Valorie W. DAVENPORT v. The Honorable Carolyn GARCIA.
No. D-1558.
Supreme Court of Texas.
June 17, 1992.
Rehearing Overruled Sept. 9, 1992.
834 S.W.2d 4
Mabra does not, however, address the type of proof necessary to show percentage contribution of prior injuries. The court of appeals in this case also relies upon Transamerica Ins. Co. v. Hernandez, 769 S.W.2d 608 (Tex.App.—Corpus Christi 1989, writ denied), which held that failure to present evidence of a range of percentages of contribution from prior injuries is fatal to the insurance carrier‘s attempt to reduce benefits. Id. at 611.
The Hernandez opinion, along with the opinion of the court of appeals here, conflicts with Lumbermen‘s Mutual Casualty Co. v. Martinez, 763 S.W.2d 621 (Tex. App.—Eastland 1989, writ denied). The Martinez court held that when there is no direct medical opinion testimony of the exact percentage a prior injury contributed to present incapacity, other types of evidence of probative value can support the jury‘s percentage findings. Id. at 623.
The Martinez case represents the more workable solution to the problem. Further, it is more consistent with this court‘s opinion in Texas Employers’ Insurance Ass‘n v. Etheredge, 154 Tex. 1, 272 S.W.2d 869 (1954), in which we held the jury could find a five percent contribution to the present disability from the prior condition, although no expert medical testimony assigned less than 100 percent of the cause to the prior condition. We held there was some evidence to support the five percent finding.
We hold that expert medical evidence of a specified range or percentage by which the prior injury or condition contributed to the disability is not required, provided there is detailed evidence which shows in reasonable medical probability the cause of the injury and which concerns how the prior injury contributed or probably contributed to the present disability. Such evidence would allow the jury to assign a percentage of contribution from prior injuries, any percentage expressed by a medical expert being but one possible factor for the fact finder to consider. See, e.g., Corcoran v. Foster Auto, 746 S.W.2d 452, 457 (Tenn.1988).
We disapprove the language in Hernandez and any other case contrary to our holding here. Pursuant to
Marty R. Akins, B. Lee Ware, Russell B. Serafin, Tom L. Pettiette, Houston, for appellee.
OPINION
DOGGETT, Justice.
In this mandamus proceeding, we address three issues: (1) the ability of a judge to suppress speech with a “gag order;” (2) whether Relator was impermissibly denied access to court records; and (3) the appropriate standard for removal of a guardian ad litem. Applying our state constitutional
A guardian ad litem was appointed to represent two hundred and thirteen children among numerous persons who brought suit concerning toxic chemical exposure at the Brio Dump site in Harris County. In a 1987 settlement the adults released all claims to future medical benefits for their children, and in 1989 the ad litem withdrew. In February 1990 Judge Alice Trevathan, then the presiding judge, appointed Valorie Davenport, Relator herein, as guardian ad litem.
After eighteen months of work, Davenport submitted a bill for her services on August 21, 1991. At a hearing two days later, Judge Carolyn Garcia, who had become the presiding trial judge, on her own motion, questioned the continued need for a guardian ad litem. Additionally, the court entered an oral injunction, described as a “gag order,” instructing the ad litem, parties and counsel to “cease and desist any discussion of this case outside the court hearing” and prohibiting any “communications with any other lawyer or discussion at all about the matters that have transpired in this case.”
On September 10 the trial court dismissed Davenport, concluding that because the parents were no longer seeking either individual recovery or expense reimbursement, no conflict of interest existed to justify continuation of the ad litem. The court also found unnecessary ad litem oversight of a medical monitoring program proposed by defendants as part of a settlement. While noting that the parents’ counsel had “competently handled [this] litigation” in “secur[ing] a generous settlement proposal for the minor children,” Judge Garcia did not specify any change in circumstances following Judge Trevathan‘s appointment of Davenport. The next day, again on its own motion, the court entered a protective order requiring that:
- Counsel in this case, present and former, are expressly ORDERED to refrain from discussing or publishing in writing or otherwise, any matters of this case with any persons other than their clients, agents, or employees in the necessary course of business in this case.
- Counsel is ORDERED to refrain from any public comment, casual or otherwise concerning the facts of this case or the conduct of counsel in this case other than in a court hearing.
