*1 Individually ROBINSON, Barbara the Estate of Representative Petitioner, Deceased, Robinson,
John CO., INC., In & SEAL
CROWN CORK Mundet
dividually and as Successor Respondent. Corporation,
Cork
No. 06-0714. of Texas.
Supreme Court 7, 2008.
Argued Feb. 22, 2010.
Decided Oct. April
Rehearing Denied *2 Law, University of Texas School Mundy Mundy, Singley, Michael
Jeffery C. TX, LLP, Austin, for Barbara Singley, & Robinson. *3 Hankinson, Lev- Hankinson
Deborah G. LLP, Dallas, TX, for The Estate of inger Robinson, Deceased. John III, Kimberly Rose Frank G. Harmon James, P.C., Stuart, Crain, David & Catón Law University of Houston Cen- Crump, TX, ter, Houston, Phillips, Bak- Thomas R. L.L.P., Austin, TX, “Rocky” Botts C.W. er Law, Rhodes, College South Texas Houston, TX, Stacy Sharp, Baker Rogers Austin, TX, L.L.P., for Crown Cork Botts Inc. Company, & Seal Shook, Hardy & Bácon Lopez, Manuel Houston, TX, L.L.P., for Amicus Curiae League. Texas Justice Civil Rey Rodriguez, Fulbright & Jawor- O. Dallas, ski, L.L.P., TX, for Amicus Curiae Council, Advisory Inc. Liability Product Cruz, Morgan Lewis Rafael Edward Davis, LLP, Houston, TX, Bill Bocklus Texas, Attorney of the General Office TX, General, Austin, of the Solicitor Office Texas. The State of for Amicus Curiae Coe, Risley, Thompson, F. Cous- Kevin Houston, TX, Irons, L.L.P., Ami- ins & (cid:127) Company. 3M cus Curiae P.C., Parsley, Parsley, E. Lee E. Lee. TX, Austin, Texans for for Amicus Curiae Lawsuit Reform. opinion delivered the
Justice HECHT Court, Justice in which Chief JEFFERSON, MEDINA, Justice Justice WILLETT, GREEN, and Justice Justice joined. LEHRMANN case is we address The issue corpo- limits certain a statute that whether in- liability personal rations’ successor Hankinson, exposure violates jury claims of asbestos Hankinson Lev- Deborah G. Einhorn, laws LLP, Dallas, TX, prohibition Elana S. inger I, world, 1,000 section 16 of the ees around the contained article about of whom Conroe, work in applied pend- Texas to a Texas at facilities in Sug- Constitution1 does, Land, ar ing parent action. hold and Abilene. In We $1,193 judgment company reported billion gross therefore reverse $7,938 profit court of remand the ease to appeals2 and billion net sales.4 the trial court. In predeces- November Crown’s sor, a New corporation York with the same
I name, which was then the nation’s largest 2002, petitioner Barbara Robinson crowns, acquired major- manufacturer of (“Robinson”) husband, John, and her Tex- ity Mundet, *4 of the stock in another New residents, John, alleging as filed that suit insulation, corporation, York besides which age had mesothelioma from contracted also ninety manufactured crowns. Within workplace exposure products. asbestos days, in February Mundet sold all its had happens, As often John used several assets related to its insulation business. life, products such over the course of his years later, February Two in twenty-one and the Robinsons sued defen- companies merged. pre- Crown’s dants, including Crown & respondent Cork Crown, decessor was reincorporated as Co., they jointly Seal that were all alleging Pennsylvania corporation. and severally respect liable. With acknowledges Crown that under New Crown, claimed during the Robinsons that law, Pennsylvania York and it succeeded to John’s in Navy service the United States which, liabilities, Mundet’s as pertaining to
from he worked with asbes- business, Mundet’s asbestos have been tos insulation manufactured Mundet hefty. years, Over the Crown has been Cork that when Corporation, and Crown in named thousands lawsuits claiming merged, Mundet Crown succeeded to damages exposure from to asbestos manu- Mundet’s liabilities. factured Mundet. While ac- Crown quired million,
Crown itself in engaged has never Mundet for about $7 by May products.3 paid manufacture or sale asbestos 2003 Crown had over $413 settlements, It in bottle-caps, parent manufactures metal known million and Crown’s “crowns”, industry company in and other estimated its 2003 Annual Re- packaging goods. port that reach payments for consumer Crown could mil- $239 20,000 over lion employ- its affiliates have more.5 Mundet’s insurance aggregate I, ("No investors.crowncork.com/phoenix.zhtml?c= § 1. ... art. Const, made.”). law ... shall be 85121&p=irol-reports, and Form 10-K fil- ings http://www.sec.gov/cgi- are available at (Tex.App.-Houston 2. 251 [14th S.W.3d 520 bin/browse-edgar? CIK= 0001219601& 2006). Dist.] action=getcompany). argued 3. Robinson the lower courts that 5. Crown 2003 Annual Holdings, opera- Mundet’s asbestos business was still in Report Inc., (Form 10-K) 9, (Mar.. 2004) (the majority tion when Crown Mundet's became Com- shareholder, and Crown pany that should be held probable and estimated that its estima- operated to have the business several for liability pending ble and future for claims sold, weeks before it was S.W.3d at million). range $239 $406 would between argument but she not does make here. parent’s Report Crown’s 2009 Annual esti- through payments $230 mates future 2019 of 2009 Annual Holdings, Report Inc., 4. Crown million. Crown 2009 Annual Holdings, Inc., iii, 51, n 10-K) (Mar. 1, 2010) (Form 23, 64. Report (annual reports http:// are available online at $8,683 commonly million.6 have coverage asbestos should been totaled (again known.9 corporation For a covered first, not its suc- At Crown did contest here), exceptions some relevant Robinsons liability cessor to the “the successor cumulative asbestos-related consequently, compensatory damages; ... are limited to fair market liabilities granted trial court the Robinsons’ motion gross value of total of the trans- assets summary judgment on is- partial feror determined as of the time of the time, But Texas sue. about the same consolidation”,10 “the merger including enacted 149 of aggregate coverage any applicable under Code, Texas Civil Practice and Remedies liability to the insurance was issued limits corporations’ certain succes- ... transferor collectable to cover succes- liability claims.7 Chapter sor for asbestos cap sor This (with asbestos-related liabilities”.11 not relevant applies exceptions does contin- apply successor that here) to “a corporation domestic or a for- ued the con- the asbestos business after ... eign corporation that has done busi- By merger.12 restricting ap- solidation or ness this state and that is a successor 18, plication cap to a prior corporation which became May a successor *5 which, in engaged selling had never asbestos by 1968”8 —a date appears thought, dangers products have of and had to an- itself succeeded article, paid 6. Prior to amounts Calci claimants The Occurrence Pleural Workers, by $80 Among were covered a fund of million result- Asbestos Insulation fication ing from 1985 settlement with carriers in- 132 Ann. N.Y. Acad. of Sci. On suring through 13, 1968, Crown when Cork May the American Conference of Crown Cork became self-insured. Hygienists Governmental Industrial reduced Crown Inc., 2002 Annual Holdings, Report workplace the recommended limit for asbes (Mar. 2003). was, according tos in to the the air. This record, legislative earliest date after "[t]he R.S., Leg., 7. Act of June 78th ch. warnings quasi-gov- when Selikoff’s even a 17.01, § Gen. Laws 2003 Tex. 892-896. organization in emmental the United States suggested tighter in standard for asbestos 149.002(a). § 8. Tex. Civ. & Rem.Code Prac. Tex., workplace”. Leg., R.S. H.J. 78th corporation "a "Successor” is defined as 1, 2003) (statement (June legislative incurs, assumes or curred, has or assumed or in- by Rep. intent Nixon on con amendments liabilities”, successor asbestos-related cerning successor asbestos-related civil liabili 149.001(4), broadly "any §id. defined lia- as (Journal arising mergers) ties from certain bilities, unknown, whether known or asserted http://www.journals.house.state. available at unasserted, contingent, or absolute or ac- 8r/html/home.htm). tx.us/hjrnl/7 unaccrued, liquidated unliquidat- crued or or ed, due, due or or to become are related 10. Tex. Civ. Prac. & Rem.Code 149.003(a). § any way in claims asbestos that were as- by corporation sumed or incurred aas 149.004(c). § 11. Id. merger result of or with a in connection or consolidation”, 149.001(3). § id. Asbestos ("The 149.002(b)(5) § 12. Id. in limitations damage property claims include claim for apply shall not to ... a suc- Section 149.003 personal injury or made, "wherever or whenever consolidation, that, merger cessor after a or losses, indemnification, damages, mining continued in the business asbestos contribution, of, arising or other relief out distributing selling or the business of or on, any way or based related to asbestos”. manufac- asbestos fibers or business of 149.001(1). §Id. turing, installing distributing, removing, or asbestos-containing Although growing products which were the there was awareness of substantially prod- dangers same those exposure the mid-1960s, to asbestos same as before distributed, manufactured, Irving previously widely J. Selikoff ucts re- Dr. transferor_”). moved, dangers by credited publicizing those in his or installed liability other’s for asbestos claims the Act of Chapter Because which 149 was liability time of that was part, by when extent House Bill passed more than a fully appreciated, supporters vote in two-thirds both the House and Chapter protect 149 intended to what Senate,15 it took immediately effect ap- on they called the “innocent successor”. Governor,16 proval which occurred on June
Chapter 149 contains a choice-of-law provision, applicable, full- making “to the Bill 4 House was tort massive reform est permissible extent under the United legislation, of Chapter 149 was a Constitution, States ... to the issue very piece pages small of a 52-page —two successor asbestos-related liabilities” in Chapter bill.17 149 was not included in the Furthermore, Legisla- Texas courts.13 bill filed but was added when the bill ture made to all Chapter applicable the House came to floor an amendment actions: by the sponsor. offered bill’s When asked
