BOM Watch # 2
Plus pre-grant merits briefing
Just as quickly as BOM Watch was created, the Supreme Court decided that it should be no more. About a month ago, on February 7th, Chief Justice Blacklock wrote to the Supreme Court Advisory Committee asking it to consider discontinuing the practice of pre-grant merits briefing:
We’d like to think our summaries weren’t that bad, so we won’t infer too much from the coincidental timing of this request and the inauguration of BOM Watch. At any rate, we can see the pros, cons, and consequences of discontinuing pre-grant merits briefing.
On the one hand:
A lot of time and money is spent writing these merits briefs. If the petition is ultimately denied, then that’s time and money lawyers and clients can’t get back. And who knows whether litigants with limited resources—but important issues—simply avoid Supreme Court review altogether based on the prospect that they may spend lots of time and money on merits briefing without the promise of a granted petition.
Pre-grant merits briefing may also have deleterious effects on the Court’s review. The current procedure understandably entices lawyers to keep making arguments in favor of granting the petition in their merits briefing. The result may be a cluttered brief with arguments that may not necessarily bear on the issues once the petition is granted.
And then there’s the timing element. Going through two rounds of briefing (rather than one) before granting the petition slows down the petition process, both for the Court and the parties. The Court will ruminate on the case longer, kicking the tires to make sure it’s just right for review. And the parties will of course follow another briefing schedule before review, inevitably filing more motions for extension time and prolonging the life of the petition on the Court’s docket.
But on the other hand:
Having the parties’ full briefing allows the Court to make a much more informed decision as to whether the petition should be granted. Petitions often do not address other issues that are presented in the case, and requiring the parties to file merits briefing before granting the petition provides the Court the opportunity to identify vehicle issues that may hinder its review.
The potential for an unbriefed issue to create a vehicle problem is particularly acute for a Court that grants review over the entire appeal, rather than specific questions presented. Replicating the U.S. Supreme Court’s petition process, but not its power to grant review over specific questions presented, may be a halfway solution that causes more problems than it solves. (One of your editors noted this issue in a prior post and, coincidentally, a related issue arose recently during oral argument in Ames v. Department of Youth Services, in which the Court and advocate were distinguishing between answering the question presented and reviewing the entire judgment.1)
Eliminating pre-grant merits briefing also comes with its own time and money issues. If it is eliminated, petitions for review will presumably become longer and more time-intensive, both for the lawyers and the justices. Clients may likewise spend more money on a petition that should clearly be denied. (I suppose there’s always the chance that lawyers don’t use the extended word limit, but in most cases that is fanciful thinking.)
While arguments in favor of granting a petition may clutter a merits brief, it may not hurt to have the issues continually framed based on their importance to Texas jurisprudence. After all, importance is jurisdictional, and it never hurts to be doubly sure about jurisdiction.
There are other changes to the Court’s internal operating procedure that would likely result from the elimination of pre-grant merits briefing. Study memos—rather long memos written by law clerks to the whole Court—may disappear. Shorter ones may then take their place (which has already become thing), or perhaps court-wide memos will be axed altogether. If the latter, the justices will just rely on their own chambers to prepare internal memos, or maybe more justices will opt into the petition pool. (At one point in recent Court history, there were so few justices participating in the petition pool that it was referred to as the “petition pond.”)
Whatever the rule’s ramifications, the law clerks will likely be spending more time in Tames and in the record, since the lack of merits briefing could make it more difficult to identify potential vehicle issues. The full record of the case, moreover, will also likely need to be requested once the Court requests a response to the petition, rather than once the Court requests merits briefing, as is the practice now.
We don’t pretend to have given an exhaustive review of the pros, cons, and consequences of the elimination of pre-grant merits briefing. But given our recent BOM Watch project, we thought it useful to at least broach the topic.
Unrelatedly, your editors at the Texas Legal Roundup have recently been understaffed and overwhelmed, so keeping up with BOM requests has proven not to be the easiest of hobbies. So in the interest of our time (and yours), we’re going to summarize the questions presented by each case rather than provide a full-blown factual summary of them. We may keep experimenting with the format of these posts to see what works best. In the meantime, here is a new streamlined version of BOM Watch:
24-0205, Huffman Asset Management v. Colter. In this landlord–tenant dispute, the questions presented are (1) whether, for purposes of service of process, an entity’s “most recent address on file with the Secretary of State” is the same as the entity’s registered office and (2) whether reasonable diligence has been satisfied if there has been service of process at an address different from the entity’s registered office.
