News Release

Austin, TX: The Texas Supreme Court took a big bite out of two crucial democratic institutions today: independent juries and the Whistleblower Act.

In City of Fort Worth v. Zimlich, the justices overruled a jury, trial court and a unanimous appellate court to rule that there was no evidence to support a jury’s award of damages to a government whistleblower who refused to turn a blind eye to toxic dumping by an ex-city councilman.

“Today’s decision sends two very dangerous messages,” said Texans for Public Justice staff attorney Cris Feldman. “The first is that the justices of our highest civil court are deaf to courageous public servants who blow the whistle on governmental abuses of power. The second is yet another sign that jury verdicts that don’t mesh with this court’s world view are prone to be summarily tossed out the courthouse door.”

Julius Zimlich was a Fort Worth deputy marshal working for the city’s Solid Waste Environmental Enforcement Program (SWEEP), a defunct program that the Texans Natural Resources Conservation Commission (TNRCC) once funded to police illegal dumping. Investigating an illegal dump in 1993, Zimlich found evidence of such hazardous wastes as oil, antifreeze and asbestos. When he reported the violation to his superiors, however, he learned that the dump was owned by ex-City Councilman Ted Peters. Zimlich was told to drop the matter because there was “nothing out there.” In fact, Peters later removed 356 tons of illegal waste from his land after the TNRCC threatened him with criminal prosecution.

Instead of dropping the matter, Zimlich discussed it with news media. He went on to sue the City of Fort Worth, alleging that his employers discriminated against him for blowing the whistle on the dump and the city’s subsequent cover up of the scandal. They did so, Zimlich argued, by assigning him to undesirable jobs and passing him over for promotions. In 1998, A panel of the state court of appeals in Austin upheld a trial court verdict in which a jury awarded Zimlich $300,200 for lost job earnings, $300,000 for anguish and $1.5 million in punitive damages, which were designed to send a message to city officials that would abuse their authority.

“The jury’s findings must be upheld unless it is so against the great weight and preponderance of the evidence as to be manifestly unjust or erroneous,” noted the three justices of the Third District Court of Appeals, who unanimously upheld this verdict. “We are not free merely to substitute our judgment for the jury’s.” These appellate judges found ample evidence that Zimlich’s superiors reassigned him to lesser duties and passed him over for promotion despite “uncontroverted testimony” that he was “the most qualified of the five applicants” seeking the new job.

Yet today, all nine members of the Texas Supreme Court reversed both lower courts in order to substitute their judgment for that of the jury.

The Whistleblower Act provides compensation to public employees who are discriminated against for reporting illegal activities. This incentive encourages public employees to report illegal activities that would otherwise be overlooked. “By silencing the Whistleblower Act, the Texas Supreme Court will have a chilling effect on courageous acts of our best public servants,” Feldman said.

By wiping out the jury’s verdict awarding punitive damages, the justices are playing into the hands of one of their top sources of campaign contributions. Slashing punitive damages—the tool with which juries punish particularly bad actors—is a major goal of Texans for Lawsuit Reform (TLR).
TLR and business interests serving on TLR’s board contributed $838,796 to the most recent election campaigns of the nine current justices, accounting for eight percent of their war chests. TLR’s efforts delivered 10 percent of all the money raised for the recent primary race of Justice Alberto Gonzales, the author of this unanimous opinion.

Law firms and attorneys representing both sides of this dispute also contributed to the justices’ most recent campaigns. The City of Fort Worth’s legal counsel contributed $7,250 to the justices;  Zimlich’s counsel contributed $47,115.

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