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Texas Chief Justice Wallace Jefferson wants the Legislature to consider possible reorganization of a state judicial system known for its multiple jurisdictions, many of which overlap at the local level.
Jefferson’s remarks, from his State of the Judiciary address Feb. 20, could cause lawmakers to consider seriously whether to consolidate the different types of local courts.
The biennial address allows the chief justice to discuss with legislators concerns about how the court system operates.
Besides recommending structural reforms, Jefferson urged attention to the plight of innocent people wrongly convicted and to the question of better funding for the judicial branch.
“I urge you,” the chief justice said, “as legislators and policymakers, and you, as citizens and opinion leaders, to take a hard look at every aspect of our judicial system—its structure, its funding, its effectiveness at meeting our citizens’ needs—to ensure that our judicial system remains strong and reliable well into the future.”
He also thanked local leaders for responding to his call two years earlier to pass legislation raising the pay of judges.
The state constitution creates a vast system of local courts, often with overlapping jurisdiction. Jefferson called on lawmakers to undertake redistricting of the district courts. “Some counties share a multi-county district court, while others have multiple districts within the county,” he said. “And some counties are a part of more than one district, creating a shifting target for litigants who may not know which court’s rules prevail. Overlapping geographical jurisdiction creates confusion for litigants and increases the risk of conflicting rulings in a single area.”
The chief justice suggested the Legislature “consider other ways to simplify the current trial court system. For example, it is worth considering whether Texans are best served by the current (and often redundant) complex system of county courts at law, district courts, and statutory probate courts, or whether streamlining some of these trial courts may create a simpler system.”
The county court of law has a jurisdiction that varies by county and often overlaps with the district court – allowing the plaintiff to choose either court. In post-session questioning, Jefferson told reporters he thought it might take more than one legislative session to do a complete reorganization of the state’s court system.
Jefferson said the state’s complicated judicial system may cause parties to contracts to waive their rights to go to court and instead submit their disputes to private arbitration.
Texans for Lawsuit Reform, which lobbies on judicial questions, has proposed a comprehensive judicial reorganization plan. The proposal includes giving serious consideration to the idea of converting county courts into district courts and raising the limit for small claims court to $10,000.
Jefferson also emphasized the need to ensure that the innocent are not convicted of crimes. “I cannot imagine wasting away in prison for a crime I did not commit,” he said. “Can you? The Legislature should establish a commission to study ways to free the innocent.”
Sen. Rodney Ellis (D-Houston), an inveterate crusader for establishment of an “innocence commission,” welcomed Jefferson’s support. “I am extremely pleased that Chief Justice Jefferson made the call for an independent Texas Innocence Commission,” said Ellis. “Enough is enough. Day after day, week after week, we learn of more innocent Texans who have had their lives torn from them in tragic error. It is time for Texas to create an Innocence Commission to launch in-depth investigations each time an innocent person is wrongfully convicted, review what went wrong in these cases, why, and spell out the changes necessary to ensure these injustices are not repeated.”
Jefferson also invited lawmakers to examine the funding of the court system. “In recent years,” he said, “… it has become clear that funding limitations are restricting the court system’s ability to dispense justice fairly and efficiently.” He recommended creation of a process to review salaries of judges regularly.
One topic Jefferson avoided is the much-vexed question of appointed judges. Tort reform groups and some editorial boards have long pushed the idea of replacing judicial election with an appointive system. Jefferson’s predecessor, Tom Phillips, led the statewide campaign for such a change. Jefferson, by contrast, has decided to focus his public efforts on the funding and structure of the Texas Court system.
Some commentators and reporters have noted that Texans for Lawsuit Reform Day at the Capitol occurred at the same time as Jefferson’s address. TLR also supports reorganizing the Texas court system. TLR spokeswoman Sherry Sylvester said the timing is coincidental and that TLR did not know when the address would be given when it scheduled the occasion.
It’s worth noting the views that Jefferson expressed in his address are not identical to the views of TLR. There are many subtle differences. For one thing, TLR does not involve itself in criminal justice issues like the innocence commission.
And Jefferson’s spin on binding arbitration is definitely different from TLR’s. Binding arbitration is an alternative to the judicial system whereby private parties submit their claims to a neutral arbitrator instead of to a court. Arbitration decisions are enforceable in court, and judicial or appellate review is extremely limited. Additionally, while nothing in the law requires binding arbitration to be secret, it often is.
Arbitration is not very controversial when a contract is agreed to after a dispute has begun or when it is part of a contract between businesses of roughly equal bargaining power.
But when take-it-or-leave-it form contracts issued by insurance companies, credit card issuers, or builders contain arbitration or confidentiality clauses, they can become very controversial.
In 2001, TLR encouraged Gov. Rick Perry to veto the prompt pay bill for doctors because it prohibited insurance carriers from putting arbitration clauses in their form contracts with doctors.
TLR enthusiastically supports the use of binding arbitration clauses in contracts, but Jefferson expressed some concerns about the growing use of arbitration as an alternative to the court system.
“I have no doubt that private dispute resolution plays a valuable role as an alternative to the traditional justice system, but there are hidden costs,” Jefferson said. “The outcomes in a private system need not be consistent, because there is no public record of the proceedings and therefore no requirement that similar cases yield similar results. When a significant error is committed in a private setting, there is little hope of correcting the resulting injustice because appellate review is virtually non-existent. And without appellate review, there is no mechanism to resolve varying and contradictory interpretations of the law. Finally, a privately litigated matter may well affect public rights. Its resolution may ultimately harm the public good or, because the decision is secret, impede an innovation to a recurring problem, much to the detriment of Texas citizens.”
In a 2002 position paper on the subject, TLR defended allowing parties to contract to keep arbitration decisions secret. “[C]onfidentiality is generally important to businesses to protect private business matters and trade secrets and avoid being a target for litigation,” reads the group’s position paper, Arbitration as a Fair and Effective Alternative to Litigation. “The benefit of making arbitration awards public to competitors, plaintiff lawyers, the media, and others does not outweigh the parties’ right to contract for confidentiality in their arbitration agreement. In addition, settlements in lawsuits are often confidential for similar reasons.”
Jefferson said he supports the rights of private parties to contract for arbitration, so his comments, though not a broadside at TLR, demonstrate a more skeptical view of the issue.
During his address, Jefferson warned that the use of arbitration as an alternative to the court system could increase unless lawmakers streamline the courts to make them more efficient.
The State of the Judiciary address is taken seriously by lawmakers, though it does not always get much press. Many of the initiatives the chief justice discusses have traditionally been passed into law or at least received serious consideration.
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William Lutz is the Managing Editor of The Lone Star Report. This report is reprinted with permission.
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