- Counsel is ORDERED to inform their clients, witnesses, agents and representatives that this ORDER extends to each of them and is subject to a finding of contempt by this court from disobedience, direct or indirect comment intended to violate this ORDER. Counsel was and is directed to communicate with their clients only, and advise each that they are directed to refrain from discussing the case except with counsel.
I. The Gag Order
The trial court correctly characterized as a “gag order” its oral injunction of August 23, which prohibited all discussion of the Brio case outside the courtroom. Personally informed by the judge that she was “relieved of responsibility,” and that she had “been ordered by the Court not to discuss the case with anyone,” Relator risked contempt should she speak either in public or even in private to any of the children whose interests she had represented. Nor did the order permit any party to discuss the case or the pending settlement with a family physician, medical expert, or another attorney.
These limitations were reiterated in the written protective order of September 12, which prohibited any public comment or discussion of the litigation with anyone not involved in the “necessary course of business of this case.” Counsel were also directed to inform their clients of the order‘s applicability to each of them. The sole reason given for this sweeping injunction was the finding that “conflicts between counsel and the parents of the minor children were resulting in miscommunications
We consider whether the court‘s gag orders violate the guarantee of free expression contained in
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege. . . .
The history of this provision is a rich one, and its language demonstrates Texas’ strong and longstanding commitment to free speech. By the plain language of our constitution, this fundamental liberty “shall forever remain inviolate.”
From the outset of this state‘s history, freedom of expression was a priority. As rural communities developed from the wilderness in the young region, Mexico passed the Constitutive Act of 1824, uniting Coahuila and Texas into one Mexican state. Already integrated into the government and with nine times the population of Texas, Coahuila predominated. After unsuccessful efforts to have the new state government forward their written complaints or remonstrances to the central government,1 dissatisfied Texans sought in 1833 a Mexican state constitution separate from Coahuila. This first proposed constitution incorporated the strong desire of Texans to speak without fear of governmental repression:
The free communication of thoughts and opinions, is one of the inviolable rights of man; and every person may freely speak, write, print, and publish, on any subject, being responsible for the abuse of that liberty.
Proposed Constitution for the State of Texas (1833) art. 16, reprinted in Documents of Texas History, at 80 (Ernest Wallace ed. 1963). As an early advocate of a strong state constitution,3 Stephen F. Austin was jailed for his outspokenness in personally carrying this proposed charter and other remonstrances to Mexico City.2 The authoritarianism and unresponsiveness of Mexico to these attempts to exercise and establish protection of free speech were a сontributing factor to Texas’ revolution and independence.4
Although the 1836 Texas Independence Constitution in general closely tracked the wording of the United States Constitution, different language was chosen to protect speech:
Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege. No law shall ever be passed to curtail the liberty of speech or of the press; and in all prosecutions for libels, the truth may be given in evidence, and the jury shall have the right to determine the law and fact, under the direction of the court.
Constitution of the Republic of Texas, Declaration of Rights § 4 (1836).5 Rather than
In this instance, however, we are presented with conflicting affidavits as to whether the court records were made available to the public. These affidavits create a fact issue which this court may not address on mandamus. See Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex.1990, orig. proceeding). Additionally, it is the understanding of this court that with the gag order lifted, there should be no impediment to viewing the court records. If, after this opinion issues, Relator should find her access to the records in any way obstructed, she remains free to pursue appropriate remedies.
IV. Removal of the Guardian ad Litem
Relator also urges that she was improperly dismissed as ad litem. While much has been written about the standards for such appointments, there is little guidance on thе standard for removal. Relator contends that the appropriate standard is one based on best interest of the child, and the record reveals that Relator may well have acted in that interest, sometimes bringing issues to the court‘s attention which might not have otherwise been considered. Under the Probate Code a “best interest of the ward” standard is applied in determining the circumstances under which a guardianship can be moved to another county and a guardian replaced.
Under our current procedural rules, however, the sole circumstance in which a guardian ad litem can be appointed is when a minor “is represented by a next friend or guardian who appears to the courts to have an interest adverse to such minor.”
Since the trial court‘s September 1991 dismissal order specifically determined that there was “no conflict of interest,” and since the record reflects no such conflict, we find no abuse of discretion.
Summary
We grant Relator‘s petition in part and hold that the trial court‘s gag order is in violation of
Concurring Opinion by HECHT, J., joined by COOK and CORNYN, JJ.
PHILLIPS, C.J., not sitting.
