Stephen L. FELDMAN and the United States Government, Petitioners v. William J. MARKS, Sr., Respondent.
No. 95-1257.
Supreme Court of Texas.
Dec. 13, 1996.
934 S.W.2d 613
H. Campbell Zachry, Drew R. Heard, Van VanBebber, Robert E. Davis, Dallas, for respondent.
PER CURIAM.
After William J. Marks, Sr. was informed by the Office of Independent Counsel of the United States Government that he may have failed to file tax returns in certain years and that his tax returns in other years may have been incorrect, he attempted to obtain documents related to those returns from his former accountant, Stephen Feldman. When Feldman refused to cooperate because of his own concerns about the OIC‘s investigation, Marks, worried that Feldman was in ill health, petitioned the district court under
Marks appealed the district court‘s refusal to release the transcript under
The appellate record does not contain the sealed transcript, despite Marks’ request that “the statement of facts of the hearing“, which should have included the sealed transcript, be made part of the appellate record. Marks learned of the omission while the case was pending in the court of appeals but did not move to supplement the record. Recognizing Marks’ burden as appellant “to see that a sufficient record is presented to show error requiring reversal“,
We designated that sealed material as a part of [the record] in this case. There is no dispute about that. What we later found when it did not come forward is that the trial judge secretly had sent it to the Office of Independent Counsel. No notice was given to us that it was so dispatched. Later we understand it might have been returned by the Office of Independent Counsel, but we have never seen that, we have never been given access to it, and the trial judge secretly sent it to the Office of Independent Counsel.
Although he was not present in chambers for the discussion between the district court and OIC counsel, Marks disputes the United States’ account of what occurred there. Asked at oral argument whether he was willing to concede that OIC counsel disclosed grand jury information to the district court, as the United States contends, Marks’ counsel answered, “No, Your Honor, certainly I am not.” He went on:
What happened here went beyond an in camera submission of privileged documents: What went on was either argument treated as factual testimony by the judge, or factual testimony by the judge, and we were excluded from any participation. We had no right to cross-examine, no right to advocate our view, no right to make distinctions, no right to object. And this is critical I think: probably 90 percent of what that young lady [OIC counsel] had to say—and she‘s a fine lawyer, by the way; this is not intended as criticism—probably 90% of what she had to say to the court was in no sense protected. But we couldn‘t be there to assert that. We had no way of knowing what was happening behind that closed door for 45 minutes. And what happened when the court exited was the judge said: counsel and I have developed a plan; we would like to offer you this plan.
If an appellant fails to present a complete statement of facts on appeal, the appellate court must presume that the omitted portions are relevant and support the trial court‘s judgment. Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.1990) (per curiam); Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex.1987); Murray v. Devco, Ltd., 731 S.W.2d 555, 557 (Tex.1987). Without the sealed transcript, we are obliged to presume, as was the court of appeals, that the transcript contains grand jury information made secret by
It is possible to decide Marks’ contentions without recourse to the sealed transcript, but we are wary of doing so, for our concern is not limited to the decision of this case. We must be mindful of the effect of this case on others. The procedure used by the district court was extraordinary. The United States cites only a few cases allowing in camera, ex parte hearings: In re Grand Jury Proceedings, 33 F.3d 342, 351-353 (4th Cir.1994); In re John Doe, Inc., 13 F.3d 633, 636-637 (2nd Cir.1994); In re Grand Jury Proceedings, 867 F.2d 539, 540-541 (9th Cir. 1989); In re Antitrust Grand Jury, 805 F.2d 155, 161-162 (6th Cir.1986); In re Eisenberg, 654 F.2d 1107, 1112 (5th Cir.1981). We do not say that these cases are all apposite to the present case, only that they show that the procedure was very unusual. Also, ex parte hearings are disfavored in this State as a rule. Remington Arms Co. v. Canales, 837 S.W.2d 624, 626 n. 3 (Tex.1992); Barnes v. Whittington, 751 S.W.2d 493, 495 n. 1 (Tex. 1988); Global Servs., Inc. v. Bianchi, 901 S.W.2d 934, 938 (Tex.1995). Again, we do not say that these cases are dispositive of the present one, only that they show that a procedure like the one used in this case is ordinarily improper. In these circumstances, we are reluctant to decide an issue involving the secrecy of federal grand jury proceedings and the right of a party to be present at court all proceedings based on presumptions.
