Judicial Admission Alone Defeats Anti-SLAPP Motion
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You may not lose your case if you fail to file a response to an Anti-SLAPP motion to dismiss, but you should always file a response . . . to any dispositive motion. In Bumjin Park and Jaeyoung Park v. Suk Baldwin Properties, LLC, et al., the Austin Court of Appeals, affirming the trial court’s denial of the movants’ motion to dismiss, held that a judicial admission by the movants established by clear and specific evidence the nonmovants’ counterclaim under section 17.50(c) of the Texas Deceptive Trade Practices Act. In other words, the plaintiffs defeated their own motion by their own pleadings.

Facts and Holding in Suk Baldwin Properties, LLC

The plaintiffs in Suk Baldwin Properties, LLC alleged that they purchased property from the defendants for $1,000,000 and that the defendants made various misleading statements about the condition of the property, among other misleading statements, during the negotiations. The plaintiffs asserted causes of action against the defendants for common law fraud and violations of the Deceptive Trade Practices Act. The defendants filed counterclaims for breach of contract, tortious interference with existing contracts and prospective business, and for attorney fees and court costs on the ground that the plaintiffs’ DTPA action was “groundless in fact or law or brought in bad faith, or brought for the purpose of harassment.” Tex. Bus. & Com. Code § 17.50(c). The plaintiffs filed a motion to dismiss the defendant's’ counterclaims pursuant to Texas Civil Practice and Remedies Code § 27.003(a), alleging that the defendants’ counterclaims were based on, related or in response to the plaintiffs’ exercise of their rights to petition government, namely filing their Original Petition.

The appellate court held the defendants’ tortious interference and breach of contract claims were based on alleged conduct by the plaintiffs outside the context of their lawsuit. The plaintiffs’ petition was based on alleged misrepresentations or material-misleading statements during the negotiations for the purchase of the property at issue. The defendants’ tortious interference and breach of contract claims alleged the plaintiffs engaged in a concerted effort to run off all existing tenants, including one of the defendants (Cen-Tex Dental), by “increasing their rent significantly” and “refus[ing] to provide services required by the tenants’ leases” and by preventing Cen-Tex Dental from erecting its sign for its customers to see and blocking customer parking and obstructing the front view of Cen-Tex Dental’s office with large trash dumpsters. The appellate court concluded that the plaintiffs failed to prove by a preponderance of the evidence the defendants’ counterclaims were based on, related or in response to the plaintiffs filing their Original Petition.

For the defendants’ section 17.50(c) counterclaim, however, the appellate court found the plaintiffs sustained their burden to prove Chapter 27 applied. The defendants sought attorney fees and court costs against the plaintiffs on the ground that the plaintiffs’ DTPA causes of action were groundless, in bad faith, or solely to harass the defendants. As a result, the defendants’ section 17.50(c) counterclaim was directly in response to the Plaintiffs’ DTPA claims in their Original Petition. The burden then shifted to the defendants to demonstrate by clear and specific evidence a prima facie case for each essential element to their section 17.50(c) counterclaim. See Tex. Civ. Prac. & Rem. Code § 27.005(c).

Since the plaintiffs filed no affidavits in support of their motion to dismiss and the defendants filed no response whatsoever, the appellate court looked solely to the pleadings to determine whether the defendants met their burden of proof. The plaintiffs relied on the fact that the defendants failed to file a response to the motion to dismiss as a sufficient ground for the court to find the defendants did not sustain their burden. However, the plaintiffs affirmatively pleaded in their Original Petition that they paid $1,000,000 for the property at issue. The plaintiffs’ assertion of fact as to the purchase price, the court held, constituted a judicial admission. Section 17.49(g) of the DTPA exempts from the DTPA commercial transactions “involving total consideration by the consumer of more than $500,000.” As a result, the appellate court held, “‘[the plaintiffs’] judicial admission as to the purchase price of the property was sufficient to establish by clear and specific evidence a prima facie case’ that their DTPA claims are groundless in fact.”

Implications of and Lessons from the Suk Baldwin Properties, LLC Holding

The Suk Baldwin Properties, LLC holding carries two large implications. First, asserting a section 17.50(c) counterclaim brings that counterclaim within Chapter 27’s reach, making it ripe for an Anti-SLAPP motion to dismiss. Section 17.50(c) can only be raised in response to a DTPA cause of action and, therefore, will always implicate Texas Civil Practice & Remedies Code chapter 27. Second, a judicial admission in the movant’s pleadings alone can defeat the movant’s motion, even if the movant demonstrates that Chapter 27 applies and even when the burden of proof lies with the nonmovant.

For practitioners, there are some lessons to glean from Suk Baldwin Properties, LLC. For one thing, if you are representing a client against whom a DTPA action is pending, and you truly believe the DTPA action is groundless in fact, brought in bad faith, or brought solely to harass your client, consider whether an alternative route to filing a counterclaim exist to recover attorney fees and court costs under section 17.50(c). Section 17.50(c) does not state whether a party wishing to recover attorney fees or court costs under its provision must file with the court a request for such fees and costs in a motion or pleading or any other document. Section 17.50(c) simply states: “On a finding by the court that an action under this section was groundless in fact or law or brought in bad faith, or brought for the purpose of harassment, the court shall award to the defendant reasonable and necessary attorneys' fees and court costs.” Also, section 17.50(c) is not an affirmative defense, so it need not be pleaded. See O’Shea v. International Business Machines Corp., 578 S.W.2d 844, 848 (Tex. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.). Since section 17.50(c)’s plain language makes clear that the judge, not a jury, decides whether the DTPA action was groundless, brought in bad faith or to harass, it would appear one could raise the issue at a hearing on a dispositive motion or raise it in the trial of the matter, rather than in an actual filing with the court, thereby taking the section 17.50(c) issue outside of Chapter 27’s reach. After all, Chapter 27 only applies to pleadings or filings with the court that seek legal or equitable relief. See Tex. Civ. Pray. & Rem. Code § 27.001(6). Section 17.50(c) may be an issue the judge can take up sua sponte, so informing the court of the issue at a hearing may be enough to recover under section 17.50(c). See Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, (Tex. App.—Dallas 1988, no writ) (“[F]indings prerequisite to an award of attorney fees under section 17.50(c) must be made by the court and not by the jury.”); see also Schlager v. Clements, 939 S.W.2d 183, 190 (Tex. App.—Houston [14th Dist.] 1996, (holding the question whether a suit is groundless in fact or law or brought in bad faith under section 17.50(c) “is a question of law for the trial court”).

But don’t you have to specifically plead that you seek attorney fees and the statutory basis for an attorney fees award? Not always. For example, section 17.50(c) is similar to Texas Civil Practice & Remedies Code § 27.009(b), which states: “If the court finds that a motion to dismiss filed under this chapter is frivolous or solely intended to delay, the court may award court costs and reasonable attorney's fees to the responding party.” Chapter 27 does not require the party responding to an Anti-SLAPP motion to dismiss to first amend its answer to include a request for an award of attorney fees pursuant to Chapter 27 before the court may award attorney fees to the respondent. The responding party, for all intents and purposes, may simply request the court to award the respondent reasonable attorney fees and court costs if the judge denies the motion and finds that the motion was frivolous or for the purpose of delay.

More obvious lessons to glean from the Suk Baldwin Properties, LLC holding include the following: (1) always check your pleadings before they are filed to ensure you do not affirmatively state facts that defeat your client’s own cause of action; (2) always support an Anti-SLAPP motion to dismiss, or response thereto, with an affidavit; and (3) always file a response to any dispositive motion.

Daniel Correa
An Author’s Rights Go Public
 Photo by  Ari He  on  Unsplash

Photo by Ari He on Unsplash

Article 1, Section 8, Clause 8 of the United States Constitution, known as the “Copyright Clause,” gives Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” As such, the exclusive rights held by a copyright author are finite, and the duration of such rights are complex — particularly for works published between 1923 and 1977.There are specific notice requirements that must be adhered to, but as a rule of thumb, it is important to remember that:

  • For works created from 1978 on, copyright protection generally expires 70 years after the individual author’s death.(See Note 1 below)

  • Copyright protection in works created before 1923 have expired and fallen into the public domain.

The following is a general guide, organized by year of registration or first publication, for determining when an author’s work will fall into the public domain. Note that works created before 1978 had renewal requirements that must be met for an author to retain copyright protection (a topic for another discussion—this topic is already complicated enough):

January 1, 1923 — December 31, 1963

Published without copyright notice:

  • The work is in the public domain.

Published with copyright notice, but the registration was not renewed:

  • The work is in the public domain.

Published with copyright notice and renewed during the 28th year of publication:

  • The work is protected for 95 years from the date it was published.

January 1, 1964 — December 31, 1977

Published without copyright notice:

  • The work is in the public domain.

Published with copyright notice (no renewal required):

  • The work is protected for 95 years from the date it was published.

January 1, 1978 — February 28, 1989

Published without copyright notice or registration:

  • The work is in the public domain.

Published without copyright notice, but registers within 5 years of publication:

  • The work is protected for the life of the individual author plus 70 years.

Published with copyright notice (but created on or after January 1, 1978):

  • The work is protected for the life of the individual author plus 70 years.

Published with copyright notice (but created before January 1, 1978):

  • The work is protected for the life of the individual author plus 70 years, or December 31, 2047, whichever is greater.

March 1, 1989 — December 31, 2002

Created on or after January 1, 1978:

  • The work is protected for the life of the individual author plus 70 years.

Created before January 1, 1978 and not previously published:

  • The work is protected for the life of the individual author plus 70 years, or December 31, 2047, whichever is greater

January 1, 2002 — Present Day

  • The work is protected pursuant to the general rule of thumb—70 years after the individual author’s death.

Works prepared by United States government employees as part of their official duties are in the public domain and do not enjoy copyright protection. There are also special rules and exceptions that apply to works first published outside the United States, architectural works, and sound recordings (as opposed to the compositions of such sound recordings). These topics only complicate the above guidelines, and they are also topics for another discussion. 

Although United States law does not allow copyright protection, unlike trademark protection, to persist indefinitely, copyright registrants enjoy a longer duration of protection than patent holders, and copyright registrations do not require the stringent maintenance procedures inherent in trademark law. The good news and takeaway: your copyright registration, assuming you haven’t licensed or sold it, is likely yours for life (plus 70 years).

  • Note 1: Copyright protection in works created from 1978 on (with more than one author) expires 70 years after the death of the last surviving author. Additionally, copyright protection for anonymous works, works authored under a pseudonym, and works made for hire expire 95 years from the date of publication or 120 years from the date of creation, whichever expires first.

Charles Wallace
Daniel Correa Selected to Update Dorsaneo's Texas Litigation Guide
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Daniel Correa, Managing Attorney at Creedon PLLC, has been selected to update the Commercial Litigation and Business Entities volumes of the Texas Litigation Guide. This guide, commonly known as Dorsaneo’s, is published by Matthew Bender & Company, Inc. and is written by SMU Law Professor William V. Dorsaneo III. The Texas Litigation Guide is a comprehensive twenty-six volume treatise commonly used in private practice, and Daniel will rely on his experience as a civil litigator and appellate attorney to make a valuable contribution to this resource.

Having graduated first in his class from the Oklahoma City University School of Law, and with an LLM in Legal Theory from the NYU School of Law, Daniel brings academic rigor to this new challenge. Find out more about Daniel here or by reviewing some of his writing.

Creedon PLLC
James Creedon Elected to Three-Year Term as Barrister with the Patrick E. Higginbotham American Inn of Court

Creedon PLLC is proud to announce that attorney James Creedon has again been elected to the Patrick E. Higginbotham American Inn of Court, this time being selected for a three-year term in the role of Barrister. This organization focuses on litigation and brings together some of the most experienced and skilled attorneys in the Dallas-Fort Worth area. Named for Circuit Judge Patrick E. Higginbotham, United States Court of Appeals for the Fifth Circuit, the Inn is committed to excellence, civility, professionalism, and ethics in the legal profession.

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“I am honored to again serve with such an esteemed gathering of attorneys, and I look forward to giving my best efforts towards the success of the Inn and the development of our profession,” said James Creedon, founding member of Creedon PLLC.

James focuses his litigation practice primarily on intellectual property and associated commercial matters, and his clients range from sole proprietors to billion dollar companies.

Creedon PLLC
Legal Issues When Leaving a Job
 Photo by  Fikri Rasyid

Photo by Fikri Rasyid

Employee mobility is becoming more and more common. While changing jobs is exciting, you need to be cautious when making a move to avoid legal liability. If you’re changing jobs, you may want to talk to an attorney to get advice on your specific situation. However, here are a few general points to keep in mind. 

 

Review Post-Employment Restrictions Before Leaving

It’s easy to forget about post-employment restrictions you may have signed on the first day of work with your former employer. Nevertheless, you likely signed agreements that you will need to review to avoid violating duties which carry forward even after you change employers. Post-employment restrictions can include non-competition and non-solicitation provisions, and can often be found in employment contracts, stock option agreements, deferred compensation agreements, bonus plans, and purchase/sale agreements. Often overlooked, post-employment restrictions are one of the easiest ways employers can file lawsuits against former employees. 

Generally, post-employment restrictions must not go beyond what is reasonably necessary to protect a legitimate business interest. This means the restriction must be limited to a geographical location and to specific types of jobs or industries. For example, a company that only operates in Texas will most likely not be able to enforce a non-compete provision against an employee moving to a company which only operates in Florida. Likewise, a company most likely cannot stop an employee working in sales from taking a job in human resources with a competing company.

