What We Do

Taking on "Secret Justice" in Texas

Campaigns for the Texas Supreme Court are partisan, privately-funded, and expensive, raising troubling questions about the influence of large contributors. A 1999 poll conducted by the Texas Supreme Court found that eighty-six percent of judges and ninety-nine percent of attorneys believed that campaign contributions influence judicial decisions. Texans for Public Justice's recent report, "Pay to Play," exposes one benefit that contributors reap: the justices are ten times more likely to accept an application for review submitted by a big donor (over $250,000) than one submitted by a non-contributor.

While this does not prove that contributors have influenced any of the justices' votes on applications for review, the Court's practice of keeping its votes secret prevents any accountability. Lawyers and parties to civil actions have no way of knowing whether campaign cash influenced votes on their cases. Journalists covering legal issues cannot get the full story. Citizen groups cannot inform their members or the public. And voters cannot hold the justices accountable at the polls. Unfortunately, Texas citizens cannot know whether their justices have been swayed by the large amounts of contributions that they receive each year.

Texas Supreme Court Justice Nathan L. Hecht himself has acknowledged the problem with unusual frankness. Dissenting from the Court's refusal to hear a case that cried out for review under the usual criteria, he wrote: "If our votes on applications [for review] were always public, some would change. . . . I am forced to conclude that the time has come for the Court to make public its votes on applications." Martime Overseas Corp. v. Ellis, 977 S.W. 2d 536, 537 (1996).

In April 2001, NVRI began working with the Austin-based Texans for Public Justice (TPJ) to develop a legal challenge to the Texas Supreme Court's practice of not disclosing votes on petitions for review. Over the past year, NVRI, as lead counsel, has worked to develop and prepare a lawsuit challenging this practice under the First Amendment to the U.S. Constitution, the Texas Constitution, and federal common law.

On May 21, 2002, NVRI filed suit in federal district court in Del Rio, Texas on behalf of Texans for Public Justice, Common Cause, the League of United Latin American Citizens,the Texas Observer, six Texas voters, including lawyers, and current and future Texas Supreme Court justice candidates, with Texans for Public Justice and the ACLU of Texas serving as co-counsel in the case. The filing brought the attention of newspapers and news broadcasts throughout the state to the need for greater transparency and openness in the judicial process.

In the suit, we argue that decisions on applications for review should be public to the same extent as the Court's other decisions. When the Court issues an opinion on a case, the positions of all justices are known; either they specifically adopt or dissent from the opinion, or the opinion is issued "per curiam" which signals that all those not dissenting have adopted it. The Court's decisions on whether a case merits review should be disclosed in the same manner. While we are not asking the court to say that the private campaign system is illegal (a recent challenge on these grounds was denied by the Fifth Circuit), this case will expose the conflict of interest inherent in privately-funded judicial elections.

See NVRI's legal briefs in Aguirre v. Chief Justice Thomas R. Phillips:

Challenging Barriers: