Editorial: Bill would open a window
April 8, 2009.Senate Bill 780 could be the most straightforward bill moving through the Texas Legislature this session.
It reads: "In an order granting, refusing, dismissing or denying a petition for review, the Supreme Court shall state how each member voted on the petition or application."
This would open another window on a government entity that operates largely outside general public awareness.
Not that the virtual anonymity of the state’s highest civil court is necessarily its members’ fault. The nine justices run for office statewide (though some initially got appointed by the governor). Their dockets and rulings are posted online. They hear case arguments in open sessions viewable on a computer.
Still, they get noticed mostly by lawyers who file appeals, parties to those cases and campaign donors in judicial elections.
That’s why this bill matters.
Three Republican incumbents won races last year in which they and their opponents collected more than $2 million, a majority of it from lawyers or companies interested in the court’s work.
Even if all the justices are completely honest and ethical, the infusion of money leaves them open to public doubts about impartiality. Judicial selection by appointment-retention could help, but that hasn’t yet won approval from both the Legislature and voters.
The Texas Supreme Court is most civil litigants’ last resort. The justices must decide which of the 1,000 or so petitions they receive annually warrant their attention; they grant fewer than 15 percent.
An analysis of cases from 1994 through 1998 by judicial watchdog Texans for Public Justice found that the court was much more likely to accept petitions from campaign contributors than from parties who didn’t donate (though the study didn’t establish that justices voted one way or the other because of campaign money or lack thereof).
If four justices don’t agree to hear a case, the lower court’s ruling stands. Knowing how justices voted on petitions would give the public one more piece of information by which to hold these elected officials accountable.
Yes, political foes might use and abuse the information. There are any number of legitimate reasons to vote a particular way, and justices usually won’t feel compelled to explain themselves in a separate opinion. But the possibility of campaign distortions never has been a good reason to keep factual information from the public. Better information is the better solution.
In the Senate Jurisprudence Committee on March 18, Sen. Kirk Watson, D-Austin, pointed to a 1996 dissent by Justice Nathan Hecht claiming that "If our votes on applications were always public, some would change."
Hecht was upset that the court bypassed a chance to review an $8.6 million damage award to a seaman exposed to a pesticide while cleaning a ship. It’s possible to wonder about Hecht’s motives for wanting to take the case (and for chastising reluctant colleagues who thwarted him). Even so, revealing votes would be good government.
Over the past six years, the court has decided, on average, almost half the cases it hears through per curiam opinions, which are unsigned, rather than with signed majority opinions where votes are public record, according to Office of Court Administration reports. As a result, no one besides the justices themselves knows where they stood on some 300 cases, even though the court ruled on them.
Texans ought to know more about the people they elect to interpret and shape our laws.
