Priscilla Owen
A few words about Priscilla Owen, the most controversial of the contentious federal nominees, who will now be headed directly for Senate confirmation. First, consult her bio, and then chose writeups and resources courtesy of NOW , People for the American Way, and Save Our Courts.
posted by Management at 4:27 PM
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Nominated to the United States Court of Appeals, 5th Circuit. Currently an Associate Justice on the Texas Supreme Court. On May 8, 2003, the Senate rejected (52-45) a second cloture motion on Owen's nomination. (Sixty votes are required to invoke cloture and end debate on the nomination.)
* Has been criticized as being on the "far right wing" of the Texas court, further to the right than Bush's own appointees to that court when he was governor.
* Supported the elimination and narrowing of buffer zones around reproductive health care clinics in Houston.
* In every judicial bypass case that came before the Texas Supreme Court last spring (bypass allows a young woman to obtain an abortion without notifying her parents if she proves her maturity to a judge), Owen voted against granting the young woman a bypass.
* Supports "stricter interpretation" of the state law that Bush signed requiring girls younger than 18 to inform their parents before obtaining an abortion.
* Member of the board of the Houston Chapter of the Federalist Society, an ultra-conservative legal organization.
* Enron's political action committee gave Owen $8,600 for her successful Supreme Court bid in 1994. Two years later, Owen wrote the majority opinion that reversed a lower court order and reduced Enron's school taxes by $15 million. Since 1993, Enron contributed $134,058 — more than any other corporation — to Owen and other members of the Texas Supreme Court. A study by Texans for Public Justice found that the court ruled in Enron's favor in five out of six cases involving the company since 1993.
Sources:
Texans for Public Justice, "Bush's Judicial Intent: Fake Moderate, Veer Right," 5/10/01
Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, 975 S.W. 2d 546 (1998)
NARAL citing: In re Jane Doe 1 (19 SW.3d 346, 2000), In re Jane Doe 4 (19 SW 3d 322, 2000)
Dallas Morning News, 5/9/01
New York Times, 1/22/02
Updated 11/17/03
The Dissents Of Priscilla Owen: A Judicial Nominee Who Would Make The Law, Not Interpret It
A Report of People For the American Way in Opposition to the Confirmation of Priscilla Owen to the United States Court of Appeals for the Fifth Circuit
The nomination of Texas Supreme Court Justice Priscilla Owen to the United States Court of Appeals for the Fifth Circuit has generated significant controversy. Shortly after her nomination, the Houston Chronicle characterized Owen as "one of the most conservative" justices on "Texas' Republican-dominated top court." B. Roth, "Bush Submits 11 Names for Federal Bench: Texan Among Nominees," Houston Chronicle (May 10, 2001) at A1. Groups in Texas have documented serious concerns about Owen's rulings and her record. As 19 Texas civil rights, women's rights, labor, consumer, and other organizations recently concluded, "Owen's rulings often favor the interest of corporate Texas or government at the expense of ordinary Texans." This report addresses one specific, significant aspect of Owen's judicial record: her dissents as a state Supreme Court Justice.
As with any state Supreme Court, many Texas Supreme Court rulings are decided without dissent. Compared with her colleagues, however, Owen has dissented frequently, and in a right-wing activist direction on a conservative court. A review of the Court's written opinions since Owen joined the court in January, 1995 through June, 2002 confirms the conclusion of Texans for Public Justice that Owen is the second most frequent dissenter among the justices currently serving on the Court. More important, the content of Owen's dissents demonstrate that she is often out of touch with and significantly to the right of the majority of the Texas Supreme Court, including members of the Court appointed by then-Governor Bush, particularly in cases dealing with individual rights.
In fact, many of Owen's dissents reveal a judicial philosophy directly contrary to President Bush's asserted goal of nominating judges who will interpret the law, not make it. As explained by the Texas Supreme Court majority, a number of the dissents she has written or joined would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens. In fact, even current White House Counsel Alberto Gonzales criticized a dissent joined by Owen in one case as "an unconscionable act of judicial activism." In another case, his majority opinion called a dissent by Owen an attempt to "judicially amend" a Texas statute. Her dissents demonstrate that, for Owen, ideology trumps her responsibility as a judge to interpret the law.
This report reviews dissents by Owen in several specific areas: discrimination and employee rights; reproductive rights; environmental issues and public information rights; and consumer and citizen rights. This record of dissents strongly supports the conclusion that the Senate Judiciary Committee should reject Owen's confirmation to the Fifth Circuit.
Discrimination and Employee Rights
In several recent cases, Owen has dissented from rulings by the Texas Supreme Court affecting the rights of employees, including the right to be free from invidious discrimination. In one such case, Owen embraced an interpretation of a key Texas civil rights law that would have effectively rewritten part of that law and made it much more difficult for employees to prove discrimination. In another case, the majority explained that the dissent "defies the Legislature's clear and express limits on our jurisdiction." Owen's dissenting views in these cases were rejected by the Court majority, including justices appointed to the Court by then-Governor Bush.
Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001)
In this case involving age discrimination, the Texas Supreme Court ruled 5-2 (with one justice not participating) that a plaintiff can prove age discrimination by showing that discrimination was a motivating factor in the employee's termination. The case was brought under the Texas Commission on Human Rights Act, which is patterned after Title VII of the 1964 Civil Rights Act. Owen joined the dissent of Justice Hecht, which would have adopted a much more demanding standard requiring a plaintiff to prove that discrimination was the determinative factor in firing cases in which it is alleged that the employer has advanced some other reason for the discharge as a pretext for discrimination.
At issue was the application of a state anti-discrimination law expressly providing that "an unlawful employment practice is established when the complainant demonstrates that race, color, sex, national origin, religion, age, or disability was a motivating factor for any employment practice, even though other factors also motivated the practice." 47 S.W.3d at 479-480; Tex. Labor Code §21.125(a) (emphasis added). In holding that a plaintiff in an employment discrimination case must show that discrimination was "a" motivating factor rather than "the" motivating factor, "regardless of how many factors influenced the employment decision," the court noted that "[a] basic rule of statutory construction is that we enforce the plain meaning of an unambiguous statute," and that "[t]he plain meaning" of the statute in question establishes 'a motivating factor' as the plaintiff's standard of causation...." 47 S.W.3d at 470-80 (emphasis added). In sharp contrast, the dissent joined by Justice Owen would have effectively rewritten the statute to create "the determinative factor" or "but for" standard that would have made it significantly harder to prove age discrimination. This "determinative factor" standard would also have made it much harder for an employee to prove discrimination based on any of the other characteristics covered by the statute, including race, sex, and disability.
Both of the other Texas Supreme Court justices appointed by Bush who participated in the decision, Baker and Hankinson, joined the majority opinion, which affirmed the appellate court ruling below.
Montgomery Independent School District v. Davis, 34 S.W.3d 559 (Tex. 2000)
In a 6-3 ruling, with Owen writing the dissent, the Texas Supreme Court affirmed a decision of the court of appeals in favor of a teacher who had effectively been discharged through the non-renewal of her contract. After receiving notice of the proposed non-renewal, the teacher requested a hearing under the provisions of the state Education Code. Following a five-day hearing, the hearing examiner "concluded that the school district failed to prove by a preponderance of the evidence any of the reasons for nonrenewal . . . and recommended that [the teacher's] contract be renewed." 34 S.W.3d at 561. The school board, however, issued its own additional findings of fact and voted not to renew the teacher's contract. The Supreme Court majority held that the board had exceeded its authority under applicable law by making additional factual findings, and that its decision was not supported by substantial evidence. Owen disagreed, and would have held that the board had a right to make the additional findings.
