The Dissents Of Priscilla Owen: A Judicial Nominee Who Would Make The Law, Not Interpret It

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.

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