The value of separate writings (redux)

Welcome back to 14th & Colorado!

Today’s post covers an interesting phenomenon—jointly authored separate writings. That’s right, these are writings for which multiple Justices are given authorship credit. It feels like I’m back in my days in academia. But at least at the Court, there are widely accepted rules about the order of authors. No one is fighting about who should go first—seniority has its perks. Their statement respecting the denial of a petition for writ of mandamus also emphasizes something I flagged in a prior post: read separate writings to see where the Court may want to go.

Ricky Bobby lived much of his life by the mantra “if you ain’t first you’re last.” As his father reminded him, “[t]hat doesn’t make any sense at all, you can be second, third, fourth . . hell you can even be fifth.” Several major legal news outlets have already covered the substance of the Justices’ joint statement respecting the denial of review in 24-0239, In re Novartis Pharmaceuticals Corp. But I wanted to highlight some interesting phenomena in the statement. It’s a jam-packed short separate writing, so let’s dive in.

First, as the opinion designator1 and the dual signature lines at the end of their statement denote, Justices Young and Sullivan jointly authored the statement. (Yes, the authoring Justices actually sign a copy of the opinion that is delivered to the Clerk’s office.) More typically, a single Justice is the author and other Justices join. That structure is noted by “Justice ____, joined by Justice[s] ___, . . . .”

This is not the first joint authored “opinion” at the Court (Is a “statement” an “opinion” if it neither concurs nor dissents from denial? I guess it’s like Schroedinger’s opinion.). Three years ago, then-Justice Blacklock and Justice Young jointly authored the decision in In re Khanoyan, an election mandamus in which the Relators contended that the Harris County Commissioners Court had stripped more than a million Texans of their right to vote for a commissioner in the 2022 election by redrawing maps. The Court ultimately denied relief because the Relators sought relief after the primary election had already begun and had not suggested any relief that would not disrupt the ongoing election.

Justices Young and Sullivan have written several other joint opinions in the short time since the latter joined the Court earlier this year.

In Nautilus Insurance Company v. HOF Partners, LLC, the Justices wrote a statement respecting the denial of the motion for rehearing. Interestingly, they would have granted the motion for rehearing. “The motion and the amicus briefs persuasively assert that the underlying legal questions warrant this Court’s full consideration.” The question presented in Nautilus “concerns the kinds of entities that can accept premium payments for a surplus-lines policy under the Texas Insurance Code.” The court of appeals applied a general provision found in a different chapter of the Code from the provision at issue and held that there was a fact issue as to whether the insured’s retail agent had accepted a premium payment on behalf of a surplus-lines insurer. Several number of amicus briefs were filed urging the Court to grant the motion and reverse. According to amici, the court of appeals’ decision threatened to disrupt the insurance market. Justices Young and Sullivan noted that if amici were correct, the Court would have further opportunities to consider the issue.

In In re Marshall, the Justices wrote a joint dissent from the denial of the petition for writ of mandamus. The question in that petition was whether “attorney immunity provide[s] immunity from suit or only from liability? Another way to frame this question is to ask when the substantive rights that the law calls “attorney immunity” may be invoked—only after a trial that the attorney-immunity doctrine says should never happen in the first place, or upon a trial court’s refusal to grant relief?” The joint denial took a somewhat frustrated tone, noting that “there is precious little clarity to be found in this Court’s inconsistent pronouncements about the nature of attorney immunity, as reflected in an entrenched split among our intermediate state courts. To date, the leading case on this topic is an Erie guess from the Fifth Circuit.” The Justices said that “[t]he Supreme Court of Texas can and should do better. By denying this pair of mandamus petitions, however, the Court passes on a chance to deliver an authoritative clarification.” The frustrated tone continues throughout the dissent with the Justices at one point saying “Enough is enough. It is high time this Court answered what the Fifth Circuit could only guess at. The petitions in Marshall and Hunter give us a good vehicle for doing so, as we will now explain.” The Justices noted the high stakes—billions are in dispute—and the parties are represented by high-quality counsel. Thus, “[t]o deny these two mandamus petitions is to miss out on as good an opportunity as the Court is likely to get to provide clarity that has been lacking in our opinions addressing this recurring issue.”

Justices Young and Sullivan also have several traditionally structured concurrences and dissents from denial.

Second, the characterization “respecting the denial of the petition . . .” has only been used twice in the Court’s history—both times by Justice Young.2 Much like rules and other style choices that are being imported from the U.S. Supreme Court, a “statement,” “memorandum,” and “opinion” “respecting the denial” is more commonly used at that court.

Another interesting tidbit: The most frequent author of statements, memoranda, and opinions “respecting the denial” of petitions at the U.S. Supreme Court was another SCOTX Justice’s former boss—Justice Stevens (for whom Justice Busby clerked). Justice Sotomayor is second most frequent user. While Justice Scalia wrote a handful, as has Justice Alito, Justice Stevens was a prolific user of statements respecting the denial of certiorari (as opposed to simply concurring or dissenting from the denial), writing dozens of them.

The more common framing, particularly at the Texas Supreme Court, is “Justice ____, joined by Justice____ [concurring in] [dissenting from] the denial of the petition . . .” (At the U.S. Supreme Court, the total is much closer than at SCOTX. There are 206 statements/memoranda/opinions “respecting the denial” and a little more than 300 concurrences and dissents from the denial of stays and petitions.).