According to the majority, however, Owen's view was contrary to the language of the applicable statute: "Nowhere in the specific provisions of [the statute] has the Legislature provided for a school board to find facts in addition to those found by the hearing examiner. We cannot read into subchapter F's detailed administrative scheme permission for a board to find additional facts when the Legislature did not include that authority." 34 S.W.3d at 564. The majority specifically criticized Owen's dissent as arguing for a "misconception of the hearing examiner's role" that stemmed from "its disregard of the procedural elements the Legislature established . . . to ensure that the hearing-examiner process is fair and efficient for both teachers and school boards." 34 S.W.3d at 568.
As the majority explained, Owen's dissent advocated a rewrite of the Education Code that would have been detrimental to the rights of teachers. "By resolving conflicts in disputed evidence, ignoring credibility issues, and essentially stepping into the shoes of the factfinder to reach a specific result, the dissenting opinion not only disregards the procedural limitations in the statute but takes a position even more extreme than that argued for by the Board. Even the Board admits that the hearing examiner's factfindings in this case are supported by substantial evidence. And the Legislature has made plain that when substantial evidence supports those findings, the Board is not free to reject or change those findings to reach a different result." 34 S.W.3d at 568.
Bush appointees Gonzales, Baker and Hankinson were in the majority, and Hankinson wrote the majority opinion.
Collins v. Ison-Newsome, 73 S.W.3d 178 (Tex. 2001)
In this case, a school district employee filed suit against district officials alleging intentional infliction of emotional distress and defamation. The officials moved for summary judgment, claiming that the case should be dismissed on the ground that they had immunity from such lawsuits under state law because they were acting within the scope of their duties when they made the allegedly defamatory statements. The trial court denied the motion, and the court of appeals affirmed on the basis that the officials' affidavits did not "conclusively prove that they were acting within the scope of their duties." 73 S.W.3d at 180. Seven of the nine state Supreme Court justices agreed that the court did not have jurisdiction to hear an appeal by the school district officials of the denial of their motion for summary judgment based on their immunity claim, since the ruling below was not a final judgment and Texas state law does not give the Supreme Court jurisdiction to consider appeals of non-final orders except in specified instances set out by statute. Justice Owen joined a dissent by Justice Hecht taking the position that the Court should have heard the officials' interlocutory appeal.
The majority criticized the dissent by Hecht and Owen, stating that the dissent's view "defies the Legislature's clear and express limits on our jurisdiction." 73 S.W.3d at 182. According to the majority, "we cannot simply ignore the legislative limits on our jurisdiction." 73 S.W.3d at 183.
Bush appointees Baker and Hankinson were in the majority, and Hankinson wrote the majority opinion.
Continental Casualty Company v. Downs, 2001 WL 1876345 (Tex. 2002)
In a 5-4 ruling, with Owen joining the dissent, the Texas Supreme Court held that a workers' compensation carrier cannot contest a worker's right to compensation if the carrier has violated the express statutory requirement that within seven days of its receipt of a claim it must either begin paying benefits or notify the employee in writing of its refusal to pay. The dissent would have adopted the carrier's argument that a violation of this express statutory mandate subjected it only to a monetary fine. The majority specifically criticized the carrier's position, stating that to read the statute as the carrier had proposed would "render[] meaningless" the seven-day deadline and related statutory provisions. 2001 WL 1876345, *3.
Bush appointee Hankinson wrote the majority opinion, which was joined by Bush appointee Baker.
Texas Municipal League Intergovernmental Risk Pool v. Texas Workers' Compensation Commission, 74 S.W.3d 377 (Tex. 2002)
This case involved the Texas Municipal League Intergovernmental Risk Pool, which includes more than 1,600 Texas cities that provide "workers' compensation benefits to their employees through a joint-insurance fund." 74 S.W.3d at 379. The Risk Pool challenged the constitutionality, under the Texas Constitution, of the applicability to the Risk Pool of state laws requiring insurance carriers to contribute unclaimed death benefits to a fund established by the Texas legislature to pay "lifetime workers' compensation benefits to injured employees and to encourage employers to hire people with disabilities or preexisting injuries." 74 S.W.3d at 380. In a 7-2 ruling, the Texas Supreme Court upheld the constitutionality of the challenged statutes as applied to the Risk Pool. The majority specifically rejected Owen's dissenting argument that applying the law to the Risk Pool violated the Constitution, explaining that there was a "clear public benefit" to the contribution. According to the Court,
The Fund ensures that employers do not deny employment to individuals with preexisting injuries because they fear that later injuries will expose them to greater liability. . . The Fund -- by expanding Texas' workforce, placing disabled workers on a more equal plane as compared to other workers, and lowering workers' compensation rates -- benefits the public as a whole, and not merely a particular private interest. Therefore, we conclude that [the challenged statutes] accomplish a legitimate public purpose with a clear public benefit received in return.
74 S.W.3d at 385.
Bush appointees Baker and Hankinson were in the majority, and Baker wrote the Court's opinion.
Reproductive Rights
In 1999, the Texas Legislature enacted a law requiring that, with certain exceptions, a minor's parents be notified before she could obtain an abortion. Tex. Fam. Code §33.001-.011. In particular, the state's Parental Notification Act provides a judicial bypass procedure enabling a mature, sufficiently well-informed minor to obtain a court order permitting an abortion without parental notification. See Bellotti v. Baird, 443 U.S. 622 (1979). In several cases decided by the Texas Supreme Court during 2000 involving the bypass provision, Justice Owen vigorously dissented from the Court's rulings. In these dissents, Owen advocated extremely restrictive interpretations or applications of the bypass law that would have effectively rewritten the law and were significantly more stringent than those of several Bush appointees to the Court. In one of those cases, Owen's extreme views led current White House counsel Alberto Gonzales, then a colleague on the Texas Supreme Court, to charge her and her fellow dissenters with improper judicial activism.
In re Jane Doe, 19 S.W.3d 346 (Tex. 2000) (Doe 1(II))
In a previous appeal by the minor in this case, In re Jane Doe, 19 S.W.3d 249 (Tex. 2000) (Doe 1 (I)), the Texas Supreme Court was given its first opportunity to consider the statutory requirements for a judicial bypass under the state's Parental Notification Act. In its opinion in that case, the Court set out the factual showing that a minor must make in order to satisfy the statutory bypass requirement that she be "sufficiently well informed" to have an abortion without parental notification, as well as the considerations bearing upon a determination as to whether the minor is "mature." Because the lower courts had denied the minor's application for a bypass, the Supreme Court remanded the case to the trial court for "further hearing and consideration" in light of the standards set out by the Supreme Court. 19 S.W.3d at 257. Owen had concurred in the Court's judgment, although not in the Court's explanation of the showing that a minor must make under the bypass provision. Indeed, she specifically criticized the standards adopted by the Court, claiming that they were "minimal" and likely to be met by "[m]ost minors . . . with the assistance of counsel." 19 S.W.3d at 260. Bush appointees Gonzales, Baker, and Hankinson joined the Court majority in the adoption of those standards.