HECHT, Justice, joined by COOK and CORNYN, Justices, concurring in the judgment.
I join in the Court‘s judgment, but not in its opinion. I agree that mandamus should issue directing the respondent district court to vacate the gag orders of which relator complains, but not to reinstate relator as guardian ad litem. I also agree that we should not direct the district court to allow relator access to court records when relator has failed to establish that her access to those records has been restricted. I differ
I
Deciding whether the two gag orders which the district court issued in the pending litigation are invalid is not the principal occupation of the Court‘s opinion. Those orders have already been ordered vacated in response to relator‘s request for emergency relief. 837 S.W.2d 73. Our reasons for granting this relief do not require elaborate explanation. The Court is unanimous in the view that the gag orders are invalid because they are too broad, they are not necessary to protect against an imminent threat to the administration of justice, and they were issued without following procedures to safeguard against suppression of relator‘s constitutionally protected speech. Issuance of the orders was a clear abuse of discretion from which relator has no adequate remedy by appeal. Thus, relator is entitled to mandamus relief to have the orders set aside.
That is the Court‘s decision. Most of the Court‘s opinion is spent defending its efforts to decide relator‘s free speech claims using only
The Court‘s approach to this case, it seems to me, is contrived and unnecessarily extreme. The Court goes to great lengths to decide this case on our state constitution alone, even though the result would be the same under the
A
The pending litigation involves claims by over 200 children and their parents for injuries due to exposure to toxic chemicals. The parents settled their claims five years ago, and defendants have proposed to settle the children‘s claims, subject to the district court‘s approval. Relator, the guardian ad litеm for the children, opposes the settlement.1 At a hearing on the proposed settlement on August 23, 1991, the district court apparently became concerned that differences and misunderstandings among the participants in the litigation threatened the proposed settlement and the best interests of the minor plaintiffs. Without a request from any party, the district court
BE IT REMEMBERED THAT ON THE 23RD DAY OF AUGUST, 1991, at a hearing in these consolidated cases, counsel for Plaintiffs, counsel for Defendant, and the then Guardian ad Litem were present.
Upon hearing evidence that conflicts between counsel and the parents of the minor children were resulting in miscommunications with the parents of the children and with the media and general public, this Court, on its own motion, issued a protective order in the best interest of the minor children of this suit. In so doing, the Court found there was a need for such an extraordinary remedy and ORDERED counsel as follows:
Counsel in this case, present and former, are expressly ORDERED to refrain from discussing or publishing in writing or otherwise, any matters of this case with any persons other than their clients, agents, or employees in the necessary course of business in this case.
Counsel is ORDERED to refrain from any public comment, casual or otherwise concerning the facts of this case or the conduct of counsel in this case other than in a court hearing.
Counsel is ORDERED to inform their clients, witnesses, agents and representatives that this ORDER extends to each of them and is subject to a finding of contempt by this court from disobedience, direct or indirect comment intended to violate this ORDER. Counsel was and is directed to communicate with their clients only, and advise each that they are directed to refrain from discussing the case except with counsel.
At that hearing, the Court abated the appointment of the Guardian ad Litem until further Order of this Court, but specifically applied this protective order to the Guardian and that during the abatement, the Guardian was to have no contact with Plaintiffs. On September 11, 1991, the Court dismissed the Guardian Ad Litem from this Cause, but not from this Order.
This Order was rendered in open court on the 23 of August, 1991 and is effective as of that date.
The Court ORDERS the Clerk of this Court to prepare certified copies of this order for counsel and to convey immediately by telecopier the contents of this written order.
This order prohibits relator from discussing the pending litigation with anyone, ever, except in a hearing before the court, even though she has been dismissed as guardian ad litem in the case. The order even prohibits the parties from communicating with each other, although they do not complain of this prohibition here. The order is, in its own words, “an extraordinary remedy“.
Relator complains that the gag orders infringe unlawfully upon her right to freedom of speech under the
Prior restraints on freedom of speech have long been disfavored in American law. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). While a prior restraint is not unconstitutional per se, there is a heavy presumption against its constitutionality. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59, 95 S.Ct. 1239, 1246-47, 43 L.Ed.2d 448 (1975); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971).
Bernard, 619 F.2d at 467. Generally, “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press, 427 U.S. at 559, 96 S.Ct. at 2803 (1976).
