In her tenure on the Texas Supreme Court, Owen has written or joined a number of dissents that would have effectively rewritten or disregarded the law, usually to the detriment of ordinary citizens, including in cases dealing with discrimination and employee rights, environmental issues and public information rights, and consumer and citizen rights. Owen was questioned about her disturbing record on these issues at her first hearing, but her testimony did not dispel the concerns that her record had raised. 17
As he had at Owen’s July hearing, Senator Kennedy questioned Justice Owen on March 13 about her long record of dissents contrary to the interests of consumers and other ordinary Americans. In Owen’s testimony, as well as in her written follow-up responses, she relied heavily on the fact that in a number of cases during her tenure on the court, she was part of the majority that ruled in favor of consumers and other individual plaintiffs. As Senator Kennedy pointed out on March 13, however, no one has ever said that Owen had never supported a plaintiff. The concern, as he put it, is that Owen has “an extensive record” of being “extremely active in anti-plaintiff dissent[s] on an already conservative court.”
Attempts by Senator Hatch to rehabilitate Justice Owen on March 13 instead illustrate how her dissents would have violated the clear meaning of Texas statutes and harmed the rights of ordinary citizens. For example, in City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000), a case concerning the Texas Public Information Act, Owen joined a dissent that, as explained by the plurality opinion (written by Bush appointee Baker and joined by Bush appointees Gonzales and Hankinson), would have effectively rewritten the law and severely limited public access to information. Although the dissent, as Senator Hatch observed, cited a federal appellate decision in which, as Senator Hatch put it, “liberal luminary” Judge Patricia Wald had joined, that case concerned federal law. However Judge Wald or any other federal judge may have interpreted the federal Freedom of Information Act, the task before the Texas Supreme Court was to interpret Texas law.
In this instance, the Texas Supreme Court plurality explained that under Owen’s restrictive interpretation of the Texas 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 [sic] complete information about the affairs of government and the official acts of public officials and employees.’” 22 S.W.3d at 367 (emphasis added). As the justices noted, “[o]ur Public Information Act mandates that we liberally construe it to further the policy of providing public access” to information about governmental affairs. Id. at 366 (emphasis added).
Another dissent joined by Owen that has raised significant concern was in Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473 (Tex. 2001), a case involving the Texas statute prohibiting discrimination in employment. Specifically, the state law provides 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 this case, which involved 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. 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. The dissent would have effectively rewritten the statute to create “the determinative factor” or “but for” standard that would have made it significantly harder for an employee to prove discrimination.
On March 13 and in her written follow-up responses to questions, Justice Owen attempted to brush aside the concerns about her dissent in Toennies by stating that she had looked to federal case law concerning Title VII, on which the Texas anti-discrimination law concededly had been modeled. While it is not inappropriate for a state court judge to look to federal case law for guidance in interpreting a state statute modeled on federal law, here, as Justice Owen herself acknowledged, the federal courts were split as to how to interpret Title VII. Thus, as explained by the Texas Supreme Court majority in Toennies, “because the federal courts are closely divided on this issue, we follow the plain meaning of [the Texas anti-discrimination law].” 47 S.W.3d at 474 (emphasis added).
While federal case law may provide guidance to state courts in interpreting particular state statutes, the fact remains that it is the state law that the state court must apply. Both here and in City of Garland, according to Owen’s own colleagues on the Texas Supreme Court, Owen would have ignored the plain meaning of state law. And, in both instances, she would have restricted the scope of that law to the detriment of ordinary citizens.