Top SecretJohn Council, Texas Lawyer
It's one of the few votes taken by a state governmental body that the public never hears about. And the governmental body that makes the>secret vote -- the Texas Supreme Court -- adamantly contends that it should stay that way.
But U.S. District Judge Orlando Garcia of San Antonio is considering a case that seeks to force Texas' highest court to reveal how it votes on "petitions for review" - the threshold determination the appellate court makes on whether it will hear a case.
In May 2002, a coalition of activist groups, voters and two attorneys filed Aguirre, et al. v. Phillips, et al. in Garcia's court arguing that they have a right to see the high court's votes on petitions for review based on guarantees in the First and 14th Amendments and under federal common law.
In a hearing before Judge Garcia on Oct. 3, the Supreme Court, represented by the Texas Office of the Attorney General, argued that the case should be dismissed -- primarily because the U.S. Constitution does not address the issue.
During the hearing, Garcia asked for further briefing from the parties on the issue before he makes a final ruling.
But Cris Feldman, an attorney with Texans for Public Justice, a judicial watchdog group that is a plaintiff in Aguirre, says seeing how the court votes on petitions for review is an important part of an open government -- particularly in understanding how the court uses its discretionary review function.
The Texas Supreme Court has the discretion to accept or reject requests to hear any civil appeal. Typically, it grants review to cases in which there are conflicts between intermediate courts of appeal or if the high court feels a case may be important to the jurisprudence of the state. Four out of the nine justices must agree to hear a case before it grants review.
"We're looking for the larger story," Feldman says. The votes on petitions for review may show where the justices' interests lay, among other things, he says.
"The justices say they only accept cases that affect the jurisprudence of the state," Feldman says. "Well that's part of the process, and voters are entitled to know what policy choices they're actually making."
All the plaintiffs assert they have a First Amendment right to see the high court's votes on petitions for review as a basic accountability issue. But Texans for Public Justice has long argued that the high court has long been influenced by campaign money and that large donors are more likely to have their cases granted than others.
Tom Phillips, chief justice of the Texas Supreme Court, says the votes on petitions for review don't show the public or lawyers anything about the court's view on appealed cases. If the votes were released, Phillips fears the public and lawyers alike would misinterpret them.
"These are not votes on the merits of the case. We are exercising discretion on whether this is a case we should hear," Phillips says. "So the vote says nothing about whether the court [of appeals] opinion below is right or wrong. And we're afraid that these votes would be misinterpreted by lawyers and litigants and judges who would think a vote to not to grant [review] is clearly right and a vote to grant is not right."
Phillips also rejects TPJ's accusations that the court is more likely to hear cases from firms that donate money to the justices' campaigns. He contends that the court accepts more cases handled by large Texas firms because they are more likely to specialize in various areas of the law and are more likely to handle cases of first impression. "You'll get that correlation," Phillips says of politically active firms that get their cases granted. "But it means nothing."
Phillips adds that the Texas Supreme Court's tradition of not disclosing how justices vote on petitions for review is the same as the U.S. Supreme Court's.
However, occasionally, Texas Supreme Court justices write dissents when a court refuses to hear a case.
But Brad Rockwell, a plaintiff in Aguirre who also is an attorney with Austin-based Save Our Springs Alliance, says making the Texas Supreme Court's votes on petitions for review public is in keeping with a democratic system of open government. And there's a good reason why lawyers should have access to that information, Rockwell says.
"As an attorney, it's important for me to see who's voting for what so I can advise clients in terms of what might happen to their case," says Rockwell, who served as a briefing clerk to Supreme Court Justice Nathan Hecht. "It adds predictability to their case." For example, if the court consistently denies review of cases involving a certain issue, a lawyer could advise a client that his or her chances are slim that the court will hear the case because it involves that same issue. But if new justices are elected to the court, a client's chances may improve, Rockwell says.
However, Hecht disagrees with his former clerk. Hecht says votes on petitions for review don't serve as a good measure of cases and issues in which the court is interested. There are a number of reasons why the court may refuse to hear a case that have nothing to do with a particular justice's interest in an issue, he says.
"There might be a record problem, the case may be poorly presented, there may be a developing case in the courts of appeal and you want to see how it shakes out," Hecht says. "There are just a lot of reasons."
At the Oct. 3 hearing, Garcia seemed interested in which high courts in other states release their votes on petitions for review, say lawyers for both parties who attended the hearing.
Supreme courts in 14 states disclose their voting records on petitions for review, according to Bonnie Tenneriello, a staff attorney with the Boston-based National Voting Rights Institute who represents the plaintiffs in Aguirre at the request of TPJ.
"[Garcia] wanted to know of the other states that disclose their votes how many of them are legislatively imposed," says Tenneriello, who says Garcia has given the parties 30 days to brief him on that issue.
"I don't believe after reviewing the files that any of them are legislatively imposed," says Tenneriello, referring to other states' high courts that release how they vote on petitions for review. "In the vast majority of states, there is no rule at all."
Garcia also wants to know which, if any, high court in those 14 states release the votes as the result of a court challenge, and which ones release their votes because the state's high court thought it was proper to do so.
But absent a rule or statute, the First Amendment gives the public the right to see how courts vote, Tenneriello argues.
"The First Amendment gives you access to information that serves the public interest and promotes democratic government," Tenneriello says. "We're talking about basic accountability versus secrecy. [T]he interests served by openness are overwhelming."
James C. Todd, a Texas assistant attorney general who represents the Supreme Court in Aguirre, says the First Amendment is silent on the issue of whether records on such votes are public.
"The First Amendment doesn't have anything to say on this," Todd says.
There may be justifiable good-government arguments as to why the Supreme Court should disclose the votes, Todd concedes. But just because disclosing the vote may be a good idea doesn't mean it's constitutionally mandated, Todd says.
"The issue before Judge Garcia is whether the United States Constitution requires the Texas Supreme Court to disclose their votes," Todd says. "And that's a different question than whether it's a good practice."
Ultimately that decision should be left up to the Texas Legislature or the voters of Texas to decide, not a federal court, Todd says, because it's a public policy matter.
Who Will Prevail?
Three lawyers who often handle First Amendment cases don't hold out much hope that the plaintiffs will prevail in Aguirre.
The problem with the plaintiffs' argument that the common law gives them the right to see the Texas Supreme Court's votes on petitions for review is that there is not much precedent for that - either in case law or by court tradition, says Rob Wiley, a partner in Houston's Locke Liddell & Sapp.
The plaintiffs argue in their original petition that cases such as Richmond Newspapers Inc. v. Virginia (1980), in which the U.S. Supreme Court held that trials should be open to the public, creates a presumption of public access to judicial documents and proceedings.
But Richmond and other U.S. Supreme Court decisions give the public and the press the right to attend trials rather than obtain certain judicial documents, Wiley says. And historically, trials have been open to the public and the press, he says.
There is no history involved that gives the public access to things such as votes on petitions for review, says Wiley, past president of the Freedom of Information Foundation of Texas. "This is the kind of thing that is most likely handled by statute in most states. I'd be surprised if it's turned up that this is done by common law."
Paul Watler, a shareholder in Dallas' Jenkens & Gilchrist, agrees.
"I think if the Texas Supreme Court was the only state Supreme Court out of 50 that didn't have this practice, there might be more merit to a First Amendment or common-law analysis," Walter says. "But because there are so few courts with that practice, the plaintiffs' chances are not great."
The Texas rules that come closest to addressing access to the Supreme Court's votes on petitions for review are Rule 76a of the Texas Rules of Civil Procedure, which prevents a court from sealing its final decision in a case, and Rule 47 of the Texas Rules of Appellate Procedure, which limits appellate courts from issuing unpublished opinions, says Charles "Chip" Babcock, a partner in the Houston and Dallas offices of Jackson Walker.
Interestingly enough, in 1989, Garcia sponsored the underlying legislation that created Rule 76a when he was a member of the Texas House of Representatives.
"If you follow the reasoning of 76a and 47 of the TRAP rules, you're really called to focus on orders that adjudicate a case," Babcock says. "And the individual votes of justices to hear or not hear a case don't really adjudicate the case."
Those rules guarantee that the public and lawyers can see the final adjudications of a court and cite them if needed, Babcock says. But he doubts they would apply to the Supreme Court's votes on petitions for review.
"When you go beyond that . . . to see how individual judges have voted on whether or not they would have granted," Babcock adds, "I don't know much precedent there is."