Wednesday, November 26, 2014

Appellate Court Output (FY 2014): Justices Christopher and Radack lead in number of opinions, Frost and Keyes show most independent streak

The 2014 Annual Statistical Report on the Texas Judiciary has not yet been released, but much of the new data for the fiscal year that ended Aug 31, 2014 is already available on the Office of Court Administration's website, including productivity stats.

So how did the members of the two Houston-based courts of appeals compare this year?


On the Fourteenth Court of Appeals, the annual opinion output ranged from a low of 84 to a high of 163 (leaving aside the 12 opinions written by Justice Jeff Brown before he received his promotion to the Texas Supreme Court from the Governor). The most productive member was Justice Tracy Christopher, whose jurisprudence also included a combined total of 13 dissents and concurrences, the second highest number of such opinions after Chief Justice Kem Thompson Frost, who took the lead with 21. With a total of 80, Justice Christopher also authored the highest number of signed original opinions on the merits. The number of per curiam opinions was relatively even across the membership of this court, with slightly over 70 per justice except for those who were not on the court for the entire fiscal year. Dissenting and concurring opinions were much rarer for other members of this court, but each penned at least one separate opinion. The tally for the court as a whole was 1,220 for Fiscal Year 2013-2014. Its share of all concurring and dissenting opinions was much higher than its share of the statewide caseload, making the fourteenth an interesting court to watch.


On the First Court of Appeals, the most prolific opinion-author was Chief Justice Sherry Radack, with a total of 207, none of which were dissents. Chief Radack took the lead in original opinions on the merits (122) as well as per curiam opinions (84). Justices Bland and Keyes came in second and third, with totals of 156 and 154, respectively, closely followed by Justice Harvey Brown, with 151.

The least productive justices on this court -- at least as gauged by the official metric -- were Rebeca Huddle and Jim Sharp. Sharp came in last with only 110. (Sharp since lost his bid for re-election; he was the only incumbent among the courts of appeals who was defeated in the November 2014 general election.). It may come as something of a surprise that the only Democrat on the court penned only 4 dissenting opinions. Going into the re-election contest, Sharp touted himself as a different voice on the court, and campaigned with the slogan "BALANCED JUSTICE IS A GOOD THING". But as now revealed by the OCA's official tally, his Republican colleague Justice Evelyn Keyes found much more frequent occasion to disagree with her fellow Republicans on the court than Democrat Sharp, and went to the trouble of articulating the basis of her divergent views of the issues presented by appellants and appellees by setting them forth in separate opinions. Some justices merely note their disagreement, or concur only in the result, without saying why. Justice Keyes handed down 12 dissents and 6 other separate opinions, more than three times as many as Maverick Sharp. Keyes was also the most prolific dissenter in the previous fiscal year that ended August 31, 2013. See prior post on Who Dissents the Most on the Houston Courts of Appeals (based on the Annual Report for the 2013 Fiscal Year).

The total number of opinions the First Court of Appeals issued in fiscal year 2014 was 1,290, which is slightly higher than the annual caseload processed and disposed of with opinion by its sister court in the same time span.


It is assumed that counting and reporting procedures are consistently applied to all members of the court. But there are potential sources of error or of debatable coding and counting, particularly in relation to one-page orders and opinions. Should they be counted and aggregated with long merits opinions or not? Also, mediation referral orders are longer than some opinions, but are basically templates. They are nevertheless typically issued in the name of justices, which is also true of other procedural orders. As such, they should not count as part of a justice's productivity. It is not clear if any such orders are counted and reported to the Office of Court Administration, and whether any opinions, which often even shorter, are deleted from the count.

On the other hand, sometimes a procedural matter and resultant order is complex enough to merit being counted as an opinion, while some opinions -- especially routine dismissal opinions based on non-payment or failure to file a brief and denials of mandamus petitions -- do not merit being regarded as opinions for statistical purposes at all, especially not as a measure of productivity. They are simply not the equivalent to an opinion that resolves a legal issue and gives guidance to courts below and practicing attorneys in future cases. At least they should not be lumped into the same category as merits opinions that have substantive content even if they are not reported in the Southwestern Reporter and are  not precedent-setting.

Comparability of aggregate opinion counts across the fourteen courts of appeals is also somewhat doubtful. The Houston Courts of Appeals now issue many more orders online (on the dated opinion/order release pages) than they used to.

Sample Opinion/Order Release Page - 14th Court of Appeals
New layout after recent court website redesign and
migration to new domain / URL
Other courts of appeals have other practices which may extend to the manner in which they classify opinions/orders for statistical purposes in addition to decisions as to what gets displayed and hyper-linked on the pages featuring daily releases. Variation in classification practices may affect the statistics for an entire court relative to sister courts. Comparisons of productivity measured by numbers of opinions reported by or on behalf of different appellate courts are accordingly not necessarily completely reliable. The same problem would affect a comparison of the total number of orders and opinion issued on the courts' websites on opinion release dates.

Another problem affecting comparability, though relatively minor, are appellate opinions that resolve several cases which are consolidated for briefing or are companion cases. They appear as an opinion on the docket for each case, but they are really just one opinion.

A better measure of productivity would be one that is sensitive to the length of opinions measured by pages (of the pdf files) or number of words (a metric already required for e-briefs to enforce length limitations), rather than merely the bare count without any differentiation as to short vs. long, and complex vs. routine. Complexity cannot easily be quantified, of course, but length should make for a suitable proxy; -- one that can be implemented in a consistent and reliable fashion by purely technical means with no subjective component whatever.

Another measure to enhance comparability, and make aggregate numbers more meaningful in representing amount of work, time, and effort, would be to strictly exclude from the count all one-page and two-page orders and opinions (such as dismissal orders and orders denying mandamus relief in one sentence or two), as well as form/template-based orders even if they exceed two pages. This criterion could be supplemented with a provision that allows the assigned justice to designate an opinion or order that would not otherwise qualify to be counted to nevertheless be exempted from the cut-off and be counted as "non-routine" for case-specific reasons despite brevity, or as useful as guidance for other appellate practitioners. This special designation could also be shown on the opinion release page on the relevant date as an additional value in the data field that currently identifies the released items as memorandum opinion, signed opinion with author's name, or "order" under the "Case Number" column header.


Example of  2-sentence Memo Op - Denial of Petition for Habeas Corpus relief 
Examples of two-page "Opinion" dismissing case for nonpayment of fees
Example of single-page opinion dismissing appeal
per agreement of the parties 

Opinions of the Texas Supreme Court by Justice (FY 2014)
Opinions written by Texas Supreme Court Justice in FY2014: Total of 115 ranging from 7 to 12 among members. 

KEY TERMS: Texas Courts of Appeals, appellate statistics, appellate opinions, Houston courts of Appeals, First Court of Appeals, Fourteenth Court of Appeals, Texas Supreme Court, disposition patterns, dissents and concurrences, measuring court productivity, methodological issue, quantifying justice.

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