(1) commenced on or after the effec- which “in particular” manufacturers would Act; tive date of this protected, sponsor replied that he (2) pending Texas, on that effective and was date “advised there’s one in trial, or any which the new trial or Although Crown Cork Seal”.18 House motion, following retrial or oth- debate appeal, days, on whole bill took debate erwise, on or after begins that effective over just lasted an hour.19 amendments,20 date.14 unfriendly Four one of § litigation panel 13. Id. provided 149.006. for the transfer *6 of for pre- cases consolidated and coordinated R.S., Leg., 14. Act of 78th June ch. (§ 3.02), proceedings tightened trial venue 847, 17.02, § Tex. Gen. 2003 Laws 895. (§§ 3.03-.04), provided joinder statutes for of 4.04), (§ responsible parties revamped third 15. The vote in each chamber well over was proportionate responsibility among joint tort- two-thirds, House, yeas nays to 32 in the (§§ 4.06-.07), recovery feasors restricted in Tex., (June Leg., H.J. of 78th R.S. 6041-6042 (§§ 5.01-.02), product liability cases limited I, 2003), Senate, yeas nays and 27 to 4 in the required supersedeas the amounts for bonds Tex., (June Leg., S.J. of 78th R.S. 5008 (§ 7.02), limiting rewrote statutes health care 2003). (§ 10.01), liability liability claims limited the Ill, ("No passed § 16. teachers, art. Const, fighters, fire volunteer and other Tex. by Legislature, except general appro- the 11.01, the 11.05, government (§§ employees act, priation go 15.02-05, shall take effect or into force 19.01-02), and further limited re- ninety adjournment days until after the covery exemplary and noneconomic dam- enacted, session at it was unless the (§§ 13.02-.09). ages Act of June shall, by a vote of of all two-thirds R.S., Leg., 78th ch. 2003 Tex. Gen. Laws House, the members elected to each other- 847. direct; by yeas wise said vote to be taken and nays, upon journals.”). and the entered See 18. Debate on H.B. 4 on the Floor of the Co., Mann v. States Utils. Gulf House, (Mar. 2003) (state- Leg., 78th R.S. (Tex.Civ.App.-Austin writ (archived Nixon) Rep. ment of Joe video ref’d) (“[Wjhere passed a statute is with the http://www.house.state.tx.us/ at available by emergency required when clause vote media/chamber/78.htm) (video time 5:04:24- Governor, approved by effec- becomes 40). immediately operative.”). tive and 19. Id. at 4:52:40-6:09:50. Among things, other House Bill 4 limited (§ 1.01), attorney provid- fees in class actions 7, 9, 10, offer-of-judgment ed 11 to procedure for an Amendments Amend- attorney shifting could result in ment to Committee fees Substitute House 2.01), Tex., (§ expenses Leg., created a multidistrict Bill 4 were tabled. H.J. 78th inap- cently received from a much smaller Chapter have made which would lia- merged “successor asbestos-related with which it plicable predecessor incurred be- that were assumed or [many] ago. bilities decades date”,21 by wide effective all failed fore [its] To eliminate that unfairness —and Senate, Chapter In the 149 was margins. from corporations even to save successor revised drew one significantly but a new bankruptcy proposed have —some chamber, obser- comment this brief limiting liability rule for as- especially hearings chair as vation committee liabilities ac- bestos-related successor “This, members, is commenced: solely merger. quired through issue. and Seal asbestos Crown Cork only up would be liable to the successor I put have this bill is what What we gross predeces- asset entire value of agreed arrangement to be understand whom it the asbestos- sor from received parties this matter.”22 between all of the related liabilities.23 legislative findings No or statement Chapter 149 as a The statement described accompanied Chapter 149. But purpose “by concept” being “new was tested report conference after the committee step providing one at taking a time House, Bill 4 was adopted House relief to innocent successor realistic those sponsor legislative inserted “statement of at corporations financially most with- peril Journal, in the House which did not intent” every liabili- limiting 24 type out of asbestos policy explained mention Crown statement, According to ty.” Chap- basis for as follows: ter 149’s restrictions had been crafted corporation currently up A liable legislation that “the benefits ensure injuries its total value all it causes. limited should be ... to those successor corporation merges If that with a much corporations who were the most innocent however, larger corporation, the succes- potential about hazards asbestos” injuries corporation sor liable for the financial greatest and “were also (even predecessor though caused peril, especially threatened those successor) any way by not caused in *7 bankruptcy”.25 up higher to the much value. successor’s summary promptly In the case of unknown Crown moved for long-tailed and law, liabilities, larg- judgment requesting a much under new asbestos-related establishing can order its suc- easily bankrupted prior er successor be that liability liabilities it inno- to the be vacat- asbestos-related cessor Robinsons (Mar. 25, 2003) (text Affairs, 30, 2003) (State- Leg., (Apr. R.S. 818-819 of amend- 78th R.S. Comm, Ratliff, Chairman, http://www.capitol.state.tx. available at ments Bill ment of Sen. S. us/Searcb/AmendSearchResuIts.aspx?Leg= Affairs) (archived at on State video available 78&Sess=R&Bill=HB4Hse=l&Sen=0& http://www.senate.state.tx.us/avarchive/ l&Type=AlI& Auth=All&2nd= l&3rd= http://www.senate.state.tx.us/75r/Senate/ Action=All&Dateon=&Srch=simple&All=& (video commit/c570/c570_78.htm) time 19:00- Any=&Xact=&Xclude=&Custom=&ID=hl 19:23). QCrLY8x). Tex., Leg., 23. HJ. 78th R.S. 21. Amendment 9 to 6 to Commit- Amendment 1, 2003). (June (available at tee Substitute House Bill http://www.capitol.state.tx.us/tlodocs/78R/ amendments/pdf/HB00004H29.PDF). 24. Id. 6043. Hearings Proposed on the Substi- Senate Id. Comm, tute for H.B. 4 State Before the S. on (Several expo- their claims for asbestos defendants ed that had settled that $859,067 sure be dismissed. Crown asserted totaling amounts and been dis- summary judgment evidence estab- missed.) Without addressing these statu- merger lished that with Mundet oc- its actions, tory Crown to moved sever the May it had curred before that judgment summary it final make engaged never Mundet’s insulation appealable,32 and the granted trial court business, and that its successor asbestos- stayed the motion. The court pro- also liabilities, already related more than $413 ceedings against Robinson’s case million, greatly exceeded the fair market other defendants. gross value total deter- of Mundet’s assets On appeal, Robinson contends that required mined as the statute26 —about Chapter is a prohibited retroactive law (some million in million in $15 $57 I, by article section -16 of dollars). the Texas Con- Thus, contended, Crown well-settled, The law stitution. she Chapter 149 from as- barred Robinsons serts, their recovering response, claims. has no authori- argued the Robinsons that the record did ty extinguish rights, vested and that applicability Chapter not establish the her cause of against accrued action Crown 149,27 did, or if it the statute violated sev- right. is a A majority the court provisions eral Texas Constitution.28 of did not appeals “find the law on vested be as consistent and lucid as granted motion. trial court Crown’s Mrs. Robinson claims”33 and concluded later, Bar- Days John Robinson died.29 “no answer” provides clear bara petition Robinson amended her Chapter whether 149 anis invalid retroac- statutory wrongful assert death30 sur- Relying vival tive law.34 actions31 Crown and the oth- on this Court’s deci- Barshop County v. Medina er Under- remaining defendants still in the case. sion in ("The Legislature pass any § 26. See Rem.Code 149.004. shall not ... ... Prac. & Tex. Civ. law_”). special disputed 27. The Robinsons Crown's valuation died, 29. After John Robinson asserted the ad- and, gross of Mundet’s total assets as noted argument ditional on motion for new trial above, had Crown’s assertion that Mundet XVI, § violated art. 26 of the ceased its business before Crown insulation corporation ("Every Texas ... Constitution stock, acquired so that en- Crown never homicide, through ... commit a business, gaged in that even as Mundet’s ma- act, omission, gross neglect, wilful shall jority latter stockholder. Robinson raised the damages, responsible, exemplary to the argument *8 appeals. court of 251 widow....”). surviving ... S.W.3d at 539-540. Robinson does not make argument in either this Court. 71.002, 30. See Tex. Civ. Prac. & RemCode §§ 71.009. argued Chapter 28. The Robinsons 149 as I, § applied Texas Constitution 13 violates art. 31. See § id. 71.021. ("All person open, every be courts shall and injury remedy for an him ... done shall have 32. The Robinsons had asserted claims law.”); I, ("No by § due ... course of art. 16 by disposed were Crown that sum- law, impairing retroactive obli- mary judgment, they but were later nonsuited contracts, I, made.”); gation shall art. be and dismissed. (“No § person’s property shall be taken adequate compensation....”); ... without (Tex.App.-Houston 33. S.W.3d I, ("No § art. citizen shall 2006). of this State be Dist.] [14th deprived property except by ... ... the due Ill, law-”); § course of the and art. Id. at 527. 34. District,35 Legislature given to the the must ground Water Conservation the court held police power, a law is uncon- exercise of whether decided that court unconstitutionally 149 is not depends not on that stitutionally “(1) it is within a vested retroactive because infringes upon whether it “ (2) narrow- police power a Valid exercise Legislature’s whether it is but on (a) the most innocent by ly protect police power tailored safety litigation and wel- public hard hit asbestos safeguard corporations po- (b) pool an exercise of asbes- potential fare’ ”.36 Whether to leave the but valid, appeals court of possible.”41 power large lice as tos defendants determined, depends on the sum- Accordingly, the court affirmed
(1)
mary judgment.42
appropriate
the act is
whether
accomplish reasonably necessary majori-
with the
disagreed
The dissent
police
scope
purpose within
unconstitution-
assessing
ty’s approach
whether the ordinance
power,
Legislature has
argued
It
that “the
ality.
being arbitrary
reasonable
laws
to enact retroactive
police power
no
on individu-
unjust or whether the effect
16”, even if reason-
of section
violation
that it is out- of
unduly
als is
harsh so
Barshop notwithstand-
ably exercised.43
sought to be ac-
proportion to the end
insisted,
weight of
“the
ing, the dissent
n
complished.37
of the vest-
requires
...
the use
precedent
analysis.”44 The dissent con-
ed-rights
purpose
“the
The court found that
cause of action is
that “an accrued
fi-
tended
[Chapter
was enacted —the
149]
caselaw
right”,45 rejecting some
a vested
viability of the State and busi-
nancial
not vested until it
that “an accrued claim is
exercise of
in the State —is a valid
nesses
by appeal”.46
final
judgment
is reduced to a
further found
police power.”38 The court
reasoned,
Thus,
“[b]ecause
the dissent
left “the
that the restrictions in the statute
accrued and were
Mrs. Robinson’s claims
large as
potential
defendants as
pool
[Chapter
trial court when
pending in the
having valid claims
possible for claimants
effect,
held vested
took
Mrs. Robinson
prod-
damages resulting
149]
from asbestos
that could not be
ucts”,39
rights in these claims
“detrimental
thereby limiting the
irrespective of the fact that
destroyed”,47
the Robinson
impact
plaintiffs
such as
Mrs.
not bar all of
Chapter 149 “does
to the
proportion
so that
was not out of
[it]
injuries
remedy for the claimed
Robinson’s
Concluding that deference
sought”.40
end
Constitution,
(Tex.1996).
and that
Texas
section 56 of the
35.
