Alberto Gonzales’ criticism of Priscilla Owen on the Texas Supreme Court bench covers her right-wing judicial activism on a wide range of issues
As White House Counsel and spokesman for the Bush administration’s legal policy, Alberto Gonzales has, not surprisingly, defended the nomination of Texas Supreme Court Justice Priscilla Owen to the Fifth Circuit, claiming that she is “superbly qualified” and minimizing their differences when both served on the state supreme court. Measured by their opinions when they were both on the court, however, Gonzales’ view was very different just a few years ago.
Although they served together for a relatively short time in 1999-2000, Gonzales wrote or joined more than ten opinions sharply criticizing opinions written or joined by Owen on the court. In most of these cases, Gonzales, a strong conservative on the court, was part of the majority that rejected ultra-conservative Owen dissents as ignoring the plain meaning of the law or otherwise engaging in improper judicial activism to try to reach a particular result. In what could be a close vote by the Senate Judiciary Committee on Owen’s nomination, the decisive factor could be the concern that Owen has allowed her ideology to get in the way of her responsibilities as a judge.
“As a principal architect of the Bush administration’s legal policy, which seeks to turn back the clock on a range of civil rights, environmental, and reproductive rights achievements and to pack the federal judiciary with right-wing ideologues, Alberto Gonzales is now praising Priscilla Owen’s record as a judge,” said People For the American Way President Ralph G. Neas. “But the best evidence for his opinion of her record as a Texas Supreme Court Justice is what he wrote during the time he served with her on that court. As a Texas Supreme Court Justice, Gonzales repeatedly wrote or joined criticism of Owen’s aggressive right-wing judicial activism. Time and again, Justice Owen attempted to remake the law when it clashed with her ideology. We urge members of the Senate Judiciary Committee to carefully review Owen’s record on the Texas Supreme Court and to reject her confirmation to the federal appeals court.”
As illustrated by the specific examples below concerning reproductive choice, consumer rights, employee rights, environmental concerns, and other issues, Gonzales’ own written opinions demonstrate that, contrary to President Bush’s asserted objective, Owen would seek to make the law, not interpret it, from the federal bench.
Gonzales opinions criticizing Owen dissents on reproductive rights
In re Jane Doe 1(II), 19 S.W.3d 346 (Tex. 2000)
A recent Texas law requires minors who seek an abortion to notify their parents unless a court grants a “judicial bypass” based on its finding that: the applicant is “mature and sufficiently well informed” to make the decision herself; notification would not be in the applicant’s “best interest;” or “notification may lead to physical, sexual, or emotional abuse” of the applicant. In this particular case, the court ruled 6-3 that the minor had “conclusively established the statutory requirements to obtain a judicial bypass.” Id. at 361. Owen dissented vigorously, accusing the majority, including Gonzales, of acting “irresponsibly.” Id. at 383. The majority specifically rejected the views of Owen and the other dissenters, explaining that the dissents’ efforts to make it much harder to obtain a judicial bypass contradicted the legislature’s judgment in enacting the statute and that, whatever their feelings about abortion, judges “cannot ignore the statute or the record.” Id. at 356. Recently, Gonzales has suggested that this simply reflected “an honest and legitimate difference of how to interpret a difficult and vague statute.” But Gonzales also wrote a separate concurring opinion criticizing the dissenting opinions for advocating a “narrow construction” of the bypass provision nowhere found in the statute and “directly contradict[ed]” by its legislative history. Id. at 365-66. In fact, Gonzales specifically wrote that adopting the dissenters’ narrow view “would be an unconscionable act of judicial activism.” Id. at 366 (emphasis added).
In re Jane Doe 3, 19 S.W.3d 300 (Tex. 2000)
A per curiam opinion joined by six Texas justices ruled that the minor in this case did not meet the judicial bypass standards that the court established in Jane Doe 1. Since that earlier decision came just two business days before the trial court hearing in this case, however, the court remanded this case to the trial court to reconsider under the new standards. Owen dissented from the decision to remand. In his concurring opinion, Gonzales criticized Owen’s dissent as unfair because it would use a standard that had been unavailable to Doe to deny her a bypass. “It is clear from the record that she presented her application without the benefit of that [Jane Doe I] opinion’s instruction,” Gonzales wrote. Id. at 306. “[T]here is no principled basis in matters of this nature,” he explained, for denying Doe the opportunity to present her case under the proper standard. Id. (emphasis added). Gonzales similarly joined a majority opinion in another opinion criticizing an Owen dissent for seeking to prevent a remand of another application for a judicial bypass. “Neither the minor nor the trial court should be deprived of our clarification of the law,” wrote the majority. In re Jane Doe 4, 19 S.W.3d 322, 327 (Tex. 2000).
Gonzales opinions criticizing Owen dissents concerning consumer, employee, public information, and environmental rights
Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864 (Tex. 1999)
Responding to a certified question from the federal Fifth Circuit, Gonzales wrote the majority decision that held that a Texas law requires manufacturers of harmful products to indemnify sellers who defend themselves from litigation related to their sales of these and similar products. A dissent authored by Owen would have effectively rewritten Texas law to preclude such third-party relief in some cases. Gonzales wrote that adopting the manufacturer’s position, as Owen argued, would require the court to improperly “judicially amend the statute.” Id. at 86 (emphasis added).