For a prior restraint to violate the
According to Bernard, a gag order is permitted by the
The district court‘s gag orders do not meet
Moreover, the orders were overly broad and were not the only reasonable alternative for addressing the problems the district court confronted. The district court prohibited rеlator from talking with anyone about the case under any circumstances except in the course of proceedings. This order is far more expansive than the order struck down in Bernard; it does not merely limit relator‘s communications about the case, it prohibits them altogether outside the courtroom. Although the district court in this case met with the parties in an effort to dispel confusion, and although it cautioned relator against causing further conflicts and misunderstandings, it did not reasonably exhaust these efforts or explore the use of disciplinary measures3 or sanctions against relator before drastically restricting her fundamental rights. Removing relator as guardian ad litem might alone have alleviated the conflicts. The district court neither exhausted reasonable alternative measures nor limited its prohibition to what was necessary to accomplish its purposes. Thus the gag orders cannot meet Bernard‘s second condition.
Finally, the district court did not follow procedures that would safeguard against an unwarranted infringement of relator‘s
Bernard does not hold that participants in civil court proceedings have a boundless constitutional right to speak extrajudicially about the litigation, or that a court is powerless to limit such speech in all circumstances. It dоes, however, set a high standard for any such limitation in recognition of the importance of free speech rights of attorneys and litigants. The issuance of gag orders in these circumstances did not meet this standard and therefore was an unlawful infringement upon relator‘s constitutionally protected freedom of speech and a clear abuse of discretion. Relator has no right to appeal these interlocutory orders until final judgment is rendered and meanwhile must suffer their irreversible and irrecompensable effects. She is therefore entitled to mandamus relief, which we have already granted, directing the district court to vacate the gag orders.
B
The Court reaches this result but not by the well-traveled road of
1
I say “insists” because the idea that this case should be decided on state constitutional grounds alone did not originate with the parties but with one Member of this Court.
JUSTICE DOGGETT: Are you asserting—you made reference to the Texas Constitution earlier—are you asserting free speech rights under the Texas Constitution as well as the U.S. Constitution?
RELATOR‘S COUNSEL: That is correct, Your Honor. I read article I, section 8 of the Texas Constitution as going beyond the First Amendment.
JUSTICE DOGGETT: Have you briefed that and cited us any authority on the broader protections afforded by the Texas Constitution?
RELATOR‘S COUNSEL: No, we haven‘t, Your Honor. I entered this case after the briefing was terminated.
JUSTICE DOGGETT: Are you interested in filing any supplemental briefing on that issue?
RELATOR‘S COUNSEL: We would welcome the opportunity to file supplemental briefing with this Court on the First Amendment issues.
There was no further discussion of
Thus, in considering the applicability of
2
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.
This provision in our state Bill of Rights, like the
Freedom and responsibility have a symbiotic rеlationship: they are part of one another, yet in tension. So here, relator contends that she should be free to communicate with the parties to this litigation, and the district court counters that relator‘s freedom should be restricted because of her responsibility not to cause misunderstandings which threaten the best interests of the minor plaintiffs.
In applying
3
The Court recites a little history: that Stephen F. Austin was jailed and Lorenzo de Zavala hunted down for being outspoken; that provisions guaranteeing free speech were included in the first proposed Texas Constitution in 1833 аnd the constitutions of 1836, 1861, 1866, 1869 and 1876; that framers of these constitutions represented a “heterogenous miscellany of opinions” different from the framers of the U.S. Constitution; and that after debate at times vigorous on topics including secession, these framers rejected the free speech provision of the Tennessee Constitution, as well as a provision regarding speech injurious of female reputation libelous without regard to its truth and a provision conditioning free speech on good motives. The provision proposed for the Texas Constitution in 1833 stated:
The free communication of thoughts and opinion, is one of the inviolable rights of man; and every person may freely speak, write, print, and publish, on any subject, being responsible for the abuse of that liberty. . . .
Proposed Constitution for the State of Texas (1833) art. 16, reprinted in Documents of Texas History 80 (Ernest Wallace ed. 1963). This earlier proposal was virtually identical to the Tennessee provision rejected in 1876 by the Texas framers, except only that the latter was limited to citizens. Tennessee‘s Constitution, first adopted in 1796, provides:
The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.