40. Id. at 532. at 45. Id. 549.
41. Id. at 533. 46. at 550. Id. rejected The court 42. 251 S.W.3d 541. at arguments, Chapter that Robinson’s other two III, by 47. Id. special prohibited law article 149 is a companies posed because other she can sue not of all the Robinsons’ claims against protected”.48 assessing the Without rea- Crown. action, Legislature’s sonableness But days John died a few after summary Chapter dissent concluded that is un- judgment was granted, and Robinson constitutionally retroactive because the amended petition her to add statutory “Legislature new created a substantive de- wrongful death and survival actions. The liability
fense to successor and made it record does not that reflect Crown moved cases, immediately in all pending effective for summary judgment on Robinson’s stat- destroying Mrs. Robinson’s vested claims, utory trial court ever against her accrued tort claims disposed of them specifically. The trial Crown”.49 court parties assumed, appear have granted We petition Robinson’s for re- correctly, summary that the judgment was view.50 of appeals, Another court also di- nevertheless final because Robinson’s stat- vided, opposite has since reached the re- utory wholly claims are derivative of sult appeals from the court of in this claims, John’s adjudi- common-law and the case.51 cation of the latter effectively disposed of the former.53
II But even though summary judgment matter, As a important threshold is final, was an analysis of the retroactive note precise issue before us. The Rob- effect common-law insons’ pleading on which Crown moved claims and statutory presents claims dif- summary judgment asserted common- ferent As considerations. we discuss more negligence causes of action below, fully argues Crown that in deter- strict liability, and claimed compensatory mining whether prohibi- the constitutional herself, and punitive For damages.52 Bar- against tion applies retroactive laws bara claimed for John’s damages medical case, it expenses incurred, significant is liability that she successor had as well as her a creature anguish, loss consortium and mental of statute. The same argu- punitive lived, damages. Had John ment could be wrong- made Robinson’s summary claims, judgment would have ful death though dis- and survival 48. cept expenses may 550. that funeral also be recov they ered if wrongful were awarded in a 49. Id. at 551. action). Any recovery death obtained flows to those who received would have it had he (Jan. 11, 2008). Sup.Ct. 51 Tex. J. 292 immediately prior obtained it to his death— Co., Cork & is, heirs, Crown Seal legal representatives his Satterfield (Tex.App.-Austin S.W.3d 190 pet.). no estate. Defenses could have been raised against injured person may a claim 52. Robinsons also asserted claim for also be raised the same claim asserted conspiracy, but it was later nonsuited. estate_ person’s Wrong heirs and Co., ful death also actions are derivative of the Ingersoll-Rand 53. Russell v. (Tex. 1992) ("The (citing rights.”) decedent's survival ac Tex. Civ. Prac. & tion, called, 71.003(a) ("This wholly § as it subchapter is sometimes deriv [cre Rem.Code rights. ative of the ating wrongful decedent’s actionable ap death cause of action] wrong is that which the decedent suffered plies only injured if the individual would have damages before his death. The recoverable bring injury been entitled an action for the are those which he himself sustained while he if the individual or had had lived been bom damages was alive and not claimed inde alive.”) (other omitted)). citations (ex pendently by plaintiffs action the survival *10 the reasonableness of instead on focusing the Robinsons claims the common-law police pow- of its Legislature’s exercise Also, ar- Robinson asserted. previously er; laws against retroactive prohibition constitu- for our important gues that is proper exercise not invalidate does claims common-law that the analysis tional impairment pri- despite power both accrued 149 had by Chapter barred position sup- finds rights.54 vate As each pending lawsuit subject of were the law, by returning begin in case we port our But nei- was enacted. before the statute conclude that the principles. We first statutory claims. her ther is true of of the constitutional history purpose even not briefed —or parties have of its a fuller statement provision require but have these issues mentioned — previously have than we proper application wheth- regarding arguments confined their given. unconstitutionality is an Chapter er the common- applied as retroactive law A asserted before law claims the Robinsons country, in this as Unit- There exists death, by adjudicated were John’s in Court observed Supreme ed States arguments These summary judgment. Products, “pre- Film Lcmdgraf v. USI intimate no we address. We ones legislation sumption 149 limits Robin- Chapter whether view on jurispru- in deeply rooted our [that] and surviv- statutory wrongful death son’s cen- legal and embodies a doctrine dence[ ] they are deriva- except al claims insofar Republic.... [T]he older than our turies adjudicated specifically claims tive of the legal effect of conduct ‘principle that the by the trial court. ordinarily under the should be assessed conduct took that existed when the Ill and universal human place has timeless ”55 decide whether Before we can in an concurring opinion In a appeal.’ retroactive, we unconstitutionally 149 is case, noted that this Justice Scalia earlier dispute over parties’ must first resolve the principle applied to be mak- proper standards Greeks, by recognized was Robinson, like the ing determination. law, Romans, by English common appeals, in the court of
dissenting opinion long It been Napoleon. has Code simply whether argues that the test of American law.... a solid foundation period; have been impaired, Story “retrospective said that Justice so, regardless of prohibited, if the law is ... unjust; ... generally laws are it. enacting nor Legislature’s legislation reasons accord with sound neither majority opinion principles of counters that the with the fundamental Crown compact.”56 social was correct appeals in the court of Council, form, Advisory Liability and Product following amicus curi- have submitted 54.The Inc. support ae of Crown: the State briefs Texas, League, American Texas Civil Justice (1994) U.S. 114 S.Ct. 55. 511 Association, Federation Tort National Reform Corp. v. (quoting Aluminum & Chem. Kaiser Foundation, Legal Independent Business Bonjorno, 110 S.Ct. 494 U.S. of the United States Chamber of Commerce J., (Scalia, concur L.Ed.2d 842 America, of Manufactur- National Association ring)). ers, Property Casualty Insurers Association of Council, 855-856, America, Kaiser, Chemistry Na- S.Ct. American U.S. (citations J., (Scalia, concurring) omit- of Mutual Insurance Com- tional Association ted). panies, Company, for Lawsuit Re- 3M Texans *11 The United States Constitution ercise of judicial function, or more expressly prohibit does not retroactive simply by legislature.60 —trial laws, antiretroactivity but “the principle With respect post to ex facto laws: expression” finds in its prohibitions of bills attainder, laws, prohibition, letter, post ex facto and state is not to pass laws impairing obligation law concerning, cont and after the fact; racts.57 The thrust of easily stat but the plain each and obvious meaning ed: and intention of prohibition this;
The Ex Post Facto
flatly prohib-
Legislatures
Clause
of the several
states,
application
its retroactive
penal legis-
laws,
pass
shall not
after a fact
lation ....
prohibited]
States [are
from
citizen,
done
subject,
which shall
passing
type
another
leg-
have
fact,
relation to such
pun-
and shall
islation, laws “impairing
Obligation
ish him for having done it.61
of Contracts.”
... The prohibitions on
And
prohibition
as for the
laws
9-10,
§§
“Bills of Attainder” in Art. 1
impairing
obligations,
contract
Chief Jus-
prohibit
legislatures from singling out
tice Marshall observed:
persons
disfavored
meting
out sum-
broad,
Taken in
mary punishment
past
sense,
its
conduct.58
unlimited
clause would be an unprofitable and vex-
application
But
prohibition
of each
atious interference with the internal con-
must be
object
measured
to be
State,
cerns of a
unnecessarily
would
Thus,
obtained.
while the bill of attainder
and unwisely embarrass its legislation,
originated
English
as an
parliamentary act
and render immutable those civil institu-
sentencing to death someone who had at-
tions, which are established
purposes
tempted to overthrow the government,59
which,
of internal government, and
the proper scope of the Bill of Attainder
subserve
purposes,
those
ought
vary
Clause, and its relevance to contempo-
with varying circumstances. That as
rary problems, must ultimately be
the framers of the constitution could
sought by attempting to discern the rea-
never have intended to insert
in that
Constitution,
sons for its
inclusion
instrument,
provision
so unnecessary,
and the evils it was designed to elimi-
mischievous,
so
repugnant
nate. The ... Bill
so
of Attainder
Clause
”
general spirit,
narrow,
was intended
the term
not as a
“contract must
technical
(and
outmoded)
therefore soon
understood in
to be
a more limited sense.
prohibition, but
implemen-
rather as an
That it must be understood as intended
tation
separation
powers,
to guard against a power of at least
general safeguard against legislative ex-
doubtful utility, the abuse of which had
266,
1483;
57.Landgraf,
(internal
511 U.S. at
oppressive.”
S.Ct.
quotation
marks
I,
("No
omitted)).
§
see also U.S.
Const,
art.
cl. 3
Bill
post
of Attainder or ex
facto Law shall be
I,
("No
passed.”);
§
id.
Landgraf,
art.