On remand, the lower courts again denied the minor's application for a bypass. In a 6-3 ruling, with Owen writing one of the dissents, the Texas Supreme Court reversed, holding that the minor had "conclusively established the statutory requirements to obtain a judicial bypass." 19 S.W.3d at 361. Owen's dissent focused in particular on her view that the minor was not adequately informed about abortion alternatives. Owen was extremely critical of the majority, which she accused of acting "irresponsibly" and of "manufactur[ing] reasons to justify its action." 19 S.W.3d at 383, 379. She further asserted that "[t]he Court's actions raise disturbing questions about its commitment to the rule of law and to the process that is fundamental to the public's trust in the judiciary." Id. at 377.
The Court, however, explained that Owen's view contradicted the legislature's judgment in enacting the statute. While the legislature could have required that a minor be "fully informed" in order to make a decision to terminate her pregnancy without parental notification, the majority explained, it chose instead to require that a minor be "sufficiently well informed." 19 S.W.3d at 352 (emphasis in original). The Court further observed that "[t]he Legislature had before it -- but rejected -- at least one bill that would have required physicians to supply specified, detailed information about abortion procedures and alternatives to all women, including minors, in order to obtain their informed consent." Id. (citations omitted). The Court also noted that the fact that "a minor does not share the court's views about what the benefits of her alternatives might be does not mean that she has not thoughtfully considered her options or acquired sufficient information about them." Id. at 359.
Particularly in view of the dissents by Owen and others, the Court's opinion is notable for containing specific sections devoted to "the proper role of judges" and "respecting the rule of law." Indeed, at the outset of its opinion, the Court observed that "[a]bortion is a highly-charged issue" and that the role of "the judicial branch [is] to independently review and dispassionately interpret legislation in accordance with the Legislature's will as expressed in the statute." 19 S.W.3d at 349. In light of the dissents, the majority pointedly cited Felix Frankfurter's explanation of "'the function [of a court] in construing a statute'" as "'ascertaining the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. . . A judge must not rewrite a statute, neither to enlarge nor to contract it.'" 19 S.W.3d at 350 (citation omitted)(emphasis added). The majority noted that in deciding this case they had "put aside [their] personal viewpoints." Id. They expressly stated that while "judges' personal views [on abortion] may inspire inflammatory and irresponsible rhetoric," the "highly-charged nature" of the abortion issue "does not excuse judges who impose their own personal convictions into what must be a strictly legal inquiry. . . As judges, we cannot ignore the statute or the record before us. Whatever our personal feelings may be, we must 'respect the rule of law.'" Id. at 356. (emphasis added).
Justice Gonzales, a Bush appointee, not only joined the Court's opinion in its entirety but wrote a separate concurrence in which he criticized the dissenting opinions for suggesting a "narrow construction" of the bypass provision nowhere to be found in the statute, and one "directly contradict[ed]" by legislative history. 19 S.W.3d at 365-66. According to Gonzales, adopting the dissenters' narrow view "would be an unconscionable act of judicial activism." Id. at 366 (emphasis added).
In addition to Justice Gonzales, Bush appointees Baker and Hankinson were in the majority.
In re Jane Doe 3, 19 S.W.3d 300 (Tex. 2000)
This case also involved a minor seeking an abortion who had applied for a judicial bypass of parental notification pursuant to Texas Family Code §33.003. The trial court denied the minor's application and the court of appeals affirmed. In a per curiam ruling joined by six members of the Court, the Texas Supreme Court set aside the judgment and remanded the case to the trial court for further proceedings. In so ordering, the Court noted that "the hearing in the trial court had occurred on the second business day after this Court issued its decision in In re Jane Doe, 19 S.W.3d 249 (Tex. 2000) (Doe 1)," 19 S.W.3d at 300-01, the seminal case in which the state Supreme Court set out the standards governing a bypass application under the "mature and sufficiently well informed" exception to the parental notification requirement. See supra. According to Justice Gonzales, who agreed with the decision to remand the case, "there is no principled basis in matters of this nature" for not permitting the minor to have the opportunity to present her case "with the benefit of the construction of [the Parental Notification Act] by the highest court in this state," while allowing that opportunity to minors in subsequent cases when the lower courts would have the opportunity to apply the decision in Doe 1. 19 S.W.3d at 306.
Nevertheless, Justice Owen dissented from the Court's ruling remanding the case. In his decision concurring in the judgment, Justice Gonzales specifically criticized Owen's dissent as to the remand, stating that:
Justice Owen contends that Doe should not receive the benefit of a remand, concluding that Doe did not attempt to demonstrate that she was sufficiently mature and well informed to make the decision to obtain an abortion. While her proof relating to the showings required in Doe 1 is abbreviated, it is clear from the record that she presented her application without the benefit of that opinion's instruction.
19 S.W.3d at 306 (emphasis added).
One of the issues on appeal was whether the trial court had properly denied the minor's application for a bypass under the provision of the statute mandating a bypass when the minor establishes by a preponderance of the evidence that parental notification "may lead to physical, sexual, or emotional abuse of the minor." Tex. Fam. Code §33.003(i). Although Justice Owen was not in the minority on that issue, her opinion took a stringent view of what a minor must prove under the "emotional abuse" provision, staking out a position more extreme than that of most of her colleagues. The minor had testified that her father was "an alcoholic, that in the past he has gotten intoxicated, overreacted, and taken anger over the children out on her mother and 'become physical' with her mother." 19 S.W.3d at 307. She further testified that she did not want to inform her mother about her decision to have an abortion because "her mother would tell her father and her father would become angry and physically take it out on her mother." 19 S.W.3d at 308. This was insufficient for Owen, who stated that "the evidence of physical abuse of Jane Doe's mother was not so direct, clear, and positive that a trial court was required to conclude as a matter of law that if one of Jane Doe's parents were notified, then Jane Doe may be emotionally abused." 19 S.W.3d at 320. Four justices disagreed, noting that, under the express terms of the statute, a judicial bypass "shall" be granted when the minor shows that parental notification "may lead" to her emotional abuse. 19 S.W.3d at 306 (emphasis in original). Moreover, these justices were expressly critical of the severe standard of proof that Owen would have required:
[U]nder the current statutory scheme, it is highly unrealistic and inappropriate for the courts to differentiate among the perceived degrees or types of abuse that may occur or to consider whether the abuse would occur anyway so that one more instance doesn't matter. Abuse is abuse; it is neither to be trifled with nor its severity to be second guessed. . . . Justice Gonzales would also require proof of "serious emotional injury" on top of the evidence already in this case . . . Justice Hecht and Justice Owen would go further and require Doe to demonstrate that the abuse equated to physical and sexual abuse and resulted in "material impairment in the child's growth, development, or psychological functioning." …This sort of parsing among types or degrees of abuse is not indicated anywhere in the statute.
19 S.W.3d at 307.
In addition to Justice Gonzales, Bush appointees Baker and Hankinson were in the six-justice majority that ordered the case remanded for further proceedings. Baker and Hankinson were among the group of four justices who would have held that the minor had satisfied her burden of proof under the "emotional abuse" provision and should have been granted a bypass.