These interesting but casual historical notes, which the Court optimistically calls a “rather extensive historical discussion“, ante, at 22, indicate that free speech has always been very important in Texas, something I have never supposed was in dispute, but say nothing about how
4
The Court also examines the text of
The Court‘s contention that the language of
The close relationship between the free speech guarantees in the constitutions of Texas and many other states should not be surprising. The idea that freedom of speech is a fundamental right is not unique to Texas or any other state, but one inherent in our political structure and shared generally by the people of this nation. While the right has been described in somewhat different words at different times and places, the basic ideas certainly transcend state lines. Free speech is a national idea, not only a Texas idea. The Court‘s attempt to distinguish Texas free speech as significantly different from
5
The only serious effort the Court makes to determine how
The experience of the English nation and some of the American colonies under the tyranny of such systems is the reason this provision in the Bill of Rights [article I, section 8] is one common to the Constitutions of the American States, and for its incorporation, in like words, in the First Amendment to the Federal Constitution.
Id. at 76 (emphasis added). Tucker did not ignore the
The other two cases which utilize
Thus, all three of this Court‘s prior restraint cases have at least assumed a congruence between
While we have recently recognized the possibility that our state free speech guarantee may be broader than the corresponding federal guarantee, see O‘Quinn v. State Bar, 763 S.W.2d 397, 402 (Tex.1988), that broader protection, if any, cannot come at the expense of a defamation claimant‘s right to redress. Unlike the United States Constitution, which contains no explicit guarantee of the right to sue for defamation, the Texas Constitution expressly protects the bringing of reputational torts. . . .
These provisions must be given effect. While we may on occasion grant protections to defamation defendants beyond those required in the United States Constitution, as we have today in requiring public official and public figure plaintiffs to prove their actions against private defendants under the New York Times [Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)] standard, we have based those decisions on common law, not constitutional grounds.
Casso, 776 S.W.2d at 556 (emphasis added). The Court‘s quote is somewhat misleading. While Casso admits the “possibility” that
These five decisions, Tucker, Dallas General, Hajek, Casso and O‘Quinn, constitute the entirety of our
Finally, the Court refers to two opinions of our Court of Criminal Appeals, both of which held that newspaper publishers could not be held in contempt for publishing criminal trial testimony in violation of a court order. Both decisions were based upon
The truth of the matter is that all our prior caselaw either assumes a close identity between the
6
It is important to note that the Court does not tie its analysis of the gag orders in this case to the history of
a gag order in civil judicial proceedings will withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm.
Ante, at 10.
In deciding upon this test, the Court states that its analysis has been assisted by federal cases, and it cites two: Nebraska Press and Bernard. The Court criticizes both, although they both struck down the gag orders involved. Nebraska Press, it says, is a “fact specific” and “splintered” decision, ante, at 10, which is “too permissive“, ante, at 11, and “does not . . . sufficiently protect the rights of free expression that we believe that the fundamental law of our state secures“, ante, at 10. The Court does not explain how Nebraska Press is any more fact specific than this case, or how it leaves fundamental rights unguarded. Bernard, the Court says, was decided “in the context of
As flawed as the Court considers Nebraska Press and Bernard to be, it is difficult to conceive how the Court can state a test for gag orders under
The identity between
If the two constitutional provisions are really as different as the Court insists they are, it is a remarkable coincidence that the standards for applying them to gag orders happen to be identical. But if the standards really are the same, then there is no practical difference in the two provisions, contrary to the Court‘s insistence. Thus, the Court‘s analysis strains credulity and finally disproves its own thesis.
7
Without reference to the
Why? If state and federal constitutional law conflicted, or if federal law were undeveloped or nonexistent, an effort to expound state law might be productive. But these circumstances are not present here. The Court‘s effort in this case is like creating a new language in order to write a novel: it is possible to do it, but unnecessary when author and readers already share a common language. And one cannot help being skeptical of an author who claims to have written a book in a new language when the new language sounds a lot like English and the book reads a lot like MOBY DICK.
C
Most of the Court‘s opinion today is devoted to a defense of its new method of constitutional analysis which examines the state constitution first, and if a right is found to be protected, never reaches the federal constitutional question. The Court derives this approach from developments in other jurisdictions and our own caselaw. Neither supports the Court‘s new methodology.