cl. 1
State
been for “ret- violating governed by purpose, its from must be in future legislature the “[extending in simply to means That anterior roactive” property. to right the constitution, have to which oc- or effect matters scope of the the formation past; retrospective”,64 had curred legislation prevailed of course States, all, simply, more means “retrospective”, which even if not in many, of, man, to, past contemplative of man “[d]irected the confidence weakened construing In our first case the be- time”.65 all transactions and embarrassed City clause, individuals, retroactivity with a by dispensing DeCordova tween of Galveston, Hemphill Chief cau- engagements. of Justice performance faithful mischief, restraining prohibition this with- by applying tioned that To correct it, to the to be achieved regard objects the State produced which out power any pass “to have were forbidden would legislatures con- of impairing obligation law of which would signification, a latitude is, tracts,” respecting of contracts existing past or legislation on embarrass individual under which some property, matters, an to such extent as rights something benefi- claim a could difficulties, and, in to create inextricable himself; that, the clause since cial to fact, it was incapa- to demonstrate that in construction in the constitution must A practical retro- application. ble of limitation, may be con- it receive some a law spective literally law means confined, fined, to cases ought be backwards, things that are looks or on within description; of this to cases if it be be the same as or taken to past; remedy.62 it was mischief intended retroactive, things to act on means past. that are If it be understood have contained Texas Constitutions meaning, regard without general prohi- as well literal provisions as a these intent, laws, having then all effect on retrospective bition retroactive or matters, or retroac- or prohibition against past transactions laws.63 This law, Woodward, attainder, law, post ex retroactive 17 facto Trs. Dartmouth Coll. v. 62. of 518, 628-629, Wheat.) (4 obligation 629 any impairing 4 L.Ed. law of con- U.S. or N.J., (1819); tracts, made....”); 431 U.S. Trust N.Y. v. see Co. be shall Const, of Tex. of 21, 1505, 1, L.Ed.2d 92 I, 97 S.Ct. 52 (same); U.S. § 14 art. Const, of Tex. (1977) ("Although ap- Clause I, Contract (same); § 14 art. Repub. Const, of Tex. literally proscribe 'any' impairment, pears ("No retrospective Rights § or ex 16 Dec. of prohibition one and ... ‘the is not an absolute law, impairing the post facto or laws obli- like a read with exactness is not to be literal made.”). gations of contracts shall be ” (quoting Home mathematical formula.’ Convention, prohibi- Constitutional Blaisdell, Bldg. 290 U.S. & Loan Ass'n against retrospective laws was omitted tion (1934))). S.Ct. L.Ed. 413 Rights, first Bill of from the draft of the Convention Journal Constitutional I, ("No § art. bill of attain- 63. Tex. Const, (1845), against retroactive Texas but one law, law, der, any post facto or ex passage by just final laws was inserted before obligation shall impairing the of contracts law Rusk, Jefferson amendment Thomas floor I, made.”); § art. be Const, Tex. formerly Supreme Chief Justice of the Court attainder, law, ("No post facto retro- bill of ex Texas, id. law, any impairing the obli- law active contracts, made; ... nor gation of shall be (2d English Dictionary 64. 13 The Oxford passed depriving party of be shall ed.1989). contract, any remedy enforcement of made.”); which existed when contract was I, ("No Id. at 801. § 14 bill of art. Const, Legislature’s which the modification slightest powers unmatched al- away low it to remedy recovery sweep for the settled expecta- made of the suddenly tions accrued, and without individual- wrongs redress *13 ized consideration. Its done, responsivity to equally prohibited are with those political pressures poses a risk that it impair which divest the obli- rights, may be tempted to legis- use retroactive contract, act, gation or make an lation as a means of retribution against done, it innocent at the time was subse- unpopular groups or individuals.69 as an quently punishable offence.66 argued, As James Madison “retroactive The prohibition constitutional was not in- legislation special also opportuni- offer[s] tended to so operate indiscriminately. ties for the powerful special to obtain “Mere is not sufficient to in- retroactivity improper legislative benefits.”70 oper- validate a statute.... Most statutes Still, not all legislation retroactive is conditions, change existing ate to it bad. Landgraf also notes: every that is unconsti- Retroactivity often provisions serve en- tutional.”67 tirely legitimate benign and purposes, presumption against retroactivity whether respond emergencies, objectives has two fundamental identified mistakes, correct prevent circumven- by First, in Supreme Landgraf. Court tion of a new statute interval reasonable, protects the people’s settled immediately preceding passage, or expectations. simply give comprehensive effect to a new law Congress salutary.71 considers
Elementary
considerations
fairness
provisions
Constitutional
limiting retroac-
dictate that individuals should have an
legislation
tive
must therefore be applied
opportunity
what
to know
the law is and
to achieve their intended objectives pro-—
to conform their conduct accordingly;
tecting
expectations
settled
and preventing
expectations
lightly
settled
should not be
legislative
abuse of
power.
free,
disrupted....
dynamic
In a
soci-
ety,
both
creativity in
commercial and
B
artistic endeavors
fostered
a rule
DeCordova,
Hemphill
Chief Justice
gives people
law that
confidence about
wrote that
are deemed retrospec-
“[l]aws
the legal consequences of their actions.68
tive and within the
prohibi-
constitutional
words,
In other
tion,
the rules should not
operation,
which
retrospective
de-
change
game
played.
after the
has been
stroy
impair,
rights”.72
vested
For this
Second,
the presumption
he,
retroac-
formulation
prohibition,
like
tivity protects against
legislative many
since,
abuses of
judges
cited Justice Story’s
power.
statement
Society
Propagation
in
(1849).
Prods.,
Landgraf
66. 4 Tex.
68.
v. USI Film
511 U.S.
265-266,
114 S.Ct.
72. 4 Tex.
century later:
than a
Wheeler,
the New
conceded more
Court
applying
Gospel
While
rights.
life of
prohibition
“Remedies
constitution’s
Hampshire
apply the
precedents recognize
laws:
our
against retroactive
remedy
right],
[between
distinction
statute;
away or
takes
[E]very
two terms are
recognize that the
they also
ex-
under
acquired
impairs
inseparable.”76
often
laws,
obligation,
a new
or creates
isting
new
duty,
a new
or attaches
imposes
obscurity
right/remedy
dis
disability,
respect
to transactions
problems
using
typifies
tinction
must be
already past,
considerations
*14
for un
rights”
vested
as a test
“impairs
retrospective....
deemed
cases il
retroactivity, as our
constitutional
“impairs vest-
explained,
cases
But as both
DeCordova,
In
we held
a
lustrate.
stat-
special meaning. “[A]
has
rights”
ed
for debt en
of limitations on suits
statute
remedy,” Justice
merely regulating a
ute
executed notes
after the defendant
acted
added,
prescribing
“and
the mode
Story
plaintiff
they
to the
but before
payable
impair
not
proceeding”
does
and time
merely
plaintiffs
limited the
col
matured
Hemphill
Chief Justice
rights.74
vested
was not
remedy and therefore
un
lection
agreed,
constitutionally
The idea
retroactive.77
alto-
remedy
away
unless the
be taken
extinguished,
had
that the debt
not been
with conditions
gether, or encumbered
collection, might
means of
be
only the
impracti-
render it
that would
useless
by most
as a distinction
viewed
creditors
Or,
provisions
it.
if the
pursue
cable to
rea
a difference. But
Court
without
unreason-
remedy,
be so
regulating
of a statute of
soned
absence
as,
right,
as to amount
a denial
able
when
were
limitations
the notes
executed
limitations,
instance, if a statute of
plaintiff
right
give
not
a
did
causes,
all
existing
barred
applied
Rights
In
Com
sue forever.
Texas Water
not
a reasonable
remedy or did
afford
Wright,
a statute
upheld
we
mission
prosecution; or if an
for their
period
permit
authorizing
of a water
forfeiture
law,
by
were made
either
attempt
non-use,
years
concluding
ten
after
revive causes
implication
expressly, to
reasonably expect
holders could
permit
barred;
legisla-
already
such
of action
inherently
of the “conditions
enforcement
within the
retrospective
would be
tion
per
that a
permit,
to their
attached”
prohibition, and would
intent of the
free
included no
to be forever
mit
wholly inoperative.75
therefore
remedy to enforce those conditions.78
a
Moreover,
requirement
a
use
words, in
applying
prohibition
other
In
for the
“to assert and
retroactivity,
impairs a was valid
State
a law that
interests in
except
rights
its own
impair
right,
protect
not
a
remedy does
Likes,
reflection,
City
Tyler
In
we
On
water.”79
sometimes.
further
(in-
(Tex.1971)
(No.
(C.C.D.N.H.1814)
22 F. Cas.
76.
73.
Smith,
omitted).
Bryant
Laws
13,156);
quotation
see
Retroactive
ternal
marks
Rights, n.9
and Vested
Tex. L.Rev.
(1927) ("Justice Story's
a retro-
definition of
at 480-482.
77.
frequently
perhaps
active law is
the one most
cited.").
Wright,
held that that the in functions proprietary governmental, extinguished. the law only a thereby limiting liability, affected DeCordova, eases, In these three of five a claim remedy, right, though not a even Likes, that, Wright, it important was perhaps ant recover less or would as it happened, people had involved A.D., in In re that a all.80 And we held ample opportunity after change in the removing the period statute limitations protect years law to their interests: four enforcing support child decrees order DeCordova,84 to sue in years seven to re withholding wages ing affected sume water pumping Wright,85 in two remedy, though expanded even enforce months to sue Likes.86 But in other ment the debt.81 cases, two A.D. and Corning, Owens cases, of these inter significant each persons by changes affected had the law adversely changes impacted by ests were respond. no time to We have held since law, yet the Court that vested held change the law need provide impaired. were not results of *15 grace period prevent an impairment entirely seem in a cases reasonable rights.87 vested sense, very general although the claimants “Statutes limitations proced view, in the cases doubtless had a different ural”,88 change may but sometimes a im they not clear how driven but it is were pair rights. 1887, vested In in we stated protecting rights. a concern for vested City Mellinger v. Houston case, Carter, that when v. Corning recent Owens law “shall in operate favor of a defendant right/remedy we did not mention the dis against as a defense a claim in made upholding required tinction a law that him, must be right then it said that a application statute of limitations of exists, vested, residence, has become fixed or and is plaintiffs state of even beyond legislat reach of retroactive though doing so barred actions in pending Thus, said, ion”.89 we extending a law simply Texas courts.82 We held that for a so as to period who limitations resurrect barred plaintiff has not sued within time by the claims permitted unconstitutionally state in which he resides would retroac arose, only years and in which the cause of tive. But two earlier Unit action Supreme suit in Texas “is ed in barring inequitable”.83 not States Court had held Nevertheless, the plaintiff pending Campbell just in a Holt such a 489, (Tex. 1997). 80. 962 S.W.2d forfeiture in 1954. The statute was enacted 1957, sought until and forfeiture was not 244, (Tex.2002). 81. 73 S.W.3d Wright, 464 1967. S.W.2d at 644. 560, (Tex. 1999). 82. 997 S.W.2d plaintiff 86. The had seventeen months to sue the statute enacted two before was and 83. Id. after months to sue it was enacted and before Likes, it took 962 S.W.2d effect. at 502. plaintiff promissory 84. The sued on three notes, 1840, maturing all executed in and Barshop Cnty. Underground Wa 87. Medina 1843, 1842, 1844, Dist., respectively. and The stat- ter Conservation passed (Tex. 1996). and ute of limitations was DeCordova, plaintiff did sue until 1849. Inc., D., Hughes, Tex. at 470-471. Inc. v. Keco R. & Baker (Tex. 1999). plaintiffs permits 85. The held in 1918 issued they stopped pumping but water in 3 S.W. 68 Tex. we have the times which remember process due not offend reviving claims did who think our living; be- and those Constitution been States under United destroyed the law nor in ac- republican, when right cause “no constitution is had been lost.”90 remedy which republican restores a con- great with the cordance Texas, the Su- Campbell arose out institutions, re- should ception of our 1870 deci- cited this Court’s preme Court March, the second of member that from held Crawford,91 which in Bender v. sion March, twenty-ninth limitations suspension that a retroactive government republican we had no the aftermath of Civil during statutes period years Four in Texas. law, prohibited not a War was war. bloody unrelenting were one of would have been claims that though even military were a 1865 to 1870 we From Mellinger Camp- cited were not.92 barred gained who a vested he government; bell, wishing] to be understood and “not during limitations right in the statute of correctness”, distin- questioning period, gained portion of that at least a guarantees guished process the due leges inter arma silent. because from the constitutions state and federal rights gain vested Vultures and wolves But of retroactive laws.93 prohibition if these be slaughtered, armies are when antiretroactivity process while due rights.96 rights differently, Mel- may protect vested why a limitations bar linger explain did not there speak plainly: dared to Bender not in in one context but is a vested and then there are vest- are vested *16 words, a law that is In other other. fairly all which rights, and not laws ed not also of- might prohibitively retroactively impair vested be said to a vested fend but not because process, due constitutionally The prohibited. are rights right vested for the right for one is not a to the aftermath of is not confined problem cite Bender. Mellinger other. did Nor one com- Many years ago, the Civil War. mentator lamented: later, we held in generation A Wilson that, after that “it is the settled Work undertaking to impulse on One’s first by barred the statute a cause has become vested laws and discuss retroactive . limitation, a vested the defendant has But right. a vested rights is to define a def right rely to on such statute as happens, that appears, it as soon when more repeated that view ense.”94 We fix one decides to impossible, this is Inc. v. Keco R. recently Hughes, in Baker retroactive laws and upon attention D., may be & Inc.95 The earlier confusion follow the matter of definition to leave attributable to the time in which the issues discussion, as- precede rather than insight: arose. Bender offered right that a suming purpose for the destruction, to when it is immune vested rights [T]hey who talk about vested liable not vested when it is and that it is bar of limitations should at least 122 Tex. 29 L.Ed. 94. 90. 115 U.S. 6 S.Ct. curiam) (1885). mandamus (per (permission to file denied). petition 629-630, 209. 91. Id. S.Ct. (Tex.1999). 95. 12 S.W.3d 92. 33 Tex. Bender, Tex. at 759. Mellinger, 3 at 252. S.W. c retroactive, destruction, by legislation.