If it’s clear you signed enforceable post-employment restrictions, you still have options. First, you may be able to structure your new position so that its duties and responsibilities do not violate your restrictions. For example, you may arrange your new job such that you avoid dealing with certain clients or performing particular duties for the duration of your restrictions. Next, see if your new employer will place you “on the bench.” Your new employer may be willing to place you in a temporary position for the duration of your restrictions, which may protect both you and the employer from a greater risk of liability. Lastly, depending upon the circumstances of your departure, your former employer might be willing to waive your post-employment restrictions.

Questions on your post-employment restrictions should be reviewed by an attorney admitted to practice in the applicable state, as the enforceability of post-employment restrictions varies depending on the state and differs from situation to situation. 

 

Preparing to Leave

Even if you are not subject to post-contractual agreements, you may still be liable to your former employer for certain conduct as you take steps to leave. Notably, while you’re working for an employer (even after you’ve given your notice) you owe a fiduciary duty to that employer, which means you owe a legal duty to your employer to act in their best interest before you change jobs. This includes not soliciting clients or business away from them, and continuing to work to the best of your ability to benefit their business. If you are found to have taken a business opportunity away from your former employer while you are still employed by them, you (and possibly your new employer) could be financially liable for that lost opportunity.

It’s best practice to be cautious when informing other employees, clients, customers, vendors, or business partners that you’re changing jobs. Simply let them know you’re leaving, and avoid giving them a lengthy reason why or encouraging them to join you. This can be difficult because you will most likely have built up a business or personal relationship with them. However, you will be able to contact them (absent any post-contractual agreement) once you start with your new employer and can explain the situation. 

Additionally, it’s important to be cautious of what materials you retain and carry over to your new employer. You must be certain to return all company-owned materials to your employer, including your computer, phone, notes, drafts or final documents, or anything that may contain confidential or proprietary information. Simply because you worked on a project or task does not mean you’re allowed to save or keep information related to it. Anything you prepared for your former employer is a work product of your former employer and must not be improperly retained. This includes reports, standard forms, coding, client lists, blueprints, or anything that you created that was related to your job.  An employee retaining confidential or proprietary information is often the spark that ignites a lawsuit.  

 

Starting Your New Job 

Even when you start your new job you may not be out of the woods yet. You may have also signed a non-disclosure agreement (“NDA”). NDA’s prevent you from disclosing confidential or proprietary information, and may have additional restrictions included in them related to trade secrets. Trade secrets are information which provides an economic or competitive advantage to its owner because the information is not generally known to the public or within an industry. Examples of trade secrets include, but are not limited to, marketing plans, commercial drawings, recipes, client list, or manufacturing processes. Employees who take trade secrets to a new job can be liable under the Defend Trade Secrets Act (“DTSA”), and a court may order them to stop working for a new employer and pay any damages, such as lost profits, caused by using those trade secrets. 

The best way to avoid a DTSA claim or an allegation of violating your NDA is to refrain from using practices or procedures gained from your former employer. Stick to commonly known practices in your industry. It can be difficult to perform your new job and separate out the methods or practices you learned from your former employer, but a helpful tool is to avoid the “we did it this way at my old company” mentality. Rely on the skills and knowledge you’ve gained through your education and industry experience rather than confidential or proprietary information from your previous job. Additionally, if you are working for a direct competitor, do not use inside information about your former employer to undercut them. For example, if your previous employer is about to release a new product and marketing campaign, do not disclose that to your new employer. If your new employer ever asks about your previous employer, it is best practice to avoid specific statements about internal methods and procedures. 

 

Conclusion 

It can be easy to be get swept up in the allure of a new job, but it’s important to remember your legal obligations. To the extent you have questions or concerns, contact an attorney to help you review what you signed. This way you can focus on your new job – and not spend those first days worrying about facing a lawsuit. 

Patrick Lewis
Political Parties and Trademarks
 Photo by  Jomar  on  Unsplash

Photo by Jomar on Unsplash

Political parties operate just like any other brand. Each political party has distinctive colors, logos, and brand identity. For example, you associate the Republican elephant or the Democrat donkey with a particular source. You may not like that source or agree with that source —but you know the source. Trademarks are an important part of branding, and political parties need trademark protection to promote their ideals and endorse candidates. However, political parties face challenges with the United States Patent and Trademark Office (USPTO), and the USPTO has no clear guidelines for political parties to follow. That said, if done properly, a political party can hold a registered trademark. 

Republican Party and Democratic Party Trademark Portfolios

Neither the Republican Party nor the Democratic Party holds registered word marks for their names. The Democratic Party attempted to register a service mark in 1992 but abandoned their application later the same year. The Republican Party, on the other hand, has never sought federal registration for its name. In fact, the only national political party with a registered word mark is the Libertarian Party (Reg. No. 2423459). 

The national political parties do hold a few federally registered trademarks in their trademark portfolios. The Republican Party holds two registrations for its elephant logo in connection with political activities (Reg. No. 1892445 and Reg. No. 1908397), and the Democratic Party holds a trademark registration for a logo that is an uppercase “D” with a circle around it. (Reg. No. 4139881). Additionally, the Democratic Party holds a trademark for I WILL VOTE. (Reg. No. 5061751)

Issues Political Parties Face When Applying to Register Trademarks

Political parties face a few issues when attempting to register trademarks. First, political parties often receive a “merely descriptive” refusal. The party wants people to know what it stands for when they hear the party’s name, therefore the political party’s name often stems from a quality of the party. This makes the political party names prone to “merely descriptive” refusals, as the name can be said to “merely describe” a quality of the party such as focusing on environmental issues (hence “green”). For example, the CHRISTIAN DEMOCRATIC-REPUBLICAN PARTY and the NATIONAL INDEPENDENT both received a merely descriptive refusal for their applications. (Serial No. 77039315 and Reg. No. 4482846). 

Additionally, political parties often receive “geographically descriptive” refusals. Chapters of political parties need trademarks too, and often the location of the chapter is included in the trademark. Political parties with geographic locations in their name are almost guaranteed a “geographically descriptive” refusal. For example, both the REPUBLICAN PARTY OF LOS ANGELES COUNTY and the DEMOCRATIC PARTY OF NEW JERSEY received “geographically descriptive” refusals. (Serial No. 85056861 and 85403796).

A “geographically descriptive” refusal isn’t the only problem local political party chapters might face. As stated above, the Republican Party holds its elephant logo as a registered trademark. The USPTO has issued “likelihood of confusion” refusals to local Republican Parties applying to register a logo with the Republican elephant logo. Even though a local Republican chapter is affiliated with the national Republican Party, the USPTO sees them as separate marks and prohibits local chapters from using the elephant in their own trademarks. For example, THE REPUBLICAN PARTY OF LOS ANGELES COUNTY and REPUBLICAN PARTY OF PENNSYLVANIA both received “likelihood of confusion” refusals for using the Republican elephant. (Serial No. 85056612 and 86038833). 

Do Political Parties Perform a “Service” Under the Lanham Act?

In United We Stand the Second Circuit Court of Appeals ruled political activities fall within in the meaning of “services” under the Lanham Act. United We Stand Am., Inc. v. United We Stand, Am. N.Y., Inc., 128 F.3d 86. The court reasoned that political parties provide a valuable service to voters by adopting a mark and using that mark to endorse candidates. Voters need to be able to distinguish those marks, so they know which party supports which candidate. If trademark protection were not allowed, any group trading in political ideas would be free to distribute publicity statements, endorsements, and position papers in the name of the Republican Party, the Democratic Party, or any other party. The court noted, “the resulting confusion would be catastrophic.” Id. at 90.

Should Political Parties Register Collective Marks?

The Trademark Manual of Examining Procedure does not speak to the registrability of political party names. However, the term “political parties” does appear in § 1304, which addresses collective marks. Collective marks are a type of trademark that show membership to a particular organization. The term “political parties” appears under § 1304.02(a)(i)(C), which addresses specimens and states, “Flags, pennants, and banners of various types used in connection with political parties, club groups, or the like could be satisfactory specimens.” This suggests that political parties should register their trademarks as collective marks. Political parties need to use their marks to endorse candidates, and using a collective mark would allow a party to show a candidate belongs to its group and ideals. 

In reality, political parties do not take the collective mark route. A trademark search reveals no major political party has registered a collective mark. The Green Party applied to register a collective mark in 1992 but abandoned the application. (Serial No. 74247135). Neither the Democratic Party nor the Republican Party holds a federally registered collective mark. 

Conclusion

While it’s clear political parties are brands and need trademark protection to promote their ideals and endorse candidates, there is significant uncertainty on the best path forward for them to achieve this end. Given increasing tensions within the major U.S. political parties, this may be the year the USPTO sees an uptick in applications and has to clarify its approach.

Patrick Lewis
Justice Guzman’s Dog in the Fight in City of Laredo v. Laredo Merchants Association
It’s not the size of the dog in the fight, it’s the size of the fight in the dog.
— Mark Twain
Photo by Tim Mossholder on Unsplash

State law preempts the City of Laredo’s anti-litter ordinance, which prohibited local merchants from providing to customers “single use” plastic and paper bags for point-of-sale purchases, according to the Texas Supreme Court in City of Laredo v. Laredo Merchants Association. Before engaging in its analysis and supplying reasons for its decision, the Court disclaimed that it had any “dog in this fight”:

The roving, roiling debate over local control of public affairs has not, with increased age, lost any of its vigor. From public education to immigration policy to fracking to shopping bags, the sides are always deeply divided. “Judges have no dog in this fight. Our duty is to apply the rules fairly and equally to both sides.”

This disclaimer is a curious way to begin a judicial opinion. For one thing, the issue in the case was not whether the judges personally agreed with any public policy, nor did any issue in the case involve public education, immigration, or fracking. So why begin with this disclaimer? Or maybe the following is a better question: Is it true that judges have “no dog” in any public policy fight? Footnotes 1 and 5 and Justice Guzman's concurrence in City of Laredo may answer both of these questions. 

What about those Footnotes in the Opening Paragraph? 

City of Laredo concerned “shopping bags,” not public education, immigration policy, or fracking; Yet, the Court made it a point to mention these latter “public affairs” over which local control over state control is desired by some Texas citizens.  For each of these “public affairs” issues, the Court dropped a footnote. Footnote 1 is substantially different from Footnotes 2 and 3, even though all three footnotes serve the same purpose in drawing attention to contentious public affairs issues.

The first footnote starts out with an explanatory background from a prior Texas Supreme Court case, quoting some language from the majority opinion in Neeley v. West Orange-Cove Consol. Independent School Dist., 176 S.W.3d  746, 786 (2005). Interestingly, Justice Brister wrote a scathing dissent in which he advocated a strong public-policy preference for judicial intervention in creating an "efficient" public education system, going as far as saying that the Court cannot simply defer to the legislature when the Texas Constitution requires "a general diffusion of knowledge": "If efficiency is a justiciable question (as the Court holds), then we cannot simply suggest that someone else look into it." See Neeley, 176 S.W.3d at 802-03 (Brister, J., dissenting). Footnotes 2 and 3, on the other hand, simply cite to statutes which prohibit certain local policy-actions. Footnote 5 may provide some insight into why Footnote 1 sticks out the way it does. 

Footnote 5 on its face appears completely benign. The Court cites to a concurring opinion from a case out of the Ninth Circuit Court of Appeals to which it attributes the quote, “Judges have no dog in this fight . . . .” U.S. v. Howard, 793 F.3d 1113, 1115 (9th Cir. 2015). A look at the Howard concurring opinion, however, reveals a similarity to Footnote 1. Judge Kozinski’s concurring opinion in Howard is written to address what he considered patent unfairness in the release conditions imposed on a criminal defendant by the District Court, prohibiting the Defendant from contacting certain witnesses, without an equal prohibition on the state. Judge Kozinski articulates a clear policy-preference. 

After citing to Howard’s concurring opinion, Footnote 5 in City of Laredo adds the following:

For what it’s worth, “[a] person commits an offense if the person intentionally or knowingly . . . causes a dog to fight with another dog” or “attends as a spectator an exhibition of dog fighting.” Tex. Penal Code § 42.10(a)(1), (6). The latter is a Class A misdemeanor, the former a state jail felony. Id. § 42.10(e).

The majority opinion directs readers to two cases, Neeley in Footnote 1 and Howard in Footnote 5, both of which include individual judge's respective concurring and dissenting opinions that include a strong public policy opinion by the respective judges; that is, these cases provide examples of judges with a dog in the fight. Although Footnote 5 in City of Laredo bears no relevance whatsoever to the legal analysis, reason, or conclusion in the case, it may have been directed as a good-natured-professional chide at the concurring opinion written by Justice Guzman, who did “cause a dog to fight with another dog” when she articulated a policy position against the majority’s clear statement that judges have “no dog in this fight.” 

Justice Guzman’s Dog in the Fight

Justice Guzman begins her concurring opinion by acknowledging public policy arguments are largely “legislative concerns” that are “constitutionally removed from judicial purview." Then, she enters the fray:

Even so, these complex public policy determinations have important ramifications for the environmental legacy the next generation will inherit. And allowing plastic debris—bags, Styrofoam cups, water bottles, and similar pollutants—to migrate unchecked into the environment carries grave consequences that must not be ignored. Though I join the Court’s opinion, I write separately to highlight the urgency of the matter. As a society, we are at the point where complacency has become complicity.

Her concurrence goes on for another 9 pages, discussing the deleterious impact improperly discarded plastics have on the environment and wildlife.

Justice Guzman’s concurring opinion concedes what the Majority wished to conceal: Judges are human beings and citizens of the state and are equally impacted, as every other citizens in the state, by the rights, duties, and burdens adjudicated by them. A judge may have children who might attend public school or friends whose kids may attend public school, and the way the judge comes down on public school funding will impact those kids. Every person, including a judge and his or her family and friends, may find themselves in need of fair and equal process in the face of a criminal prosecution. And every person, including a judge and his or her family and friends, are impacted negatively by a polluted environment. Every judge has a dog in the fight when public affairs are at issue.   

