A defamation case resulting from an apparently bitter divorce caused irreconcilable differences among the members of the Texas Supreme Court last month. The case, Hogan v. Zoanni, turns on the mundane question of what it means to “maintain” an action under the Texas Defamation Mitigation Act—or, more precisely, whether the DMA requires dismissal or abatement of a defamation claim when a plaintiff fails to request a correction or clarification of the defamatory publication from the defendant.
Despite each set of justices aiming to follow the DMA’s plain text, no majority could agree on a correct interpretation. The rare 4-1-3 split led to a plurality decision announcing the court’s judgment, while leaving the state of the law unclear. Hogan provides a unique chance to consider the approaches to statutory interpretation among the current justices and the practical effect of a Texas Supreme Court decision without a controlling majority.
In the case, Houston pastor Lemuel Hogan sued his ex-wife, Stephanie Zoanni, after she published a litany of inflammatory statements online and to church leadership, accusing Hogan of criminal conduct involving children. After trial, the jury returned a verdict for Hogan totaling $2.1 million. A divided panel of the First Court of Appeals reversed and remanded the case for a new trial, concluding that the DMA’s plain text warranted dismissal of nine newly discovered defamatory statements added to an amended petition by Hogan 10 days before trial. Hogan appealed, arguing that dismissal was an inappropriate remedy, and the Texas Supreme Court granted Hogan’s petition for review.
The DMA was signed into law by Governor Perry in 2013. The act stems from the Uniform Correction or Clarification of Defamation Act, which sought to encourage the prompt and thorough correction or retraction of published information alleged to be defamatory and to provide for the early resolution of defamation disputes. And so, the DMA provides that “a person may maintain an action for defamation only if: (1) the person has made a timely and sufficient request for a correction, clarification, or retraction from the defendant; or (2) the defendant has made a correction, clarification, or retraction.” Tex. Civ. Prac. & Rem. Code § 73.055(a). When a request is not received, a defendant “may file a plea in abatement not later than the 30th day after the date the person files an original answer in the court in which the suit is pending.” Tex. Civ. Prac. & Rem. Code § 73.062(a).
The challenge for the Texas Supreme Court in Hogan was how best to interpret the phrase “maintain an action . . . only if” under the DMA when the plaintiff timely filed his lawsuit but failed to provide a sufficient correction request before the statute of limitations expired. The question split the justices three ways.
Three Textualist Opinions
U.S. Supreme Court Justice Elena Kegan famously said that “we’re all textualists now” in tribute to Justice Antonin Scalia’s influence on statutory interpretation. That is the true of the Texas Supreme Court, which has consistently explained that the Court’s role in construing a statute is to give effect to the Legislature’s intent by following the statute’s plain language.
As the Court has repeatedly declared: “The words the Legislature chooses should be the surest guide to legislative intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009). And it presumes that the Legislature chooses a statute’s language with care, purposefully including each word and omitting all others. Crosstex Energy Services, L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 390 (Tex. 2014). When a term is left undefined, like “maintain” in the DMA, the Court says it applies the word’s “plain and ordinary meaning” within the context of the statute. EBS Sols., Inc. v. Hegar, 601 S.W.3d 744, 758 (Tex. 2020). To determine that meaning, the Court typically looks “first to dictionary definitions” and then to “the term’s usage in other statutes, court decisions, and similar authorities.” Id.
Whether the Court’s approach is an accurate depiction of the legislative process is up for debate. But, in Hogan, all three opinions purport to apply these same textualist principles, while reaching different conclusions.
The Plurality
Justice Devine authored a Plurality opinion announcing the Court’s judgment, but he was only joined by three other justices—Justice Lehrmann, Justice Busby, and the recently retired Justice Guzman. The Plurality concluded that the DMA does not require dismissal, whether or not a plaintiff has made a timely or sufficient request, and that the only available remedy under the DMA is abatement. In reaching this conclusion, the Plurality relied on the plain and ordinary meaning of the word “maintain,” the purpose of the DMA, and the language in other statutes where the Legislature clearly intended a dismissal.
