An Odd Sort of Ad Hominem Criticism in an Appellate Dissent:

From the start of Judge Wiener's dissent in Severance v. Patterson (some paragraph breaks added):

With genuine regard and respect for my colleagues of the panel majority, I must dissent.


Although undoubtedly unintentionally, the panel majority today aids and abets the quixotic adventure of a California resident who is here represented by counsel furnished gratis by the Pacific Legal Foundation. (That non-profit’s published mission statement declares that its raison d’être includes “defend[ing] the fundamental human right of private property,” noting that such defense is part of each generation’s obligation to guard “against government encroachment.”) The real alignment between Severance and the Pacific Legal Foundation is not discernable from the record on appeal, but the real object of these Californians’ Cervantian tilting at Texas’s Open Beaches Act (“OBA”) is clearly not to obtain reasonable compensation for a taking of properties either actually or nominally purchased by Severance, but is to eviscerate the OBA, precisely the kind of legislation that, by its own declaration, the Foundation targets.

And it matters not whether Ms. Severance’s role in this litigation is genuinely that of the fair Dulcinea whose distress the Foundation cum knight errant would alleviate or, instead, is truly that of squire Sancho Panza assisting the Foundation cum Don Quixote to achieve its goal: Either way, the panel majority’s reversal of the district court (whose rulings against Severance I would affirm) has the unintentional effect of enlisting the federal courts and, via certification, the Supreme Court of Texas, as unwitting foot-soldiers in this thinly veiled Libertarian crusade. It is within this framework that I shall seek to demonstrate how the panel majority misses the mark and why Severance’s action should be dismissed, once and for all, for her lack of standing to assert either a Fifth Amendment takings claim for reasonable compensation (because Severance has had nothing taken by the State) or a Fourth Amendment unreasonable seizure claim (because that which was putatively seized did not belong to Severance at the time; and even if it had, there was nothing unreasonable about the purported seizure).

Maybe I’m mistaken, but this seems a bit troubling. Appellate decisions should be about which side has the better argument, not whether some side is on a “Libertarian crusade,” or whether they are California or Texas residents, or what a law firm’s mission statement might be, or whether the party or the law firm is in the driver’s seat. Starting an opinion with a condemnation of the supposedly carpetbagging Libertarian lawyers, and then saying that this judgment about the lawyers and their plans provides a “framework” for the substantive analysis, doesn’t seem to me to be the right approach.

To be sure, a case’s being part of a broader litigation campaign might have some indirect relevance to a court decision, especially when the law isn’t clear. For instance, say a court is considering some proposed legal principle (e.g., considering whether and when the intentional infliction of emotional distress tort should be available to award damages based on the content of certain newspaper articles), and is evaluating the possible future consequences of the principle. A party’s or law firm’s long-term litigation strategy — e.g., a law firm's clear plans to bring this as a test case aimed at setting precedent for broader restrictions — might provide some useful example cases against which the rule will be tested. If a court knows that case B is coming down the pike, and that case A is just a means for trying to set a precedent supporting a certain result in B, a court might want to consider both cases A and B in figuring out the right rule now in case A.

But even there the identity and plans of a law firm are of extremely limited relevance. After all, if a court is worried about possible future consequences of the decision, those consequences could arise even in cases involving completely different law firms. And that’s true whether or not this firm is part of a “crusade,” or cares only about a particular case; the focus should be on what cases might actually be brought, not on what the law firms’ supposed agenda (or principal place of business) might be. All the more reason, I think, to focus on the parties’ arguments — even if one includes the long-term consequences of the arguments — rather than on who the lawyers are.

That’s why the majority opinion, written by Judge Edith Jones and joined by Judge Clement, strikes me as setting forth the better approach:

Notwithstanding the hyperbolic and unsupported assertions in Part I of the dissent (“Context”), the judges of the court endeavor not to decide appeals based on who the litigants are, who their lawyers are, or what we may believe their motives to be. Whether that rule is observed in light of Part I of the dissent, however, the reader must determine.

Related Posts (on one page):

  1. Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights:
  2. An Odd Sort of Ad Hominem Criticism in an Appellate Dissent: