Go back to Tracker -- Summer 1998
Friends of the Court
Research Director, Texans for Public Justice
As the rest of the country frets over special interests financing politicians in the executive and legislative branches, Texans are wrangling with a more fundamental conflict: judges who finance their elections with money contributed by litigants in their courts.
Texas is the largest of nine remaining states in which voters (few of whom can name a single Supreme Court justice) select judges in partisan elections. A February 1998 study, 'Payola Justice: How Texas Supreme Court Justices Raise Money From Court Litigants,' (available from http://www.onr.com/tpj), found that the seven Texas justices elected since 1994 have raised $9.2 million in this period. Of this money, 40 percent ($3.7 million) came from interests who had cases before the Supreme Court.
A Texas Supreme Court scandal a decade ago focused on how Texas trial lawyers financed the campaigns of Democratic justices, who were criticized for being soft on plaintiffs. The scandal culminated in a 1989 '60 Minutes' feature on the Texas court called 'Justice for Sale.' In the wake of this scandal, Texans elected a self-styled 'clean slate' of Republican justices who vowed to clean the court up.
But 'Payola Justice' found that the new justices continue to raise piles of money from parties in their court. The study by the non-profit Texans for Public Justice concludes that the only real change has been in the paymasters who finance the justices - and often benefit from their rulings.
The court has simply hopped from the plaintiffs' bar into the waiting arms of the corporate defense bar. The new paymasters are the corporate executives and defense lawyers who organized Texas' powerful 'tort-reform' lobby.
These conclusions sprang from two databases that Texans for Public Justice wed together. The databases contain:
The justices' top contributors; and
The litigants and lawyers appearing on the Supreme Court docket since 1994.
Texans for Public Justice first gathered contribution reports that the nine justices filed with the Texas Ethics Commission (http://www.ethics.state.tx.us/) for their most recent election cycles, which were staggered between 1992 and 1996.
The reports revealed that in response to reforms pushed by good-government groups, campaign disclosures steadily improved during this period, especially disclosures of contributors' employers. Because these vital data were sorely lacking in the reports filed by the two justices who were last elected in 1992, these justices were dropped from the study.
Researchers entered data on some 18,000 contributions of $100 or more to the seven remaining justices. Since lawyers were the justices' top contributors, the names of any contributor who failed to disclose employer data were run through attorney databases (e.g. Martindale-Hubbell's on-line attorney locator and a Texas Bar Association database).
Researchers then created a Supreme Court docket database, inputting the names of the parties and lawyers who were litigants in 530 opinions that the Supreme Court issued over the past four years.
Wedding these two databases revealed that:
40 percent of the $9.2 million that the justices raised came from parties and lawyers on the court's docket or from co-workers of these parties;
60 percent of the opinions issued by the court were tainted by the fact that at least one of the justices took at least $100 from one or more parties to the case; and
The justices took 40 percent of their money from lawyers, 15 percent from the executives and PACs of 50 corporations and 9 percent from 30 trade groups such as the Texas Medical Association and Texas Society of CPAs (which file friend-of-the-court briefs for their members).
To better illustrate these conflicts, the report includes 'Payola Case Studies' of Supreme Court decisions that were tainted when participating justices took hefty contributions from parties to the litigation.
For example, the natural gas giant Enron was the justices' most lucrative corporate pipeline, contributing $78,700 during a period in which the company had three Supreme Court cases. In one inventory tax ruling, the justices relieved Enron's need to pay $15 million to educate school kids in Spring, Texas.
A similar tax-relief ruling the same day benefited the HEB grocery chain. The family of HEB Chair Charles Butt contributed $53,098 to the seven justices (Mr. Butt also graciously hosted a fund-raiser for Justice Craig Enoch in his home last October).
One of the court's most questionable decisions affected a family with a newborn who was permanently disabled during childbirth. The family sued the doctor as well as the hospital, which granted the doctor delivery privileges despite the fact that she had been repeatedly sued by her patients and lacked proper malpractice insurance. This case turned on a Texas law that protects hospital medical review committees from retaliatory suits when they deny practicing privileges to unsafe doctors. The court widened this patient-protection law to create a precedent that protects the medical establishment from suits by malpractice victims. The seven justices took $44,600 from lawyers representing the hospital, $9,549 from the Texas Hospital Association and $500 from the president of the defendant hospital.
A disturbing finding of 'Payola Justice' was that the justices engaged in such docket-driven fund-raising even when there was no political need to do so. All but one of the justices raised more than three times as much money as his or her opponent. Just two justices won their general-election race by a 'competitive' margin of less than 10 percent of the vote.
Chief Justice Tom Phillips raised $1.3 million for his 1996 race, or 69 times what his opponent raised. Forty-three percent of Phillips' money came from parties with Supreme Court cases.
In a statement responding to 'Payola Justice,' which received statewide media coverage, Phillips said, 'Although I am convinced that no current Supreme Court justice has ever been influenced by a campaign contribution, today's study is further proof that restoring public confidence in our courts depends on comprehensive judicial selection reform.'
Increasingly, the justices' own ethical predicaments are thrusting themselves into court rulings. In a March decision, the Texas Supremes overruled an appeals court ruling that had removed a judge from a personal-injury case.
At issue was the fact that the defense lawyer in the case was voluntarily representing that judge in an unrelated case, providing him with $10,000 worth of free legal counsel and establishing attorney-client privilege with the judge.
Although such potential conflicts are prohibited in federal courts, the Texas Supremes sent the case back to this same judge. In oral arguments on the case, Chief Justice Phillips mused that it would be 'schizophrenic' for the court to crack down on this kind of conflict, given the court's repeated rulings that a Texas judge need not excuse himself or herself from a case involving the judge's contributors.
'To be blunt, in light of the way our judges get to be judges and stay there,' Phillips said, 'Isn't it a little schizophrenic to say somebody who represents you... disqualifies you from sitting in their cases... but somebody who gives you up to $5,000 or $30,000 from their firm - and some of that money you spend on a campaign to stay in office and some of it's leftover and you can decorate your chambers with it - and that's okay?'
Andrew Wheat can be reached at (512) 472-9770 or by e-mail at email@example.com.