To determine the plain and ordinary meaning, the Plurality turned to Merriam Webster’s and Black’s Law Dictionaries, which define “maintain” to mean “to keep in an existing state” or “to continue or preserve in.” The Plurality reasoned that these definitions could not be squared with an automatic dismissal; just because a lawsuit cannot “continue” does not mean it must be automatically dismissed. The Plurality also found that dismissal would undermine the stated purpose of the DMA—that is, mitigating damages by providing an opportunity for the correction, clarification, or retraction of a defamatory statement. Tex. Civ. Prac. & Rem. Code § 73.052. Finally, the Plurality noted that if the Legislature had intended a dismissal, it would have said so. After all, the Legislature uses the words “shall dismiss” in other statutes. For example, under the Texas Medical Liability Act, if a plaintiff fails to serve required expert reports, the court “shall dismiss the claim.” Tex. Civ. Prac. & Rem. Code § 74.351(b)(2).
The Dissent
Chief Justice Hecht in dissent, joined by Justice Blacklock and Justice Huddle, concluded that the DMA’s “maintain” clause requires all claims to be dismissed if a plaintiff’s request is insufficient or untimely. In the Dissent’s view, a defendant has a choice between abatement and dismissal when the plaintiff files an insufficient but timely request and still has time under the applicable statute of limitations to fix the insufficiency. In reaching this conclusion, the Dissent relied heavily on the common, ordinary usage of the word “maintain.” The Dissent was also persuaded by the many cases and statutes that use the word “maintain” for a plaintiff’s ability to file a lawsuit or to continue one that has been filed. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 779 (Tex. 2020) (interpreting statute allowing partner to “maintain an action” as granting “authority to sue”). For the Dissent, these cases directly refute the Plurality’s assertion that “when the Legislature intends dismissal as the consequence for noncompliance, it clearly says so in the statute.”
The Concurrence
Justice Boyd’s solo Concurrence generally agreed with Chief Justice Hecht’s conclusion that “under common, ordinary usage, a legal action that cannot be ‘maintained’ must be dismissed.” But Justice Boyd’s interpretation differed in his interpretation of the rest of the DMA. For him, the DMA requires dismissal when the plaintiff sues after making a written request that was otherwise untimely or insufficient. And the DMA provides for abatement only when the “plaintiff files suit without having made any ‘written request’ at all.” Justice Boyd anchored his interpretation on the different language used in the relevant portions of the statute. Section 73.055 states that a plaintiff cannot “maintain an action” if a request is not “sufficient” and “timely.” Section 73.062, the abatement provision, includes none of this language—it merely states that a defendant may file a plea in abatement when the plaintiff has failed to make a “written request.” According to Justice Boyd, his interpretation was the only construction of the DMA that gave meaning to this distinction.
Because the word “maintain” is undefined in the DMA, all three opinions anchored their interpretations on the “plain and ordinary meaning” of the word. The Plurality turned to dictionaries to determine that meaning. The Concurrence and Dissent stepped past those definitions and instead relied on what they consider the common understanding of the word, the use of the word in other cases and statutes, and the context within the statutory text. While the Concurrence accused the Plurality of wrongfully interpreting the word “maintain” in isolation from the rest of the phrase, the Dissent went further, accusing the Plurality of being “purposovist[s],” disregarding the plain meaning of the word to achieve their preferred policy goals.
Besides applying the plain and ordinary meaning of maintain, each interpretation harmonizes the entire statutory text. Each claims that it gives full effect to every word in the statute, rendering no word or provision in the statute superfluous or contradictory. But each also claims that the other interpretations do not. The Plurality asserts that the Concurrence and Dissent ignore the DMA’s codified purpose by interlineating a dismissal remedy. The Concurrence responds that the Plurality’s all-roads-lead-to-abatement interpretation renders the statute’s timeliness provision meaningless and fails to harmonize the Legislature’s use of different words in different sections. And in the Dissent’s view, the Plurality’s interpretation gives the phrase “maintain only if” no effect at all.
Tweaking Justice Kagan’s quote, Chief Justice Hecht quips in his Dissent that “we all say we’re textualists now.” But despite the charges of purposivism, it is hard to argue that any of the justices do not start with the same first principles of textualism. Indeed, the three opinions all purport to follow the textualist framework in arriving at their respective interpretations. The differences lie in their application of the framework, and each opinion adopts its own unique approach. While Justice Devine is willing to consider purpose when enshrined in the text of a statute, Chief Justice Hecht expresses disdain for any arguments about the purpose or policy underlying the statute. And Justice Boyd looks to the Legislature’s use of different words in different provisions of the statute to give meaning to undefined terms.