Of course, it does not follow from the fact that every judge has a dog in the fight of public affairs that judges are incapable of impartially deciding an issue. Justice Guzman's concurrence demonstrates that judges are capable of deciding cases according to the law as written, even when the outcome goes against the judge's personal or best interest or preference. She agreed with the outcome, but used her concurring opinion to lend some urgency to the issue, with the hope and expectation that the State legislature will act. 

Daniel Correa
“Cf.” Benisek, et al. v. Lamone, et al.—The U.S. Supreme Court’s Nod to a Laches-Like Analysis in Injunctive-Relief Cases Involving Constitutional-Right Violations

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A “cf. seldom stirs up controversy. But when “cf.” is the signifier to the first case cited by the United States Supreme Court in support of a legal proposition, that “cf.” should raise a red flag to the reader. The United States Supreme Court’s recent Per Curiam opinion in Benisek v. Lamone dropped a “cf.” that deserves heightened scrutiny.

Cf.” is short for compare. The Bluebook informs law students and legal practitioners that “cf.” denotes the cited authority may not expressly (or even obviously) support the stated proposition, but the cited authority is analogous enough to lend support to the proposition. Black’s Law Dictionary defines “cf.” as “a citation signal [that] directs the reader’s attention to another authority or section of the work in which contrasting, analogous, or explanatory statements may be found.” (243). Often, a parenthetical accompanies the case citation to illustrate the analogy between the stated legal proposition and the case cited in support thereof.

Yet, sometimes (maybe too often) the author fails to provide the reader with any information on the cited case and supplies no reason to support its analogy to the stated legal proposition. Worse, considering Black’s Law definition of “cf.,” without an explanatory parenthetical, the reader cannot know for sure whether the cited authority is used to contrast, analogize, or explain the stated legal proposition. The reader is left with a choice: take the author at his or her word that the cited case supports the legal proposition, or read the cited case and draw his or her own conclusion as to whether it is sufficiently analogous to the stated legal proposition. The former choice may be warranted at times when the source is trustworthy—maybe the United States Supreme Court is one of those sources. The latter choice is wise regardless of the source—it’s the only way to ascertain whether you can truly, and without question, trust the source.

The Partisan Gerrymanding Cases

Benisek v. Lamone is one of two cases the Supreme Court recently considered in which the constitutionality of partisan gerrymandering was at issue. The other case was Gill v. Whitford. The Court in Gill held that the plaintiffs failed to demonstrate standing—specifically a particularized and individual harm to each plaintiff—but remanded the case to the district court to provide the plaintiffs an opportunity to demonstrate particularized and individual injuries, reasoning that a remand was necessary due to the unresolved constitutional contours of partisan considerations in drawing legislative districts.

The Court in Benisek issued a Per Curiam opinion affirming the district court’s denial of the plaintiffs' request for a preliminary injunction. The plaintiffs were Republican voters in Maryland who challenged a congressional district that they claimed was redrawn in 2011 on partisan grounds, specifically to “retaliate against them for their political views.” The plaintiffs sought, among other things, an injunction prohibiting state officials from holding elections in 2018 under the 2011 map.

The district court denied the request for an injunction and stayed further proceedings pending the Supreme Court’s ruling in Gill v. Whitford in order to be “better equipped to [apply the proper legal standard] and to chart a wise course for future proceedings.” The Supreme Court affirmed, holding, among other things, that the plaintiffs failed to show “reasonable diligence” in seeking injunctive relief, having waited until “six years, and three general elections, after the 2011 map was adopted, and over three years after the plaintiffs’ first complaint was filed.” Notwithstanding the diligence requirement, the Supreme Court also held that the district court’s decision to deny injunctive relief was supported by “a due regard for the public interest in orderly elections, as the deadline for injunctive relief articulated by the plaintiffs had passed by the time the district court ruled, and the constitutional contours of partisan considerations in legislative district drawing remain unclear.

A Paragraph in Benisek Worth a Book of Scrutiny

The Court’s conclusion in Benisek is largely uncontroversial. The district court is vested with discretion to grant or deny injunctive relief. When, as here, the proper legal standard to apply over the controversy remains unsettled or unclear, it is very difficult to justify completely halting electoral processes. Moreover, as the Supreme Court noted, “the ‘purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.’”

What is controversial about the Court’s opinion, however, is the paragraph setting forth the legal requirement of “reasonable diligence”:

First, a party requesting a preliminary injunction must generally show reasonable diligence. Cf. Holmberg v. Armbrecht, 327 U. S. 392, 396 (1946). That is as true in election law cases as elsewhere. See Lucas v. Townsend, 486 U. S. 1301, 1305 (1988) (KENNEDY, J., in chambers); Fishman v. Schaffer, 429 U. S. 1325, 1330 (1976) (Marshall, J., in chambers). In this case, appellants did not move for a preliminary injunction in the District Court until six years, and three general elections, after the 2011 map was adopted, and over three years after the plaintiffs’ first complaint was filed.

(emphasis added). What should not only surprise but shock readers is that the Court supported the first legal proposition in the above paragraph with a case citation preceded by the “cf.” signal. Surely, in the 229 years of U.S. federal jurisprudence, the Court must have something a little more concrete than a compare-this-to-that citation to support the proposition that “a party requesting a preliminary injunction must generally show reasonable diligence.”

The Court supplied no additional information as to the facts, holding, or reasoning in Holmberg v. Armbrecht, leaving the reader to either trust that Holmberg supports the stated legal proposition or to read Holmberg and decide whether it is sufficiently analogous to the case at hand. So why Holmberg? And is Holmberg analogous to the stated legal proposition in Benisek?

In Holmberg, the plaintiffs were creditors of the Southern Minnesota Joint Stock Land Bank who sought to enforce liability for the debt against the shareholders pursuant to the Federal Farm Loan Act. The federal act only provided equitable relief in the form of an enforcement proceeding to the creditors. The shareholder defendants raised statute of limitations and laches as affirmative defenses. The district court overruled both defenses. After a judgment against them, the defendants appealed and the appellate court reversed, holding that the state statute of limitations applied, citing to Guaranty Trust Co. v. York, 326 US 99 (1945).

On Writ of Certiorari, the Supreme Court considered the issue whether the state statute of limitations controlled in a suit based on a federal statute that allowed only equitable relief. The court held that the state statute of limitations did not control. Guaranty Trust involved a state-created right asserted in federal court with jurisdiction predicated upon diversity of citizenship. The Court in Guaranty Trust held that “when a State statute bars recovery of a suit in a State court on a State-created right, it likewise bars recovery on such a suit on the equity side of a federal court brought there merely because it was ‘between citizens of different states. . . .”

The Holmberg Court noted that the present action was not based on a state-created right, nor was jurisdiction predicated on diversity of citizenship. Rather, federal law created the right at issue. The federal statute at issue, however, did not articulate a statute of limitations. The Court held that, when Congress is silent as to the time limit within which to bring an action in equity, federal courts must turn to equitable principles to determine the time frame within which a litigant must enforce its right or lose it: “A federal court may not be bound by a State statute of limitation and yet that court may dismiss a suit where the plaintiffs’ ‘lack of diligence is wholly unexcused; and both the nature of the claim and the situation of the parties was such as to call for diligence.”

There are a myriad of ways in which the Holmberg opinion is nothing like the situation or suit in Benisek. For one thing, Holmberg did not involve a preliminary injunction. For another, Holmberg involved a federal right created by statute for creditors against bank shareholders (suits between individuals); whereas, Benisek involves Constitutional rights that prohibit certain government action against citizens. Also, Holmberg dealt with laches and statute of limitations due to the statutory remedy at issue; Benisek did not involve a statute of limitations issue or laches issue—in fact, when considering the constitutional rights at issue (equal political participation guaranteed by Article 1 Section 2 of the U.S. Constitution, and the First Amendment’s protection of political association), a statute of limitations or laches analysis suggests that government may violate constitutional rights with impunity.

So why Holmberg? Maybe the Supreme Court was signaling its intent to impose the Holmberg laches-like analysis to future requests for injunctive relief in election-law, political-participation cases involving government. The paragraph in Benisek that we’ve been analyzing also cited to Lucas v. Townsend, 486 U. S. 1301, 1305 (1988) (KENNEDY, J., in chambers); Fishman v. Schaffer, 429 U. S. 1325, 1330 (1976) (1976) (Marshall, J., in chambers). These cases involved election-law issues. Neither of them actually creates, though, a “reasonable diligence” requirement that, alone, could bar the injunctive relief sought.

Justice Kennedy in Lucas granted an injunction, enjoining the challenged election, based on the elements necessary for a Circuit Justice to grant an in-chambers application for equitable relief, one element of which was a showing by the applicant that irreparable harm would likely result from a denial of the injunction. In considering the “irreparable harm” element, Justice Kennedy reasoned, “Permitting the election to go forward would place the burdens of inertia and litigation delays on those whom the statute was intended to protect, despite their obvious diligence in seeking an adjudication of their rights prior to the election.”  Lucas, 486 U. S. at 1305.  Nowhere in Justice Kennedy’s opinion is “diligence” made a prerequisite to injunctive relief to enjoin an alleged constitutionally-tainted election.

Justice Marshall in Fishman came close to articulating a “reasonable diligence” factor in determining whether to grant an in-chambers application for injunctive relief; however, unlike in Lucas, his opinion did not state the necessary elements to grant such relief. Rather, Justice Marshall cited to an amorphous standard: “such power should be used sparingly and only in the most critical and exigent circumstances.” Fishman, 429 U. S. at 1326. After determining that the application should be denied because “the question [at issue was] too novel and uncertain to warrant a single Justice acting unilaterally to strip the State of its chosen method of protecting its interests in the authenticity of petition signatures,” Justice Marshall added a few more considerations militating against injunctive relief, among them lack of diligence. Id. at 1330.

*****************************************************************************************************************

Indeed, many “cf.” go unscruntized, whether because the “cf.” is buried in an opinion, partially justified by a parenthetical, or given deference based on the status of the author. But a critical thinker should never pass on an authors signal to compare cases for one’s self.  

Daniel Correa
“Trademarks and Cannabis” — Current Approaches

On June 2, 2018, Managing Attorney James Creedon spoke on approaches to trademark protection in the cannabis industry. Presenting to the Intellectual Property Law Section of the Oklahoma Bar Association, James discussed the most recent changes in the treatment of CBD by the Drug Enforcement Administration, and the increasing role of the Food and Drug Administration in the trademark review process. For trademark practitioners not familiar with the world of cannabis, he provided an overview of the key terminology and legal framework to be aware of, and worked through three main approaches to obtaining trademark protection in this area. Concluding with the ethical issues involved and the importance of providing Complete Counsel, James invited those attorneys interested in this growing area to contact him and become part of the discussion.

James Creedon
What Is a Trademark Anyway?
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What exactly is a trademark? In short, it is something consumers can look at to know the source of the product they are buying. The United States Patent and Trademark Office ("USPTO") explains "[a] trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Some examples include: brand names, slogans, and logos. The term 'trademark' is often used in a general sense to refer to both trademarks and service marks." Let's unravel that a bit and see why trademarks can be so valuable. 

A trademark can be a "word, phrase, symbol, and/or design." The name Starbucks® is a word consumers associate with coffee. The phrase Just Do It® is known for products produced by Nike®, as is the "swoosh" symbol below:

Each of these trademarks has little value inherently — Starbuck is merely a character from Herman Melville's Moby Dick, "just do it" is simply an encouraging phrase, Nike the Greek goddess of victory, and the swoosh a simple sketch. What gives them value is their role: to identify and distinguish the source of a product. As these companies grew and developed their offerings, they came to be known for particular products with characteristics a customer was seeking. Consumers wanting a darker roast of coffee in the late 1980's soon learned that the rapidly-expanding Starbucks brand was the place to look. Importantly, they also learned that the coffee was consistent from location to location, and that they could find a similar cup at any storefront marked by the Starbucks name. With competitors entering the market, Starbucks could differentiate itself by prominently displaying the word "Starbucks" on signage, advertising, cups, and more. In time, the Starbucks name became synonymous with quality coffee — it distinguished a cup of coffee produced by them from one produced by any other company.

That said, keep in mind that the mark which is associated with the product does not need to be related in any way to the company name itself. A consumer could recognize the "swoosh" above and soon determine that anything with the "swoosh" is in line with what they want to buy, even if they never hear the name Nike. They know, simply by a visual symbol, that the "swoosh" shoes are offered by the same company with the "swoosh" shirts, the "swoosh" basketball, or the "swoosh" water bottle. In fact, the symbol can be central to a product identity without knowing the name of the company. Recognize this?

 Registered trademark of Turner Broadcasting System

Registered trademark of Turner Broadcasting System

Of course, you know CNN as a source of news and entertainment content, and you may even recall the phrase "Cable News Network." It may not matter to you that the channel is owned by Turner Broadcasting System, so long as the symbol itself is familiar to you as a source identifier.

Trademarks are a shorthand we use to help customers understand how to choose the good or service they prefer. Their business value grows with the underlying offering, and that value ca increase dramatically as the mark's ability to be a differentiator becomes essential to the protection of a brand. A small company just starting out may not see the need to carve out this identity at the beginning, but early success and increasing recognition often leads to imitation. Choosing and protecting a trademark can be a small investment now leading to significant dividends later. After all, with all the hard work necessary to stand out from the crowd with a new product or service, the name you choose may just end up being your greatest asset.