1
The Court claims that its new method of constitutional analysis is part of a “trend” that “has met with broad approval” and has been endorsed overwhelmingly by state and federal courts as well as commentators throughout the nation. Ante, at 12. These claims are greatly exaggerated. Certainly, there are a number of courts and commentators who have advocated an approach to state courts’ decisions of constitutional issues like the one the Court uses today. But the thinking on the subject is not all one way, a fаct which the Court attempts to minimize. The truth is that a substantial body of legal commentators disagrees
courts take it upon themselves either to encourage or discourage state courts in applying state constitutions?)
As the Court notes, many of the authorities I have cited support judicial reliance upon state constitutions. So do I. Contrary to the Court‘s assertions, I do not argue that state constitutions should be ignored, or that federal law always controls their construction. I contend only
To portray its new methodology in a more favorable light, the Court contrasts it with a misstatement of this opinion:
Rejecting our careful and detailed analysis of the development and interpretation of article one, section eight, the concurrence advances an alternative—Texas judges should follow, but never lead, federal jurisprudence. . . . [T]he Texas judge should never diverge from the path taken by the federal judiciary. . . . [Nothing] should obscure the obligation of adherence to federal authority.
Ante, at 21. This, of course, does not even remotely resemble any argument I make here. Federal authority cannot determine state constitutional construction, and I do not argue that it can or should. There may be circumstances in which
The Court‘s attempt to focus constitutional analysis on state law to the exclusion of federal law is at odds with itself. If the Court acknowledges that the test for gag orders under federal law is identical to the test it adopts under
One extensive article surveying the thinking concerning “new federalism” explains some of the deficiencies in the Court‘s approach:
Several observers of recent state constitutional activism have argued that state constitutions should be regarded as the primary sources of individual rights and liberties and that state courts should interpret state constitutions without reference to “all the old, familiar short-hand” of federal constitutional law. According to this “primacy” model, the state court should consider assertions of federal constitutional rights only after all claims resting on state law have failed to provide the requested protections. The assumption underlying this model is that the states are the primary sovereigns and that state constitutions are the basic charters of individual liberties and of the limits of governmental authority. In this model, federal law, including the fourteenth amendment, provides only limited constraints on state autonomy.
The failing of the primacy model is that this assumption no longer resembles reality. Nor does it reflect the fact that litigants typically present state constitutional issues only when they expect an unfavorable federal constitutional result. Federal assumption of the dominant role in the federal system—and particularly
in the protection of individual rights—has rendered the primacy model obsolete. When federal protections are extensive and well articulated, state court decision-making that eschews consideration of, or reliance on, federal doctrine not only will often be an inefficient route to an inevitable result, but also will lack the cogency that a reasoned reaction to the federal view could provide, particularly when parallel federal issues have been exhaustively discussed by the Supreme Court and commentators. In a community that perceives the Supreme Court to be the primary interpreter of constitutional rights, reliance on Supreme Court reasoning can help to legitimate state constitutional decisions that build on the federal base. When a state court diverges from the federal view, a reasoned explanation of the divergence may be necessary if the decision is to command respect. For state constitutional law to assume a realistic role, state courts must acknowledge the dominance of federal law and focus directly on the gap-filling potential of state constitutions. This interstitial role recognizes federal doctrine as a settled floor of rights and asks whether and how to criticize, amplify, or supplement this doctrine to yield more extensive constitutional protections. The state court‘s role is not to construct a complete system of fundamental rights from the ground up. [Footnotes omitted.]
Developments in the Law—The Interpretation of State Constitutional Rights,
It cannot be denied that there are rights protected by state constitutions that extend beyond those guaranteed by the United States Constitution. Many state constitutional provisions simply have no federal analogue. Three of the most important decisions this Court has ever issued were based upon such provisions. Carrollton-Farmers Branch Indep. Sch. Dist. v. Edgewood Indep. Sch. Dist., 826 S.W.2d 489 (Tex.1992); Edgewood Indep. Sch. Dist. v. Kirby, 804 S.W.2d 491 (Tex.1991); Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex.1989). In construing state constitutional provisions which have no federal counterpart, reference to federal law is usually of little utility.
When state and federal provisions overlap or correspond, state law, as well as federal law and the law of other states, may be helpful in analyzing their proper application. To ignore all federal constitutional law in construing state constitutional provisions guaranteeing rights common to both is as wrong as ignoring state constitutional provisions altogether. If nothing else, it is inefficient to blaze a trail through the wilderness when there is a perfectly good highway there already, built at considerable expense, and well traveled. But the problems of the Court‘s method run even deeper. The Court does not merely ignore federal law; it rejects it. And the rejection has a disturbing tone to it. “[O]ur concerns are Texas concerns,” the Court asserts, a viewpoint that cannot be very comforting to out-of-state parties litigating in Texas courts.