In re Jane Doe 4, 19 S.W.3d 322 (Tex. 2000)
Like the prior cases, this one also involved a minor's appeal from the lower courts' denial of her application for a judicial bypass so that she could obtain an abortion without parental notification. In a 6-3 ruling, with Owen writing a dissent, the Texas Supreme Court ordered that the lower court judgments be vacated and the case remanded to the trial court for another hearing in light of Doe 1 (above), which was issued the same day as the minor's hearing in this case, and a subsequent decision, In re Jane Doe 2, 19 S.W.3d 278 (Tex. 2000). Although the Court concluded that the minor had failed to demonstrate her entitlement to a bypass, the Court held that "[n]either the minor nor the trial court should be deprived of our clarification of the law in these cases merely because the hearing occurred before the trial court, the minor, or her lawyer were aware of this Court's holdings." 19 S.W.3d at 327. Owen, however, would have denied the minor even the opportunity to present her case with the benefit of the Court's decisions in Doe 1 and Doe 2. Bush appointees Gonzales, Baker and Hankinson were in the majority.
Environmental Issues and Public Information Rights
In several recent cases, Owen has dissented from rulings protecting public information rights and the environment. In one case, the majority stated that her dissent consisted mostly of "inflammatory rhetoric" and arguments "based on a flawed premise." In another, four justices in the majority wrote that her dissent "effectively writes out" the provisions of the state public information law and ignores its purpose. The Court majority that rejected these dissents included justices appointed by then-Governor Bush.
FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex.2000)
In this case, Owen wrote a dissent from the Court's 6-3 ruling affirming a lower court decision striking down Texas Water Code Section 26.179, which had allowed certain private landowners to create "water quality protection zones" and thereby exempt themselves from the enforcement of municipal regulations, including "any environmental regulations," that were inconsistent with the private landowners' own land use and water quality plans. The Court majority held that the law violated the state Constitution as an impermissible delegation of legislative authority to private individuals. Owen dissented and contended that the Court's decision "strikes a severe blow to private property rights." 22 S.W.3d at 889.
The majority opinion specifically criticized Owen's dissent, explaining that it consisted mostly of "inflammatory rhetoric" and legal arguments "based on a flawed premise." Id. at 877-878. Bush appointees Gonzales, Baker and Hankinson were in the majority, with Baker writing the majority opinion.
City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000)
At issue in this case was whether a memorandum concerning the termination of the employment of a city finance director was public information within the meaning of the Texas Public Information Act, and, if so, whether it was exempt from disclosure to the public under the "deliberative process privilege," which shields pre-decisional, deliberative communications of public bodies from disclosure. A majority of the justices (through a four-justice plurality opinion and a concurring opinion joined by three other justices) agreed that the memorandum was public information, and that it was not exempt from disclosure. Justice Owen wrote a dissent, joined by Justice Hecht, in which she contended that the memorandum should be exempt from disclosure.
As the plurality explained, Owen's dissent would have severely restricted the public's access to information. According to the plurality,
the dissent asserts that the [deliberative process] privilege protects all predecisional and deliberative agency memoranda involving personnel decisions because such decisions necessarily involve policy. We disagree. To hold as the dissent would, that documents are exempt from public access because they somehow involve policy, is the same as holding that there is no policy requirement at all. This is because every decision an agency makes arguably involves a policy. Thus, every document reflecting predecisional and deliberative communications, regardless of its policy implications, would be exempt from public access. Drawing the line where the dissent draws it is drawing no line at all.
22 S.W.3d at 365.
Additionally, the plurality explained that, contrary to Owen's view, the fact that a "matter can be discussed in closed meetings does not mean that all documents involving the same matter are exempt from public access." 22 S.W.3d at 367. The plurality went on to comment that under Owen's restrictive interpretation of the Public Information Act, "any document, regardless of its content and regardless of whether it would be otherwise available to the public under the Public Information Act, would be exempt from disclosure just because it could be considered in a closed meeting. …The dissent's heavy reliance on the Open Meetings Act effectively writes out the Public Information Act's provisions and ignores its purpose to provide the public 'at all times to complete information about the affairs of government and the official acts of public officials and employees.'" Id. (citations omitted).
Bush appointee Baker wrote the plurality opinion, which was joined by Bush appointees Gonzales and Hankinson.
Rights of Consumers and Other Citizens
Many of Owen's dissents have been in cases in which the majority has upheld the rights of consumers and other citizens. These dissents by Owen have consistently favored businesses and government, contrary to past precedent and the legislature's judgment. Her dissenting views would have seriously impaired the rights of ordinary citizens to have access to the courts and to obtain redress for a variety of injuries, including one case in which she would have prevented a rape victim from suing a manufacturer for a rape committed by a salesman for one of its distributors. In some of these cases, Owen's dissenting positions have been dismissive of juries and of jury findings. For example, in one such case, Owen's dissenting position was criticized as an attempted "judicial sleight-of-hand to circumvent" the Texas Constitution concerning jury trial rights. In other cases, Owen would have ignored the plain meaning of statutes and read into statutes provisions that were not there or nullified provisions that were there, effectively rewriting the law. In one case, then-Justice Alberto Gonzales specifically criticized an Owen dissent as an effort to "judicially amend" a Texas statute. Other justices appointed by then-Governor Bush were also part of the Court majority that rejected these dissents.
Texas Dept. of Transportation v. Able, 35 S.W.3d 608 (Tex. 2000)
In a lawsuit involving a fatal, head-on collision between two cars traveling in opposite directions in the same car pool lane, Owen wrote a dissent from the Court's 6-3 decision, which affirmed a ruling by the court of appeals that the state, by statute, had waived sovereign immunity in the circumstances of this case. The majority held that, under Texas statutory law, a "governmental unit" in the state could be liable for a "premises defect" when acting in joint enterprise with another entity, even where, as here, the jury found that the state agency itself had not been negligent. The majority further ruled that there was evidence to support the jury's finding that the Texas Department of Transportation and the Houston Metropolitan Transit Authority (Metro) had been engaged in a joint enterprise regarding the highway where the accident occurred. Thus, the majority ruled that the Department of Transportation could be held liable for the accident, which the jury found was caused in part by Metro's negligence. Owen would have ruled that a state agency could not be held vicariously liable under a joint enterprise theory. The majority squarely rejected Owen's claim, concluding from "the statute's plain meaning that the Legislature intended that a governmental unit enjoying the benefits and advantages of a joint enterprise would also be subject to the same obligations and liabilities that a private person would be if he or she were engaged in a joint enterprise." 35 S.W. 3d at 616 (emphasis added).
Owen's dissent would have read into the governing statute an exception for joint enterprise liability that does not exist. As the majority stated, "[t]he Legislature plainly intended the State to waive sovereign immunity if a governmental unit would, were it a private person, be liable to the claimant according to Texas law. This waiver is clear and unequivocal, and makes no exception for joint enterprise liability." Id. (emphasis added). Owen's expansive application of governmental immunity would have limited recovery for citizens injured due to negligently maintained or operated highways.
Bush appointees Gonzales, Abbott, Baker and Hankinson were in the majority, and Gonzales wrote the majority opinion.