James Creedon
Nathaniel Hawthorne, Defamation, and Privacy: A Critical Look at The Dallas Morning News, Inc. and Steve Blow v. John Tatum and Mary Ann Tatum

 Photo by James Harris on Unsplash

Photo by James Harris on Unsplash

The Texas Supreme Court opened its recent libel-by-implication opinion with the following Nathaniel Hawthorne quote: “Words—So innocent and powerless as they are, as standing in a dictionary, how potent for good or evil they become in the hands of one who knows how to combine them.” See The Dallas Morning News, Inc. and Steve Blow v. John Tatum and Mary Ann Tatum. http://www.txcourts.gov/media/1441577/160098.pdf. This quote, of course, has no legal force, as Nathaniel Hawthorne is not a legal source, nor, for that matter, are his works. But the use of Hawthorne in this case caught my attention due to the facts of the case at hand.

John and Mary Tatum experienced the untimely death of their son. Doubtless, the reader can appreciate the extreme grief that overcomes any parent who outlives his or her child. The Tatums purchased a space in the Dallas Morning News to publish an obituary for their son. As the Court notes, the obituary stated that their son died “as a result of injuries sustained in an automobile accident." Their son had shot himself after he had been involved in a car accident. John and Mary Tatum believed, having read some medical literature on the issue, that their son incurred traumatic brain injury due to the accident, which caused “irrational and suicidal ideations” in their son, ultimately causing him to commit suicide.

One month after the Dallas Morning News published the obituary, Steve Blow published a column in the Dallas Morning News, for whom he worked as a columnist, and revealed that the Tatums’ son had committed suicide. The relevant portions read as follows:

More recently, a paid obituary in this newspaper reported that a popular local high school student died “as a result of injuries sustained in an automobile accident.”

When one of my colleagues began to inquire, thinking the death deserved news coverage, it turned out to have been a suicide.

There was a car crash, all right, but death came from a self-inflicted gunshot wound in a time of remorse afterward.

And for us, there the matter ended. Newspapers don’t write about suicides unless they involve a public figure or happen in a very public way.

But is that always best?

I’m troubled that we, as a society, allow suicide to remain cloaked in such secrecy, if not outright deception.

See Appendix to Dallas Morning News, et al. v. Tatum.

The Tatums sued the Dallas Morning News and Steve Blow, alleging libel and libel per se against them. The Tatums alleged that Steve Blow’s column defamed them “by implicitly communicating the following ‘gist’”:

[The Tatums] created a red herring in the obituary by discussing a car crash in order to conceal the fact that Paul’s untreated mental illness—ignored by Plaintiffs—resulted in a suicide that Plaintiffs cannot come to terms with. Defendants led their readers to believe it is people like Plaintiffs—and their alleged inability to accept that their loved ones suffer from mental illness—who perpetuate and exacerbate the problems of mental illness, depression, and suicide.

After the trial court granted the Dallas Morning News and Steve Blow summary judgment, and after the Dallas Court of Appeals reversed the trial court’s ruling as to libel and libel per se, the Texas Supreme Court took the case to determine whether the words used in Steve Blow’s colum were “reasonably capable of defamatory meaning.”

The Texas Supreme Court reversed the Dallas Court of Appeals’ judgment and reinstated the trial court’s summary judgment in favor of the Dallas Morning News and Steve Blow. Ultimately, the Supreme Court found that the column was reasonably capable of conveying that the Tatums published a deceptive obituary, but that, to the extent this defamatory meaning was conveyed to readers, the column expressed that meaning as Steve Blow’s opinion, not as an objective fact. The Court further held that the column was not reasonably capable of conveying the meaning that the Tatums’ son had a mental illness or that their actions exacerbated mental illness, depression, and suicide. These findings were all the Court needed to reinstate the trial court’s summary judgment.

But the majority failed to heed Justice John Roberts’ oft-quoted words of caution: “[I]f it is not necessary to decide more, it is necessary not to decide more.” VanDevander v. Woods, 222 S.W.3d 430, 433 (Tex. 2007) (quoting PDK Labs., Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring)). As the concurrence in the Tatum case prudently pointed out, “[b]ecause the column only expressed a potentially defamatory opinion, the Tatums cannot recover for defamation, and we need not also consider whether Blow’s opinion was correct or substantially true.” http://www.txcourts.gov/media/1441578/160098c.pdf. Instead, the majority opinion went on for nearly three pages and pointed out the many ways in which the Tatums were, in fact, deceptive, the opinion of which is now public record, to be permanently included in the annals of case law.

The Court’s finding that the Tatums were in fact deceptive is very unfortunate, as is the public revelation of facts the Tatums sought to keep private. One of Nathaniel Hawthorne’s short stories provides an anecdote to help demonstrate why the Court’s opinion is unfortunate as to the "truth" of "deception" in the case, and to help demonstrate why the revelation of facts the Tatums sought to keep private is troublesome. 

Endicott and the Red Cross

While an undergraduate student at UCLA, I had the privilege of learning Colonial Literature, and later American Literature, from Michael J. Colacurcio, a leading scholar on the works of Nathaniel Hawthorne. Professor Colacurcio’s seminal work—The Province of Piety: Moral History in Hawthorne’s Early Tales—molded my understanding of Hawthorne’s early short stories. 

Nathaniel Hawthorne fictionalized the seventeenth-century historical account of John Endicott defacing the English banner, cutting out St. George’s Cross. Hawthorne, of course, was writing in the nineteenth-century. To fully understand Endicott and the Red Cross, the reader would also have to know that Hawthorne—in the unrevised portion of the headnote to The Gentle Boy—referred to John Endicott as a man of “uncompromising bigotry . . . made hot and mischievous by violent and hasty passions” who’s “whole conduct . . . was marked by brutal cruelty,” while also referring to Endicott as the “Puritan of Puritans” in The May-Pole of Merry Mount. Endicott and the Red Cross, as with all of Hawthorne’s Puritan short stories, offered a moral-historical critique of the religious-political effects of Puritanism in America. See Michael J. Colacurcio, The Province of Piety: Moral History in Hawthorne’s Early Tales (Duke University Press, 1995).

The narrator of Endicott and the Red Cross opens, by way of background, with a sketch of the religious persecution from which the puritans fled to “Plymouth and Massachusetts,” the persecution of which they are constantly reminded by “the folds of the English banner, with the Red Cross in its field, . . . flung out over a company of Puritans.” See Nathaniel Hawthorne, Endicott and the Red Cross in Selected Tales and Sketches, 217 (Penguin Classics). Endicott was the leader of this company. The narrator juxtaposes the tyranny of the crown and of the “haughty primate, Laud, Archbishop of Canterbury” with the Puritan leadership, who oversee “the whipping post,—with the soil around it well trodden by the feet of evil-doers.” (218). The narrator describes, "by a singular good fortune for our sketch, the head of an Episcopalian and suspected Catholic . . . grotesquely encased” in a pillory. (218). Nearby stood a man “bearing on his breast this label,—A Wanton Gospeller,—which betokened that he had dared to give interpretation of the Holy Writ," and next to him stood a woman wearing a “cleft stick on her tongue,” for wagging it at the elders of the church. (218).

Among the crowd of people in the colony, the author describes those whose punishments are permanently displayed for all to see—“some whose ears had been cropt, like those of puppy-dogs; others, whose cheeks had been branded with the initials of their misdemeanors; one with his nostrils slit and seared; and another, with a halter about his neck. . . . There was likewise a young woman, with no mean share of beauty, whose doom it was to wear the letter A on the breast of her gown, in the eyes of all the world and her own children. And even her own children knew what that initial signified.” (219).

The narrator then addresses his readers, who live after the “times of the Puritans”:

Let not the reader argue, from any of these evidences of iniquity, that the times of the Puritans were more vicious than our own, when, as we pass along the very street of this sketch, we discern no badge of infamy on man or woman. It was the policy of our ancestors to search out even the most secret sins, and expose them to shame, without fear or favor, in the broadest light of the noonday sun. Were such the custom now, perchance we might find materials for a no less piquant sketch than the above.  

(219).

Endicott receives Roger Williams, who bears a letter from John Winthrop, then governor of the Massachusetts Bay colony. The letter informs Endicott that “Charles of England, and Laud, our bitterest persecutor, arch-priest of Canterbury . . .  [intend] to send over a governor-general, . . . to establish the idolatrous forms of English Episcopacy.” (223). Endicott entreats his puritan brethren, “have we not sought this country of a rugged soil and wintry sky? Was it not for the enjoyment of our civil rights? Was it not for liberty to worship God according to our conscience?” (222). Endicott then brandishes his sword and cuts the Red Cross from the English banner. Some cried out “treason,” and others decryied Endicott’s act as “Sacrilegious.” (224). Nevertheless, the narrator ends on an ironic note:

With a cry of triumph, the people gave their sanction to one of the boldest exploits which our history records. And, for ever honored be the name of Endicott! We look back through the mist of ages, and recognize, in the rending of the Red Cross from New England’s banner, the first omen of that deliverance which our fathers consummated, after the bones of the stern Puritan had lain more than a century in the dust. 

(224).

Doubtless, Hawthorne did not intend for the reader to interpret Endicott as a champion of liberty, but displayed competing forms of tyranny, which masquerade as “liberty.” For purposes of this Article, though, the focus will be on the narrator’s appeal to his readers not to argue that the “the times of the Puritans were more vicious than our own.” Hawthorne here challenges his readers to consider the open and outright inhumane practices of past generations, to which the people of the time of the Puritans considered mere discipline and righteousness, to the readers’ own time—What forms of discipline, i.e., those practices which aim to conform people’s behaviors to existing societal norms, presently exist? And, in what ways do these forms of discipline involve “search[ing] out even the most secret sins, and expos[ing] them to shame, in the broadest light of the noonday sun”?

Private Facts and the Dignity and Autonomy of Individuals

The Tatum Court’s analysis concerning the “truth” of the Tatums’ “deception” is deeply troubling, considering the personal nature of the event to the Tatums. Scarred already by the untimely loss of their son’s life, riddled, as they must be, with both grief and disbelief, the publication of their son’s tragedy, which they sought to keep private by not fully disclosing the details of his death in his obituary, is an affront to the Tatums dignity and individual autonomy. It was wholly unnecessary for the Court to engage the question whether the Tatums were “deceptive” in how they framed the life and death of their child. The Court’s finding that the column offered only an opinion resolved the matter.

But another aspect of the facts is also troubling. Steve Blow’s column states that “Newspapers don’t write about suicides unless they involve a public figure or happen in a very public way.” Underlying this statement is some policy acknowledgment, either that suicides that happen in private are not publically important or that suicides that do not involve public figures or do not occur in a very public way should be kept private out of respect for surviving family and friends, that is, newspapers leave it to the survivors to make the issue public.

Steve Blow challenges the notion that suicides should remain private in his blog. He states, “the secrecy surrounding suicide leaves us greatly underestimating the danger there.” Though his goal is to encourage publicity, he chose to make public what the Tatums sought to keep private. He may not have defamed the Tatums, and he may not have intended to “put guilt on the family of suicide victims,” but he undoubtedly hurt the Tatums by making public what they sought to keep private. And, now, their son’s death is paraded in public and in case law, with a Court calling the Tatums “deceptive,” “exposing them to shame, without fear or favor, in the broadest light of the noonday sun.”

Common law acknowledges an action related to defamation for “publicity given to private life.” The Restatement (Second) of Torts recites the elements of this action as follows:

“One who gives publicity to a matter concerning the private life of another is subject to liability to the other for the invasion of his privacy, if the matter is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.”

Restatement (Second) of Torts §652(D) (1977). This tort places the dignity and autonomy of individuals over the social benefits that truthful material might confer, and appeals to the community’s notion of decency. See Melvin v. Reid, 297 P. 91 (Cal.Ct.App. 1931); cf Sidis v. F-R Publishing Corp., 113 F.2d 806 (2d Cir.), cert. denied 311 U.S. 711 (1940).

The reader will notice that the “publicity given to private life” tort closely tracks the concerns addressed in Hawthorne’s Endicott and the Red Cross. The tort was not derived from Hawthorne’s story, of course, but the life of the law embodies our moral and political history, a history which values privacy as a component of liberty—one that also shies from brandishing people with “badges of sin” for the public permanently to view.

The Tatums did not bring such an action against the Dallas Morning News or Steve Blow. Texas, in fact, has not adopted the "publicity given to private life tort" as articulated by the Restatement Second. See Kevin B. Bennett, Revenge Pornography: Exploring Tortious Remedies in Texas, 46 St. Mary’s L.J. 521, 528-29 (2015). The Texas Supreme Court, though, has defined the right to privacy as “the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted publicity.” See Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex. 1973).

In light of the Tatums case, among other cases, perhaps it is time to give life to the tort of “publicity given to private life,” to protect the dignity and autonomy of individuals. The tort has the benefit of balancing the community’s notions of decency against the social benefits of making a person’s private life public. Are “the times of the Puritans” more vicious than our own?

 

Daniel Correa
Jury Appreciation Week—The Right to Trial by Jury and its Democratic Provenance
 Photo by Trent Yarnell on Unsplash

Photo by Trent Yarnell on Unsplash

Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making of them.
— Thomas Jefferson

The constitutional promise to a trial by jury is not merely an individual right; it is necessary to validate law in a democratic system. American history is replete with this notion. John Adams declared, “the common people . . . should have as complete a control, as decisive a negative” in courts as they do in other governmental decisions through their representatives. The Works of John Adams 253 (1850) (Diary, Feb. 12, 1771); see also Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 88 (1998). The Declaration of Independence listed deprivation “of Trial by Jury” amongst many other grievances against King George III. The Declaration of Independence para 19 (U.S. 1776). Alexis de Tocqueville proclaimed, “[t]he jury system as understood in America seems to me as direct and extreme a consequence of the dogma of the sovereignty of the people as universal suffrage. They are both equally powerful means of making the majority prevail.” Alexis de Tocqueville, II Democracy in America 273 (J. P. Mayer ed., George Lawrence trans., Doubleday & Co., Inc. 1969) (1840).

