Justice David Schenk

Chief Justice Robert Burns, III

Yesterday we reported on serious irregularities within the Dallas Court of Appeals over how one or more non-panel members obstructed a panel opinion in order to change the outcome. That would be bad enough in one case, but it has happened again—and arguably in a much more questionable and damaging way. And as in the case we discussed yesterday, the legal issues involved here seem out of proportion to the machinations being deployed by non-panel justices to manipulate and alter duly prepared and submitted panel opinions. These matters reveal a disturbing pattern of conduct emerging on this court that raise not only due process concerns, but questions as to whether the court acted unethically if not illegally.

The second case, Steward Health Care System LLC and Southwest General Hospital, LP v. Saidara (No. 05-19-00274-CV), involves whether a Dallas trial court could exercise personal jurisdiction over a non-Texas resident under the Texas long-arm jurisdiction statute. The trial court granted the defendant’s special appearance, determining that it had no general or specific jurisdiction over the defendant because there was no evidence that any alleged misconduct took place in Texas. The plaintiffs filed an expedited interlocutory appeal as authorized by statute. The appeal, filed in early March 2019, was assigned to a three-judge panel that included Justices Schenk and Bill Whitehill, who subsequently lost his re-election bid in the 2020 general election (more on that later). The panel heard oral argument on October 2, 2019. The third unnamed panel member was assigned to author the opinion, which was circulated ten months later. This so-called panel opinion reflected a result contrary to the one discussed at the conference following oral argument. A follow-up conference occurred on September 1, 2020, at which the opinion author agreed to consider “material revisions.” Another delay ensued, and a new majority opinion was not circulated to the panel until December 9.

According to Justice Schenk’s concurring opinion, which as you might imagine does not call anyone out by name, this is where things really went off the rails. “At this stage (and subject to directive from a higher court), I will only note that a reasonable, objective observer having full knowledge of those events could conclude that justices of the Court first sought to delay and, thereafter, obstructed the release of the opinion to the parties,” he writes. “That obstruction came from a justice outside the panel in the form of electing to record a vote requesting a two-week study, which was cast late in the day of December 29, and was only confirmed, despite my objection to the delay and appearance concerns, on the afternoon of December 31—far too late to permit recourse to the en banc conference to rectify.” Justice Schenk characterizes this conduct as “contrary to the rules of appellate procedure and this Court’s internal operating procedures, and, in all events, undertaken with knowledge of the age of the case, and that doing so would obstruct the clerk’s release of the opinion and create, at a minimum, legal issues and the appearance of attempting to manipulate the panel result by substituting a new member.”

As stated above, one of the panel members, Justice Bill Whitehill, had in November been defeated by Justice Dennise Garcia. What becomes apparent is that the “justice outside the panel” who sought the delay waited out the remainder of Justice Whitehill’s term so that a new—and presumably differently minded—justice could replace him and change the result in the case. As under the rules “the panel’s decision constitutes the court’s opinion” once a majority has approved it and no justice requests en banc consideration, the offending justice inappropriately—and perhaps unethically—intervened in violation of both the Texas Rules of Appellate Procedure and the court’s internal operating procedures. Even worse, Justice Schenk writes that this justice attempted to cover up these machinations by having the Chief Justice, Robert D. Burns III, block Justice Schenk’s direction to the clerk to release the opinion on January 14. Later that same day, a request for en banc review was made and “then urged, retroactively, as a basis for withholding release of the panel opinion.” The Court did not actually make the decision to proceed en banc until February.

Meanwhile, and Justice Schenk makes this central to his decision to reveal these irregularities in a published opinion, the parties to the litigation, who presumably wondered why an expedited appeal should be taking so long to resolve, were kept in the dark for several months and only belatedly informed about the Court’s decision. At an administrative conference held thereafter, the Court voted to decline to notify the parties of the panel’s opinion affirming the trial court and refused to permit a record of their vote. “To my knowledge,” Justice Schenk notes, “no prior panel decision of this Court has previously been withheld from the parties over the will of the panel majority and no duly recorded vote of a justice who fully participated in the decision (i.e., Justice Whitehill) has been eviscerated in the manner involved here.”

Can all this be written off as miscommunication, coincidence, or a sincere difference of opinion of governing rules and procedures? Chief Justice Burns apparently thinks so. In a separate opinion, he takes Justice Schenk to task for airing the Court’s dirty laundry in public. The Chief Justice thinks that if Justice Schenk was so disturbed, he should have either have made more internal efforts to address these issues or filed a complaint with the Judicial Conduct Commission (no model of transparency itself). Justice Schenk in fact made repeated efforts to bring the irregularities to the attention of other members of the court, which responded with a crescendo of silence. The Chief Justice also defends the Court’s practices as “common,” although he does not explain why he is not willing to publish them so that litigants and the public know what they are. He also does not respond to Justice Schenk’s concern that the Dallas Court seems to be pre-screening at least cases for assignment to certain panels in violation of the random assignment rule. Nothing like putting a thumb on the scale before the litigants even have a change to argue their case.

If it is possible for things to look worse than they do, consider this. When Justice Schenk circulated his opinion to the Court (after repeatedly asking his colleagues to correct any facts he might have misstated), other justices requested that he withdraw it in exchange for issuing a majority opinion along the lines of the original panel decision. Yes, you read that right. No harm, no foul. Justice Schenk does not see it that way, nor should he. As he points out, any abuse or the manipulation of the process by those who swear an oath of impartiality goes to the very structure of the judiciary, regardless of the outcome of particular litigation in favor of one party or another. The troubling question for Justice Schenk—and for litigants, attorneys, and the public—is this: “Nevertheless, at this point, if I were counsel for the appellants, I would wonder where this case would have ended had a justice not raised concerns over the procedural irregularities that affected the case. Indeed, were I counsel for any party in this case, I would be forced to wonder how (or when) this case would have been decided in a more transparently impartial tribunal.”

It is clear to us that the operations of this Court cry out for a public investigation. Even if we place the most innocent construction on Justice Schenk’s account (which is admittedly almost impossible for a reasonable person to do), members of this Court are behaving in ways that present a grave threat to the judiciary and its constitutional duty to provide due process and equal justice to every member of our society. An accounting and reckoning cannot come soon enough, especially for litigants with so much at stake in the absolute fidelity of judges to the highest standards of integrity and ethical conduct.

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