Helena Chemical Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001)
In this suit brought by a farmer against a seed manufacturer, Owen joined a dissent from the Court's 6-3 decision affirming an appellate court ruling allowing the farmer to proceed against the manufacturer with claims of deceptive trade practices and breach of warranty under state law, including a state consumer protection act. The dissent would have held that the farmer's claims were barred by the Texas Seed Arbitration Act, which requires that certain defective seed claims be submitted to the State Seed and Plant Board for non-binding arbitration before they can be litigated. In this case, because the farmer delayed submission of the claim to the arbitration Board, the Board refused to arbitrate. The dissent would have accepted the manufacturer's argument that the Board's refusal to arbitrate was a jurisdictional bar to litigation. However, as the majority pointed out in rejecting this assertion, such an argument would have rendered meaningless that portion of the Act allowing a court to take into account any finding of the Board as "to the effect of delay in filing the arbitration claim."
The majority criticized the dissent's interpretation of the Act, stating that "while purporting to apply a plain-language analysis to [the Act], the dissent glosses over the section's actual language and ignores the maxim that we must presume that every word in a statute is included purposefully." 47 S.W.3d at 496-497. According to the majority, "seed arbitration laws are 'established to protect the farmer.'" 47 S.W.3d at 498 (citation omitted). The dissent, however, would have interpreted the Act in a manner that limited the ability of a farmer to pursue his consumer protection claims. Bush appointees Baker and Hankinson were in the majority, with Baker writing the majority opinion.
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex. 1998)
In this product liability suit brought against a tire manufacturer by an individual who was seriously injured when the tire that he was mounting on a rim exploded, Owen joined a dissent from the Court's 5-4 decision affirming the court of appeals' decision upholding a jury verdict in favor of the plaintiff. A key issue in the case was the role of a jury in determining whether a manufacturer who knew about a safer alternative product design can be liable for injuries caused by the use of its product, although the user may have avoided injury by following the product's warnings. The majority held that this issue was for the jury to decide, and that the manufacturer could be held liable in such circumstances.
The majority was extremely critical of the dissent joined by Owen and in particular of the fact that the dissent would have severely limited the role of the jury in weighing all of the various factors relevant to whether a product is unsafe. According to the majority,
[w]e do not hold, as the dissenting justices claim, that "a product is defective whenever it could be more safely designed without substantially impairing its utility," . . . or that "warnings are irrelevant in determining whether a product is reasonably safe.". . . Rather, as we have explained, we agree with the new Restatement [of Torts] that warnings and safer alternative designs are factors, among others, for the jury to consider in determining whether the product as designed is reasonably safe.
Id. at 337 (internal citations omitted).
The majority went on to state that "[w]hile the dissenting justices say that they also agree with the Restatement's approach, they would, at least in this case, remove the balancing process from the jury. Instead, they would hold that Goodrich's warning rendered the tape bead design reasonably safe as a matter of law." Id. Bush appointees Abbott and Hankinson joined the majority opinion.
H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998)
This was a negligence action brought by an individual who had suffered injuries in a slip and fall accident in an HEB grocery store. At trial, the jury found that the plaintiff and the store had each been 50% negligent in causing the accident. The issue on appeal was whether the trial court's instruction to the jury to assess damages to compensate the plaintiff only if it found him not negligent or not more than 50% negligent impermissibly informed the jury of the legal effect of its answers as to negligence. Under Texas comparative negligence law, a plaintiff in a tort action cannot recover from a defendant tortfeasor if the plaintiff was more than 50% responsible for his or her own injury. Because Rule 277 of the Texas Rules of Civil Procedure expressly states that "the court's charge shall not be objectionable on the ground that it incidentally . . . advises the jury of the effect of their answers when it is properly a part of an instruction or definition" (quoted at 985 S.W.2d at 24 [emphasis added by the Court]), the Supreme Court affirmed the court of appeals' ruling upholding the jury instruction. According to the majority, the Texas Pattern Jury Charge from which the instruction at issue was taken "does not directly inform the jury of the legal effect of its answers, but merely directs the jury to answer the damages question only if certain conditions are satisfied. Therefore, [the instruction] merely incidentally informs the jury of the legal effect of its answers." 985 S.W.2d at 24 (emphasis added).
In so ruling, the majority noted that "the clear trend among states that have considered the issue is to permit the jury to know the ultimate effect of its answers." Id. In contrast, both dissenting opinions, each joined by Justice Owen, were particularly dismissive of juries. Justice Hecht's dissent contended that the instruction at issue "provided the jury with information it could use to thwart legislative policy." 985 S.W.2d at 34. Justice Baker's dissent echoed the same conclusion. Id. at 37.
Bush appointee Abbott joined the majority opinion.
Weiner v. Wasson, 900 S.W.2d 316 (Tex.1995)
In this medical malpractice case, Owen wrote a dissent from the Court's 6-3 ruling upholding a decision of the court of appeals striking down the state's statute of limitations for medical malpractice claims as applied to minors. That statute, which provides a two-year limitations period for malpractice claims, suspended the limitations period for the claims of a minor until the minor's 12th birthday, giving such minors until their 14th birthday to file a claim or have one filed on their behalf. Since minors cannot file suit themselves under Texas law but must wait until they turn 18, the majority held that this provision cut off a minor's cause of action in violation of the "open courts" provision of the Texas Constitution, which provides that "[A]ll courts shall be open, and every person for an injury done him . . . shall have remedy by due course of law." Tex. Const., art. I, § 13 (quoted at 900 S.W.2d at 318, n.3).
Owen wrote a dissent that would have limited the ability of minors to enforce their legal rights. According to her dissent, Owen would have held that the statute of limitations was not unconstitutional as applied "where the minor is at least twelve years of age, his or her parent knew of the injury and potential claim within the limitations period, and the parent or legal guardian was competent and had no conflict of interest that would have precluded him or her from acting in the best interest of the child." 900 S.W.2d at 322. The majority, however, specifically rejected Owen's suggested rule as "unworkable," explaining that "[w]e fail to see any benefit in requiring a minor to show that his or her parent was incompetent or failed to act in the minor's best interests by not pursuing a medical malpractice claim, especially when the very failure of the parent to do so leaves the minor without any legal recourse." Id. at 320.
The majority also explained that its ruling was consistent with the important principles behind the doctrine of stare decisis, since an earlier decision of the Texas Supreme Court unanimously had struck down a prior version of the same statute of limitations as applied to minors. The majority explained that the more recent version of the statute was not materially different and did not cure the constitutional defect. In declining to overrule the prior case or "somehow limit the holding of that case to its facts" the majority stated, "if we did not follow our own decisions, no issue could ever be considered resolved. . . . [U]nder our form of government, the legitimacy of the judiciary rests in large part upon a stable and predictable decisionmaking process that differs dramatically from that properly employed by the political branches of government." Id. at 320.
Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 475 (Tex. 1995)
In this case, the Texas Supreme Court was asked by certified question from the United States Court of Appeals for the Fifth Circuit whether "a person or entity that manufactures a tomato chopping machine 'constructs…an improvement to real property' for the purpose of qualifying for the protection of the [Texas] Statute of Repose…when that machine is originally installed by another party on real estate, then removed and reinstalled by such other party on real estate at a different location." 909 S.W.2d at 477. The Statute of Repose requires that "A claimant must bring suit for damages [for personal injury and other injuries] against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement." Id. at 478. In this case, a worker whose arm had been partially severed when he was inspecting a tomato chopping machine brought suit against the manufacturer of the machine, which had been installed in its initial location more than ten years before the accident and subsequently re-installed at the location where the accident occurred. In responding to the question certified to it, the Texas Supreme Court held 5-4 that the manufacturer did not receive repose protection under the Texas law, ruling that the law did not protect those who simply manufacture products or machinery that are "subsequently attached as improvements to real property." Id. at 479. According to the majority:
This reading of the statute is the only one consistent with the plain language of the statute, the legislative history, and the statutory purpose.
Id. at 482 (emphasis added).
Justice Owen wrote the dissent, and would have held that the manufacturer was protected by the statute of repose because its product was an improvement to real property. Such an outcome would have cut off the rights of a person injured by a defective product to sue the manufacturer. The majority expressly criticized Owen's position, stating that the "dissent's test is significantly more broad than any holding in this area so far." Id. at 483.
Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex.1998)
In this case, the Texas Supreme Court ruled, 6-3, that a manufacturer of vacuum cleaners could be held liable for negligence in connection with a rape committed by a door-to-door salesman of one of its distributors. By contract with its distributors, the manufacturer required that its vacuum cleaners could be sold to consumers only through in-home demonstrations; the distributors were required to establish a sales force of door-to-door salespeople. The plaintiff in this case was raped in her home by a door-to-door salesman whose background had never been checked before he was hired. Had it been checked, the distributor would have learned that women at his previous places of employment had complained of his sexually inappropriate behavior and also that he had pleaded guilty to a charge of sexual indecency with a child and been fired because of that incident. The Supreme Court affirmed a ruling by the court of appeals upholding a jury verdict against both the manufacturer and the distributor. In so ruling, the Court held as to the manufacturer that a company that markets and sells its products through independent contractor distributors "and exercises control by requiring in-home demonstration and sales, owes a duty to act reasonably in the exercise of that control." 990 S.W.2d at 733.
Justices Hecht and Abbott each wrote a dissent in the case, both of which Owen joined. The dissents would have held that the manufacturer was not liable because the distributors were independent contractors and the manufacturer had no control over the selection of the salespeople. The dissenting justices, including Owen, would thus have limited the ability of consumers assaulted in their homes by door-to-door salespeople to seek recourse against the company whose products they were in the home to sell when the company required in-home sales but had failed to impose adequate safeguards to eliminate dangerous persons from the salesforce.
Bush appointees Baker and Hankinson were in the majority.
State Farm Lloyds v. Nicolau, 951 S.W.2d 444 (Tex. 1997)
In a 5-4 ruling, the Court in this case upheld a jury finding that an insurance company had breached the duty of good faith and fair dealing that it owed to its insureds, in this case, homeowners. Owen joined a dissenting opinion by Justice Hecht that would have ruled in favor of the insurance company. The majority reviewed the evidence and found it sufficient to affirm the jury's verdict. In so ruling, the Court noted that it is the jury's role to weigh the evidence, and specifically criticized the dissent for invading that role: "Were we the trier of fact in this case, we may well have concluded that State Farm did not act in bad faith. That determination is not ours to make, however. Instead the [Texas] Constitution allocates that task to the jury and prohibits us from reweighing the evidence, as the dissent does." 951 S.W.2d at 450. Hecht's dissent, joined by Owen, expressed extreme hostility to the cause of action for bad faith dealing by insurance companies as defined by the Texas Supreme Court, comparing it to "an assault weapon fired into a crowd at random," and stating that "[o]ur opinions today demonstrate that bad faith liability is as unpredictable as injury from a brick thrown out of a window or a gun fired into a crowd." Id. at 453, 463-64. Owen also joined that part of Hecht's dissent in which he stated, "I am not in favor of abolishing the tort of bad faith, although I would not have been in favor of creating it." Id. at 455.
Bush appointees Baker and Abbott were in the majority.
Universe Life Insurance Co. v. Giles, 950 S.W.2d 48 (Tex. 1997)
In Giles, another insurance company bad faith case decided the same day as Nicolau, Owen joined a concurring/dissenting opinion by Justice Hecht that concurred in the Court's judgment but took the position that, in bad faith cases, the determination of whether the insurer had no reasonable basis for denying the insured's claim should be taken away from juries and decided as a matter of law by judges. The majority of the justices (the four joining the plurality opinion and a separately concurring justice) disagreed. The plurality specifically criticized the position regarding juries taken in the opinion Owen joined as a "judicial sleight-of-hand to circumvent the constraints our Constitution imposes upon this Court," noting that "[w]e have long recognized that the Texas Constitution confers an exceptionally broad jury trial right upon litigants." 950 S.W.2d at 56 (citations omitted; emphasis added). The opinion further stated that "the contention that we should treat the issue as one of law radically departs from a wealth of caselaw holding that reasonableness is ordinarily a question of fact." Id. at n.6 (emphasis added). Bush appointees Baker and Abbott joined that plurality opinion.
State Farm Fire & Casualty Co. v. Simmons, 963 S.W.2d 42 (Tex. 1998)
In this case, the Court in a 6-3 ruling affirmed a court of appeals decision upholding a jury verdict finding that an insurance company had breached its duty of good faith and fair dealing to its insured. The lawsuit grew out of State Farm's denial of a claim filed under a homeowner's policy by an insured family after their home burned down. The company immediately flagged the fire as "suspicious" because of a recent theft claim. Then, according to the majority, the jury "could logically infer [from the evidence] that State Farm did not make a good-faith effort to objectively investigate the [family's] claim, but instead engaged in an outcome-oriented investigation designed to place [the family] at the center of an 'arson triangle.'" 963 S.W.2d at 45. In determining whether the evidence was legally sufficient to uphold jury's verdict as to the insurer's bad faith, the majority noted its responsibility to "resolve all conflicts in the evidence and draw all inferences in favor of the jury's findings." Id. at 44. The majority then recounted the evidence supporting the jury's finding, holding that "the jury could logically conclude that State Farm's investigation was biased and unreasonable." Id. at 45.
Justice Owen joined a dissent by Justice Hecht that was utterly dismissive of the evidence relied on by the jury. According to this dissent, "State Farm concedes coverage, but a mistake in determining coverage is not bad faith. There is nothing more here." Id. at 50. As the above cases demonstrate, Owen had previously expressed her hostility to the bad faith cause of action itself.
Bush appointees Abbott, Baker and Hankinson were in the majority.
Balandran v. Safeco Insurance Co., 972 S.W.2d 738 (Tex. 1998)
In this insurance case arising out of a denial of coverage, the Texas Supreme Court was asked to respond to a question certified to it by the United States Court of Appeals for the Fifth Circuit. Specifically, the federal court asked the Texas court whether a particular Texas Standard Homeowner's policy covered damage to the insured's dwelling from foundation movement caused by an underground plumbing leak. In a 7-2 ruling, the Supreme Court held that it did. According to the majority, the insurance policy was ambiguous as to the coverage in question. The Court then applied settled law governing the construction of ambiguous insurance contracts:
Where an ambiguity involves an exclusionary provision of an insurance policy, we "must adopt the construction . . . urged by the insured as long as that construction is not unreasonable, even if the construction urged by the insurer appears to be more reasonable or a more accurate reflection of the parties' intent."