Should it be apparent during the submission or afterwards that the case has not been properly prepared as shown in the transcript, or properly presented in the brief or briefs, ... [the appellate court] may ... make such orders as may be necessary to secure a more satisfactory submission of the case....
We read this rule to authorize an appellate court to order an amendment to the appellate record when necessary to a proper presentation of the case. See also
As we have said, the burden is ordinarily on the appellant—in this case Marks—to present a complete record in an unrestricted appeal, and appellant‘s failure to discharge this burden ordinarily results in presumptions against appellant‘s position. We do not question the wisdom of this rule, but in extraordinary cases—as this one certainly is—the appellate court must have residual authority to complete the record to assure that justice is done.
The dissent “admit[s] that there may be circumstances in which this kind of unusual action by our Court would be appropriate“, but complains that the “court gives no guidance about the circumstances under which it will take it upon itself to perfect the record when none of the parties have asked for it“, and “see[s] no reason to give this case special treatment.” Ante at 616. The short answer to the dissent is that an appellate court may use the authority granted by
Accordingly, the district court is directed to immediately transmit to the Clerk of this Court the sealed transcript in this case.
GONZALEZ, Justice, dissenting from Order to Supplement the Record.
The parties have briefed and argued this case, and we have accepted the submission. Marks asks us to hold that he is entitled to prevail regardless of what is contained in the sealed record. Thus, this case presents us with a straightforward legal issue, and there are no difficulties in answering the questions presented. Rather than rule on the merits
The Court acknowledges that it was Marks‘s burden to present a record sufficient to establish error requiring reversal. See
[O]ur complaint is that the procedure that was followed was dead wrong, and that procedure can be inferred from the statement of facts and transcript that is before this Court today. One doesn‘t have to see what [the Government‘s lawyer] had said to the trial judge to know that the procedure that was followed is in violation not only of
Rule 76 , but fundamental principles of due process.
Marks‘s counsel never intimated that, alternatively, we should order supplementation of the record.
While it is usually desirable to decide a case on a full record, as the Court acknowledges, under our current rules, perfecting the record is the appellant‘s duty.
More fundamentally, the appellate rules reflect a policy that our Court decide a case in the same posture that was presented to the court of appeals. Ultimately, we focus on whether the court of appeals’ judgment was correct. We may reverse only if there is error in the judgment, and we must render the judgment the court of appeals should have rendered.
I admit that there may be circumstances in which this kind of unusual action by our Court would be appropriate. However, our Court gives no guidance about the circumstances under which it will take it upon itself to perfect the record when none of the parties have asked for it. The Court‘s justification is that this is a special case “which has no close precedent in Texas law, which involves by all accounts a procedure that is extraordinary in any jurisdiction, and which involves fundamental interests.” 934 S.W.2d at 615. This rationale provides no clues for future litigants to predict when the appellant may be relieved of the duty to perfect the record. There is no explanation as to what distinguishes this case from other cases of first impression with novel procedural questions and what makes this case and the rights implicated here any more “fundamental” than the others we deal with every day. If standards exist for when our Court, on its own, will order supplementation of the record, then the Court should clearly articulate those guidelines before taking such precipitous action. We must play the hand that the
I see no reason to give this case special treatment. I would review the case in the same posture as presented to the court of appeals and resolve it as the parties have asked. I would not order supplementation on our own motion without establishing criteria for future cases. Because the supplementation changes the complexion of the case and the standard of review, basic fairness requires at a minimum that the parties be allowed to re-brief and re-argue the case.