Groups protest state high court's secrecyJudge hears argument for disclosure of justices' pretrial votes
By JOHN W. GONZALEZ, Houston Chronicle
October 3, 2003
SAN ANTONIO -- About 90 percent of the cases taken to the Texas Supreme Court are not accepted for review, and a coalition of public interest groups claimed in federal court on Friday that the secretive process of screening the appeals violates the public's constitutional rights.
The interest groups, in court to fight the state's move to toss their lawsuit, asserted that at least a dozen other states have full disclosure of their high courts' voting processes. They claimed that Texans have a right to know how justices vote on whether to accept appeals.
A lawyer for the Texas Supreme Court countered that most states, including Texas, have long traditions of protecting the secrecy of the judicial decision process in order to promote free discussion and shield justices from undue influences.
Assistant Attorney General James Todd said this dispute is a policy issue that can be addressed either through new court rules or legislation, or by voters choosing candidates -- judicial or legislative -- who agree to champion such changes.
Both sides indicated that the Texas Supreme Court's undisclosed votes on which cases to hear may be the only votes cast by public officials in Texas that are kept secret. The court's final opinions are signed, however, and individual justices on rare occasions have disclosed their own votes on petitions for review.
U.S. District Judge Orlando Garcia said he'll decide in more than a month whether to grant the state's motion to dismiss the complaint against the high court and staff. For 90 minutes, Garcia hit lawyers on both sides with questions that indicated he favors more openness, while at the same time acknowledging there are other ways to change the court's practices besides the injunction sought by plaintiffs.
"I'm interested in knowing why the Supreme Court gets to vote secretly with great consequences riding on them," Garcia said. "Why should they be immune or excluded from that simple concept?"
The suit was brought in 2002 by Texans for Public Justice, Common Cause, League of United Latin American Citizens, Texas Civil Rights Project and the Texas Observer. The groups assert that the Texas Supreme Court's secret votes prevent the public from deciphering links between political contributions made to the justices and their official actions.
"This case is really about democratic governance itself," said National Voting Rights Institute attorney Bonita Tenneriello of Boston, who represents the plaintiffs.
When four of the court's nine justices indicate a willingness to hear an appeal, that outcome is recorded by the court clerk. How individual justices vote at that level of the process is not disclosed, so for about 90 percent of litigants, there's no way to know if a justice voted yes, no or to abstain in their case.
"This is the end of the line for those people," Tenneriello said.
But Todd said the court's practices, though secretive, serve to shield the justices from inappropriate influence from lawyers who practice before the court and the interests they represent.
"It actually insulates them from the sort of pressure the plaintiffs are hypothesizing." Todd said.
The lawyers agreed there appears to be no previous instance in which a state supreme court was forced to disclose its preliminary votes.
Garcia instructed the two sides to do more research about the 12 or more states that make public their justices' preliminary votes. In particular, the judge said he wants to know more about whether lawmakers forced the openness or whether the courts took the action themselves.