So central is the right to trial by jury that it makes a primary appearance in the United States Constitution four times. Twice the constitution secures the right to a jury trial in criminal cases. See U.S. Const. art. III & amend. VI. The Fifth Amendment secures the right to indictment or presentment by a grand jury. See U.S. Const. amend. V. And, the Seventh Amendment secures the right to a jury trial in civil cases. See U.S. Const. amend VII. The Northwestern Ordinance (1787) also memorialized the right to trial by jury.

Historically, the right to trial by jury not only ensured a criminally accused person or civil litigant that her peers, not the State, would decide her fate; the right to trial by jury equally protected the people’s right to judge. With respect to federal jurisdiction, since the jury was thought to protect individual rights and to compete with centralized government power, an accused person or litigant could not waive a jury. Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959, 969 (2010) (pointing out that juries were considered necessary to a court’s jurisdiction to enter judgment). Only a guilty plea in a criminal case could cut the jury out. Id.

The institution of the jury has an impeccable democratic origin. “In its original Greek form (demokratia), democracy meant that ‘the capacity to act in order to effect change’ (kratos) lay with a public (demos) composed of many choice making individuals.” Josiah Ober, Democracy and Knowledge: Innovation and Learning in Classical Athens 12 (Princeton University Press 2008). Ancient Athens grappled with the problem of how to design law-making institutions that facilitate equal participation of all citizens without at the same time overburdening the workforce or disrupting people’s daily lives. The solution lied in instituting a representative body of the community to decide for the whole. This was the jury in the People’s Court. Douglas M. MacDowell, The Law in Classical Athens 33-35 (Cornell University Press 1978). The jury in ancient Athens was composed of volunteers.  Any citizen who wished to serve as a juror put his name in for selection.  Volunteers were selected by lot to serve as jurors. See Mogens Herman Hansen, The Athenian Democracy in the Age of Demosthenes 181-86 (J.A. Crook trns., University of Oklahoma Press 1999). The other decision-making body considered central to Ancient Athenian governance was the citizen Assembly. See Ober, supra at 161. The jury, under the Athenian model, constituted the very essence of democratic government, whereby the people themselves rule in the final analysis of law.

Not all persons in United States history have been fans of lay juries. By the mid-19th Century, judges began to strip the jury of any right to determine questions of law in the Untied States. The Supreme Court of the United States would put an end to any notion that the jury played a role in deciding questions of law in federal courts in Sparf v. United States, 156 U.S. 51 (1895). But even before this, Justice Story, when serving as a district court judge, argued against the wisdom of leaving any question of law to the jury. See U.S. v. Battiste, 24 F. Cas. 1042 (C.C.D. Mass. 1835) (No. 14,545); see also M. D. Howe, Juries as Judges in Criminal Law, 52 Harv. L. Rev. 582 (1939); Stacy Pratt McDermott, The Jury in Lincoln’s America (Ohio Univ. Press 2010). The jury’s power to determine civil law was the first to go. Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the jury, 71 Ohio St. L.J. 959, 977 (2010). A struggle ensued between the right of the jury to decide questions of law and fact and the rising legal profession that sought consistency and transparency in the law in the form of canonized legal materials. This struggle is captured in a pivotal debate in Massachusetts concerning the right of the jury to decide questions of law and fact in criminal trials. 

An Amendment to the Massachusetts Constitution sought to articulate the right of the jury to decide questions of law in response to the Supreme Judicial Court decision to the contrary in Commonwealth v. Porter. 51 Mass. (10 Met.) 263 (1845) (holding against the argument that defense counsel had been wrongfully denied the right to address the legal argument to the jury for them to decide the question of law, and interpreting the state constitutional guarantee of a trial before an impartial judge as overriding any right of the jury to decide questions of law). Amendment proponents argued that the jury had the right not only to “interpret applicable laws” but also to ascertain whether the law was just, and thereby valid. The Changing Role of the Jury in the Nineteenth Century, 74 Yale L.J. 170, 178 (1964).  Invoking arguments reminiscent of Jefferson and Adams, proponents argued that the jury had access to the natural law as much as any trained lawyer, and that it belonged to the people to rescue themselves, “in the name of their declared rights, from an unconstitutional law, or from an unconstitutional interpretation of that law.” Id. at 178; see also 1 The Papers of Thomas Jefferson 134 (Julian Boyd ed., 1950) (“The great principles of right and wrong are legible to every reader: to pursue them requires not the aid of many counselors.”). 

Amendment opponents argued, instead, that the jury was subject to irrational passions and easily swayed by public opinion. Opponents called on Rule of Law values, namely predictability and consistency in the law, to protect a criminal defendant. They argued, additionally, that interpretation of law must be left to professionals trained to broach law’s complex structure. One opponent expressed, “does not every gentleman who has studied the common law as much as I have—and I have studied it considerable—know that the common law is not always common sense? . . . In the case of criminal law, who knows exactly what murder is?” Changing Role of the Jury, supra at 180-81; see also Larsen, supra at 975-79. Even modern opponents of lay juries, especially in civil cases, resort to the same arguments, especially with respect to the complexity of law and limited capacity of laypersons to comprehend the law as such and the interplay of laws in the total legal scheme. Daniel Solove, Should We have Professional Juries? Concurring Opinions Blog available at <http://www.concurringopinions.com/archives/2009/03/should_we_have.html> (Professor Solove argues that lay juries in complex litigation is antiquated); John Gastil, et al., The Jury and Democracy: How Jury Deliberation Promotes Civil Engagement and Political Participation 155-56 (Oxford Univ. Press 2010) (setting out various arguments by legal scholars against lay juries in civil cases).

One of the most, if not the most, important shortcomings on the part of jury opponents is a failure to consider the Rule of Law implications on the other side. For law to garner the stability and predictability necessary to guide human conduct, law must achieve and maintain a level of consistency in its application. In order for the law to achieve predictability, the legal order needs more than mere consistency; it also needs clarity and publicity. Publicity requires governing bodies to reduce all laws to publication for public access. Clarity requires the law’s dictates to be understandable to those persons it purports and aims to govern; in other words, clarity shares with publicity the requirement that laws be publicly accessible to all persons.

If a person cannot understand the law—those requirements in which a representative body reduced public disagreement and a felt need for concerted action into a final decision—then she does just as well to act on her own reasons for action rather than a legislative bodies’ reasons for action. Society may gauge law’s clarity, publicity, and predictability by its accessibility to the public. Early proponents of juries held that natural duties of justice and common sense were guides enough to access legal demands. For law to stray from people’s actual experience seemed an anomaly. Further, for law to stray from the public’s normal reasoning seemed an affront to free, democratic government. 

“Democracy” conceptually entails, at minimum, that the people govern themselves. A democratic legal system seeks to maximize its citizens’ opportunities to exercise their capacity for self-government. Anyone willing to take democracy seriously on its face considers the law’s validity strictly tied to its provenance—a provenance whose normative character aspires to improved democratic governance. 

 

 

Daniel Correa
Legal Authority and Its Weight . . . Problem
Photo by Claire Anderson on Unsplash

First year law students learn to identify the weight of legal authorities through simple heuristics. Law presents itself as a hierarchical system, with a constitution on top, statutes immediately below, executive regulations and orders following, and judicial opinions at the bottom, but not necessarily last. Every law student learns that the top court of every state and the federal government claim the final say on the validity of other sources of law within its governing jurisdiction.

Judicial opinions, in fact, take on a hierarchy separate from other sources of law in weight of authority analyses. The judiciary in every state and the federal government is broken down into three tiers. Trial courts act as the first-level fact-finding body. Although trial courts also determine questions of law, questions of law are always viewed anew (de novo) by appellate courts. Intermediate appellate courts are broken down into separate districts or circuits, each respectively handling appeals from trial courts within the same district or circuit. And, every state and the federal government have one Court that is supreme on all issues of law within its governing jurisdiction.

When conducting legal research, law students and practitioners rely on their heuristics to identify mandatory (binding) authority and persuasive authority. When judicial opinions are the primary source of law at issue in the legal research, each court within the hierarchy described above is bound by the prior decisions of the courts above it within the same jurisdiction.

Stare Decisis is the principle that justifies the binding nature of a prior court’s decision on a lower court within its jurisdiction. That is, Stare Decisis (as triggered by “precedent”) gives weight to the authoritative dictates of each court within the hierarchy.  Notably, Stare Decisis is only a legal principle. It is not in the United States Constitution or the Texas Constitution. And, Stare Decisis is not externally binding in any meaningful sense; that is, there is no mechanism by another branch of government to force a trial court or appellate court to adhere to the principle of Stare Decisis in a given case.

The Weight Problem

Herein lies the weight problem: The judiciary is the only branch of government that determines the weight of its own authority. Trial courts and appellate courts may decide for any reason not to follow precedent. Usually a reason is provided. A judge or justices may try to draw a factual distinction between a prior case and the case under review, or a court may just decide that it was flat wrong in the past and may provide its reasons in support of a new course.

The judiciary’s ability to determine the weight of its own authority creates a number of problems. First, as most new practitioners learn straight out of law school, legal research and writing efforts are frustrated by inconsistent or non application of Stare Decisis, especially when the court provides insufficient or suspect reason(s) for its deviation from precedent. Second, and related, inconsistent application of precedent invites cynicism about the judiciary and its function, leaving both practitioners and the general population with the impression that judicial decisions are but arbitrary whims of individual judges.

Third, deviations from precedent obscure political accountability. The separation of powers doctrine is infused in the structure of every state and the federal constitution. Checks and balances—the notion that each branch may act as a check on another branch against abuses of power—are central to the separation of powers doctrine. A Legislature cannot simply change its mind about a law and decide to unilaterally repeal it; the Executive must approve, unless the Legislature obtains a supermajority to override an executive veto—even then all legislation is subject to judicial review. Likewise, the Executive cannot act with impunity when it issues an executive order; the executive’s order is subject to review by the Judiciary. Without any other branch checking the judiciary when it comes to deviation from precedent, the judiciary may effectively act with impunity.

Constitutional Support for Inherent Judicial Powers

 The question arises: What justifies our understanding of “the weight of authority”? Well, Constitutional support does exist for the judiciary to determine the weight of its own authority. Inherent in our constitutional structure lies the separation of powers principle. Each branch enjoys its autonomy and may create its own institutional norms and rules to articulate the proper exercise of its power, so long as those norms and rules do not conflict with the Constitution or, in the case of the Executive, a controlling statute.

The Constitution also, arguably, grants inherent powers to the Judiciary, such as the power of judicial review—i.e., the power to invalidate legislation, regulations, or executive orders (a power that enables the judiciary to determine the weight to attribute to legislative and executive authority). The U.S. Constitution is silent as to the power of judicial review, although Alexander Hamilton touched on the Judiciary’s “duty . . . to declare all acts contrary to the manifest tenor of the constitution void.”(Federalist 78).

The question whether the Judiciary actually does possess such inherent powers is similar to the question surrounding inherent powers in the Executive. Hamilton argued that, unlike the Legislature, the Executive possessed inherent powers. As evidence, he noted the difference between the vesting clauses of Articles I and II in the Constitution. Article I states: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Article II, on the other hand, states: “The executive Power shall be vested in a President of the Untied States of America.” The Executive, unlike the Legislature, is not limited to the powers “herein granted.” So, Hamilton argued that the President enjoyed powers not delineated in Article II. See Alexander Hamilton, First Letter of Pacificus (June 29, 1793), repreinted in Williams H. Goldsmith, The Growth of Presidential Power: A Documented History 398, 401 (1974).

The U.S. Supreme Court weighed in on the debate over inherent Executive powers in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). President Harry Truman issued an executive order for the federal government to seize steel mills to keep them operational when the United Steelworkers Union threatened a nationwide strike. President Truman feared that the strike would stall steel production, thereby frustrating the Korean War effort and endangering national security. The Court held that President Truman acted in excess of the Executive’s constitutional power. Despite its conclusion, seven different opinions emerged, each with a different stance on the question whether the Executive enjoyed inherent presidential power. Even though each opinion expressed certain limitations, all but one acknowledged the existence of inherent executive power.

Although the Judiciary has articulated its own inherent powers, constitutional support does exist for such inherent powers in the judiciary, based on the separation of powers doctrine, and the Federalist Papers. It is also worth noting that Article III’s vesting clause mirrors Article II: “The judicial power of the United States shall be vested in one supreme Court. . . .” The Judiciary, in other words, is not limited like the Legislature to the powers “herein granted.”

What About Checks and Balances?

 Some constitutional support may exist to support inherent judicial power to determine the weight of its own authority, but the separation of powers doctrine rests not merely on the notion of the autonomy of the Legislature, Executive, and Judiciary, but also on the notion that each Branch can act as an external check against abuse of power by any other Branch. Moreover, the Framers envisioned internal controls or checks on each Branch to minimize the risk of power abuse. James Madison best expressed the necessity of internal and external controls: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government . . . you must first enable the government to control the governed; and in the next place oblige it to control itself.” (Federalist 51).

External Controls

External controls do exist to somewhat check abuses of power by the judiciary and minimize deviations from the principle of Stare Decisis. These controls indirectly address the problem. These external controls include the impeachment process, the prerogative of the Executive to enforce judicial decrees, the legislative power to diminish the structure of the judiciary, and the constitutional amendment process.

