Priscilla Owen: compassionate conservative or...?

Introduction

In the previous post, I noted that Priscilla Owen "is a notoriously slow judge whose backlog routinely holds up the court." And sometimes her seeming sloth has far greater consequences.

Consider the case of Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998). The full story of this case exemplifies so much of how the GOP and big business have systematically dismantled the civil justice system and stripped away any hope of justice in Texas--unless you happen to be big business or the government. However, that story will have to wait for another time.

The case from trial court through the court of appeals (the first time)

Here is the story of the Miles case and the person most directly affected by it, Willie Searcy. If you want a more detailed narrative, read two articles by Lou Dubose: "Trial and Error; How Priscilla Owen 'poured out' Willie Searcy," published on April 25, 2003; and "Willie's Story," published on May 12, 2005. One day in April 1993 Willie, his little brother, and his step father (Ken Miles) were traveling on I-35 in Dallas County in a Ford Ranger truck. A car traveling in the opposite direction crossed the median and ran into the Ranger head on. Willie suffered severe injuries which rendered him a quadriplegic who could not breathe without a ventilator. Suffice it to say that he required constant care for the rest of his life. As described in "Trial and Error:"

Willie Searcy would be a "ventilator-dependent quadriplegic" for the rest of his life. He spent three months in Methodist Hospital in Dallas. And three more months in a private rehabilitation facility in Dallas. Within six months, his mother Susan and stepfather Ken were looking at $550,000 in medical bills. The rest of their lives would be defined by medical bills. Willie Searcy would require full-time nursing care. He would have to be "coughed" by an attendant. His trachea tube would have to be regularly suctioned to allow a clear path for the ventilator to breathe for him. Every bodily function would be regulated and performed by a relative, nurse, or attendant.

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Willie needed full-time professional health care. He needed a back-up ventilator, an alarm system. He needed a transducer–a box someone would press against his throat to allow him to "talk." If he could get a small plastic keyboard fitted to his palate, he would be able to use his tongue to run electrical appliances, such as a wheelchair and an adjustable bed, and a computer.

The Mileses felt that the seat belt Willie was wearing was defective, and they decided to file suit against Ford in 1994. The suit was filed suit in Rusk County instead of Dallas County primarily (but not solely) in order to get the case to trial quickly. Rusk County is a small rural county, and the court docket there was much smaller than in Dallas County. As Willie's attorney, Jack Ayres, said, "We were in a race to save this kid’s life." Ford filed a motion to transfer venue to Dallas County. This motion was denied.

After denying Ford's motion for continuance, the trial court in Rusk County set the trial for January 1995. One thing you need to understand is that while about one year might seem like a long time to wait for a trial, the reality is that that is practically light speed, especially in a case like this. In any event, the trial took four months. Ayres had asked for $26 million, but the jury awarded $30 million in actual damages and $10 million in punitive damages.

Ford appealed the verdict, and there were some issues that Ayres wanted to appeal. What followed was a one year delay in the appellate process. Most counties in Texas are in one appellate district. Rusk County, however, is in two appellate districts, with appellate courts in Texarkana and Tyler. Ayres filed his appeal in Texarkana, and then Ford filed its appeal in Tyler. After much wrangling, it was determined that Texarkana would hear the entire appeal. That was victory for Willie, but it had cost a year. As long as a case is on appeal, there are circumstances under which the losing party does not have to pay the damages award, and those circumstances were present. That meant that during this time Ford did not have to pay for any of Willie's medical expenses--and the Miles' insurance did not cover all the bills.

On March 13, 1996, the Texarkana Court of Appeals upheld the $30 million actual damages award, overturned the punitive damages award and remanded that issue to the trial court (sent it back to the trial court for a retrial), and denied Ayres's appeal.

All parties filed an appeal to the Texas Supreme Court.

Priscilla Owen took her own damn sweet time.

"Trial and Error" described the circumstances when the process began in the Supreme Court:

Willie Searcy’s case moved from Texarkana to Austin. Jack Ayres asked the Supreme Court to expedite the appeal. In the three years since the accident, he had grown more familiar with the almost impossible daily life of Willie Searcy and his parents. Nursing care was patched together. There was no backup ventilator or portable generator to eliminate the risk of power failures. And there was a constant fear of death from autonomic dysreflexia–a spike in blood pressure if a leg or arm is improperly positioned and not moved by the nurse. "This was on all our minds all the time," Ayres said. On paper Willie Searcy was a millionaire, in possession of a $30 million judgment provided to him by a Texas jury in state district court. Yet his life was at risk because his family didn’t have the money to pay for a complete health care program. This time Ford’s attorneys joined Ayres in filing a motion requesting the Supreme Court to expedite the case.

