SCOTX week in review (Sept. 9 Oral Arguments)
Certified questions, defamation, attorney discipline and the separation of powers
Last week the Texas Supreme Court heard its first set of oral arguments. In a change for this year, the Court heard eleven arguments—up two from the nine heard the same time last year. Next week the Justices and their staff will hold conference. [Yes, unlike SCOTUS, the Justices’ staff get to sit in!] In this post, I wrap up two cases for the week. One highlights some interesting procedural aspects of the Court, Roe v. Patterson, and one, the Webster v. CLD, I previewed last week.
Certifying questions to SCOTX
In Roe v. Patterson, the U.S. Court of Appeals for the Fifth Circuit certified two questions to the Texas Supreme Court: (1) “Can a person who supplies defamatory material to another for publication be liable for defamation?” (2) “If so, can a defamation plaintiff survive summary judgment by presenting evidence that a defendant was involved in preparing a defamatory publication, without identifying any specific statements made by the defendant?”
Before diving into the argument, the procedural posture is an interesting pit stop. Texas Rule of Appellate Procedure 58.1 says that the Supreme Court may answer questions of law certified to it by any federal appellate court “if the certifying court is presented with determinative questions of Texas law having no controlling Supreme Court precedent. The Supreme Court may decline to answer the questions certified to it.” Two interesting items to note in the rule: First, the Supreme Court may answer those questions certified to it—the Supreme Court decides whether to accept the question. In recent memory, the Court has almost reflexively accepted those questions when presented. Indeed, I think it has been decades since the Court declined to consider a certified question. Six cases already have been certified for this term, with one recently being dismissed at the request of the parties.1 Second, the rule limits certification to questions from “any federal appellate court.” That puts Texas in the significant minority of jurisdictions. Many states will accept questions from any federal court, including federal district courts and bankruptcy courts. Some will even accept from appellate courts of other states. And a small handful will even take certified questions from Canada and Mexico. Only North Carolina has no procedure for certification of questions to its high court.
The discretionary nature of the process has downstream implications. Because the Texas Supreme Court typically takes the questions certified to it, the gap between the parties on the question certified can range from a chasm to a hair’s width. In Patterson, the latter seems to describe the difference. Justice Blacklock noted during argument the apparent significant degree of agreement between the parties. The disagreement in Patterson largely comes down to fact questions several Justices noted are not for this Court to decide.
The facts of Patterson, briefly, are that Jane Roe, a former student at Southwestern Baptist Theological Seminary, alleged that she was sexually assaulted by a fellow student in 2015. She sued the seminary and its president, Leighton Patterson, for failing to protect her from the assaults and for allegedly defaming her after. One of the statements at issue comes from a letter submitted by seminary donors to the seminary’s board of trustees. The donor letter made several claims about Patterson’s reputation and tenure at the seminary, including his handling of Roe’s allegations in 2015. It stated that: Roe’s “allegations of rape were false;” she “had engaged in consensual sexual activities on more than one occasion . . . in public buildings at the Seminary;” “campus security were shown the nude pictures that she texted to the male student [who allegedly raped her];” and Patterson “desire[d] to meet with her . . . and attempt to help her recant her false allegations of rape before she continued with such false statements to the police.” Roe alleges that these statements are defamatory. Interestingly, as counsel noted at oral argument, Roe did not seek to hold Patterson liable for the statements as he originally made them to third parties, including his chief of staff. Rather, she is suing for the republication of these statements in the donor letter because Patterson’s chief of staff was allegedly involved in its dissemination and preparation. Whether the chief of staff was acting as Patterson’s agent is a fact question that still must be decided. But, even if he were, the Fifth Circuit wanted the Court to decide whether Texas law permitted liability for the republication.
The parties seem to agree—the answer to the first certified question is “Yes.” But they disagree about the limits. Roe argues that where republication is reasonably foreseeable, the answer is yes. This prompted several hypotheticals from the Justices at argument. Justice Boyd wanted to know if a person telling a friend something defamatory in a restaurant, with a reporter nearby, could be held liable if the reporter overhears and prints what he heard. Justice Bland picked up on the hypothetical and asked about Roe’s “should have known” theory—is a person liable for the harm caused by a repetition they should have known would occur. This, according to Roe, would bring defamation in line with every other area of tort law. The intentional aspect of this intentional tort, according to Roe, is limited to the intent to make a false statement, not the intent to publish or republish. Justice Bland seemed to push back, noting that the original publication must be intentional. For example, if a person shared the information in a confidential relationship or it was overheard without his knowledge, the speaker would not be liable for the original publication. And, in her view, the republication issue is really a causation standard about how foreseeable it is that the statement would be republished and increase the harm. Patterson’s counsel pushed back on Roe’s expansive view of liability.
Patterson suggested that republication liability should be limited to situations where a speaker intended or authorized or knew that the statement would be republished. In Patterson’s view, the plaintiff’s reasonably foreseeable test would raise myriad fact questions: Should a speaker have known the person nearby in Justice Boyd’s hypothetical was a reporter? Should a speaker be required to investigate who is nearby? Patterson contends there’s a constitutional dimension to this question that is paramount—the need to balance recourse for individuals’ reputational harm with the potential chilling effect on free speech. Justice Young suggested to Patterson’s counsel that there isn’t much to say beyond “yes.” The allegation here was that the republication in the donor letter was intended. Why should the Court go beyond answering yes? Justice Busby seemed to agree that a lot of what the parties discussed at argument is beyond the scope of this case. Clarifying the law is great, in his view, but why address it where it is not essential to disposition of the case?
