I have written elsewhere (here, here, and here) about the importance of sound state courts and the deleterious consequences when judges depart from the rule of law to obtain desired results. I practiced law in California for 30 years, navigating the often-perilous straits of judicial decisions issued by both California’s quixotic state courts and the even-more capricious Ninth Circuit, and in the process developed keen antennae for the indicia of an activist judge. Unprincipled judges exist at every level (state and federal), no matter how they are selected — appointed, elected, or so-called “merit selection.” One activist judge on an appellate court is a nuisance, but the risk is that the result-orientation — if not corrected — will “infect” other judges, compromising the integrity of the court in question. In Texas, where all judges appear on the ballot in partisan elections, incumbent Texas Supreme Court justice Debra Lehrmann (R., Place 3) is facing a primary challenge from Houston-based First Court of Appeals justice Michael Massengale, who is also a Republican. (Two other Republican incumbents on the ballot in 2016 drew no opponents.) What is going on?
It is telling that the PAC associated with Texans for Lawsuit Reform, a nonpartisan group that advocates civil justice reform, endorsed Lehrmann when she ran in 2010, but has endorsed Massengale in the upcoming March 2016 election. In order to figure out why, I looked into Lehrmann’s record on the Texas Supreme Court and read some of her decisions. It turns out that since 2010 Lehrmann has dissented more often — over 40 times — than any other member of the Court (all of whom are Republicans). Many of her dissents were in cases applying the landmark Texas Medical Liability Act (TMLA), a comprehensive-reform statute passed by the legislature in 2003 (with the support of TLR) in response to a medical-malpractice crisis that jeopardized the availability of health care in Texas. Lehrmann has consistently — even doggedly — advanced positions that would restrict the application of TMLA by, for example, allowing the assertion of claims that are time-barred under the plain terms of TMLA.
In one case, Tenet Hospitals Ltd. v. Rivera (2014), Lehrmann cast the sole dissenting vote in an 8-1 decision enforcing a 10-year “statute of repose” to bar the assertion of a claim filed 15 years after the date of the medical treatment at issue. Lehrmann reasoned that the statute of repose violated the state constitution (a common tactic of activist judges), asserting that “Statutes of repose present harsh barriers to the administration of justice,” and that a 10-year limit is not “a reasonable use of the police power.” In another case, Molinet v. Kimbrell (2011), Lehrmann wrote a dissent finding an “ambiguity” in a two-year statute of limitations, which she then resolved in favor of allowing a claim, based on “legislative history” consisting of an isolated colloquy between two legislators. In a controversial case involving the recognition of same-sex divorces in Texas prior to Obergefell, Lehrmann recused herself without explanation. This is just a sample from her reported decisions.
These characteristics — frequent, sometimes lone dissents; resort to unreliable legislative history to defeat the clear text of a statute; questioning the wisdom of the legislature’s policy judgments; consistent plaintiff-orientation; dogmatic and unpersuasive reasoning — are often, based on my experience, indicia of an activist judge. Lehrmann had no prior appellate court experience when she was elected to the Texas Supreme Court in 2010 — having previously served for many years as a trial-court judge in Fort Worth specializing in family-law matters. Thus, her relevant “jurisprudential pedigree” consists entirely of her decisions over the past five years. In March 2016, Texas voters will decide whether to nominate Lehrmann for another six year term. (In Texas, the Republican nominee for statewide office is the overwhelming favorite to win the general election in November.) Massengale is a former Baker Botts partner who has served on the intermediate court of appeals in Houston since 2009. While in private practice he served as president of the Houston Lawyers Chapter of the Federalist Society. In addition to the TLR endorsement, Massengale is backed by Texas Right to Life, the Texas Medical Association PAC, and many conservative grass-roots leaders.
Texas’s system for electing judges is admittedly unusual, but it gives the voters an opportunity to “weed out” errant appellate-court judges before they can hijack the bench in the fashion of the California Supreme Court. Who is better situated to evaluate judges than the citizens they serve? Unlike many other states, in Texas voters have a choice.