According to the docket sheet on the Supreme Court's website, that motion was eventually overruled, but much happened before that. At the time Ford filed its appeal with the Supreme Court, such an appeal was known as an application for writ of error (the procedure now is known as a petition for review). Here was how the process worked. After the court of appeals issued its judgment, a party wishing to appeal to the Supreme Court had a certain time within which to file an application for writ of error. Ford's application was originally due on June 13, 1996, but Ford moved for an extension on June 12, and the motion was granted the following day.

Another important part of the process was the assignment of cases among the Justices. Cases were assigned by means of a blind draw. Unfortunately for Willie Searcy, the Justice who drew his case was Priscilla Owen. Dubose quoted a lawyer who worked at the Supreme Court at the time as saying "That kid’s fate was decided when Justice Owen picked that card."

The Supreme Court's docket sheet shows that the joint motion to expedite was filed on July 23, 1996. The Court never ruled on that motion until it decided the case on March 19, 1998.

Ford filed its application for writ of error on September 5, 1996, and the application was granted on October 25, 1996. What this means is that the Supreme Court decided to take the case and rule on it. The vast majority of applications were denied, meaning that the Supreme Court would not consider the case, and the judgment of the Court of Appeals would stand.

Oral argument was heard on November 11, 1996. Once oral argument takes place, a case is "submitted" to the Court, meaning that the next action will be the Court's decision. Now, it might seem like three months is a long time, but is remarkable that this case went from being filed to being submitted in three months. At that point, the Court was acting in an expedited manner--even though there had been no ruling on the joint motion to expedite.

Unfortunately, nothing else in the case was expedited. By a vote of 5-4, the Court ruled in favor of Ford and issued the majority's opinion--written by Owen--on March 19, 1998--15 months later.

Owen's opinion

Before discussing Owen's opinion, more points of applicable appellate procedure must be discussed. When the Supreme Court granted an application for writ of error, it would state in writing the issues, or points of error, it would address. Part of what made Owen's opinion bullshit was that her judgment was based on an issue that was not among those the Court said it would address. That was the venue issue. Generally, if the Court subsequently wanted to address another issue, it would inform the parties and ask for additional briefing. That was not done in this instance. There was nothing illegal about that, however. Under the application for writ of error process, the application actually served as the appealing party's full brief on the merits. Thus, the application could be up to 50 pages long. Any issue not raised and briefed in the application would be waived. In the current petition for review process, an appealing party first files a petition for review, which has a 15-page limit, meaning it cannot possibly be a full brief on the issues. If the petition is granted, then the party gets to file a 50-page brief. The Miles case was heard under the application for writ of error process. Thus, I would be very surprised if Ford did not address the venue issue in its application. If Ford did brief that issue, then the Supreme Court--in spite of the fact it did not say it would consider the issue--was still free to address that issue and base its decision on it, and there was no requirement that it ask for further briefing.

Still, the issue was not discussed at all at the oral argument, and neither party knew the issue would determine the outcome of the case.

This in part explains the extreme delay in the issuance of Owen's opinion. According to "Trial and Error," "two former clerks said discussion about Willie Searcy’s case was acrimonious" because Owen wanted to take up the venue issue. The Justices hold regular conferences to discuss cases, and final opinions are not issued until those conferences produce a majority. It seems that it took Prissy a long time to find four other judges who would condone her bullshit.

A discussion of why Owen's ruling on the venue issue was wrong is beyond the scope of this post. Instead, I will simply provide excerpts from Justice Deborah Hankinson's dissenting opinion.

The Court begins by citing the correct standard of review for venue determinations, but then fails to apply it properly. A reviewing court must defer to the trial court's venue determination if any probative evidence supports the trial court's venue ruling, even if the preponderance of the evidence is to the contrary.

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As with its application of the standard of review, the Court's analysis of the substantive standard for determining venue fails to give due weight to the particular facts of this case...Resolution of venue issues perforce requires detailed factual analysis; the Court's failure to give due weight to the facts in this case is thus all the more troubling.

Misapplying standards of review, ignoring facts, not following the law--all of that is standard operating procedure for the Supreme Court of Texas.

Pursuant to that SOP, Owen ruled that venue was improper in Rusk County and that the case should have been heard in Dallas County. Under Texas law, a finding of improper venue requires reversal of the original judgment. In this case, that meant that Willie Searcy and his family came away from the Texas Supreme Court with no money to pay for his medical care. Instead what they faced was a whole new trial in Dallas County.

The joint motion to expedite

Generally, courts routinely grant joint motions made by the parties. Joint motions will be denied if the relief sought is something that displeases the judge (such as efforts to extend deadlines or allow more documents to be filed with the court), or if the judge has some other objective, or both.

