Trouble In Waco

Anytime you complain about the Courts in Colorado, it pays to look at how much worse it could get, and often the comparison is in Texas, where judges are selected in partisan elections. Consider Chief Justice Tom Gray, a Republican, of the division of the Texas Court of Appeals located in Waco, Texas.

In 2005, the 80 appellate judges on the state’s 14 intermediate appellate courts wrote a total of 226 dissenting opinions. Gray wrote 107 of them, or 47 percent. Last year, Gray wrote 49 dissenting opinions, 26 percent of the statewide total of 190. So far this year, Gray has written 58 dissenting opinions, or 48 percent of the statewide 120 written thus far.

From 2000 to 2003, Gray, elected to the court in 1999 and formerly from Navarro County, averaged 25 dissents a year. In those same years, Vance, a former Brazos County judge elected to the court in 1990, averaged seven dissenting opinions annually.

By contrast, in 1997, when Rex Davis was chief justice, the entire court, which included Vance and Justice Bob Cummings, wrote 7 dissenting opinions. The year before, that same court issued six dissenting opinions.

In 1994, when Bob Thomas was chief justice, he, Vance and Cummings wrote a total of three dissenting opinions. The year before, Vance wrote five, Thomas wrote two, and Cummings wrote none.

One of the other two judges in the Court is a Democrat (Bill Vance), the other a Republican (Felipe Reyna) who usually sides with the Democrat.

The Waco Appeals court is often reversed on appeal, 95% of the time in cases where Justice Gray dissented, but "the higher courts agreed with Gray no more than 25 percent of the time last year in cases in which he wrote a dissent." The reversals were often unrelated to issues upon which he dissented.

Gray's statements are quite quotable, and largely inappropriate for a judge. They include:

“It is hard to imagine how the majority could make more errors in a single proceeding.”

“It is impossible for me to convey the level to which I am disappointed by my colleagues. ... Their action shows that they have no regard for the rules of appellate procedure, and, therefore, no respect for the rule of law.”

“If the majority is going to throw the rule book away, then they should tell the world so litigants, and I, for that matter, understand what we are doing.”

"As a dog returns to its vomit, so a fool repeats his folly," Gray writes, quoting Proverbs 26:11.

"Dear City of Waco. Sorry to put you through this, but you are going to have to go to the Supreme Court in Austin, again. The Tenth Court of Appeals in Waco has some problems right now that I hope are fixed real soon. But for now, you are in the appellate district that was reversed in 2006 more often than any other appellate court in Texas. I have done what I could, by writing lots of dissenting opinions, but it has not really helped the situation any."

"Like a first-year law student, the majority leaps directly to the issue of the remedy. ... The majority's order is ill-conceived, poorly thought out and will be difficult for others to implement. It is a testament to a failure in the system."

"How far will the majority pervert the rules to help Carl Long? A long, long, very long way."

"What I do mind is the majority's schizophrenic application of the rules based upon factors which I cannot identify, determine, assess, or evaluate."

"If Texas was a dartboard, and Waco was the bull's eye, the court's opinion on the third issue hits Ardmore, Oklahoma."

"The majority's opinion glosses over two properly dispositive parts ... in order to publish its 36-page, mediocre law-review article on the merits ..."

"Wrong on the facts. Wrong on the law. Wrong on the result. Because of the timing of what the majority has done, I am unable to explain very much more than that."

"Maybe the majority has forgotten, if they ever knew, what it is like going to trial with $50,000,000 on the line."

"Nevermind the rules just play to win. And hate your neighbor for the shade of his skin. Skip a rope," Gray writes, quoting from the song "Skip a Rope." "I like the rules that apply to everyone. I think that is called equal protection. I do not like it when rules are ignored. I think that is called violating the rule of law. I am not very good at skipping rope."

"It is because dicta has a nasty way of coming back cited to me as a precedential holding. So the only tool which I have to push back with on this type of improper development of the law is my pen, a lone voice crying in the judicial wilderness, begging the majority to please abide by the rule of law."