Given that Justices Young and Sullivan would have granted the petition, I can only surmise a “statement respecting” is a bit of a reserved dissent (in contrast to Commander Joanne Galloway’s strenuous objections in A Few Good Men.). I wonder whether the Justices will ever pull back the Wizard’s curtain on the meaning, perhaps at a CLE. Only time will tell. Now on to the substance of the opinion, some twists and turns, and the big takeaways.

In re Novartis is about jurisdiction and separation of powers—this case feels tailor made for Justice Young. He has written extensively on both of these issues since joining the Court four years ago.

The underlying case is a qui tam action brought under the Texas Health Care Program Fraud Prevention Act. Under the Act, a private person may bring a civil suit seeking civil penalties for violation of the law. The Attorney General is alerted and decides whether to take over the case. Here, Health Selection Group LLC (HSG) sued Novartis for fraudulent marketing. The AG elected not to take over the case. Novartis moved to dismiss because, among other reasons, it argued that HSG lacked standing. The district court denied the motion to dismiss.

Novartis filed a mandamus petition in the Sixth Court (Texarkana). The court of appeals denied the petition without explanation.

Standing

At the Supreme Court, Novartis claimed that HMSG lacked standing. Thus, the district court lacked subject matter jurisdiction. Additionally, Novartis claimed that the qui tam statute violates the separation of powers in Article II, Section 1 of the Texas Constitution, which requires the Attorney General to represent the State in court.

The Justices’ statement is a rollercoaster for HSG. They note that there is some support in Justice Scalia’s opinion in Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000) for standing, but there are some differences between the federal False Claims Act and Texas law, i.e., Texas law imposes penalties, rather than allowing recovery of “damages.” This distinction may undermine the “injury in fact” requirement.

In a prior post, I noted the value of separate writings. I also flagged that these writings can have a variety of audiences, including colleagues on other courts, the bar, and even the legislature. Justices Young and Sullivan took an interesting approach—they explicitly aimed this statement at their colleagues on the Fifteenth Court and the parties.

Separation of Powers

Perhaps the bigger issue facing HSG is the separation of powers. Justice Thomas, known to forge new ground in various constitutional questions (e.g., his efforts to resurrect the privileges or immunities clause as a source of various constitutional rights), has recently called qui tam into question for potentially violating Article II of the U.S. Constitution. The Texas constitution contains different language, but it too may be violated. Article II, Section 1 requires the Attorney General to represent the State in Court. The Texas statute’s permission for a private party to continue a suit if the AG elects not to take it over could run afoul of the Constitution. Ultimately, the Court declined to address the issue.

The takeaways

There are a few takeaways her: 1) percolation of big issues is important to the Court; 2) a reminder that these separate writings can have one or more audiences and are very worthwhile reads. Indeed, this separate writing identified both the Justices on the Fifteenth Court and the litigants as its audience—giving them both a roadmap for what may come next.

Percolation

The Justices agreed that declining to take the case makes sense—the issue deserves further percolation. This is a theme that often comes through in separate writings regarding denial of petitions. The Court is reticent to wade into issues that haven’t had much development in the courts below. And I suspect that will be particularly true where the new statewide appellate court has jurisdiction.

The Fifteenth Court recently held that it has jurisdiction over petitions for writ of mandamus like Novartis. In that case, the Fifteenth Court concluded that it has jurisdiction over mandamus petitions involving the qui tam act, even when the State chooses not to intervene. While Justices Young and Sullivan did not pass judgment on whether the Fifteenth Court was correct, they noted that, at least for now, that the Fifteenth could hear the petition.

Indeed, in a particularly unusual move, Justices Young and Sullivan noted that the Fifteenth Court could hear this petition. The Fifteenth Court came into existence months after Novartis filed its petition in the Supreme Court. So it had not been available to hear the case. The Justices noted that “parties should not abuse the judicial system by flooding the courts with an endless stream of identical petitions.” Because, “[a]s a general matter, an identical petition should meet the same fate, if only for the sake of judicial economy.” But this case is different. Its “unusual circumstances likely place it in a class of one, or at most of a very few, meaning that allowing Novartis to petition the Fifteenth Court for mandamus would not risk re-urged mandamus in other cases.”

The audience

Going back to audiences, I imagine Novartis’s able counsel (who argued the Lucia case at SCOTUS) picked up what the Court was putting down and got to work on changing that case caption to refile the petition. (There are a good many reasons they might not have, but the Court certainly laid the roadmap for next steps.).

The second audience for this statement was the Justices’ colleagues on the Fifteenth Court. The Sixth Court, like so many courts denying mandamus petitions, gave no merits-based explanation. Frequently, when a court of appeals denies mandamus, they used canned language about not meeting the standard. But that does little to develop the law on these important constitutional issues. So Justices Young and Sullivan suggested that when the appropriate case involving these issues does pass before the Fifteenth Court, they hope those Justices will explain their reasoning.

In sum, another challenge to the Act’s constitutionality is likely to arise, whether from Novartis or from a future litigant. When it does, we hope that the court of appeals will take the issues seriously enough to dispose of them in a written opinion. And, in an appropriate case, we anticipate this Court settling those issues once and for all.

If you’ve read this far, I hope you’ve found it both enlightening and interesting. A little bit of trivia with a little bit of practical advice. I’ll be back soon with more on what’s going on in the Texas appellate world.

Until next time. . . .