Texas Dept. of Transportation. v. Able, 35 S.W.3d 608 (Tex. 2000)
This case concerned an auto accident that killed two people and severely injured two others when two cars collided head-on in an H-O-V lane. The jury found against the state Department of Transportation and the Houston transit authority, which had entered into a joint enterprise in connection with the highway. Gonzales wrote a 6-3 decision that agreed. He explained that under the “plain meaning” of a Texas statute, the state had waived sovereign immunity in that situation. Id. at 616. Owen dissented and claimed that the state agency should be immune. Gonzales’ opinion countered that this view was clearly wrong, because the legislature “plainly intended the State to waive sovereign immunity” in that situation, and the waiver was “clear and unequivocal, and makes no exception for joint enterprise liability.” Id. (emphasis added).
Montgomery Independent School Dist. v. Davis, 34 S.W.3d 559 (Tex. 2000)
Owen wrote a dissent from a 6-3 decision that upheld a lower court decision to reinstate a high school science teacher whose contract was not renewed, even though a hearing examiner found for the teacher. Gonzales joined the majority, which explained that Owen’s dissent effectively tried to rewrite the Education Code to reach a particular result favorable to the school board. The majority opinion explained that Owen’s dissent “misconceives the hearing examiner’s role” under the statute and “disregard[s]…the procedural elements the Legislature established.” Id. at 567, 568. In fact, the majority pointedly noted that 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 [School] Board.” Id. at 568 (emphasis added).
Texas Farmers Ins. Co. v. Murphy, 996 S.W.2d 873 (Tex. 1999)
Gonzales wrote a 7-2 opinion that held that an innocent spouse could recover insurance proceeds when her co-insured spouse intentionally set fire to their insured home. Owen joined a dissent that would have denied coverage on the grounds that the arsonist might somehow benefit from the majority’s decision. Gonzales’ majority opinion countered that the dissent’s argument was based on a “theoretical possibility” that was a virtual impossibility in the real world and violated the language of the insurance policy. Id. at 881.
FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)
Gonzales joined a 6-3 ruling by Justice Baker that struck down a state law that allowed certain private landowners to exempt themselves from municipal water-quality and other environmental ordinances by creating their own “water quality protection zones.” The majority ruled that the law constituted an unconstitutional delegation of legislative authority to private individuals. Owen wrote a vigorous dissent claiming that the majority’s opinion “strikes a severe blow to private property rights.” Id. at 889. The majority specifically criticized Owen’s dissent, explaining that most of it “is nothing more than inflammatory rhetoric,” and that “the two legal arguments Justice Owen does make are both based on a flawed premise.” Id. at 877 (emphasis added).
City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000)
A Texas Supreme Court plurality decision (4-2 with 3 concurring) ruled that a memo concerning alleged misconduct by a city’s finance director was covered by the Texas Public Information Act. Owen joined a dissent that would have exempted the memo from public disclosure. Gonzales joined the plurality opinion that explained that the dissent would effectively rewrite the law and severely limit public access to information. Specifically, the plurality wrote that the dissent “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.’” Id. at 367 (emphasis added).
Examples of other opinions joined by Gonzales criticizing Owen opinions
Stier v. Reading & Bates Corp., 992 S.W.2d 423 (Tex. 1999)
In this 5-3 majority opinion (which Owen lists as one of her top-10 most important decisions), Owen wrote that the federal Jones Act, which provides remedies to injured seamen, preempted any state law claims of a German worker. The worker had been injured on a Texas company’s oil rig off the shores of Trinidad. Gonzales joined a Baker dissent that accused Owen of judicial activism. “[T]he Court reaches the result it wants by avoiding a plain reading of the statute,” said the dissent. Id. at 435 (emphasis added). Countering the majority, the dissent found that the applicable section of the Jones Act “does not say anything about state tort laws, state procedural laws, or the availability of state courts as a forum.” Id.
In re Masonite Corp., 997 S.W.2d 194 (Tex. 1999)
Hundreds of South Texas homeowners filed two suits alleging defective building materials. Many plaintiffs improperly filed suit in counties where they did not live, prompting defendant Masonite to request that venue be transferred to near its main Texas office. Instead, the trial judge “on its own motion” severed the non-residents’ claims and sent them to courts based on where each plaintiff resided. Id. at 195. Responding to Masonite’s interlocutory appeal of this action, an appeals court ruled that Masonite’s remedy to any venue error was to appeal after the trial court ruling. Owen cast a deciding vote for Justice Enoch’s narrow 5-4 majority opinion that conditionally granted Masonite’s mandamus request seeking venue transfer. Although the majority noted that its own precedents generally bar mandamus relief in cases where a trial court commits reversible error, it found “exceptional circumstances” in the case. Id. at 199. Gonzales joined a blistering dissent by Justice Baker that attacked the majority for ignoring Texas statutes and the court’s own precedents, which bar interlocutory appeals on venue issues. “From today’s opinion it is obvious that the Court continues to pay only lip service to ‘stare decisis as a sound policy,’” thundered the dissent. Id. at 202 (emphasis added).