972 S.W.2d at 741 (citations omitted).
The Court noted that
[t]his widely followed rule is an outgrowth of the general principle that uncertain contractual language is construed against the party selecting that language. It is also justified by the special relationship between insurers and insureds arising from the parties' unequal bargaining power.
972 S.W.2d at 741, n.1 (citations omitted).
Justice Owen wrote a dissent in which she would have held that the policy was not ambiguous and denied coverage to the insured individuals.
Bush appointees Baker, Abbott and Hankinson were in the majority.
Texas Farmers Insurance Co. v. Murphy, 996 S.W.2d 873 (Tex. 1999)
In this case, Owen again dissented from the Court's ruling in favor of an insured individual. The Court held 7-2 (with one justice concurring) that an innocent spouse may recover insurance proceeds when her co-insured spouse intentionally set their home on fire, even though the insured house was part of the couple's community property. Here, a husband had intentionally burned down the family home; his wife had no prior knowledge of the arson and was not a participant. Both the husband and wife were covered for the loss as insureds under a standard homeowner's policy. Nonetheless, the insurance company argued that it was not obligated to pay the innocent wife's claim because the house was community property, meaning that the insurance proceeds would also become community property in which the culpable spouse would have an interest unless there were a divorce or partition agreement. However, the wife in this case had filed for divorce and the spouses had partitioned the community property before trial began.
Looking first to the insurance contract, the majority held that, under the terms of the policy, the wife was "contractually entitled to recover the amount of her interest in the policy at the time of the loss." 996 S.W. 2d at 880. The majority rejected the insurance company's assertion that, despite the contractual rights of the innocent spouse, recovery should be denied to her as a matter of public policy even though the community property had been partitioned, because "such a rule would encourage spouses to enter into sham partition agreements, after which the wrongdoing spouse might still benefit from the insurance proceeds." Id. In declining to allow such speculation to abrogate the contractual rights of the innocent spouse, the majority announced a rule of uniformity that did not intrude on the marital relationship or depend on whether there had been a partition or divorce:
It is not the courts' business to superintend what innocent co-insureds may do with any insurance proceeds they are contractually entitled to recover. Nor, under these circumstances, is it the courts' province to regulate an innocent spouse's marital relationship with the culpable spouse. The preferable rule is to allow innocent spouses to recover according to their contracts, regardless of petition or divorce.
We reaffirm our longstanding public policy preventing an arsonist from benefiting from fraud by denying recovery of his or her own one-half interest in the claim against the insurer. We conclude, however, that such public policy does not overcome an innocent spouse's contractual right to recover her or his one-half interest in the policy benefits.
Id. at 881 (emphasis added). The majority also noted that insurance companies, if they so desired, could protect themselves against any recovery in such cases through appropriate contractual provisions.
Owen joined the dissent and would have held, as a matter of public policy, that, notwithstanding the language of the insurance policy, an innocent spouse is not entitled to any of the insurance proceeds with respect to destroyed community property even where, as here, there has been a post-arson partition of the community property. The majority dismissed the hypothetical advanced by the dissent to demonstrate that the culpable spouse might benefit under the Court's rule:
The dissent raises the theoretical possibility that in the future, if the innocent spouse does not obtain a partition or divorce, and if the insurance carrier fails to prove any contractual defenses to recovery, the culpable spouse will still benefit through his or her one-half community interest in the innocent spouse's one-half recovery. But [the husband] does not benefit here; the partition agreement divested him of any interest in [the wife's] recovery. And in the future, insurance carriers can take steps to prevent any recovery from occurring.
Id. at 881.
Bush appointees Gonzales, Abbott, Baker and Hankinson were in the majority, and Gonzales wrote the majority opinion.
Finally, while Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864 (Tex. 1999), did not concern the rights of individual consumers but rather the right of sellers of allegedly defective products to obtain indemnification from manufacturers in a products liability case, it is important to note because of Owen's dissent, which would have effectively rewritten a Texas statute to create an exception to protect manufacturers not contained in the law. The Texas Supreme Court in this case was called upon to answer a question certified to it by the United States Court of Appeals for the Fifth Circuit. The federal court's question pertained to the application of Texas Civil Practice and Remedies Code §82.002, which provides that "A manufacturer shall indemnify and hold harmless a seller against loss arising out of a products liability action," except for loss caused by the seller.
In this case, the seller in question had sold the manufacturer's product, a medical device, alleged to have been defective, but had not sold the particular devices that had been implanted in the plaintiffs. The seller was dismissed from the suit and sought to recover its litigation costs from the manufacturer. In a 5-4 ruling, the Texas Supreme Court held that §82.002 did require a manufacturer to indemnify a seller that was required to defend itself in a products liability case, even though the seller did not sell the particular product that was claimed to have injured the underlying plaintiff. In so ruling, the majority explained that it was required to look to the plain meaning of the statute, which contains no exclusion for sellers in such circumstances.
Justice Owen authored a dissent in which she would have adopted the manufacturer's interpretation of the statute and held that a seller not in the chain of sale to the plaintiffs was not entitled to indemnification from the manufacturer. The majority expressly stated that such an interpretation "would have us judicially amend the statute to add an exception not implicitly contained in the language of the statute." 996 S.W.2d at 867 (emphasis added). Bush appointees Gonzales and Abbott were in the majority, with Gonzales writing the majority opinion.
Conclusion
President Bush has said that it is his goal to nominate judges to the federal bench who will interpret the law, not make it. As the foregoing cases demonstrate, however, Priscilla Owen falls far short of the President's own standard. In numerous dissents as a Texas Supreme Court Justice, Owen has taken positions that would have effectively rewritten the law or disregarded the express language of the law, often to the detriment of the rights and interests of ordinary Americans. Because the United States Supreme Court hears fewer than 90 cases a year, the federal courts of appeal are the courts of last resort for virtually all Americans. The serious concerns about Justice Owen's record discussed in this report, as well as significant concerns about other aspects of her record, demonstrate that she does not satisfy the criteria for a lifetime appointment to the federal appellate bench. The Senate Judiciary Committee should reject Priscilla Owen's confirmation to the United States Court of Appeals for the Fifth Circuit.
Why The Senate Judiciary Committee Was Right to Reject the Nomination of Priscilla Owen
Introduction
Download this report now.
On September 5, 2002, the Senate Judiciary Committee rejected the confirmation of Priscilla Owen, a Texas Supreme Court Justice who had been nominated by President Bush to a seat on the United States Court of Appeals for the Fifth Circuit. Because of serious concerns about Justice Owen’s rulings and her record, her nomination had generated significant controversy and strong opposition. As 19 Texas civil rights, women’s rights, labor, consumer, and other organizations concluded, “Owen’s rulings often favor the interest of corporate Texas or government at the expense of ordinary Texans.” According to her own conservative colleagues on the Texas Supreme Court, including Alberto Gonzales and other justices appointed by then-Governor Bush, Owen had written or joined many dissents and other opinions that would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens. Indeed, the Houston Chronicle had characterized Owen as “one of the most conservative” justices on “Texas’ Republican-dominated top court.” B. Roth, “Bush Submits 11 Names for Federal Bench: Texan Among Nominees,” Houston Chronicle (May 10, 2001) at A1.