2
The Court‘s claim that Texas courts have “recognized the importance of our state constitution” for more than a century, ante, at 13, cannot be disputed. Certainly, if state courts have not recognized the importance of our state constitution, they should have. This does not mean, of course, that any Texas court has ever employed the constitutional analysis used by the Court today. If the Court‘s new analytical method had really been followed in Texas for 100 years, as the Court means to suggest, it would hardly need the major defense the Court attempts to provide in this case. Today‘s opinion is significant only because the Court‘s methodology has not previously been the accepted model in Texas. In five of the cases the Court cites, we applied provisions of our constitution which have no federal counterpart: In re Baby McLean, 725 S.W.2d 696, 698 (Tex.1987) (
The Court‘s method is especially problematic in a case involving freedom of speech. As one commentator states:
There are good reasons for the state courts to look to federal law for guidance in the first amendment area, an area in which the issues now being addressed are intricate and difficult. The state courts are wrestling with essentially the same questions as the federal courts, and all approach those issues without a clear constitutional mandate. The states would therefore be foolish to ignore the convenient resource presented by the federal experience; an argument is no less persuasive because it relies upon or quotes an argument made elsewhere. Commentators who condemn state judiciaries for referring to federal doctrine when interpreting their own charters would force an irrational chauvinism on the state courts.
Developments in the Law—The Interpretation of State Constitutional Rights,
3
One argument the Court makes for its new method—avoidance of “unnecessary” federal review—is more subtle and requires more attention. The Court contends that its approach is more efficient because if a case is decided on state constitutional grounds, the United States Supreme Court cannot review it, and thus that Court‘s workload is reduced and the parties’ dispute more quickly resolved. As evidence of the savings to be achieved using its approach, the Court cites a total of four decisions by state courts in the past seventeen years in which review by the United States Supreme Court could have been avoided. Even if it is assumed that all four cases could have been decided on state constitutional grounds unreviewable by the Supreme Court, reducing that Court‘s workload by four cases in 17 years would not measurably improve its efficiency. Nor do delays in so few cases over so long a period indicate a problem of any magnitude. Efficiency is not a very compelling basis for the Court‘s argument.
That autonomy, the Court recognizes, is accomplished not by the state constitution itself, but by the interpretation of the constitution by the state‘s highest court. And this brings us to what lies at the very heart of the Court‘s position: the Justices of this Court, and not the United States Supreme Court, should determine the people‘s fundamental rights, and if our determinations are unsatisfactory, we can be replaced. By way of illustration, the Court cites Ex parte Rodriguez, 39 Tex. 706 (1873), as an unpopular decision resulting in the removal of the Justices of this Court by the Governor. This is the real sense in which federal review is “unnecessary“.
There are several difficulties with the Court‘s position. First, it weakens the validity of constitutionalism and the rule of law. The essence of constitutionalism is that certain principles, endorsed by thе people, become fundamental rules of law. How these rules apply in changing circumstances is often disputed, and the judiciary in this country has taken upon itself the ultimate responsibility of resolving those disputes, beginning with Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). The people and the other branches of government have acquiesced in this delegation of responsibility in part, I think, because of their perception that the judiciary is bound in its construction and application of constitutional provisions by definite rules of law which preclude judges from substituting their personal policies for constitutional principles in the guise of construing those principles. Adherence to these rules is essential to the validity and the credibility of constitutionalism. For this reason, constitutional construction must be founded upon a careful construction of each provision‘s language, purpose, history and intent, as well as upon precedent, theory and fundamental values. If the analytical process is inadequate or flawed, the result may appear to be based primarily on the judge‘s policy preferences and not the constitutional principle itself. Chief Justice Hughes’ observation cannot be avoided altogether: to some extent, at least, the constitution is what the judges say it is. CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED STATES 120 (1928). The statement continues to be true, not because of the fact that judges construe constitutions, but because of the way in which they do.
