The Texas Supreme Court Friday rejected arguments from German car manufacturers Volkswagen and Audi that allowing the state’s governor to appoint replacement justices to hear an environmental lawsuit Texas is bringing against them would create due process and ethical problems.
Friday’s per curiam opinion was issued in the lawsuit Texas is pursuing against the automakers related to the vehicle-emissions cheating scandal perpetrated by the companies. The U.S. Environmental Protection Agency found that the manufacturers had installed “defeat device” software in vehicles that made them appear to pass emissions standards.
Two of the court’s nine justices voluntarily recused themselves from deciding the case, which triggered an unusual request from Chief Justice Nathan Hecht in June asking that Gov. Greg Abbott appoint two justices from the intermediate appellate courts to sit in and help decide the case.
Volkswagen and Audi objected quickly, before the to-be-appointed justices had been named, arguing in a June 29 letter that allowing the governor to appoint two hand-picked justices would be tantamount to allowing the state “to be the judge of its own cause.”
“We assume the reason for that rare request is that five of the remaining seven members of this court are unable to concur on a decision, as Article 5, Section 2 of the Texas Constitution requires,” the manufacturers wrote. “We appreciate the potential need for a path forward. With all respect, however, there is perhaps no axiom more fundamental to the law than that no one may be the judge in his or her own cause.”
Volkswagen and Audi suggested that the court, if unable to obtain a five-justice majority, should instead “dismiss these petitions as improvidently granted under Texas Rule of Appellate Procedure 56.1(d) and to decide the jurisdictional question here in a future case.”
In an Aug. 25 letter, the governor appointed Chief Justice Bonnie Sudderth of the Second Court of Appeals in Fort Worth and Justice Jaime E. Tijerina of the Thirteenth Court of Appeals to the case.
But in Friday’s opinion, the court held that the argument from the manufacturers about due process and ethical issues arising from the appointments “rests on two fallacies” that “misunderstand the nature and structure of Texas’ government.”
Those fallacies, the court wrote, are that the “governor is the state and thus effectively a party in these cases, even if not named as such; and that commissioned justices, by virtue of having been appointed by the governor, must be partial to the state or, at a minimum, will necessarily appear to an ordinary person to be partial to the state. “
Texas petitioned the state’s high court for review in February 2021, according to court records, and heard oral arguments Feb. 22 of this year. The issue before the court was whether the state had authority to haul the nonresident companies into Texas courts. Justice Jimmy Blacklock did not participate in oral arguments.
The court has for the past several years issued opinions in every case it hears by the end of the term in late June.
With an opinion in this case still outstanding, the court took unusual action in June and abated the case without either party requesting the move. Chief Justice Hecht sent a letter to Gov. Abbott June 24 asking him to appoint two new justices to hear the case because Justices Blacklock and Evan A. Young — who did sit for oral arguments — had both recused themselves.
Friday’s order set the re-do of oral arguments in the case for Jan. 9.
The Third Court of Appeals in Austin issued a 2-1 ruling in December 2020 holding that Audi and Volkswagen’s tampering activities “were not purposefully directed at Texas” and therefore the state didn’t have authority to bring the suit in Texas court.
Justice Gisela D. Triana dissented and Chief Justice Jeff Rose and Justice Edward Smith signed on to the majority opinion.
On Dec. 16, 2019, Travis County District Judge Tim Sulak sided with Texas and denied the manufacturers’ special appearance, according to court records, prompting Volkswagen and Audi to appeal in February 2020.
Audi and Volkswagen are represented by Jeffrey B. Wall, Arnaud Camu, Nicholas Menillo, Jason Barnes and William B. Monahan of Sullivan & Cromwell; Robert L. Sayles, Samuel T. Acker, William Snyder, David C. Miller, Madeleine Bourdon and Richard Sayles of Bradley; and Jeffrey S. Levinger.
Texas is represented by its own Judd E. Stone II, Rance Craft, Lisa Bennett, Nanette Dinunzio and Patrick K. Sweeten.
The case numbers are 21-0130 and 21-0133.