24-0257, Anadarko Petroleum Corp. v. Hegar. In this franchise-tax dispute, the question presented is whether Anadarko’s $4 billion settlement payment to BP following the Deepwater Horizon oil spill should be classified as deductible “cost of goods sold” under Texas Tax Code § 171.1012.
24-0310, HEB Grocery v. Peterson. In this slip-and-fall suit, the question presented is whether prior roof leaks not within the vicinity of the alleged puddle of water can support an inference of constructive knowledge of the puddle.
24-0864, City of San Antonio v. Realme. In this trip-and-fall suit, the question presented is whether the plaintiff’s 5k run through the River Walk constitutes “recreation” under the Recreational Use Statute, thereby entitling the City of San Antonio to immunity for ordinary negligence claims.
24-0840, D.V. v. DFPS. In this parental-termination case, the question presented is whether DFPS abandoned its pursuit of termination based on a caseworker’s prior testimony suggesting that DFPS was seeking a lesser restriction of Mother’s rights.
24-0613, Ruth v. Commission for Lawyer Discipline. In this case the Fourth Court of Appeals called one of “first impression,” the question presented is whether the rule prohibiting a lawyer from contacting an opposing party without the consent of the opposing party’s counsel applies to pro se lawyers.
24-0385, Abbott v. Doe. In this appeal arising from an injunction against DFPS from investigating parents who sought “gender affirming care” for their minor child, the questions presented are (1) whether the parents have standing to sue for an injunction when DFPS has not formally initiated an enforcement action, (2) whether the APA’s waiver of sovereign immunity applies to a DFPS “press statement,” and (3) whether the district court’s statewide injunction was overbroad.
24-0332, Wilkison v. Oshman. In this legal-malpractice suit in which the out-of-state attorneys allegedly failed to inform a potential Texas-based client that his claim lapsed under the statute of limitations, the question presented is whether the attorneys had sufficient minimum contacts with the state to exercise personal jurisdiction over them when they negotiated to take the Texas resident’s case, contacted the resident about it repeatedly, and gathered documents and data from the state to prepare for the lawsuit.
24-0372, Bite Entertainment LLC v. Trevino. In this personal-injury suit between a child’s parents and a trampoline park, the question presented is whether there is an enforceable arbitration agreement when the father’s friend (but neither parent) electronically signed the arbitration agreement with apparent authority over the child.
24-0384 & 24-0387, Muth v. PFLAG, Inc. The district court temporarily enjoined DFPS from launching any investigations of child abuse against members of PFLAG—a nonprofit dedicated to LGBTQ+ advocacy. The questions presented are (1) whether respondents’ claims are ripe, (2) whether the Governor’s directive qualifies as a “rule” under the APA’s waiver of sovereign immunity, and (3) whether the grant of injunctive relief to all PFLAG members, not just the plaintiffs, was overbroad.
24-0237, Save RGV v. Texas General Land Office, 24-0407, Cameron County v. SaveRGV, and 24-0457 Paxton v. SaveRGV. In these three nearly identical declaratory-judgment actions, the questions presented are (1) whether the closure of Boca Chica beach for SpaceX spaceflight activities violates the “Open Beaches” Amendment to the Texas Constitution, (2) whether petitioners have standing to bring the challenge, and (3) whether the Open Beaches Amendment provides a private right of action for enforcement.
24-0525, S&B Engineers and Constructors, Ltd. v. Scallon Controls, Inc. In this case with two cross-petitions for review, the questions presented are (1) whether proportionate contractual indemnity remains enforceable after a voluntary settlement and (2) whether the contract was sufficiently clear in calling for indemnification to meet the dictates of the "express negligence" rule.
24-0543, Family Dollar Stores of Texas, LLC v. JLMH Investments, LLC. In this public-nuisance suit, the Second Court of Appeals concluded that the plaintiffs could seek injunctive relief even though the statute of limitations barred their claim for damages. The questions presented are (1) whether a statute of limitations can bar a request for injunctive relief to abate a permanent nuisance and (2) whether Texas law recognizes a standalone right to injunctive relief absent an underlying cause of action.
24-0649, CT Land & Cattle Co. v. Unitex WI, LLC. In this oil-and-gas dispute, the questions presented are (1) whether a pipeline burial provision in a lease runs with the land such that a successor surface estate owner can enforce it and (2) whether the court of appeals erred in finding that the deed’s “subject to” clause and mineral reservation detached the burial provision from the surface estate.