Impeachment

Article III provides that “judges, both of the supreme and inferior Courts, shall hold their offices during good behaviour. . . .” Most jurists refer to federal judiciary tenure as “life tenure,” but the tenure is explicitly “during good behaviour.” See also Federalist 78. Unlike Article II, which provides a removal process for the President, Vice President and officers of the Executive Branch, Article III does not expressly mention an impeachment process. Nevertheless, impeachment is the process used to remove judges. John Pickering was the first federal judge to be impeached, convicted, and removed from office. His removal was controversial, since the charge centered on alcohol abuse and alleged incapacitation, but the Jefferson administration saw Pickering’s removal as a test run for a bigger fish—Justice Samuel Chase. Chase earned Jefferson’s ire when, among other things, Chase openly criticized Jefferson and his party for repealing the Judiciary Act of 1801. The Senate did not convict Chase, and the whole impeachment has been historically viewed as an attempted political coup.  

Impeachment, or the threat of impeachment, may act as a check against deviations from the principle of Stare Decisis. But, one must wonder whether such deviations would constitute “bad behavior,” or a high crime or misdemeanor. As mentioned above, judges generally make an attempt to distinguish precedent, even if stretching the bounds of analogy and disanalogy. And, overuse of the impeachment process may work to undermine the legitimacy of the other branches; certainly, too many impeachments would undermine the judiciary’s legitimacy and diminish public confidence in the judicial system. So, impeachment may not be a very effective check against deviations from precedent.

In states with elected judicial officials, the external check here is popular elections. Of course, too much popular turnover in the judiciary does not bode well for the impartial branch of government.

Executive Non-Enforcement

 Hamilton famously stated that the Judiciary was the “least dangerous branch.” (Federalist 78). He argued that the Judiciary could not exercise any power to enforce its own orders. The Executive could, if it so desired, decide not to enforce a judicial opinion. Of course, there have been no real examples—other than the possibly apocryphal account of Andrew Jackson declaring, “Chief Justice Marshal has rendered his opinion; now let him enforce it,” in response to the Court’s ruling in Worcester v. Georgia—of executive non-enforcement. Moreover, failure to enforce judicial decrees would also work to undermine the Rule of Law, the legitimacy of the Executive and Judiciary, and, again, diminish the general population’s confidence in the judicial system. 

 Legislative Diminution of Judiciary

 Hamilton also supported his “least dangerous branch” claim by pointing to the fact that the legislature controlled the purse; whereas, the judiciary could not exercise influence over legislative expenditures. The legislature, in this vein, could severely defund the Judiciary to check abuses by it. Additionally, the Legislature, with Executive approval, could diminish the size of the judiciary by, for example, reducing the number of courts, judges, or justices. Of course, historically, threats to reduce or even increase the number of Justices on the Supreme Court have been issued as a means by which to advance the sitting Executive’s agenda. For example, President John Adams signed the Judiciary Act of 1801, which reduced the number of Justices from six to five, to minimize the opportunity for Thomas Jefferson (then President-elect) to appoint a Supreme Court Justice. And, President Franklin Delano Roosevelt threatened to pack the Court with twelve Justices in order to set his New Deal in motion without judicial interference. Still, the power of the legislature, with Executive approval, to control judicial funding and the makeup of the Judiciary is a slow path to checking immediate or even serial deviations from the principle of Stare Decisis.

 Constitutional Amendment

A constitutional Amendment would end the weight of authority problem altogether. If a supermajority decided, it could include a strict command in the Constitution for the judiciary to (1) adhere to the principle of Stare Decisis, (2) avoid deviation from precedent, unless a clear and obvious distinction in the facts and the law of the prior case exists and is articulated. A separate provision could also create an independent body to evaluate suspicious or questionable deviations from precedent, with a mandate for issuing reprimands to individual judges and instituting a process for removal for bad behavior, which might be defined to include repeat and arbitrary deviations from the principle of Stare Decisis. However, Constitutional Amendments are rare, and require a supermajority. The threat of a constitutional Amendment is not itself effective in acting as a check against deviations from the principle of Stare Decisis.

On the whole, external controls are in place to check potential abuses of power by the Judiciary. These controls may not be the most robust to check deviations from the principle of Stare Decisis, but they do exist and are available.

Internal Controls

Internal controls also exist to minimize the risk of arbitrary and serial deviations from the principle of Stare Decisis. As with the external controls, these internal controls address the problem indirectly. These internal controls include the hierarchical structure of courts, the intellectual rigor required to preform as a judge, and institutional loyalty.

Hierarchical Structure of Courts

The hierarchical structure of courts acts as an internal control against arbitrary deviations from Stare Decisis. If a trial court decides not to follow precedent, an intermediate court of appeals will have an opportunity to review the trial courts decision, including its reasoning—this assumes that the parties consider an appeal worthwhile in terms of cost, time, and effort. Should an intermediate appellate court deviate from precedent, the Supreme Court (or other highest court in the jurisdiction) will have an opportunity to consider whether the issue deserves attention. This whole process provides a feedback mechanism that allows the Judiciary to check itself. And, since judicial opinions rest for support on reason and rationale, and considering that judicial opinions are often published for public view, some transparency over the process exists, which encourages judges to adhere to precedent.

Intellectual Rigor and Qualification

The nomination process might act as an external check against judicial abuse of power, if we assume that the nomination process involves consideration of each judicial nominee’s intellectual acumen and dedication to the legitimacy of the judiciary. Alexander Hamilton appeared to believe that the very nature of the job in the judiciary ensured that only intellectually qualified persons would serve. He wrote:

It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensible that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent a competent knowledge of them. Hence it is, that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.

(Federalist 78).

Hamilton did not overstate the importance of rigorous study to the practice of law, with its reliance on voluminous cases. The very nature of the job, in short, may act as an effective check against arbitrary deviations from precedent.

Institutional Loyalty

Among the internal controls identified by James Madison, institutional loyalty is one less often emphasized but that should not be understated. Madison wrote:

But the great security against a gradual concentration of the several powers in the same department, consist in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of the attack. Ambition must be made to counteract ambition. The interests of the [person], must be connected with the constitutional rights of the place.

(Federalist 51). When a judge’s personal motives align with the interest of his or her home institution (the Judiciary), Madison urged that the official (judge) would act so as to advance the best interest of the institution (the Judiciary). See also David Fontana and Aziz Z. Huq, Institutional Loyalties in Constitutional Law, 85 U. Chi. L. Rev. 1, 12-13 (2018).

Judges concerned with their own, personal legacies, reputations, or livelihoods generally, possess a strong motivation to see to the legitimacy of the Judiciary, their home institution. So long as institutional loyalty is present, arbitrary deviations from precedent may be minimized.

Conclusion

Although judges may at times deviate from the principle of Stare Decisis, giving rise to the problem that the Judiciary chooses the weight of its own authority, the problem, though not fully resolved, is mitigated by constitutional checks in place. 

Daniel Correa
Badge of Servitude: The Case of Crystal Mason and Felony Disenfranchisement Laws—Part 1
 Photo by  Michael Jasmund &nbsp;on  Unsplash

Crystal Mason voted in the 2016 presidential election without fully appreciating that she could be sentenced to time in  prison for voting while on probation. Had she known it was illegal, she would not have casted a vote. In her own words: “You think I would jeopardize my freedom? You honestly think I would ever want to leave my babies again? That was the hardest thing in my life to deal with. Who would – as a mother, as a provider – leave their kids over voting?”

Under state law, a person who is “finally convicted” of a felony is not eligible to register to vote. But, once a person convicted of a felony is either pardoned or successfully completes his or her punishment, which includes any incarceration term, parole, supervision, or period of probation, that person regains her eligibility to register to vote. See Tex. Elec. Code § 11.002.

Crystal’s case raises serious concerns about the integrity of electoral and democratic processes. Texas officials have made it a priority to crackdown on voter fraud. Some argue that Crystal’s case falls under the umbrella of voter fraud. Maybe her case does fall under that umbrella, but that umbrella covers two views of voter fraud.

On one side, voter fraud covers individual abuses of the electoral process by people who are ineligible to vote. On the other side, voter fraud covers abuses by the state in denying citizens the right to vote, such as when a state imposes onerous burdens on individuals to vote, or dilutes the value of individual votes through subterfuge. This latter form of fraud is not often discussed as “fraud” but as a violation of individual and constitutional rights. However, when the state by subterfuge employs its force to deny any citizen, or group of citizens, the right to vote, the state commits voter fraud by compromising the integrity of the electoral system to skew electoral outcomes.

This article argues that blanket felony disenfranchisement should not be constitutionally sanctioned by showing that felony disenfranchisement is explicitly constitutionally authorized. That is, the one place in the Constitution that explicitly authorizes felony disenfranchisement is also the one place no one would or should ever argue in support of felony disenfranchisement—the Thirteenth Amendment to the United States Constitution. This article aims to start a serious discussion about the practice of felony disenfranchisement with the hope that the discussion does not rely only or solely on appeals to authority, but on the social benefit and justification for the practice in the first place.

            Felony Disenfranchisement in the U.S. Constitution

At the outset it should be noted that the original U.S. Constitution is void of any language as to who gets to vote, how ballots are cast, and a host of other issues pertaining to electoral processes. Section 2 of the Fourteenth Amendment marked the first time the Constitution said anything about a “right to vote,” and even then it was not an unqualified right to vote—it was a right to vote if eligible. The Constitution and constitutional case law tell us what qualifications the states may not impose on persons to be eligible to vote. Race cannot be a disqualifying factor, nor gender, nor age starting at 18; Wealth insofar as payment of a poll tax cannot be a requirement to vote.

Felony disenfranchisement laws render a citizen ineligible to vote due to that citizens status as a felon. The question arises whether states should be allowed to make eligibility to vote dependent on whether a person obeys the criminal laws of the state, specifically those crimes the state labels “felonies.” There are theoretical justifications offered to support state felony disenfranchisement as a legitimate government purpose, namely breach of the social contract, and civic-republicanism/civic virtue. But the question raised here is whether the U.S. Constitution offers textual support for felony disenfranchisement.

Section 2 of the Fourteenth Amendment—The Felony- Disenfranchisement Exception

The United States Supreme Court has held that section 2 of the Fourteenth Amendment to the United States Constitution provides textual support for state-enacted felony disenfranchisement laws. See Richardson v. Ramirez, 418 U.S. 24 (1974). The majority opinion engaged in an a-historical analysis to reach its conclusion, mostly looking to state constitutions existing at the time of the Fourteenth Amendment’s ratification, and Union readmission policies imposed by Congress on southern states following the Civil War. Unfortunately for the majority, the history behind section 2 is not a good indicator of whether felony disenfranchisement is constitutionally permissible. 

Section 2 of the Fourteenth Amendment punished states by reducing the Congressional representation of any state that denied, for any reason other than participation in a crime, the right to vote to any male who was twenty-one and a United States Citizens. Congress sought by Section 2 to deter States from disenfranchising former slaves—as an aside, the Republican-run Congress also enacted this penalty to counter an anticipated increase in Democratic Party representation because former slaves would be counted as whole persons, rather than only three fifths of a person, for purposes of apportioning congressional representatives in each state; the Republicans banked on the notion that black men would be loyal to the party ensuring and protecting their rights. But Section 2’s “penalty” did not obtain its desired effect during Reconstruction, as violence and constant threats of violence against black voters effectively disenfranchised them without the need of any state to make a law actually denying black men the right to vote.

The Fifteenth Amendment marked the first time that the United States Constitution appeared to secure the right of anyone to vote: “The right of Citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”  Section 2 of the Fifteenth Amendment vested Congress with authority to make laws to enforce the Fifteenth Amendment, providing the Federal Government a mandate to intervene in state-deprivations of the right of black citizens to vote. Congress enacted the Enforcement Acts of 1870 and 1871 (aka “The Ku Klux Klan Act”), which prohibited the use of violence or other forms of intimidation intended to prevent black persons from voting; the 1871 Act made it a federal offense to engage in violence and other forms of intimidation against black voters. The Justice Department was created to lead the charge in enforcing the Civil Rights Acts and Enforcement Acts.

The Fifteenth Amendment clearly was designed to replace the impotent sanctions imposed by section 2 of the Fourteenth Amendment with more robust federal oversight of state electoral practices. See e.g., Gabriel Jack Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment? 92 Geo. L.J. 259 (2004); See United States v. Cruikshank, 92 U.S. 542 (1876) (holding   

The dissent in Ramirez argued that section 2 of the Fourteenth Amendment did not limit the Fourteenth Amendment’s equal protection clause or due process clause to remedy electoral discrimination practices, including felony disenfranchisement:

The Court’s references to congressional enactments contemporaneous to the adoption of the Fourteenth Amendment . . . are inapposite. They do not explain the purpose for the adoption of [section 2] of the Fourteenth Amendment. They merely indicate that disenfranchisement for participation in crime was not uncommon in the States at the time of the adoption of the Amendment. Hence, not surprisingly, that form of disenfranchisement was excepted from the application of the special penalty provision of [section 2]. But because Congress chose to exempt one form of electoral discrimination from the reduction-of-representation remedy provided by [section 2] does not necessarily imply congressional approval of this disenfranchisement. . . . There is no basis for concluding that Congress intended by [section 2] to freeze the meaning of other clauses of the Fourteenth Amendment to the conception of voting rights prevalent at the time of the adoption of the Amendment. In fact, one form of disenfranchisement—one-year durational residence requirements—specifically authorized by the Reconstruction Act, one of the contemporaneous enactments upon which the Court relies to show the intendment of the framers of the Fourteenth Amendment, has already been declared unconstitutional by this Court. . . .