to which this simplification the task In two cases this has held Court that involve, to out to plan seems turns be constitutionally retroactive laws were not illusion, however, an something of when prohibited, despite their impairment of happens, appears, rights, they also soon vested because were each a valid of the Legislature’s police exercise of retroactive preconceived one’s notions first, power. The Barshop Medina laws are irreconcilable with data n County Underground Water Conservation one has to deal.97 District,99 challenge involved a facial to the impairment What constitutes vested Act, Aquifer Edwards Act.100 Before the rights eye is too much the behold- groundwater Aqui- withdrawal of from the er to serve as a test for unconstitutional fer was unrestricted. The Act created an retroactivity. regulate Authority groundwater with- drawals, withdrawals, annual capped re- hardly vividly can be demon- This more quired operated under per- wells by today’s opinions strated than in Justice mits, gave users, preference existing Wainwright and Justice The ar- Medina. permit restricted withdrawals under a guments authorities marshaled in ably based on the owner’s historic use.101 The deep each show a division over whether a operated Act retroactively basing the retroactive restriction on a cause action right groundwater on historic use and does, rights. impairs vested Of course it if gave no opportunity pre- landowners claim, is a flimsy, no matter how vested water, right serve their prior unlimited not, claim, one, right; strong if a even I, but we stated “article section 16 judgment must be reduced to before it absolutely does not bar the right. dispute becomes a vested over from enacting such statutes.”102 Acknowl- whether something to call a vested edging that “retroactive affecting laws appears driven not so much what the recognized legally consequence words mean as of ap- *17 invalid”,103 secured are we nevertheless plying impairment the label—that is held that valid the police exercise of “[a] prohibited. as one Or commentator has power Legislature by safeguard the to the it: put long recognized “it has been that public safety prevail welfare can and over the right’ conclusory term ‘vested is finding unconstitutionally a a law —a that is right is when it been so far vested has retroactive.”104 The had in- perfected away it cannot that be takeii the findings cluded the Act that Author- “ “impairs rights” statute.”98 The vested ity necessary protect was ‘to terrestrial test down a life, thus comes to this: law is aquatic municipal and domestic and unconstitutionally if it retroactive takes supplies, operation existing water the industries, away away. development what should not be taken the and economic Smith, R.S., Bryant Leg., 97. May Retroactive Laws and Vested 100. Act of 73d ch. (footnote Rights, 5 L.Rev. 1993 Tex. Gen. Laws 2350. omitted). Barshop, 101. at 624. Hochman, Supreme 98. Charles B. The Court 102. Id. at 634. Constitutionality Legis- and the Retroactive lation, L.Rev. Harv. Id. at 633. (Tex. 1996).
99.
The second In re Code, said, Furthermore, Family we “[a] 161.001 the Texas tive effect.113 section terminating grounds several upset person’s which lists not a settled law that does An had add- rights. amendment parental upon reliance expectations reasonable list, pro- (1)(Q) thus ed subsection unconstitutionally law not retroac- is parent termination when a “has viding for view, person In our “could tive.” engaged in criminal conduct knowingly would not reasonably expect that the State and un- parent which the incarcerated for his provide environment act .safe than able to care for child ‘for less he imprisoned.”115 while was children filing peti- years two from the date of Barshop argue Robinson does not whether tion’ ”.109 issue was wrongly were decided but never- and A.V. unconstitutionally was retroac- amendment insists that the test for unconstitu- theless parent to a convicted before applied tive as retroactivity is a law is tional not whether amendment, we not- enacted. it was Legislature’s a reasonable exercise of ed, focusing on primarily prospective, was impairs but police power whether and ina- imprisonment “the future parent’s view, In her be “vested rights. child, for the not the criminal bility to care purposes depending on for different parent conduct that committed context”,116thereby constitu- affecting the But to amend- past.”110 the extent operation, pro- provision’s tional and thus effect, we held it ment had liability hibiting limiting retroactive laws Recognizing was not unconstitutional. preserving for asbestos claims but not laws parent’s constitutionally-protected that “a children. groundwater protecting his relationship [is] or her children differently: pro- right be altered Stated to sue presumably cannot *18 law”,111 while through impairment tected from retroactive application May (quoting Id. at 360. Id. at 634 Act of 110. 105. R.S., 1.01, Leg., § ch. 1993 Tex. 73d 111. Id. at 361. 2350, 2350-2351). Laws Gen. (quoting Barshop, at 633- 112. Id. 925 S.W.2d 30, 1993, (quoting May Act 73d 106. Id. 634). R.S., 1.06(a), Leg., § ch. 1993 Tex. Gen. 2350, 2355). Laws (quoting Tex. Fam. Code 113. Id. 153.001(a)(2)). § Barshop,
107.
law is not because the to property by public other interests justify seems to pre- end the means. The present themselves as a branch of what sumption is that retroactive law is uncon- is called the police power of the State. stitutional without a compelling justifica- The boundary at which the conflicting tion that does greatly upset settled interests balance cannot be determined expectations. by any general advance, formula in but points go
Robinson would ... argues further. She line by fixed deci- prohibition against because the retro- sions that this or that concrete case falls active laws is part of the Texas Constitu- on the nearer or farther side.125 absolute, Bill Rights, tion’s it is
weighing government’s interest IY enacting precluded retroactive law is by Using the out, standards we I, have set we article section 29 of the Texas Constitu- must now tion, determine chapter whether states: is unconstitutionally retroactive as applied To guard against transgressions of the to Robinson. high powers delegated, herein we de- clare that everything in this “Bill of Rights” is excepted out of the general A
powers
government,
and shall forever
We first consider the nature of
inviolate,
remain
and all laws contrary
the rights
by
claimed
the Robinsons and
thereto, or to the following provisions,
Chapter
impact
149’s
them.
shall be void.
directly
does not
restrict
the Robin-
But Robinson’s argument begs the ques-
sons’ common law action
personal
inju
tion. We do not disagree that the consti-
ries
exposure
due to
to asbestos in the
tutional prohibition is
ap-
absolute when it
workplace. Rather, it supplants the usual
plies, as are the right worship,
the right
choice-of-law rules for determining what
speech,
free
the freedom from unrea-
state’s
liability
successor
law should apply
seizure,
sonable search and
the guaranty
in asbestos cases in
by
Texas
mandating
law,
course of
due
and the other protec-
law,
Texas courts to apply Texas
then for
tions of the Bill Rights.
But section 29
the first
prescribes
time
limits on that
does not determine whether and how the
if,
liability,
here,
even
successor liability
Bill
Rights’
provisions apply. What
arose under
the law of another state.
Justice Oliver Wendell Holmes observed
Crown argues
by
allowing for an ex
about all rights applies
right
to the
to be
pansion
liability
beyond
free
the tortfeasor to
from retroactive laws:
include a
successor
merger, successor
All rights tend to declare themselves
liability
largely
nature,
remedial in
absolute to
logical
their
extreme. Yet
event,
in any
is a creature of
all in fact
statute in
are limited
neighbor-
which there can be neither right
hood of
nor ex
principles
policy
which are
pectation.
other than
Crown
those on which
cites
particular
Dickson Navar
founded,
ro County
District,
and which
Levee Improvement
become
strong enough to hold their
gave
own when a where we
immediate effect to a stat
point
certain
is reached. The limits set
ute
repealed
a special, statutory cause
McCarter,
125. Hudson
Cnty.
Water Co. v.
U.S.
