News Release

Austin, TX:  On Friday, October 3, at 10:30 AM , San Antonio Federal Judge Orlando Garcia will hear arguments in a suit filed to force the Texas Supreme Court to disclose records of how each justice votes on whether or not the Court will decide a case.  The Court keeps voting records on these “petitions for review” secret even though many of the justices’ top campaign donors have interests in the outcome of these secret decisions. A group of Texas organizations and citizens filed the suit in May 2002, Aguirre et al. v. Phillips et al.  Friday’s argument will be the first oral argument in the case.

“We’re pleased the suit is progressing because in America, secret justice is not acceptable,” said Cristen  Feldman of Texans for Public Justice (TPJ), a plaintiff in the lawsuit. “The Texas Supreme Court currently rejects 9 out of 10 appeals on a secret ballot.  How are voters supposed to make intelligent choices when hundreds of the Court’s decisions are kept secret every year?”

Before the Texas Supreme Court hears a case on appeal, four of the nine justices must vote to accept the litigant’s “petition for review.” The court receives approximately 900 such petitions each year, typically accepting just 11 percent of them.  Yet according to TPJ research, large donors are about ten times more likely to have their petitions granted than others.  This raises suspicions of favoritism in the justices’ votes, but the court’s policy is to keep these voting records secret, preventing any accountability. While individual justices can voluntarily reveal how they voted, they rarely do. Fourteen other states—including California, Indiana, Louisiana, Michigan, Mississippi and Ohio—routinely disclose these voting records to the public. Texas voters, who elect all local and appellate judges in partisan contests, are deprived of similar records.

The problem of money in judicial politics is national, with judges in 42 states chosen through increasingly costly elections.  Judicial campaign spending doubled between 1994 and 2000, when in reached $45.6 million.  A 2002 bipartisan national survey found that 76 percent of voters believed campaign contributions had at least some influence on judicial decisions, and a 26 percent of state judges agreed.  With such suspicions aroused, transparency in judicial actions is all the more important.

The plaintiffs in the lawsuit are represented by attorneys for the National Voting Rights Institute (NVRI), a Boston-based non-profit legal center that specializes in campaign finance litigation.  The plaintiffs include Common Cause, the League of United Latin American Citizens (LULAC), Texans for Public Justice (TPJ), The Texas Observer, former Supreme Court candidate Brad Rockwell, Houston attorney Terry Hogwood, Denton, Texas voters Jamie Barnes and Romelia Cardona and Del Rio, Texas voters Humberto Aguirre and Eulalio Calderon, Jr.  The named defendants, which include the nine Texas Supreme Court Justices and clerk of the Texas Supreme Court, are being represented by the office of  Attorney General Greg Abbott.  NVRI attorney Bonita Tenneriello is serving as lead counsel for the plaintiffs. Attorneys for the Texas ACLU and TPJ are serving as co-counsel.

Among other complaints, the lawsuit alleges that the First Amendment gives the public and the media a right to know the justices’ votes on petitions for review. “The Constitution protects the public’s right to information about the government,” said NVRI attorney Bonnie Tenneriello. “Democracy requires voters to hold elected officials accountable for their actions. The fact that Texas Justices receive large campaign contributions makes it even more important that the Justices’ decisions be transparent.”

“The Court has no justification for its secrecy,” added Tenneriello.  “The suit does not seek disclosure of any internal court deliberations.” Instead, it argues that the justices’ final votes on the merits of accepting an appealed case should be disclosed, just as the court typically reveals where each justice stands on published decisions.

“Because Texas judges raise millions of dollars from the very litigants and lawyers who bring appeals to them, it is critical that we know how they vote on those appeals,” said Common Cause of Texas Director Suzy Woodford. “Over half of the $12 million that the justices raised between 1994 and 1998 came from donors who filed petitions for review. Does the court give those donors favorable treatment?  We need to lift the veil of secrecy and find out.”

Even insider voices have noted accountability problems bred by the court’s secrecy. “If our votes on applications [for review] were always public, some would change,” Texas Supreme Court Justice Nathan Hecht wrote in his 1996 dissenting opinion in Maritime Overseas Corp. v. Ellis.¹ “I am forced to conclude that the time has come for the Court to make public its votes on applications.”

* The Boston-based National Voting Rights Institute is a non-profit legal center that specializes in campaign finance litigation. The Institute seeks to vindicate the constitutional right of all citizens, regardless of their economic status, to participate in the electoral process on an equal and meaningful basis.  The plaintiffs’ legal documents in this case are available at NVRI’s web site, http://www.nvri.org.
** Texans for Public Justice is a non-profit, non-partisan research and advocacy organization that tracks money in Texas politics. To view copies of the May 2002 press release announcing the filing of the suit and the original complaint, go to: http://www.tpj.org/press_releases/suit.html.

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¹977 S.W. 2d 536, 537 (1996)

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