Free Speech, Due Process and Trial by Jury
Osler McCarthy is an editor-at-large for The Texas Lawbook. McCarthy retired in August 2021 after 21 years as staff attorney for public information for the Texas Supreme Court. High on his to-do list is developing appellate coverage tailored for Texas business lawyers.
He is a graduate of Austin College and holds a law degree from Gonzaga Law School, where he did not play basketball even though he had four years’ college eligibility left. After his mid-career law-school venture he clerked for the chief justice at the Washington State Supreme Court. After law school he practiced appellate criminal defense in Spokane. He has published academic articles on defamation and privacy and wrote the defamation chapter for the initial torts volume of West’s Washington Practice series.
As a journalist before and after law school, McCarthy worked mostly as an editor for newspapers in Sherman, Temple, Spokane, Kansas City, San Bernardino and Austin.
He is a licensed private pilot and would be flying again if he could get his 1968 Cessna Cardinal restored. His wife, Diana Dawson, is a University of Texas journalism professor. They have two children: a son who is a Navy pilot and a daughter who is editor of The Northern Light in Blaine, Washington.
First the Texas Medical Board temporarily slapped an Austin neurologist with a sanction for unprofessional patient contact. But only when a judge cleared him of the allegations did his fight really begin to rid a national database of the sanction that even the medical board dismissed. But the Texas Supreme Court ruled enough was enough.
A SCOTX dispatch, including a case highlight and other causes to watch.
For the third time in five years, the U.S. Court of Appeals for the Fifth Circuit has rebuked a federal district court judge in Houston for denying a plaintiff discovery before summary judgment. “This is the third time we have been asked to consider whether a particular district court can deny discovery rights protected by the Federal Rules of Civil Procedure because, in the district court’s view, that discovery is unnecessary,” the three-judge panel declared in a per curiam opinion. “We have twice held no. Today we so hold a third time.”
In an amicus brief filed at the U.S. Supreme Court, several former Texas judges urge the court to grant certiorari in the case of a Grayson County Black man convicted by an all-white jury that included several jurors who said they disapproved of his interracial marriage.
Lending pro bono assistance, Baker Botts is teeing up a constitutional challenge to the Texas comptroller’s decision that sales tax must be collected on feminine-hygiene products when the agency concludes Band-Aids and gauze – and even libido boosters for men – should not. This policy, argues the energy partner who is tackling the challenge, Meghan Dawson McElvy, “favors the male sex drive and organs over the management of female menstruation.”
Houston’s 14th Court of Appeals has reversed a $7 million arbitration award in an attorney-fees dispute because the arbitrator failed to disclose he had been an expert witness in litigation involving the party who selected a list of arbitrators. The court found the nondisclosure constituted “evident partiality” under Texas law.
Plaintiffs, objecting to the San Antonio City Council’s rejection of the restaurant chain’s location inside a San Antonio International Airport concourse, sued under a state law the Texas Legislature specially passed missed a point – the law was not retroactive. But the council’s action came well before the Legislature’s. The Supreme Court sent the case back to the trial court to allow repleading to establish jurisdictional facts – and maybe give the plaintiffs another bite at a chicken sandwich.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has decided that payments by oil exporters into an oil-spill remediation fund are unconstitutional export taxes. But the holding held not so much because one judge concurred only in the judgment and one dissented, evidently robbing the decision of precedential value.
From the Texas Supreme Court: A client supposedly in Europe wants help with a debt collection and contacts a Houston lawyer by email, promising a $10,000 retainer. A bad scenario got worse. More than $380,000 wired by the lawyer to Japan: Gone. Plus: Two more cases from the SCOTX docket: SandRidge Energy Inc. v. Barfield and Baby Dolls Topless Saloons Inc. v. Gilbert Sotero.
Pace, who clerked for U.S. Supreme Court Justice Anthony M. Kennedy and Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, is a former assistant U.S. attorney for the Southern District of Florida.
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