While these differences underscore the justices’ varying approaches to statutory interpretation, they also show an inherent difficulty with textualism—applying the same textualist principles to the same set of facts can often produce strikingly different results. And it is important to recognize this difficulty and to be aware of the different applications of textualism by the justices in future cases involving statutory interpretation brough before the Texas Supreme Court.
Precedential Value of the Court’s Plurality Opinion
Apart from its varying views on statutory interpretation, Hogan also raises a practical question—what is the law with no majority of the Texas Supreme Court? While the Court has been uniformly Republican for more than 20 years, it is common for the justices to split in a range of cases. In 2020, around 20% of cases produced some disagreement. Yet the Court rarely fails to reach a majority in the cases it decides, even when the justices disagree. A search reveals that there have been just nine cases with a plurality decision in the last 10 years. (Notably, a few weeks after Hogan, the Court failed to reach a majority again in a case regarding the jurisdiction of the Texas Public Utility Commission.)
The Court has long held that a plurality opinion is not binding. Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964). But a plurality’s legal reasoning cannot be discarded because the decision reasoned more votes than the others. How to interpret and apply a plurality decision has divided courts and commentators, leading to different approaches.
The Narrowest Grounds Approach
The U.S. Supreme Court also works by majority rule, but it has explained that in cases without a majority opinion, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977). This approach can be deployed in two ways. First, a lower court can examine the opinions concurring in judgment, affording the opinion that reached the judgment on the narrowest grounds full precedential weight. Second, lower courts can examine the reasoning in the concurring opinions that a majority of the concurring justices support, affording the majority reasoning full precedential support. Neither method is easy to apply. It is not always clear which concurring opinion reached the judgment on the narrowest grounds. Likewise, the reasoning across the opinions cannot always be neatly aligned.
For example, in Hogan, Justice Devine’s Concurrence would likely be viewed as offering the narrowest grounds for the decision as his interpretation would allow abatement in some cases and dismissal in others based on the facts of each case. Still, much of the reasoning from the Concurrence cannot be squared with that of the Plurality and is closer to the Dissent. In short, although the narrowest-grounds doctrine is simple in theory, it is often difficult to apply.
At least one court of appeals has adopted the narrowest grounds approach in a criminal case for a decision from the Texas Court of Criminal Appeals. Ervin v. State, 331 S.W.3d 49, 53 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). But for Texas Supreme Court decisions, courts have not adopted the narrowest-grounds approach.
The Minimal Value Approach
Rather than trying to piece together a majority by finding the narrowest grounds, courts in Texas have generally ascribed minimal precedential value to plurality opinions. The Texas Supreme Court has stated that a plurality opinion “has very little precedential value and would only control the result in an identical case.” Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 176–77 (Tex. 1994). And where a principle of law has not been agreed upon by a majority, a “plurality opinion is not authority for determination of other cases.” Id.
Under this approach, lower courts are not bound by the plurality opinion. They need not examine the reasoning or rationale underlying the concurring opinions to determine what controls and are free to arrive at their own decision on the disputed issues. But courts look to a plurality opinion as a point of reference, a guide in the decision-making process. See Canadian River Mun. Water Auth. v. Hayhook, Ltd.,469 S.W.3d 301, 303 (Tex. App.—Amarillo 2015, pet. denied).
The minimal value approach has the advantage of allowing lower court judges to contribute to the development of the law. Yet it also creates uncertainty and jurisprudential discord, forcing lower courts to make individual determinations as to the actual value of a plurality opinion. Although it provides lower court judges with decision-making flexibility, this approach may also produce ambiguity or inconsistent results.
In sum, there is no clear-cut framework for applying plurality opinions by lower courts. And even where a common rational may be found, the Texas Supreme Court has yet to provide further guidance aside from confirming that pluralities are not binding. While some may lament a failure to reach a majority, such cases may be better viewed as “admissions of uncertainty” and “a call for help to the lower courts” where the “insight and experience of lower court judges, and the opportunity to gain more information through feedback from the bench, bar, and general public, may be invaluable resources” to aid the Court in future cases. Linda Novak, Notes: The Precedential Value of Supreme Court Plurality Decisions, 80 Columbia Law Review 756, 781 (1980). Thus, lower courts and the parties before them must do their level best to operate within the uncertainty, build on the existing analytical frameworks, and contribute their reasoning to the ongoing debate.
Brandon Duke is an Of Counsel at Winston & Strawn LLP in Houston and a member of Winston’s Texas Appellate Practice. Dylan French, an Associate in Winston’s Dallas office, also contributed to this article.