28 S.Ct.
Owens which adopted a than are the plaintiff rights pro- allow no more tion was in Texas law to by in due of law. unliqui- than he would have had tected course An time sue here value, claim little or as dated have no his state residence.127 example when the cause of action has liability in this case is But the successor recognized been or the elements law; parties Texas not a creature here, recovery proved. cannot be But Chapter New York agree that without like the a claims Robinsons’ have become Pennsylvania apply, law would and that tort, recovery mature and predict- more states, those under the law of Crown’s able, especially when the injury is meso- unquestionable. So liability is successor thelioma, a uniquely asbestos-related dis- Dickson, a like in which the this is not case taken in the Discovery ease. case shows a action it Legislature abolished cause of that Robinsons’ claims had a substan- created; Chapter had itself 149 limits lia- in tial basis fact. Their to assert bility under other laws. created states’ was real important, them and it was in Coming, Nor is this a case like Owens firmly vested in the Robinsons. Legislature changed which the the statute plain- argues that a nonresident that when limitations so Crown Mundet was selling in gain advantage by suing tiff would no still asbestos insulation to state; than in exposed ship Texas rather his home John Robinson was boiler rooms, Chapter disadvantages Texas resi- reasonably Robinsons could not nonresidents, dents, as who sue expected well as have Mundet to be all pay able to arise, in Texas rather than New York or the claims eventually Crown that would Nevertheless, Pennsylvania. company Crown has that would merge with point purely deeper pocket that choice-of-law are rules like Crown. But those are subject procedural change, expectations often the prohibition courts, certainly by but if against protects. retroactive laws it chooses to do so. Robinsons could well have then expected, now, as rule permitted However, extinguishes the recovery, many their others’ before Robinsons’ claim and all claims other such them, changed would not they after had Texas, it does Crown and while filed suit to their abrogate claim. Legisla- indirectly, so extinction was the specific argues ture’s intent. An in main- interest Crown Robinsons have taining an cause alleged they established common-law all the have defendants greater jointly severally than an interest are action is sued liable and they likely choice-of-law rules. We have held that an that to recover all their unliquidated was not personal-injury damages already claim from those who have property interest under the common settled and than the others remain. We law,128 assignable speculate but now other what might hap- it is refuse about property rights protect- pen. interests.129 If Crown would re- otherwise be prohibition against ed sponsible injury, constitutional the Robinsons’ then Franco, 126. 135 S.W.2d Tex. 128. Graham v. 1972). (Tex. Carter, Corning
127. Owens (Tex. 1999). Prop.Code § 129. 12.014. *22 Crown, either the Chapter probable claims or amount of by insulating Crown’s exposure. recovery to which Robin- reduces the the requires the other de-
sons are entitled Legislature findings made no to Either pay fendants to Crown’s share. justify Chapter 149. Even statement way, expecta- disturbs settled the statute principal House sponsor fails to tions. legislation show how the serves substan- public tial interest. No doubt Texas will We Chapter therefore conclude reducing liability benefit from of an significantly a substantial interest impacts State, and in employer investor but the well-recognized have in a Robinsons extent of that benefit on is unclear common-law of action. cause any event, And in record. there is nothing
to indicate that it level rises to the public interest Barshop involved in and B A.V. Chap We consider whether next argues that public Crown interest public ter 149 interest. Crown serves recognized by has been other states’ legis- argues helps statute alleviate the enacting legislation. latures in similar We already crisis litigation asbestos that has legislatures are aware ten other state resulting in bankrupted many companies, chapter that have enacted laws similar to jobs lost on the econ and a burden State’s state, Pennsylvania, 149. In one the legis- omy. recognized has retroactive,131 fully just chap- lation was context,130 severity of in another that crisis is, but Supreme ter 149 Court of Penn- so in Bill enacting but it did not do House sylvania has held the to violate statute Chapter contrary, and 149. On the the Open provision Pennsylvania Courts legislative fairly chap record clear that adopted Constitution.132 Statutes in three help only ter 149 Crown was enacted Florida, Indiana, and Wisconsin— states — and no one Crown itself been else. has apply pending actions if trial has not unable identify company us other adopted commenced.133 Statutes three affected 149. There is evi Chapter Dakota, Ohio, other states —North and 1,000 employ dence that has about Crown application Oklahoma—have the same un- ees Texas about the same number unconstitutional,134 it to be less is found retirement, employees former on applies only South statute Carolina’s three here. operates facilities actions filed after the statute’s effective Crown that it continues sued asserts to be date,135 Georgia’s to ac- applies Texas, on asbestos claims but the record tions that accrue after the statute’s effec- concerning Mississippi’s is silent the number of those tive date.136 The effect of R.S., 2010); (West (West § May Leg., 130. Act 79th ch. Wis. Stat. Ann. 895.61 (finding § Tex. Gen. Laws 169 2010). litigation “asbestos crisis” in Texas (2010); § 134. N.D. Cent.Code 32-46-06 throughout country). Ohio 2010); (West § 2307.97 Rev.Code Ann. Okla. (West. 2010). (West § §§ 131. tit. 15 Pa. Cons.Stat. 1929.1 Ann. Stat. Ann. 2010). § Ann. to -160 S.C.Code 15-81-110 Ieropoli Corp., v. AC&S 577 Pa. (2010). A.2d 919 (see § -8 136. O.C.G.A. 51-15-1 to (West 51-15-3, Note, Notes, §§ § 133. Fla. 774.001-.008 Editor's Stat. Ann. 2010); provisions); §§ 34-31-8-1 to -12 date and non-codified effective Ann. Ind.Code concurring filed a WILLETT claims is Justice pending accrued statute on LEHRMANN in which Justice opinion, Other states’ the text.137 unclear from *23 joined. by interest served public of the perception ambigu- is at best legislation
retroactive filed a Justice WAINWRIGHT ous. which Justice dissenting opinion, joined. that the real tempting to think JOHNSON It 149 on the Robinsons Chapter burden participate not did Justice GUZMAN be in their shoes will plaintiffs and other the decision. Crown, its the benefit to light compared employees, and former current and concurring filed a Justice MEDINA case, oth- and most The Robinsons’ State. opinion. it, many defendants and like ers involves I opinion because join I the Court’s many pock- from
large settlements funded presump- law is agree that Chapter 149 on individ- impact ets. compel- without a tively “unconstitutional relative to the slight, ual cases greatly up- not justification that does ling on Crown without impact cumulative such and that no expectations” set settled impor- think that an 149. But we Chapter here. 335 S.W.3d justification exists prohibi- tant reason for the constitutional agree further the “constitu- I preempt is to against tion retroactive laws retroactive laws prohibition against tional compel- of interests absent weighing every vested from not insulate does Indeed, be- precisely it is ling reasons. every give way it nor does impairment, perceived rectification of cause retroactive Legislature’s exercise reasonable and even injustice seems so reasonable finally, I Id. at 145. And police power[.]” are few necessary, when there especially arti- here violates agree Chapter prohibits constitution complain, that the I, 16 of the Texas Constitution cle section it. retroactively abolish operates because it or property rights, vested the Robinsons’ as indi- legislative record Accepting “significantly in the words of the actions, we con- cating the reasons for its Court— interest the Robin- impacts a substantial interest served public clude that well-recognized common-law sons have Chapter slight. 149 is [*] [*] [*] write cause separately because I do of action.” 335 S.W.3d at not share I disdain for traditional the Court’s reasons, For we hold that these view of analysis nor the dissent’s common- applied as to the Robinsons’ analysis. claims, I, 16 of article section law violated ap- The court of the Texas Constitution. case is
peals’ judgment is reversed and the I court for further remanded to the trial does, the twin begin, I as Court proceedings. Retroactivity served Clause: goals
(1)
legisla
against
individuals
protects
unfairly deprive them
enactments that
concurring
tive
Justice
filed
MEDINA
Corning
expectations, Owens
legitimate
opinion.
L.2007,
(text
§
to -11
79-33-1
§§
p.
Ga.
of SB
Ann.
137. Miss.Code
http://www.legis.state.
passed,
available at
182.htm).
ga.us/legis/2007_08/fulltexl/sb
Carter,
(Tex.1999),
the underlying property
S.W.2d
interest and its
impairment,
legislative
ultimately
it ensures that
enact
concluding that the
single
out individuals for
possessed
ments do
Robinsons
a substantial interest
(dare
preferential
arbitrary
treatment. See
in a
claim
say
well-founded
I
a vest-
(Tex.2003)
A.V.,
In re
ed property
right)
Chapter 149 retro-
retroactivity
(upholding
chal
actively impaired. Although the Court is
lenge
pursu
because “the State [was]
reluctant to
the term
rights,”
use
“vested
aim”);
ing
punitive
a retributive
see
preferring
speak
instead
of “settled ex-
*24
Prods.,
Landgraf
pectations,”
also
v.
Film
511
USI
I believe we
talking
about
244,
20,
1483,
284-85 & n.
U.S.
114 S.Ct.
thing.
same
(1994).
States
Court has
retro
II
lawmaking
special opportu
active
creates
right may
Whether a
regarded
be
rewarding
nities for
favored constituencies
vested
depends
of
considerations
“fair
of
expense
at the
disfavored ones. Land
notice,”
reliance,”
“reasonable
and “settled
266-67,
graf, 511 U.S.
right,
suggest
courts
Several federal
however.
de-
facts the law
given
consequence
in an
right
no vested
plaintiff
has
to en-
is entitled
person
clares that one
pur-
the claim is
tort claim until
accrued
claim, or to re-
another
force
majority
judgment.1
final
sued to
urged by
of a claim
sist the enforcement
however,
to afford
appear
jurisdictions,
another.
accrued tort
protection
constitutional
Houston,
68 Tex.
City
Mellinger v.
final-judgment require-
without a
claims
(1887);
also Owens
see
S.W.
ment.
(observing
at 572-73
Corning, 997 S.W.2d
Supreme
example,
the Kansas
For
notice,
fair
rea
“[considerations
prop
that a
rejected the notion
has
Court
reliance,
expectations
settled
sonable
claim should
erty
in an accrued tort
determining
when
role”
play
prominent
Resolu
judgment.
final
not vest before
protection);
entitled to constitutional
Fleischer,
Kan.
Corp.
Trust
tion
Co., 108
Light
Power &
v. Tex.
Middleton
*25
360,
497,
500-06
892 P.2d
(observ
(1916)
556,
96,
560
185 S.W.
disagreement about vest
noted some
court
of
common law
that a vested
ing
federal
rights, particularly
ed
legisla
right that the
property
action is a
courts,
apparent
that “the
suggested
but
affect).
tion at issue did
divergent
not as
conflicting holdings [were]
Legislature
that the
have also held
We
Id. at 503.
they initially appear[ed].”
accrued causes of
remedies for
may affect
Instead,
that the out
the court observed
action,
remedy is not entire-
long as the
so
final-judg
espousing
a
come
decisions
See,
v.
e.g., City
Tyler
ly
away.
taken
generally be ex
requirement
ment
could
of
(Tex.1997);
489,
Likes,
502-03
“(1)
factors,
as:
by other
such
plained
Watkins, 114 Tex.
H. Pierce Co. v.
Phil
(e.g., proce
at stake
rights
nature of the
(1924)
905,
153,
(orig. pro-
263 S.W.
907
(2)
substantive, remedial),
dural,
how the
City
v.
also DeCordova
ceeding); see
rights
were the
(e.g.,
were affected
(1849) (ex-
Galveston,
470, 477-78
4 Tex.
abolished
completely
partially
and en-
exception
remedy
the remedial
plaining
any substitute
legislation; was
(3)
afford-
dorsing
Hampshire
strength
a New
decision
nature and
provided),
action).
to accrued causes
interest
furthered
ing protection
public
of the
no constitutional
The court
then noted
If Texas law afforded
Id.
legislation.”
action,
favoring
cases
accrued causes of
that most of the federal
protection to
involved issues
permit
final-judgment requirement
would be no need
there
remedies,
and the substitution
preemption
of federal
modify attendant
Legislature to
remedy for the common
from of a federal
any need to bar
nor
claim,
the clar-
involved either
while others
remedy.
of all
stripping plaintiff
1131,
1991);
States,
(10th
v.