The second question, i.e., can one survive summary judgment without specifying the defamatory statement, got short shrift in Roe’s argument. Roe briefly argued yes. If the plaintiff can identify the substance and meaning of the statements, she need not identify statements word for word. Patterson’s counsel was somewhat confusing in his views on the answer to this question. But, in response to Justice Bland, he argued that a plaintiff could not use circumstantial evidence to show involvement in the publication. Though that seemed, to Justice Busby, not to be in line with the intent element for intentional torts. The Chief also seemed skeptical of Patterson’s argument that circumstantial evidence is insufficient. Just how much of a step back from an audio recording must a plaintiff have to prove intent?
We’ll see what the opinion brings at some point before the end of June—the Court has repeatedly achieved its goal of releasing all opinions in causes before the term ends at the end of June. I wouldn’t expect anything different this term. But this could be among the narrower decisions in a certified question case. With several Justices expressing reticence to go beyond this case, and feeling that the parties agreed about the answers relevant to this case, the Court may avoid a sweeping clarification of defamation law.
Attorney discipline and the separation of powers
It was a hot bench for the Webster v. CLD argument. The Solicitor General, in a rare personal appearance before the Court, was peppered with questions about the limits of Webster’s separation-of-powers argument. The Court’s questions focused on whether separation of powers puts attorneys in the AG’s office (almost) completely beyond the reach of attorney discipline. The Justices posed a variety of hypotheticals to test the bounds of the argument. For example, Justices Busby and Boyd asked if an assistant attorney general filed a child support action to get back at someone they didn’t like (perhaps, at the AG’s direction), and the pleading contained knowingly false allegations, could the attorney be disciplined by the Supreme Court (i.e., given a suspension or disbarred)? The SG conceded that if a lawyer in the AG’s office is acting outside the scope of his authority or unlawfully (e.g., fabricating evidence), that person is subject to discipline by the Supreme Court. And he conceded that a court, as an exercise of its inherent authority, can impose sanctions on an attorney from the AG’s office appearing before it. But that wasn’t really the issue—several Justices wondered whether a court could refer such an issue to the state bar’s disciplinary entity for more severe sanctions, including disbarment.
For example, could the U.S. Supreme Court have said that it thought this pleading was worth referring to the CLD for investigation and sanctions. Having not contemplated the issue, the SG initially suggested that he thought the courts could make such a referral. On rebuttal, however, he clarified that he believed such a referral was beyond the scope of a court’s inherent authority. So, in Webster’s view, a court cannot refer an AAG or the AG for more serious sanctions for their conduct in court, as long as it is not illegal or outside the scope of his authority. Justice Young wondered how far this “immunity” extended. Does it include all government attorneys? The SG noted that in their capacity as criminal prosecutors, Texas’s district attorneys are actually an arm of the judicial branch. So they would not be beyond the reach of the court. In response, Justice Busby wondered whether sanctioning county attorneys handling civil cases would similarly offend the separation of powers. The SG, unclear on his view of the expanse, suggested that his argument for the AG’s immunity was rooted in the constitutional structure. Justice Busby wondered aloud why the Texas Supreme Court couldn’t consider such a disciplinary case an in rem action against the license the Supreme Court issues to practice, rather than an in personam action against the attorney. The SG had little to say on this angle. Overall, the SG was resistant to any meaningful concessions on the Court’s ability to sanction members of the AG’s office.
Up next was the CLD’s counsel. He got some push back about whether the CLD was simply second-guessing the AG—several of the allegations being investigated were really legal theories. And that certainly seems troubling. Indeed, counsel received near-immediate pushback from Justice Blacklock that this seemed like a politically-motivated case. The difference, Justice Blacklock suggested, between those who thought this case was ridiculous and those who thought it seemed at least plausible in November 2020 is simply their political views. He asked whether this case wasn’t simply one set of government attorneys expecting another set of government attorneys to adopt its view of the legal and political landscape. In that vein, several justices pushed back on the CLD’s assertion that the alleged falsity of some of the AG’s allegations in the pleading at SCOTUS was worthy of sanction. In many cases, allegations in a pleading turn out to be inaccurate, unsubstantiated, or even false. That is, after all, the point of discovery that comes after the pleading, made in good faith, has been filed. A lot of lawyers would be before the CLD if the ultimate falsity of allegations in a pleading was the standard. Justice Bland wanted to know whether the CLD had ever sanctioned an attorney for information in a pleading. Counsel suggested many had been. The Court asked for a post-argument letter brief with specific information on the number of attorneys sanctioned under particular circumstances. CLD’s counsel clarified a mystery I noted in my argument preview—why seek sanctions only under 8.04(a)(3), not 3.01 or 3.03 of the Rules of Professional Conduct? The CLD is unclear how much of the AG’s conduct in this case occurred in Texas, and 3.01 and 3.03 cannot reach conduct that took place outside of the state.
We’ll have to wait to see whether the Court accepts the AG’s separation of powers theory. If so, how broadly might the Court construe the separation of powers? Will there be any separate writings exploring some of the interesting asides? For example, could Justice Busby explore his in rem theory more? It’s an interesting theory. I’ll keep you posted. You can be sure I’ll have an opinion wrap up once it’s issued.
The six cases with certified questions: 24-0116, Port Arthur Community Action Network v. TCEQ; 24-016, Butler v. Collins; 24-0717, Perez v. City of San Antonio; 24-0769, American Pearl Group, L.L.C. v. National Payment Systems, L.L.C.; 24-0627, Barron v. United States (Dismissed).