In the Miles case, the Supreme Court did something that is a tactic among trial judges who want do something but make it look like they have done nothing: they simply do not make a ruling on a motion. As noted, the motion to expedite was filed on July 23, 1996. If that motion had been granted in a timely manner--and there is no legitimate reason whatsoever that it should not have been granted--there is no way that Owen could have taken 15 months to issue the majority opinion.

So why was the motion not ruled upon until the Court made its ruling on the case? Before answering that question, let's look at what the Court said in its order of March 19, 1998 (the order can be found via this link).

The motion to accelerate is overruled with the following notation: The Mileses requested expedited consideration of these appeals because of Willie Searcy's severe injuries and his need for expensive medical care. Ford joined that request. The request is overruled, not because it should not have been granted, but because, in fact, it was not granted.

(emphasis added). Can you believe that bullshit? See, now those reponsible can say "Well, we're not bad people, because, after all, we did not overrule the motion to expedite, we just did not grant it." This is the kind of crap the Texas Supreme Court has been doing for over ten years. But wait...the order went on to say the following:

The practice of this Court has been to carry such requests along with the appeal under the assumption that we give full and timely consideration to every appeal before us. While members of this Court disagree over whether our disposition in this case has been timely, some citing to the complexity of the issues, notwithstanding the ultimate outcome, and others asserting that notwithstanding the complexity of the issues, these appeals should have concluded months ago, we unanimously agree that the parties' request should have been granted.

(emphasis added). Look at that again. The Court--including the five Justices that ruled against Willie Searcy--agreed that the motion to expedite should have been granted, but basically also said that the case still might have been decided in the same amount of time.

So the question remains as to why it took so long for Owen to issue the majority opinion. Well, the answer is simple. It took that long to figure out some way to make sure Ford would win. The Texas Supreme Court has had as its mission to make sure that plaintiffs never win. For reasons that turn on an explanation of appellate standards of review (whichI will not undertake here), what has been particularly abhorrent is the Court's habit of overturning jury verdicts in favor of plaintiffs. The short explanation is that given the applicable standards of review and the presumptions an appellate court is supposed to make regarding jury verdicts, overturning a jury verdict should rarely happen. Instead, the Texas Supreme Court has made the reversal of jury verdicts for plaintiffs a routine action.

And that gets us back to the Miles case. There was no way the Supremes could let the jury award of $30 million stand. My guess is that after reading the Court of Appeals' opinion, reviewing the record, and hearing the oral argument, Owen thought that she could not overturn the case on the basis of the evidence, so she had to find some other way, and then she had to find four other Justices to go along with her, and that took time.

Then again, maybe that is not the real answer. If an appellate court is looking to overturn a case, it will usually look first to technicalities, like venue. That is the easiest way to reverse cases, and the one that is least open to criticism. As shown by the Court of Appeals' opinion (922 S.W.2d 572), the venue issue was examined in detail, and it should not have taken Owen 15 months to decide the case on the basis of venue. And so the question of why it took Owen so damn long to decide the case is still open.

What is not open to speculation, however, is that 1) even Owen admitted that the motion to expedite should have been granted; and 2) Owen's delay meant that Willie Searcy unecessarily went more than a year without all the medical care he needed.

Back to the trial court...and the great beyond

The case went back to a trial court, this time in Dallas. The trial judge granted a summary judgment in Ford's favor, which meant that the Mileses and Willie had to go through the appellate process all over again. Once again, a Court of Appeals ruled in Willie's favor. The Dallas Court of Appeals reversed the summary judgment and ordered the case sent back to the trial court. Ford would have appealed that decision to the Supreme Court, but never got that chance.

The Court of Appeals made its ruling on June 29, 2001. By that time Willie Searcy was 21 years old, and that meant that his weekly nursing care being provided by Medicaid was cut from 104 hours to 34. The only way the Mileses could afford to get those 70 hours back was if Susan Miles's employer would agree to provide it through Susan's insurance. The employer's medical director declined the coverage.

On July 3, 2001--almost five years after the case got to the Texas Supreme Court--Willie's nurse left the Miles' home at 4:00 a.m. Shortly thereafter, Willie's ventilator malfunctioned, and he died.

Priscilla Owen's last word on Willie Searcy

The four Justices who joined Owen's majority opinion must share responsibility with Owen for the Supreme Court's actions in Ford Motor Co. v. Miles. But Priscilla Owen alone has responsibility for her own words. "Willie's Story" describes how during her previous nomination to the Fifth Circuit, Owen actually had to appear before the Senate Judiciary Committee. There Senator Diane Feinstein asked Owen why it took so long to render a decision in the Miles case when Willie Searcy's life was so precarious.

Owen's answer was, "He didn't pass away while his case was before my court."

Gee, I guess that is a prime example of that "Culture of Life" the Bush administration keeps talking about.