Cir.
Sowell Am.
1143
Compare
United
786
Hammond v.
8,
1986)
Co.,
802,
(11th
(1st
(holding
plain
that a
805
Cir.
Cyanamid
F.2d
12
Cir.
888 F.2d
90,
right in a
claim until the
1989),
tiff has no vested
tort
Blige,
103
Davis v.
505 F.3d
judgment);
In re
pursued to final
Cir.2007)
claim is
(2d
(holding
plaintiff has a
that a
1106,
1996);
TMI,
(3d
Zeran
1113
Cir.
89 F.3d
infringe
patent
right in an accrued
vested
Inc.,
327,
(4th
Online,
129 F.3d
335
v. Am.
Labs.,
claim);
Wyeth-Ayerst
v.
ment
Garcia
Price,
Cir.1997);
v.
885 F.2d
Cir.2004);
Lunsford
(6th
Hoyt Metal
968
385 F.3d
(5th Cir.1989); Symens v. SmithKline
240-41
Atwood,
(7th Cir.
v.
289 F.
Co.
(8th
n. 3
738,
Corp., 152 F.3d
1056
Beecham
States,
1923);
461 F.2d
v. United
de Rodulfa
1998);
Huff,
Grimesy
876 F.2d
v.
Cir.
(9th Cir.1989);
(D.C.Cir.1972).
Schwarz,
v.
948 F.2d
Salmon
existing
in an
stitution
ambigu
ifieation of defects
the making
forbade
of ex
legislation
laws,
ous
post
statute or retroactive
aimed
facto
impairing
laws
the obli-
urgent problems
great public
at
inter
gation
contracts,
laws
which would
cases).
short,
(citing
est. See Id.
life,
deprive a
liberty,
citizen of
proper-
on factors
generally
cases
turned
other
ty,
immunities,
privileges or
otherwise
of a
judgment.
than' the existence
final
than by due
course
law of the
land....
Supreme
The United States
Court has
process
hesitated to
due
apply the
clause
252;
3 S.W. at
see also Richards & Riley,
See,
e.g.,
area.
Daniels
68 Tex. L.Rev. (noting
that drafters
Williams,
327, 332,
474 U.S.
S.Ct.
of our 1836
held
distinctly
Constitution
“a
(1986) (rejecting reasoning
Amendment
of tort
as a “font
Paul
finally,
And
every state whose constitution
Davis,
693, 701,
U.S.
S.Ct.
includes
independent
anti-retroactivity
(1976) (same);
a Constitution which contained a decla-
dissent, however,
ration “that
law
prefers
no retroactive
shall be
the minor-
made,”
ity
protect
that it was intended to
view that a
property interest
rights
thereby only such
as were
accrued
not
pro-
cause of action
vest before
tected
judgment
According
other declarations of the
final
is
Con-
rendered.
DeCordova,
307,
636,
(2002);
(looking
See
See Washington-Southern Navigation Co.
Our opinion
Abell,
parte
Ex
which the
Co.,
v. Baltimore & Philadelphia S.B.
quotes
dissent
length,
at
is to the same
U.S.
44 S.Ct.
156 (Tex.1999); right remedy proce in a rule of & n. Wilson vested or
S.W.3d
Subaru,
at 219. The
84 S.W.3d
Work,
dure.
122 Tex.
62 S.W.2d
v.
procedure
from
curiam)....
lines that divide substance
In oth-
(per
490-91
however,
notoriously diffi
remedy,
or
are
words,
extinguished
when the statute
er
Rights
cult to draw. Tex. Water
Comm’n
action,
received a
a defendant
a cause
(Tex.
642, 648-49
Wright,
464 S.W.2d
the extin-
repose barring
vested
1971). But we need
these “su
parse
claim.
guished
here, Langever v.
distinctions
perfine”
dissent-
(Wainwright,
at 177
J.
335 S.W.3d
Miller, 124 Tex.
76 S.W.2d
to extend
But the dissent refuses
ing).
(1934), because,
as re
regarded
whether
I
accrued claim.
protection
an
similar
substantive,
149 entire
Chapter
medial or
Retroactivity
limiting
basis for
see no
remedy for
ly eliminates the Robinsons’
George
to defensive claims. See
Clause
Likes,
at
torts. See
962 S.W.2d
Mundet’s
Braden,
al.,
D.
et
Constitution
502-03;
Co.,
H.
Phil
Fierce
263 S.W.
Texas-,
Compar-
State of
Annotated
a,
907;
157 Indeed, § Retroactivity or Clauses. Aetna Pennsylva- Contract Pa. Cons.Stat. statutory merely held that causes of action already nia has invalidated a statute pro- generally give rights. not rise to vested do viding protections virtually identical at 285 v. (citing Id. Navarro Dickson those found in Chapter 149. See Ieropoli 95,. Dist., Tex. 139 Imp. Levee 135 S.W.2d Corp., AC&S 577 Pa. 842 A.2d (1940)). parents’ vi Unlike liability torts of their carious for the chil Finally, Crown Cork cites Owens Com dren, liability purely successor is not statu ing argue Chapter 149 does not liability, tory. at least Successor when it interfere with rights vested because Rob merger, attends formal instead arises inson legitimate expectation had no merger agreement from the contractual Mundet merge would with a larger much from the plaintiffs underlying tort or corporation and because- it is inequita not claim, recognized contract and was at com ble to relieve Cork of wholly Crown unex Murphy, law. See Tex. & P.R. Co. v. mon pected acquired and innocently asbestos (1876); Stephenson liabilities. 997 572-73. In ap Co., Tex. & P.R. 42 Tex. 167-68 proving the statute borrowing at issue in (1874); Co., Turner v. Bituminous Cas. Coming, Owens we noted that it was not Mich. 244 N.W.2d inequitable plaintiff require bringing rules, (1976) (“Most of [the successor satisfy out-of-state claim to the statute liability] may said to fairly be have arisen provided by limitations supply law law”). Though from case successor liabili ing the plaintiff cause of “a action: should statute, governed is now ty corpora not be able to gain greater rights than he common tions law is shield to law liabili would have in the state where the cause legislatively right not a ty, cheated within of action he simply arose and where lives meaning of Dickson. by bringing suit in Texas.” Id. at 573. argues Chapter Crown Cork next But Chapter goes much further and 149 does not intrude on the Robinsons’ “creates an where immunity none existed akin because it is to a bor- sure, before.” Id. To be Crown Cork rowing statute or of law rule choice man- probably did not expect merger with Texas, dating that than Pennsylva- rather Mundet to liability, entail such extensive York, apply nia New to determine hardly and Robinson could have a settled corporate liability successor asbestos expectation would be ac Mundet Coming, cases. we Owens held that a quired by a larger corporation. much But plaintiff had no vested a borrowing inequitable require is not Crown permitted statute that out-of-state plain- Cork to pay for Mundet’s torts because to file tiffs stale out-of-state claims in Tex- when corporations formally merge, two as courts under more permissive Texas’ regards the law as one. Though them statute of limitations. S.W.2d at 571- plaintiffs this rule permit to recover Chapter represents 73. But not, they where would otherwise sub “[i]n of law also a change choice rule but stance, form, post-transfer if Texas’ substantive law successor liabili- entity defective products distributed the ty. id. at the passage 573. Before Cf. responsible and should be held them.” no matter state’s law (Third) Restatement of Torts: Products applied, Crown Cork would have faced lia- Liability § 12 b. & cmt. bility for Mundet’s torts. Tex. Bus. ORG. *30 Corp. Thus, § 10.008(a)(3)-(4); Tex I the Act conclude that Robinsons’ Code Bus. Corp. 5.06(3); 906; § right § N.Y. accrued tort claim is a Bus. here vested Law child. unable to care rights while retroactively abro- 149 has Id. at 361. end of the not the But this is gated. observes, con- “the
analysis. As
Court
at issue
public
interest
In contrast to
prohibition
stitutional
cases,
protected here
the interest
in those
every
vested
insulate
laws does not
one. As
essentially
private
a
economic
compelling public
and a
impairment”
from
observes,
record
legislative
“the
the Court
although
impairment,
may justify
interest
149 was enacted
chapter
fairly
clear
against retroac-
heavy presumption
“the
one else.” 335
and no
help only
Crown
quite
of this
certainly
laws” makes instances
Legislature
tive
at 149.
S.W.3d
protecting
at
interest
in
Crown
rare. 335 S.W.3d
has a valid
in
pensioners,
shareholders
Cork’s
fact,
recognized
have
twice
In
we
Leg
in
state. The
business
promoting
import to
interests of sufficient
legislative
in
legitimate
a
interest
islature also has
Barshop,
rights:
private
vested
override
lia
from excessive
defendants
protecting
A.V.,
In re
113 S.W.3d
925 S.W.2d
in
interest
bility.
Legislature’s
But the
Barshop was a statute
At issue in
fa
wellbeing of a
the financial
protecting
Aqui-
in the Edwards
regulating water use
with the
par
is not on
vored defendant
enactment of the
Before the
fer basin.
of cata
the avoidance
public interest
in
law,
un-
permitted,
owners were
property
of child
protection
or the
strophic drought
extract as much
capture,
rule of
der the
626;
Barshop, 925 S.W.2d
welfare. Cf.
from the
they
aquifer.
water as
desired
A.V.,
at 361. Private
In re
113 S.W.3d
capture
the rule of
dis-
Concerned
justi
not
generally
will
economic interests
conservation,
Legisla-
couraged water
private
into the vested
fy intrusions
reg-
authorized local water districts
ture
See,
e.g., Travelers’ Ins. Co.
of others.
through
permitting
ulate water use
Marshall,
76 S.W.2d
124 Tex.
on the
permits
that allocated use
scheme
interests
(holding
conduct-
of historical use. Without
basis
Depres
during the Great
of homeowners
we held that
rights analysis,
ing
vested
pri
justify interference
sion did not
in
conser-
Legislature’s
interest water
Lucas v.
rights);
contract
mortgage
vate
interest landown-
trumped
vation
whatever
(Tex.
States,
United
in
continued existence of the
ers had
1988)
“simply unfair
that it was
(holding
capture
“[conservation
rule of
because
impose the burden
and unreasonable to
paramount
con-
always
water has
been
solely
industry
care
supporting the medical
Texas,
times,
in
like
especially
cern in
severely
most
persons who are
upon those
drought.” Barshop,
today,
devastating
in need of com
therefore most
injured and
at 626.