At her confirmation hearing before the Judiciary Committee on July 23, 2002, Owen was questioned extensively by Committee members about her record and the serious concerns that her record had raised. Owen’s testimony at the hearing did not dispel, and in fact reinforced, those serious concerns, and the Committee thereafter rejected Owen’s confirmation.
Belying his frequent claim that he is a “uniter, not a divider,” President Bush has re-nominated Priscilla Owen to the Fifth Circuit. He has done this despite the very serious concerns about Owen that not only were documented from her judicial record but also confirmed by the opinions of some of his own appointees to the Texas Supreme Court. He has done this despite the strong opposition to Owen’s confirmation when she was first nominated, as well as her rejection by the Judiciary Committee. Indeed, to our knowledge, no federal judicial nominee who has been rejected in one Congress has ever been re-nominated by the President to the same position. In re-nominating Justice Owen, President Bush regrettably has ignored calls for him to “resist[] the temptation to seek the confirmation of judges the Judiciary Committee has already voted down,” as well as a letter from more than two dozen Texas groups urging that he not re-nominate Owen.
Nothing in the few months since the rejection of Justice Owen’s confirmation makes her any more suitable for a lifetime appointment to the federal Court of Appeals. All that has changed is the political composition of the Senate. The serious concerns that were raised before about Justice Owen’s record, heightened by her failure to dispel those concerns at her confirmation hearing, are as valid now as they were last year when the Judiciary Committee rejected her confirmation. Justice Owen’s judicial record, particularly her record of dissents, indicates that she is a judicial activist who would allow her right wing ideology to trump her responsibilities as a judge to follow the law, not make it.
As with any state Supreme Court, many Texas Supreme Court rulings are decided without dissent. Compared with her colleagues, however, Owen has dissented frequently, and in a right-wing activist direction on a conservative court. A review of the Court’s written opinions since Owen joined the Court in January 1995 through June 2002 (just prior to her July 2002 hearing), confirms the conclusion of Texans for Public Justice that Owen was, for that period, the second most frequent dissenter among the justices then serving on the Court. More important, the content of Owen’s dissents demonstrate that she is often out of touch with and significantly to the right of the majority of the Texas Supreme Court, including members of the Court appointed by then-Governor Bush, particularly in cases dealing with individual rights.
In fact, many of Owen’s dissents reveal a judicial philosophy directly contrary to President Bush’s asserted goal of nominating judges who will interpret the law, not make it. As explained by the Texas Supreme Court majority, a number of the dissents that Owen has written or joined would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens. In one case, Owen’s extreme views even led current White House Counsel Alberto Gonzales, then her colleague on the Texas Supreme Court, to charge her and her fellow dissenters with “an unconscionable act of judicial activism.” In another case, Gonzales’ majority opinion called a dissent by Owen an attempt to “judicially amend” a Texas statute. Her dissents demonstrate that, for Owen, ideology supercedes her responsibility as a judge to interpret the law; the criticism by her conservative colleagues of her efforts to make law from the bench further underscores this conclusion.
This report is drawn from the several reports that we issued last year in opposition to Owen’s confirmation. (Those reports, along with other resources regarding Justice Owen, are listed in the Appendix.) It focuses not only on the evidence from Justice Owen’s dissenting opinions that she is a right wing judicial activist, but also on the fact that this conclusion is established by the criticism often leveled at her by her conservative colleagues on the Court, particularly including Alberto Gonzales. Indeed, during the relatively brief time that they served together on the Court, Gonzales wrote or joined numerous opinions sharply criticizing opinions written or joined by Owen. This report also addresses Justice Owen’s failure at her confirmation hearing to dispel the serious concerns that had been raised about her record. For the reasons we discuss below, the Judiciary Committee made the correct decision in refusing to confirm Priscilla Owen to the Fifth Circuit. It should make the same decision again.
http://saveourcourts.civilrights.org/nominees/details.cfm?id=14466
Priscilla Owen, Nominee to the U.S. Court of Appeals
March 1, 2003
Leadership Conference on Civil Rights
A review of Justice Owen's record to date raises serious questions about her commitment to equal justice and civil rights for all Americans. Justice Owen's consistently conservative legal opinions reflect a judicial activism that falls outside the mainstream of judicial thought and seriously risk the continued vigorous enforcement of critical constitutional and statutory rights in the areas of civil rights and civil liberties.
Justice Owen's record raises numerous serious concerns, including:
* Justice Owen's judicial activism and staunchly conservative positions on civil rights all but preclude her ability to be a fair and impartial circuit court judge. Justice Owen is considered to be among the most conservative justices on the Texas Supreme Court, itself very conservative; she is also the second most frequent dissenter currently serving on the court. Priscilla Owen has demonstrated that she is a conservative judicial activist with a willingness to rewrite the law whole cloth in order to achieve a particular result.
* Justice Owen's past opinions dealing with civil rights attempted to significantly narrow if not completely alter existing legislation. For example, in Quantum Chemical Corp. v. Toennies, she held -counter to Texas anti-discrimination law-that discrimination must be the sole reason, instead of simply a motivating factor for hiring or firing, in cases where it is alleged that other reasons advanced by the employer are pretexts for discrimination.
* Historically, Justice Owen has favored protection of businesses over the rights of consumers and workers. For example, in a series of rulings, Justice Owen wrote or joined opinions that severely limited the ability of workers to recover for on-the-job injuries. These include Texas Workers Compensation Commission v. Garcia, where she upheld a law that restricted the right to jury trial for certain aspects of work-related claims brought by injured workers; Lawrence v. CDB Services, Inc., where she upheld the right of employers to seek from their employees, in exchange for certain medical and death benefits, waivers of their right to sue for workplace injuries; and Sonnier v. Chisholm-Ryder, where she issued a dissent that interpreted statutory law in a way which would have broadly protected manufacturers from liability for injuries caused by equipment they manufactured.
* Justice Owen has exhibited judicial activism by attempting to rewrite settled law to create barriers not contained in the statutory language. In cases involving reproductive choice, Justice Owen's attempts to legislate from the bench has been so obvious that in one instance, In re Doe, the effort of Owen and other dissenters was criticized by a fellow Justice (now White House Counsel), Alberto Gonzales as "an unconscionable act of judicial activism."
* The U.S. Court of Appeals for the Fifth Circuit is widely regarded as one of the two most conservative federal circuit courts in the nation. The Fifth Circuit has the largest percentage of African-Americans and Hispanics of any federal circuit court in the country. It has also issued many of the most extreme anti-civil rights rulings in the country-including an employment discrimination case, Reeves v. Sanderson Plumbing Products, Inc., which contained an opinion on the "intent" standard that was so extreme it was unanimously overturned by the Supreme Court. It is critical that any new appointee to the Fifth Circuit be a jurist who will have a moderating influence on the court and who will respect the rule of law and judicial precedent.
For many Americans, the federal judiciary is the first line of defense against violations of dearly held constitutional principles. Because of the impact that lifetime appointments of judges hostile to civil rights may have on the rights of millions of Americans, LCCR/LCCREF will continue to monitor the integrity of the processes for nominating and confirming judicial appointments.
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