The Court decries the prospect that our constitution should “veer in meaning each time the United States Supreme Court issue[s] a new decision“, but cites with approval the change in constitutional construction occasioned by the Governor‘s removal of the justices of this Court following Rodriguez. The problem is the same. If a court‘s constitutional determinations are not in a very rеal sense mandated by factors distinct from the personal policy views of the justices, constitutionalism is reduced to judicial tyranny. It is no answer to say that “unsatisfactory” constructions of the constitution can be corrected
The second difficulty with the Court‘s view that we should define fundamental constitutional rights without interference from outside the state is that it is premised on a one-dimensional view of those rights which is rarely accurate. If relator were constitutionally entitled to say whatever she pleased, this would be an easy case. But her right to speak freely is not absolute, under either the
Finally, the we-better-than-they argument evinces an inappropriate chauvinism toward the federal courts and other state courts. The concept of freedom of speech in this country did not originate in any one state, nor does any one court have a monopoly on its application. As it happens, the federal courts have been at construing the First Amendment much longer and far more often than Texas courts have had occasion to consider
4
Having reviewed the Court‘s decision, the basis offered for it, and the defense of its new analytical method, I return to the question posed at the beginning: why should the Court go so far out of its way to invalidate the gag orders in this case on state constitutional grounds? The answer has nothing to do with the result in this case. We are unanimous in our judgment as to the outcome. The answer is not that relator‘s state and federal constitutional rights are different. So far as this case is concerned, they are identical. The Court‘s motives are ulterior. One commentator has observed that “some critics have argued that virtually all New Fedеralism proponents are motivated by the bare desire to achieve a liberal political agenda“. Gardner, supra note 10, at 772. Whether the agenda is “liberal” or “conservative” or something else altogether makes no difference. The vice is that a non-legal influence has been brought to bear on judicial decision making. This is not “new federalism“; it is “new judicialism“. The Court by its opinion today is vulnerable to this charge.
II
Relator complains that she and others have been denied access to court files concerning the pending litigation. She requests that the district court be ordered not to deny her access to these records. There are several affidavits before us, some tending to substantiate relator‘s posi-
The Court rightly concludes that we cannot resolve factual disputes in a mandamus proceeding and therefore cannot grant relator‘s request for relief. The Court is not content to leave the matter at that, however, lest any doubt linger as to the result it intends. Thus, it adds that if the district court did restrict access to its files, it abused its discretion and violated
III
I agree with the Court that the district court did not abuse its discretion in removing relator as guardian ad litem of the minor plaintiffs. A guardian ad litem may be appointed for a ward only if the ward‘s next friend or guardian has an interest adverse to the ward‘s.
The best interest of a ward is sufficient cause for the trial court to replace one guardian ad litem with another. A particular guardian ad litem must be removed or replaced if the ward‘s best interest requires. See Barrow v. Durham, 574 S.W.2d 857, 861 (Tex.Civ.App.—Corpus Christi 1978), aff‘d, 600 S.W.2d 756 (Tex.1980) (if guardian‘s interests are adverse to those of child, then it is abuse of discretion for trial judge not to appoint a new guardian ad litem); Peters v. Allen, 296 S.W. 929, 932 (Tex.Civ.App.—San Antonio 1927, no writ) (“if the trial court sees that the ward‘s interest is not properly protected, it
The law presumes that it is not in the ward‘s best interests for a guardian ad litem to supplant an otherwise qualified parent, next friend or guardian. Even if the guardian ad litem were a more effective representative for the ward, the rights of parents, next friends and guardians cannot be set aside in this manner. Furthermore, the service of a guardian ad litem is a burden on the parties to a case. That burden is necessary when the ward‘s rights cannot legally be served by a parent, next friend or guardian with conflicting interests. The burden is unjustified, however, when those conflicting interests dо not exist.
In the present case, the district court determined that no further conflicts of interest exist among the minor plaintiffs and their parents, next friends or guardians who would otherwise represent them in the litigation. The court explicitly stated in its order removing the guardian that because there was “no apparent conflicting or adverse interests between the Next Friends and minors . . . the appointment and retention of a Guardian Ad Litem [was] not necessary.” All the parties in this latter category have settled their claims in the litigation; only the minors’ claims remain. Not only are the parents and others now qualified to represent the minor children, they are entitled to do so without interference from a guardian ad litem.14 Therefore, I agree with the Court that the trial court correctly dismissed the guardian ad litem in this case.
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For these reasons, I concur only in the Court‘s judgment.
Kay CLEMENTS, Petitioner,
v.
Robert F. BARNES, Respondent.
No. D-2205.
Supreme Court of Texas.
June 17, 1992.