418 U.S. at 75-76 (Marshall, J. and Brennan, J. dissenting). The dissenting opinion ends with a powerful rebuke of the practice of “blanket disenfranchisement of ex-felons,” taking into consideration “the significance or the extent of its infringement upon the spirit of our system of government.” Id. at 85-86.

There are other problems with relying on section 2 of the Fourteenth Amendment for textual support of blanket felony disenfranchisement.  Section 2 applies to the right of men to vote and the felony disenfranchisement exception to section 2’s punishment applies only to men. Women did not win the right to vote until 1920 when the states ratified the Nineteenth Amendment. The Court cannot, without great interpretive license, apply its textual analysis to authorize felony disenfranchisement of women. The Court would also be hard-pressed to backtrack and say that the word “men” or “man” in the Constitution applies to all people, including women; though the Court has argued this way in the past, because the Court explicitly used section 2 to justify state laws that denied women the right to vote. See Minor v. Happersett, 88 U.S. 162, 174-75 (1874).

Again, even were the Court to interpret “men” as including “women,” section 2 of the Fourteenth Amendment also explicitly only applied to men who attained the age of twenty-one. Would this mean that section 2 does not allow states to enact felony disenfranchisement laws that apply to men and women who are under twenty one? Eighteen, nineteen, and twenty-year olds did not win the right to vote until the Twenty-Sixth Amendment was ratified in 1971.

With all of these logical, textual, and historical problems, section 2 of the Fourteenth Amendment looks like a poor place to look for explicit Constitutional authority for states to enact felony disenfranchisement laws.

                        The Thirteenth Amendment Slavery Exception

 If the majority got it wrong in Ramirez, that leaves one place in the Constitution to explicitly authorize felony disenfranchisement—the Thirteenth Amendment. Though seemingly shocking or controversial, and contrary to popular belief, the Thirteenth Amendment to the United States Constitution did not abolish or outlaw slavery; it qualified slavery. Take a look at its language: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend. XIII, § 1.

If the United States Constitution does not prohibit but in fact authorizes states to reduce to the class of slave or involuntary servant any person duly convicted of a crime, does this fact mean that states are authorized to disenfranchise felons?   What is slavery? It is a “situation in which one person has absolute power over the life, fortune, and liberty of another.” Black’s Law Dictionary 1422 (8th ed. 2004). A slave is one with whom the state may do what it pleases; a slave is outside of the political community; a slave belongs to the polity and submits to its will. The Thirteenth Amendment provides the most clear and express basis for felony disenfranchisement; felony disenfranchisement is not impliedly authorized by the Thirteenth Amendment; rather, the Thirteenth Amendment invests the states with absolute power over the life, fortune, and liberty of a person duly convicted of a crime. The franchise has long been the hallmark of self-governance, the right and ability of a person to choose her representatives and the laws that purport to govern her life. Without the ability to exercise the right to vote, she must submit to political outcomes chosen by others, whether those outcomes deprive her of property rights, increase her taxes, or alter other rights that she holds dear.

Interestingly, the Ramirez majority never considered that the participation in crime exception of section two of the Fourteenth Amendment was included by the Framers of that Amendment precisely because the Thirteenth Amendment allowed states to treat persons duly convicted of a crime as slaves.  Looking forward, one might ask why the Fifteenth Amendment qualifies one of its terms? No state may deny the right of a person to vote based on that person’s “race, color, or previous condition of servitude.” The Framers of the Fifteenth Amendment may have meant here that states could not deny the right of a person to vote because that person was formerly a slave; but the states could deny a person duly convicted of a crime the right to vote based purely on that person’s present condition of servitude.

Every person should feel unconformable about applying the Thirteenth Amendment to justify blanket felony disenfranchisement, especially since felony disenfranchisement laws disproportionally impact black Americans and other racial minority groups. See e.g., Erin Kelly, Racism & Felony Disenfranchisement: An Intertwined History, https://www.brennancenter.org/sites/default/files/publications/Disenfranchisement_History.pdf; Gabriel J. Chin, Race, The War on Drugs, and the Collateral Consequences of Criminal Convictions, 6 J. Gender Race & Just. 253 (2002). 

Presumably, no one would want to be on the side of arguing that the very Amendment that rid our nation of one of the most inhumane practices known to any civilized society can be used to exclude from political participation the ancestors of the victims of that most inhuman practice, or anyone else for that matter. But there is nowhere else to look, other than state traditions and state constitutions and statutes (under the rubric of the Tenth Amendment) if section 2 of the Fourteenth Amendment does not authorize states to disenfranchise felons. The Tenth Amendment route requires an in-depth and lengthy discussion of theoretical justifications for felony disenfranchisement. This discussion will be the subject of the second part to this blog.

Crystal Mason voted and for that act alone she will be wrested away from her children, her family, her friends, her neighbors, her community. She will continue to be governed completely by the will and whims of others. She will continue to wear the badge of servitude etched into the fabric of her civil rights by the state initiated status—felon. Did she commit voter fraud? Or is she the victim of state-initiated voter fraud. 

Daniel Correa
James Creedon Selected to the 2018 Texas Rising Stars List
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Managing Attorney James Creedon has again been selected for the Texas Rising Stars list under the category of intellectual property litigation. Each year, no more than 2.5 percent of the lawyers in Texas are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

James Creedon
What the Essence of “Discovery” Reveals About its Practice, Part 2

In my last blog, we posited from In re Kimberly-Clark Corp. that Discovery is the legal process in a lawsuit by which facts, documents, and other forms of information that relate to the litigation are disclosed. We found, however, that this definition alone did not fully capture the court’s description. The court described the nature of Discovery not merely in terms of process, but also purpose.  

            What is the purpose of Discovery?

The purpose of discovery may first be gleaned by the stated objective of the Texas Rules of Civil Procedure: “The proper objective of rules of civil procedure is to obtain a just, fair, equitable, and impartial adjudication of rights of litigants under established principles of substantive law.” Tex. R. Civ. P. 1. We may glean from TRCP 1 that the objective of Discovery must be in line with the proper objective of rules of civil procedure generally. That is, Discovery cannot have as its purpose anything short of the general objective of civil procedure rules. But we cannot conclude, yet, that the purpose of discovery is exactly the same as the proper objective of civil procedure rules.

Texas Courts articulate the purposes of Discovery in line with but not exactly as the stated objective of civil procedure rules.

1.    “The ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed.” In re Colonial Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998) (emphasis added).

2.    “Discovery should be used to augment and facilitate the trial process by narrowing as much as possible the actual issues in dispute.” In re Kimberly-Clark Corp., 228 S.W.3d 480, 490 (Tex. App.—Dallas, 2007 orig. proceeding) (emphasis added).

3.    “The purpose of the discovery rules is to encourage full discovery of the issues and facts before trial so that parties can make realistic assessments of their respective positions in order to facilitate settlements. . . .” Lopez v. La. Madeleine of Texas, Inc., 200 S.W.3d 854, 861 (Tex. App.—Dallas 2006, no pet.) (emphasis added) (citing Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989)).

4.    “The rules of discovery were changed to prevent trials by ambush and to ensure that fairness would prevail.” Gutierrez v. Dallas Independent School Dist., 729 S.W.2d 691, 693 (Tex. 1987) (emphasis added).

Notably, if discovery’s primary purpose is to seek the truth, then the stated objective of civil procedure rules would mostly be met; that is, if discovery is a process by which litigants seek the truth, then discovery would facilitate a just and impartial resolution of rights of litigants.

However, there are countervailing civil procedure rules that thwart the truth-seeking function of discovery, like certain privileges, and rules limiting the scope of discovery. Though we value the search for truth, we also value protecting other rights and privileges in the process. We also value reducing the cost of civil processes so as not to unduly burden litigants, that is, to ensure cases are decided on their merits and not on the mere inability of a party to pay to defend itself; an unrestrained search for the truth through civil processes could prove unfair or inequitable. So, courts articulate the purpose of discovery not merely in terms of the search for truth, but also in terms of ensuring fairness.

The other stated purposes of discovery are really not purposes of discovery, but consequences of the stated purposes of discovery. As a truth-seeking process, discovery is the process through which all relevant facts come to light. If all relevant facts come to light, then the issues in dispute will narrow, and the parties will be able to make realistic assessments of their positions. Further, if discovery’s purpose is to ensure fairness in the search for truth, then as a consequence it would avoid trials by ambush.

Having uncovered the process-oriented nature of Discovery and unpacked its normative grounds, we may posit a legal definition of “Discovery”: Discovery is the legal process in a lawsuit by which facts, documents, and other forms of information that relate to the litigation are disclosed, the process of which aims to ensure fairness in the search for truth.

If we accept or agree that this legal definition accurately, albeit generally, describes the nature or essence of Discovery, then we can efficiently and effectively examine and describe, in a non-question-begging manner, the practice of Discovery in Texas.

Daniel Correa
Demand Letters: The Action Plan

One of the most stressful events for a business owner is receiving a demand letter from a lawyer. Often times, these letters contain strong language full of accusations about wrongdoing, combined with a specific statement of what the lawyer expects and when. In Texas, for example, a letter may refer to the Deceptive Trade Practices Act or to Chapter 38 attorney's fees — things most business owners thankfully are not familiar with — and may even state a specific dollar amount required to settle a dispute.

For any business receiving this kind of letter, there are clear steps to take from the first moment:

  1. Don't Panic. Many of these letters contain a laundry list of wrongdoing and include accusations of breach of contract, fraud, individual responsibility by the business owners, and even threats to shut down operations. Recognize that these allegations may be over-the-top and may not have any factual support whatsoever. Take a breath, understand that the actual conflict may be much less serious, and make a firm decision to approach the issue calmly and responsibly.
  2. Contact an Attorney. Many business owners are tempted to call the author of the letter, or to call the business or individual which hired the lawyer. Don't do this. Your first call should be to your counsel of choice, who will request a copy of the letter and any other materials you may have received. By making contact directly with the other side, you may inadvertently say or do something which could hurt your position down the road. Calling your own counsel doesn't mean you have to get involved in a knockdown litigation, or that you will have to spend thousands to even figure out where things stand. It is simply making a calculated business decision to ask an experienced professional about your risks and options.
  3. Take a Snapshot. Rather than rush to make changes to any operations or practices, wait until you receive specific guidance from your counsel of choice. As you go through that process, be certain to maintain a snapshot of where things were when you received the letter. Does it pertain to your website? Create a backup archive of the site as it stands. Is it related to a contract? Be certain to retain all documents related to that contract, including negotiation emails, notes, drafts, and final signed versions. Is it an accusation of monies owed? Save copies of bank statements, transactional records, cancelled checks, and any associated records. In short, you want to be able to look back later and understand exactly where everything stood when you received the letter and before you took any further steps or made any changes to your business.
  4. Notify Key People. There is no need to tell the world about the letter you received, but you may want to rope in those who will be directly involved. After contacting your attorney, consider speaking with your chief of operations, your internal financial officer, or any other individuals necessary to take the snapshot discussed above. You may be required to notify your insurance provider, but hold off on doing so until you speak with your attorney. Don't forget your spouse! Legal matters can be a source of significant stress which can affect your family — don't keep it to yourself.
  5. Don't Panic. Did we say this already? You can address this issue in a calculated, responsible way, which will allow you greater freedom in choosing options to resolve a dispute. Call your attorney, leave your cellphone number if they need to call you back, and go for a walk. Grab a coffee. Hit the gym (with your phone nearby). Let the initial wave of surprise pass, and then work with counsel to develop a plan.

Any unexpected letter from an attorney can disrupt your business, but following these basic steps can reduce stress and help you determine the best path forward.

To learn more please visit the Litigation page at Creedon PLLC.

James Creedon
What is Brand Clearance? A Primer.
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A company's brand, or identity in the marketplace, is often its most valuable asset. The brand is the touchstone the company builds itself around — a symbol of quality, a mark with a reputation for excellent service, and an important means of building goodwill and long-term loyalty. Founders spend countless hours brainstorming names or logos, and once a brand is settled on they often pour even more hours (and dollars) into securing all the necessities of a modern company: a business entity, a domain name, social media accounts, business cards, marketing materials, and perhaps the occasional fun item (branded socks, anyone?).

With all of this time, effort and money invested, founders often forget an important step: brand clearance. Brand clearance is nothing more than a focused, thorough, and directed search to confirm that a particular brand name or logo is worth the investment. Without it, many companies have found themselves a year into formation and having to change their brand — losing market recognition and momentum in the process.

Basic steps in brand clearance include the following:

  • Is the entity name available in the state you intend to form the company? Often a check on the Secretary of State website is sufficient, but beware that each state has its own rules on how unique a name must be, which words must or mustn't be in the name, and which entities are required for particular services.
  • Is the trademark available for registration? Federal trademark registration provides a number of significant benefits, including the ability to prevent others across the United States from using the mark for similar goods or services. A proper brand clearance looks at the federal trademark database as well as the individual databases of all states and territories. For some brands, an international search is also critical - think of video game developers in the United States who often seek game distribution in Southeast Asia. Understanding trademark availability can help a company secure a valuable asset in their growth, and can also provide a shield from early accusations of copying or infringement.
  • Is the domain name available? Consider not just identical domains, but similar ones as well. Consider also alternative top-level domains (TLDs) such as .co, .tech, and .tv. Look also for slight misspellings - will these deprive you of valuable traffic to your future site?
  • Are the social media accounts taken? Often a new brand is willing to make slight changes to its social media handle to get a descriptive word or phrase, but brand clearance is a means of thinking ahead. Who has a handle which is similar, and what will happen when potential or current customers accidentally arrive at that account?
  • Does your visual brand, such as a logo, create a risk of trademark or copyright infringement? An early tool for this is an image reverse search, which allows you to provide your logo or image and find other images on the internet which are visually similar.

