© 2018 The Texas Lawbook.
By Mark Curriden
(March 2) – As Texas voters go to the polls next week for the primary elections, they will find 31 different races on the ballot for the regional appellate courts, the Texas Supreme Court and the Texas Court of Criminal Appeals.
The judges on these courts have more impact on the lives of most citizens than the office of governor, state attorney general or speaker of the house will ever have. The job of these jurists is to protect the rights of the people and hold the other branches of government accountable to the constitutional oaths.
These are the judges who are the final word on the biggest disputes of our day, as well as making sure that the most vulnerable and weakest among us is fully protected under the law.
“The work of our state appellate courts touches just about every person in Texas on an almost daily basis,” says Chad Baruch, a partner at Johnston Tobey Baruch and widely recognized as one of the leading appellate lawyers in Texas.
Yet, an estimated 90 percent of Texas – and a large percentage of lawyers – probably know nothing about the candidates for those judicial positions.
The non-partisan Committee for a Qualified Judiciary released its report on the candidates who are qualified. That list can be viewed here. The State Bar of Texas polled its members, who are arguably the most knowledgeable and most biased, about their preferences. The Texas Lawbook article on that poll can be read here. But only five percent of State Bar members participated in the survey.
The statewide courts – the Texas Supreme Court and the Court of Criminal Appeals – are expected to stay safely Republican. The regional appellate courts will likely remain unfazed by the March 6 election.
But legal experts say there is one set of races that should get more attention than all the others: the Fifth Court of Appeals in Dallas.
Eight of the 13 seats on the Fifth Court are up for election next week. There are two vacancies. The chief judge’s chair also is open, due to the retirement of Chief Judge Carolyn Wright. Democrats have significantly narrowed the vote margins in the six county Dallas region covered by the appellate court.
Nearly every Republican incumbent has a challenger. The Democrats also have posted a challenger in each contest.
With an unprecedented number of judicial spots up this election cycle, the Dallas appellate court has the potential to undergo change. Some predict the election could be dramatic and transformational, while others think it will be small and incremental.
“It is merely a fluke that eight judicial seats on the court are up for election at the same time – it has not happened before and it probably will not happen again for a long time,” says Passman & Jones Shareholder John Browning, who is a candidate for Place 11 on the Fifth Court. “Because there are two open seats and a change in chief judges, there will be change.”
Browning, who has authored books and law review articles on the impact of social media on the courts and law and writes regularly for D CEO magazine, is an example of the certain incremental change that the court will likely see. He has been endorsed by The Dallas Morning News and has the backing of most of the major Dallas corporate law firms.
“Courts need to be aware that technology and the Internet affect how they operate,” he says. “These kinds of issues are only going to surface more and more.”
There are others who privately argue that the Dallas Court of Appeals is sitting on the precipice of a major revolution – a potential Democratic sweep could instantly changes judicial attitudes and philosophies in scores of issues that could impact nearly every citizen in the DFW area.
But … probably not. At least probably not this year.
“If ever there was an opportunity for a dramatic change at the appellate court, it is this year,” Baruch says. “I think some diversity of thought would do the court good. Dissenting opinions are healthy because they force the majority to be sharper, more thoughtful.
“A one-sided court – be it all conservatives or all liberals – is not healthy for the development of the law,” Baruch says. “But put me in the skeptical category that there will be big changes. It could happen, but I doubt it will.”
David Coale, an appellate law expert and partner at Lynn Pinker Cox & Hurst, agrees.
“The Dallas Appeals Court has some very smart and thoughtful judges, but it has developed the reputation for almost always being unanimous and for favoring arbitration,” Coale says.
“The potential is there for dramatic, almost historic change, but I think it is still highly unlikely,” he says.
Republicans have controlled the Fifth Court for about three decades. The last Democrat to be elected to a judgeship on the appellate court was in 1992.
In the last election cycle, the Republican candidates defeated their Democratic opponents 52 percent to 48 percent. Political insiders say the gap has been narrowing in favor of Democrats for the past decade and will continue to do so.
“The Fifth Court is known as one of the most strident appellate courts in Texas – even more extreme than the state Supreme Court,” says Dallas District Judge Ken Molberg, who is a Democratic candidate for Place 12 on the appellate court. “The Fifth Court needs balance. It needs some seasoned judges.
“If the stars align just right, the Democrats could sweep the election in November and completely flip the appellate court,” Molberg says.
Indeed, a growing number of Texas lawyers and litigants – including many corporate in-house counsel and even some appellate judges – privately complain about the single-mindedness of the Dallas Court of Appeals. The list of grievances includes:
- The court as a whole lacks diversity of thought and suffers from group mind think;
- Members of the court are infatuated with binding mandatory arbitration;
- Several of the appellate judges rely too often and too quickly on “waivers” to dismiss appeals instead of tackling cases based on the actual legal issues and facts;
- Dissenting and concurring opinions are few and far between;
- The court possesses a deep distrust of jury verdicts – especially jury damage awards for plaintiffs, even when the victims are businesses;
- The court is too secretive on why it decides to grant mandamus in certain civil cases, but declines to do so in others; and
- The Dallas appellate bench desperately needs more former civil trial judges among its ranks (currently, only one of 13).
“We watch all the other appellate courts for decisions that are out of the conservative mainstream and have to rein them in,” a state Supreme Court justice told The Texas Lawbook recently. “But the Fifth Court is like the Collective from Star Trek – very few dissents.
“We actually come across as somewhat liberal, more progressive thinkers when compared to the Fifth Court of Appeals,” the justice stated.
Lawyers and judges say the additions of former trial court judge David Evans, appellate law expert David Schenck and experienced trial lawyer Ada Brown to the appellate bench have provided the Fifth Court with much needed insight into complex commercial litigation.
There are some appellate practitioners who say they have heard these complaints about the Fifth Court, but that they have not seen the evidence supporting the charges.
“I represent small businesses before the Fifth Court all the time and I have never felt that there was a bias in favor of the lawyers for large companies,” says Dallas appellate counselor Chad Ruback. “I hear the complaints, but I do not see the evidence of it in the trenches day to day.
“I think the Fifth Court judges do a pretty good job of calling balls and strikes,” Ruback says. “Would I like a little more diversity on the court? Sure. But there’s also an advantage for businesses to be able to predict how the court will rule.”
If a Democratic wave were to overtake the Fifth Court, the legal experts who can be critical of the appellate court today say the problem of lack of diversity would still exist because then just Democrats would control the court.
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