Wednesday, February 19, 2014

Who dissents the most on the Houston Courts of Appeals?


How common are dissenting and concurring opinions on the Houston Courts of Appeals?
 
Systematic information both on disposition patterns and opinion production of individual justices is available from the Office of Court Administration. The Houston Courts of Appeals stand out once more, according to statistics published in the most recent Annual Report for the Texas Judiciary, which was released in January.

Kem Thompson Frost continued to distinguish herself as the most independent mind on the Fourteenth Court of Appeals; with a total 30 dissents and concurrences in Fiscal Year ending August 31, 2013. Eighteen of these opinions were dissenting opinions, out of a total 161 written by this jurist, who has since succeeded Adele Hedges as chief justice.

None of her peers on the court wrote more than five separate opinions in the same time period. With the exception of Justice John Donovan, who joined the 14th Court of Appeals on January 1, 2013 (during the fiscal year) replacing Justice Seymore (who did not seek re-election), each member of the court wrote at least one concurring or dissenting opinion. The highest total number was five each for Justices Sharon McCally and Tracy Christopher, and the same number authored by Chief Justice Adele Hedges.  The number of separate opinions by Frost is exceptional in statewide comparison of opinions issued by the members of the fourteen intermediate courts of appeals likewise. 

The First Court of Appeals, which also sits in Houston and hears appeals from the same collection of surrounding counties, has one member with an independent streak likewise: Justice Evelyn Keyes, who wrote 12 dissenting opinions, 2 concurrences, and 1 separate opinion concurring and dissenting in part, for a total of 15 separate opinions for the fiscal year.

Justice Keyes thus contributed almost 40% of the 38 separate opinions produced by her court, which, like the Fourteenth and the Supreme Court of Texas, consists of nine members and is housed in the old Harris County Courthouse which was restored to its former splendor a few years ago. But thanks to Frost, the tally of separate opinions issued by the sister court was higher: 58.

1910 Harris County Courthouse - View from new Civil Courthouse

The First Court has one member who is not a Republican, Jim Sharp, who is facing re-election this year, with three Republican primary contenders vying for the privilege of taking on the lone Democratic incumbent in November: Dan Linebaugh (R), Chad Bridges (R), and Russell Lloyd (R). Sharp authored six dissents, and two other separate opinions, for a total of eight, thus taking second place behind Keyes, followed by Justice Harvey Brown with a total of six. At the other end of the spectrum, Justice Laura Higley did not pen any dissents or concurrences at all, and Justices Jane Bland and Chief Sherry Radack only did so one time each over the course of the fiscal year.

The Fourteenth Court of Appeals continues to utilize the services of a retired justice: Hon. Margaret Mirabal, who authored 21 opinions on the merits, one concurrence, and two dissents, for a total of 40 opinions. The First Court, by contrast, had no opinions written by a former justice in FY 2012-13; nor any by a district judge sitting on a case by assignment for that matter. 

The annual opinion output for individual members of two appellate bodies ranges between 110 and 170, with lower totals for those who did not serve on the court for the entire fiscal year (Justices Seymore and Donovan). The total annual output per court is approximately 1200 each.
The official statistics break it down into published and unpublished opinions, but that distinction is not particularly meaningful because all opinions are "published" on the court's website, and even so-called "unpublished" opinions are routinely cited in trial and appellate briefs, even if they do not constitute binding authority. That said, they are cited less often compared to "published" opinions because of their lesser status.
Published means the opinion is included in the Southwestern Reporter, and gets a citable identifier that includes "S.W.3d" with volume number preceding it and page number following it, in addition to the a reference to the court that issued it and the year. Unpublished opinions are cited by Westlaw (WL) or Lexis-Nexis number. Sometimes the URL for the court's pdf version is provided as reference. All appellate opinions are now published in pdf on the courts' websites, with the benefit that the pagination is consistent. This was not the case when HTML versions were available and needed to be copied into a Word, WordPerfect, or similar word-processing file, which oftentimes garbled up or otherwise produced ugly alterations in the page set-up and formatting, assuming it the web version was even acceptable for viewing in various browsers to begin with.

Question addressed: Who are the most active dissenters on the First and Fourteenth Court of Appeals? Level of disagreement of members of appellate courts in Texas, as shown in concurring and dissenting opinions.
Links to: Texas Office of Court Administration and Annual Report on the Texas Judiciary