Proper brand clearance can involve many other steps, including an internal review to be certain that intellectual property such as a logo actually belongs to the company and not to individual owners, employees or third-parties. But that, my friends, is for another blog post.

To learn more about brand clearance, please visit the Trademark or Transactional pages at Creedon PLLC.

James Creedon
What the Essence of “Discovery” Reveals About its Practice, Part 1
 Photo by  Samuel Zeller &nbsp;on  Unsplash

Photo by Samuel Zeller on Unsplash

Philosopher: We have hitherto spoken of laws without considering anything of the nature and essence of a law; and now unless we define the word law, we can go no farther without ambiguity, and fallacy, which will be but loss of time; whereas, on the contrary, the Agreement upon our words will enlighten all we have to say hereafter.

Lawyer: I do not remember the definition of law in any Statute.
— Thomas Hobbes

Claims about the essence or nature of certain concepts inevitably threaten to bog one down in what seems like a mere verbal dispute. What is the essence or nature of law? What is the essence or nature of justice? On the surface, these questions do not appear to reduce to a right or wrong answer, making the questions appear trivial or non-substantive—law or justice by any other name would function just the same.

Conceptual questions tell us much about social practices. When John Austin posited that law is a command by a sovereign backed by a sanction, he understood this definition to be a description of a social practice. Likewise, when Saint Thomas Aquinas and, in a more elusive manner, Lon Fuller posited that whatever law is it must satisfy certain moral principles, they were describing what they considered socially acceptable practices. Even with Hobbes’ quote above, the Lawyer’s response to the Philosopher implies a social practice of lawmaking that reduces to statutes.

There is a risk, however, in confusing the practice with the concept for all purposes. That is, social practices tend to change, sometimes gradually, sometimes swiftly. If a certain practice changes, does the concept remain the same? What, in other words, is the fixed structure of the concept such that it can inform our understanding of social practices, and not only the other way around? If we can ascertain or agree to a fixed structure of the concept itself, then the concept will aid our understanding of contingent social practices (as the Philosopher argues in the Hobbes’ quote above).

Analytical debates abound in trying to articulate the essence or nature of “Law,” “Justice,” and even “Democracy” and “Rule of Law”—the latter two of which appear to raise an issue of disambiguating the concepts. We take these concepts seriously because the stakes may be high if we get them wrong, and we wish to get the concept right to instantiate the best possible example of these concepts through our social practices.  

I submit that getting “Discovery” conceptually right is equally important. Fortunately, unlike law or justicediscovery for our purposes does not have a life independent of litigation. Thus, our inquiry will be less esoteric than inquiries into the nature of law or justice

What is “Discovery”?

I’m not going on a limb to suggest that most practitioners do not consider what the essence or nature of “Discovery” is. Like the Texas Rules of Civil Procedure, most, if not all, practitioners view and describe discovery through the lens of its practice. The Texas Rules of Civil Procedure set forth a definition of “Written Discovery”: “Written Discovery means requests for disclosure, requests for production and inspection of documents and tangible things, requests for entry onto property, interrogatories, and requests for admission.” Tex. R. Civ. P. 192.7. Notably, this definition summarizes the “Forms of Discovery.” See Tex. R. Civ. P. 192.1. Surely, Discovery must have meaning independent of its tools.

It is tempting to point to the “Scope of Discovery” as revealing Discovery’s conceptual essence or nature, but the scope of discovery tells us only how far practitioners may wield discovery tools, i.e., the “Forms of Discovery.” See Tex. R. Civ. P. 192.3. Undoubtedly, the proper use and reach of discovery tools reveals something of Discovery’s essence or nature, but Discovery must have some meaning independent of how far its tools may reach.

Black’s Law Dictionary provides a few useful definitions for “Discovery”:

  1. The act or process of finding or learning something that was previously unknown.
  2. Compulsory disclosure, at a party’s request, of information that relates to the litigation.
  3. The facts or documents disclosed.
  4. The pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted.

Black’s Law Dictionary 498 (8th ed. 2004). The first definition in this list goes to the general understanding, both lay and legal, of Discovery. The next three definitions pertain to the legal understanding of Discovery, and each such definition speaks to a process of compulsion and revelation.

At least one court in Texas has articulated its understanding of the nature of Discovery: “The nature and purpose of the discovery process is the administration of justice by allowing the parties to obtain the fullest knowledge of the issues and facts prior to trial.” In re Kimberly-Clark Corp., 228 S.W.3d 480, 490 (Tex. App.—Dallas 2007, orig. proceeding) (emphasis added). The court describes Discovery as a process-oriented legal concept. Looking back to the last three definitions of Discovery in Black’s Law Dictionary, you will see that the court’s definition tracks the understanding of Discovery in terms of compulsion and revelation. The administration of justice, after all, means “the state’s application of the sanction of force to the rule of right.” See Black’s Law Dictionary 47 (8th ed. 2004).

We can posit from In re Kimberly-Clark Corp., and from the "Forms of Discovery" and the "Scope of Discovery," that Discovery is the legal process in a lawsuit by which facts, documents, and other forms of information that relate to the litigation are disclosed. This definition may strike some as obvious; less obvious, perhaps, is the value of not only fully articulating such a definition, but also in employing analytical reason to uncover Discovery's meaning. We are one step closer to understanding the nature or essence of discovery, which will dramatically aid and improve our discovery practice. 

But, this definition alone does not fully capture the In re Kimberly-Clark Corp.  court’s description. The court described the nature of Discovery not merely in terms of process, but also purpose. Indeed, the “administration of justice,” with its focus on “rule of right,” contains a normative component that we must unpack to fully understand the nature of Discovery.

Normative inquiries demand exacting attention to detail. To make the best attempt at getting the conclusion right, or just reaching the best conclusion possible, the discussion pertaining to Discovery’s normative grounds must be the subject of another blog. 

Daniel Correa
Harte v. City of Lone Star, Texas, et al.—A Case Concerning Due Process, Representative Government, and Local Government Code § 22.008(b)
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I recently had the privilege of representing City Council Member Ryan Harte in his battle against the Lone Star City Council and the City of Lone Star, Texas, to retain his seat as an elected councilmember. The City Council had declared Mr. Harte automatically disqualified from holding the position of Alderman pursuant to a newly enacted local government code provision, which provided that a member of a local governing body “is automatically disqualified from holding the member’s office and the office is considered vacant” if the member changes his or her place of residence outside of the municipality.  Tex. Loc. Gov’t Code § 22.008(b).

At the heart of the controversy lay questions concerning process due under the newly enacted local government code provision and the effect of this new provision on democratic processes. These questions remain open. Harte’s matter was resolved by an agreed judgment permanently enjoining the City of Lone Star, Texas, from enforcing the City Council’s declaration that he was automatically disqualified from holding his office. A close look at Local Government Code § 22.008(b) in the context of Harte’s case reveals uncertainty regarding future application of the automatic disqualification provision as it pertains to office holders' due process rights and preservation of representative government. 

“Harte Removed From Council Due To Residency Issues”

On September 21, 2017, the Lone Star City Council voted Ryan Harte off the City Council, asserting as its ground Local Government Code Section 22.008(b). The Mayor met with Harte the week prior to the vote to inform Harte that he was automatically disqualified from serving as a city councilmember because, according to the Mayor, Harte did not own property in the county.

During the September 21 hearing concerning Harte’s residency, the Mayor provided the following testimony:

I wanted to add something to what Ryan said, a little clarification.  When I became aware that this law, this ruling, had become law, I looked at public records and trying to determine where one lives or resides…property ownership is but one aspect.  Your place of residence is where you lay your head, where your furniture is, where your clothing is, where your wife and child or husband reside.  That’s part of the equation.  Via public record, Mr. Harte owns no property in Lone Star, that’s true, via public record.  Mike and Ryan Harte purchased property in [*****], Texas October 16, 2016.  Ryan then had the property transferred to his name on June 7, 2017. . .  That’s what some of the conclusions were based on.  I’m advised that that’s where his vehicles are.  That’s where he returns to when he comes home from work. That’s where his utilities are.

Some members of the public had an opportunity to weigh in on the disqualification hearing. Kenny Simpson, a local citizen and voter, testified as follows:

My name is Kenny Simpson.  Mayor and city council, I’d like you to know.  I don’t think we get a great turnout in elections around here but, I can say this much…I’m not going to speak and address the Local Government Code.  I don’t have as much intelligence as this gentleman must have on what the laws are pertaining to the government code.  But I do know that Ryan Harte came to me; expressed his willingness to serve on the city council; explained to me his goals and opinions on what he was going to do on the council.  I took the time to come up here and vote. My wife took the time to come up here and vote and we would hate to see that vote totally wasted. Uh, I’m just asking you to consider that aspect of why he’s here. He’s here to represent us.

Remaining City Council members asked Harte questions pertaining to his residency during the disqualification hearing. At all times, Harte maintained that he resided in Lone Star, Texas. At the end of the hearing, the remaining City Council members declared Harte automatically disqualified from holding the position of Alderman due to residence requirements, and that his seat was vacated. A few days later, the Daingerfield Bee published an article, with a headline that read, “Harte removed from council due to residency issues.”

Harte v. City of Lone Star, Texas, et al.

Harte filed suit in Morris County, Texas, and sought a declaration that the city officials exceeded the scope of their lawful authority and a permanent injunction, enjoining the City and individual officials from enforcing the City Council’s declaration. Harte took the position that Local Government Code Section 22.008(b) could not be applied retroactively. Section 22.008(b) became effective on September 1, 2017. The residency issues of which the remaining City Council members complained arose sometime around April of 2017. The automatic disqualification provision, according to Harte, could only apply prospectively to persons who move their place of residency after September 1, 2017. Harte also complained that Section 22.008(b) could not be applied to an official elected before the code’s effective date because such an application would unconstitutionally divest him of his right and duty to represent his constituents and his constituents’ rights to be represented in the city council by a representative of their choosing.

Additionally, Harte took the position that the City Council’s action violated his due process rights. The City alleged that Section 22.008(b) was self-executing, in that Harte was automatically disqualified the moment he designated a homestead outside of the City of Lone Star, Texas (it is not clear how this could be possible since the homestead designation took place before the effective date of Section 22.008(b)). According to the City, the September 21, 2017 council meeting was not even necessary to declare Harte automatically disqualified. Harte maintained that the statute was not self-executing and that he was entitled to a full adversarial proceeding in a court.

Harte also maintained that the September 21, 2017 city council meeting was not an impartial adjudication of his right to retain his seat. The Mayor presiding over the meeting, acting as judge, also provided testimony against Harte in the proceeding. Harte complained that the hearing violated his due process rights by creating a constitutionally intolerable appearance of partiality.

The trial court granted Harte a temporary injunction against the City, allowing him to continue serving his constituents and the City of Lone Star during pendency of the suit. The court also denied the City’s plea to the jurisdiction. After the City filed a notice of appeal on the court’s plea to the jurisdiction denial, the parties entered into an agreed judgment, permanently enjoining the City and its officials from enforcing the September 21, 2017 declaration against Ryan Harte.

Future Applications of Section 22.008(b)—Preserving Due Process Rights and Representative Government

Section 22.008(b) undoubtedly serves to preserve representative government. The provision ensures that local elected officials live under the same laws as their constituents; that is, that local officials share in the burdens and benefits they grant or impose on everyone living within the municipality. Sharing in the same burdens and benefits guarantees a confluence of interests and goals between citizen and representative.

But Section 22.008(b) lacks an enforcement provision, the lack of which threatens to undermine representative government. Harte’s case provides a prime example. At his temporary injunction hearing, Harte testified that he more often than not acted as a contrarian or dissenting voice in the City Council. Harte believed that his vocal dissent motivated the Mayor and other City Council members to find a way to get rid of him. Taking his testimony as true, if the City Council rather than a court could enforce Section 22.008(b), then elected officials could use the provision as a means to oust political rivals or enemies, depriving constituents of a dissenting voice or “voice of reason.”

This threat manifested itself in Harte’s case. The City relied heavily, if not solely, on Harte’s homestead designation as dispositive on the residency issue. However, Texas Courts have consistently held that a homestead designation is not conclusive on the question of one’s intended residency. See e.g., In re Peacock, 421 S.W.3d 913, 918 (Tex. App.—Tyler 2014, no pet.); McDuffee v. Miller, 327 S.W.3d 808, 821-22 (Tex. App.—Beaumont 2010, no pet.) (holding a designated homestead outside of the relevant district is not conclusive); see also State v. Wilson, 490 S.W.3d 610, 621-22 (Tex. App.—Houston 2016, (holding legally insufficient tax records relied on by the State to prove the defendant’s residency). The Texas Supreme Court has held, in fact, that “residence” is an elastic term that is “extremely difficult to define.” See Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964).

The risk of political reprisal is great when considering a local city council could latch onto a single criteria as the baseline to determine residency, placing the cost of a full adversarial hearing solely on the ousted official, who would have to seek vindication in a court proceeding, in which he or she would also carry the burden of proof. Since many local government positions are unpaid, like Alderpersons, local officials may feel emboldened to oust political enemies on very little residency evidence or information, knowing that the ousted official has minimal to zero financial incentive to incur the cost of challenging the ouster. 

So, what process is due under Section 22.008(b)? This question is up for grabs moving forward. A full adversarial hearing seems necessary. Section 22.008(b) should at most fall under the enforcement provision of Texas Civil Practice & Remedies Code § 66.01-002, the quo warranto action provision, but must at least require a judicial proceeding.  A local government entity should initiate a judicial action pursuant to these provisions to ensure the full breadth of procedural rights to the targeted official and to promote the purpose of Section 22.008(b)—to preserve representative government.

Daniel Correa