas Morning News View Points
Sunday, October 26, 2003
"Is the Texas Supreme Court the only public body that in effect gets to vote on something, and that vote never is reported publicly?" Federal Judge Orlando Garcia asked in his San Antonio courtroom earlier this month. "Why should [the Supreme Court] be immune or excluded from that simple concept?"
Judge Garcia's questions came in the opening salvos of a federal lawsuit that seeks to push official actions of the Texas Supreme Court into the sunlight of public disclosure. Texas Supreme Court justices secretly vote on which cases they will hear on appeal. Plaintiffs in Aguirre vs. Chief Justice Thomas Phillips argue that the public has a First Amendment right to know about fundamental decisions of elected officials ? including the right to know how each justice votes in determining who gets access to Texas' civil court of last resort.
Texas Supreme Court candidates routinely raise hundreds of thousands of dollars from lawyers and litigants who appear before them. While the law requires the public disclosure of those donations, the public is kept in the dark on how the justices vote on whether to accept appeals filed by big donors. Of the approximately 900 "petitions for review" that the court receives each year, the justices secretly vote to hear only about 10 percent of them.
The public interest in disclosure is compelling, because the Texas Supreme Court has been much more likely to hear appeals filed by those who contributed heavily to the justices' campaigns. A 2001 study by Texans for Public Justice, "Pay To Play," revealed that the more money that parties and lawyers in a case contributed to the justices, the better the odds that the justices voted to take their case. For example, over a four-year period, the justices voted to hear 56 percent of the appeals filed by the two law firms that contributed more than $250,000 apiece to the justices, an acceptance rate 10 times higher than the rate for noncontributors.
Defenders of the court have suggested that those disturbing findings aren't caused by judicial bias. They say that the big-donor firms do a better job of preselecting the cases with the most merit or that their appellant lawyers are better than average. But those theories haven't dispelled the disturbing perception that campaign contributions influence the official actions of Texas Supreme Court justices. Allowing the justices to vote secretly on appeals exacerbates the perception that they may have something to hide.
"Texans are asked to hold their judges accountable on Election Day, just like all other elected officials," said Bonnie Tenneriello, lead attorney for the plaintiffs from the National Voting Rights Institute. "There can be no accountability when 90 percent of a justice's decisions are kept under lock and key. Such practices aren't tolerated in any other area of government decision making."
Chief Justice Phillips has offered a semantic defense of the court's secrecy policy, arguing that it is a misnomer to call the decisions on whether to hear a case "votes." Yet it is no secret that Chief Justice Phillips' court hears an appeal only when at least four justices agree to do so. He also cautions that revealing such information to the public might be "misleading" and could create "a lot of mischief." Yet a fundamental tenet of American government is that secrecy breeds far more mischief than does openness.
The Aguirre plaintiffs don't seek to inhibit the justices from freely discussing their cases in private. They merely ask the court to disclose which justices vote to hear or to reject a given case. Fourteen other states routinely disclose those voting records to the public. Such openness is all the more crucial in Texas, where justices run expensive, partisan campaigns that are substantially financed by lawyers and litigants with business before the court.
The U.S. Supreme Court already has concluded that states that elect judges need to comply with the basic ground rules of electoral democracy. Last year, a ruling from the nation's highest court required Texas and other states to stop imposing gag rules that prevent a judicial candidate from telling voters where he or she stands on judicial issues. As with the overturned gag rule, the Texas Supreme Court's secrecy policy forces voters to elect justices blindly. Such secrecy must end. Justice should be blind, but voters shouldn't be.