S.W.2d
Moreover,
Legislature’s
pensation.”).
A.V.,
we held
In re
“innocent” defen
protecting
interest
in
permissibly
could
en-
that the
here
justify
assumption
dants does
terminating parental rights
adjusting private
act a statute
judiciary’s
role
imprison-
future
law.
parent’s
existing
on the basis of
under
obligations incurred
20, 114
prior
criminal
convictions.
at 267 n.
ment
511 U.S.
Landgraf,
See
did
Though
provision
(quoting
we found that
Richmond
J.A. Cro
S.Ct. 1483
513-14,
Co.,
109 S.Ct.
upon
rights,
we ex-
488 U.S.
intrude
son
J.,
(1989) (Stevens,
that,
had,
Legisla-
if it
innocent provisions successor unkindly Texas Constitution looks laws, justified 149 cannot be as a valid exercise but as a consti- is, here, of the police power applied and as matter, tutional retroactive is not prohibited Retroactivity under the Clause. always retrograde. Const, I, § art. 16.
Tex. While it is axiomatic that the Legisla- ture, through budgeting and lawmaking, WILLETT, Justice joined Justice . primacy has setting policy, in State LEHRMANN, concurring. unrivaled, power, though is not unlimited. Litigants system in our adversarial are One constraint'is the Texas Constitution’s certitude, hard-wired for at adept insisting Bill Rights, I, including article section “clearly” the law “plainly” favors their prohibition 16’s against retroactive laws.1 or, here, labeling side the controlling Retroactive legislation is disfavored be- analysis “straightforward and If simple.” cause, as the of the Father U.S. Constitu- only. Today’s both complex case is tion explains, protection citizens deserve consequential, fiendishly so. The facts from policy” the “fluctuating of the legisla- unclear; compelling; the law is ture.2 Robinson’s position takes James just the stakes are high, these leap Madison one further: Disfavored ac- but parties also for our ar- constitutional disallowed, tually means and “the police chitecture that both confers and constrains power may not to deprive be used citizens I governmental power. concur that chap- property retroactively by their eliminat- legislative ter 149 is an invalid exercise ing their accrued claims.” power police that cannot surmount our Robinson Rights, insists our Bill of includ- Constitution’s ban on retroactive laws. Clause, ing the Retroactivity impregna- I separately But write to stress that this ble in- regard given this mandate from case, heart, implicates issues far beyond I, article section 29: whether Barbara Robinson can sue Crown guard against To transgressions of the &Cork Seal. high powers delegated, herein we de- Every case that reaches this Court con- clare that everything this “Bill of cerns real people prob- buffeted real Rights” out excepted general dispute, lems the real world. This how- powers government ... all laws ever, possesses quality, a transcendent contrary thereto ... shall be void.3 touching parties these but also building-block principles naturally constitutional This ju- admonition commands sense, belong to all In that dicial it respect, Texans. but cannot bear affords a which to sharpen weight whetstone on Robinson on it. places longWe Const, Const, I, 16., I, § § 3. art. Tex. art. (James Madison). 2. The Federalist No. 44
160 legislation but accommodate declaring guage, of it must the Rubicon ago crossed edges. challenge (despite practical non-absolute at the Retroactivity Clause absolutism), I, seeming 29’s judges perimeter, article section is to set that to do some retroactive laws recognizing in a fashion. principled, so no-favorites necessary, the case “may proper be is one may Specifically this be.”4 —and enacted House Bill 4 was analysis facet retroactive-law where urgency, legis- backdrop but with (if its application) controlling principle police power, lative unfettered must laws are constitu- uncomplicated —such never be unfretted. they if are a “valid tionally permissible discover, litigants Legis- As in the often police power Legis- exercise of lature a sometimes a raw deal. But deal is safety safeguard public lature to always equal unfair does not unconstitu- Retroactivity in itself is
welfare.”5
and of
tional;
rights can be impinged
even vested
fatal,6
nothing
Rights
in the Bill
good-enough
if
have a
reason.
lawmakers
confronting
from
Legislature
handcuffs the
urgent
priorities.
state
Supreme
Both
Court
U.S.
“ ‘elephantine
have lamented the
I,
Court
that article
section 29 her-
The notion
lodged
mass of
state and
asbestos cases’
Bill of
metically
Rights
seals off the
from
courts,”8 branding
federal
it a “crisis”9
invites myriad
all
attention
ab-
legislative
customary judicial
that “defies
administra-
...
contrary
The “all laws
surdities.7
10
bipartisan
tion.”
In
civil-
language
facially
response,
shall be void”
inviolable,
justice
enacted in 200S’s
similar to the
Bill of
reforms
House
federal
change
shall make
lan- Bill 4
a sea
in the Texas
Rights’ “Congress
no law”
effected
Galveston,
470,
(1999));
City
Ethyl Corp., 975
4.
v.
4 Tex.
see In re
S.W.2d
DeCordova
606,
("Our
(1849)
(Tex.1998)
610
state trial
479
courts
.
gained
experience
have
in man-
considerable
aging
County
Barshop
Underground
5.
v. Medina
Wa
thousands of claims asserted in
Dist.,
618,
litigation.”).
925
asbestos
ter
S.W.2d
633-
Conservation
A.V.,
(Tex.1996).
34
See also In re
113
Windsor,
355,
(Tex.2003)
Prods.,
(citing Barshop,
9. Amchem
Inc. v.
521
S.W.3d
361
U.S.
591, 597,
2231,
633-34).
at
117 S.Ct.
findings, we conclude that the Act is neces-
high-stakes
This case concerns
issues
sary
safeguard
public
welfare of the
beyond
149,
chapter
far
principally
citizens of this state. Accordingly, the ret-
how the Texas Constitution allo-
roactive effect of the statute does not ren-
governing power.
cates
der it unconstitutional.”15 Chapter 149’s
Today’s case is not merely
enacted text
about wheth-
includes no such findings.
Instead,
chapter
er
singled
Crown
out
legisla-
Cork relies on the
Barbara Robin-
record,
tive
son and
contending
amply
unconstitutionally
it
under-
snuffed out her
urgent public
scores an
protecting
pending
need:
action
a lone corporation.
down,
imperiled-but-nonculpable companies in or- Distilled
it is also a case about how
safeguard
der to
the livelihoods of endan- Texans govern themselves.
2, 2003,
R.S.,
Leg.,
11. Act of June
ring
78th
part
ch.
judgment);
and in the
Mgmt.
AIC
204,
1.01-23.03,
Crews,
§§
640,
2003 Tex.
(Tex.2008)
Gen. Laws 847.
v.
246 S.W.3d
649-50
(Willett, J., concurring), I am mindful in to
16, 2005,
R.S.,
May
12. Act of
Leg.,
day’s
79th
police-power
ch.
narrow
context that the
97,
1-12,
§§
2005 Tex. Gen. Laws
Supreme
169.
U.S.
(including
Court
its most ar
legislative-history skeptics)
dent
has assessed
2, 2003,
R.S.,
13. Act
Leg.,
of June
constitutionality
78th
ch.
statute’s
under the Com
204,
17.01,
§
by seeking
2003 Tex. Gen. Laws
merce
congressional
Clause
"even
(codified at Tex. Civ.
findings,”
committee
Lopez,
United
States
Prac. & Rem.Code
149.003(a)).
549, 562,
§
514 U.S.
115 S.Ct.
ICC,
(citing
L.Ed.2d 626
Preseault v.
16, 2005,
R.S.,
May
14.
Leg.,
Act of
79th
494 U.S.
ch.
S.Ct.
prone manipulation, to contrivance and En States, Summers, tergy Carter, Inc. v. Corning 17.Owens Gulf (Willett, (Tex.2009) J., (Tex. 1999). concur guide weighty principles Appropriately edge police-pow- the outer
Delimiting First, police recognize we course. our constitutionality has bedeviled Texas er that “the from the credo power draws century. The broader courts for over outweigh the needs of many needs of relationship with the citizen’s issue of a Second, rings maxim while this the few.” longer. for centuries State has confounded (not to mention Dickensian utilitarian and From, (cid:127) way “For in a beset 1651: Vulcan21), something con- cabined for too on one side those that contend *34 of intrusive and Texan: distrust trarian the other side Liberty, and on great police power a belief that and government hard to Authority, ‘tis for too much expedien- justified only by urgency, is un- points of both passe between the is, a there must exist societal cy. 18 That wounded.” impera- collective action peril that makes (cid:127) per- much “It is easier From 1851: in pub- is founded police power “The tive: and the existence ceive and realize necessity can necessity, public lic power] than to police of [the sources Third, whether the justify its exercise.”22 boundaries, lim- prescribe or mark its is guarantees surrender of constitutional exercise.”19 its to its in terms of necessary legislative is a call (cid:127) question The whether From 1907: in terms of desirability judicial one but a valid exercise of the law can stand as constitutionality. political The branches “may involved in mists police power be if laws pass; if courts decide decide laws means, power or police as to what of is the center Capitol muster. The pass may terminate. where its boundaries the Constitution gravity, but policymaking is police power been said that It has strongest pull, police power exerts the having enactments reference limited to commands: “as must bow to constitutional comfort, safety, or the welfare to the be, and as [police power] broad as usually it to the society, applies of legislation has as some comprehensive health, exigencies involving public it, subsidiary and sought to make still it is safety, morals.”20 the Constitution.”23 subordinate Fourth, claims because the Constitution as these—and la- Gauzy definitions such ac- highest allegiance, police-power our imprecision scant ments over such —offer guarantee like is tion that burdens enterprise. in this The issue comfort Retroactivity must make a convinc- elemental, elementary. Fortunate- Clause but not power nat- Finally, police case.24 while entirely guidance. ing without ly, we are not course, memorable, (A.R. Spock’s fa- of xiii Waller Most 18. Thomas Hobbes, Leviathan (1651). ed., 1904) line his moment of sacrifice: Cambridge mous from Univ. Press logical. The grieve, Admiral. It is "Don’t Alger, 61 85 many outweigh 19. Commonwealth v. Mass. ...” to which needs of (Mass. 1851). replies, the few.” Kirk "the needs of State, Dallas, Tex.Crim. 103 S.W. City Jordan v. 235 Spann 22. 20. (1907). S.W. (Para- Jordan, See Star Trek II: S.W. at 634. op Wrath Khan 1982). The film references mount Pictures literature, Sys. Anto Healthcare San none more 24. See Methodist several works of classic Rankin, nio, Spock Ltd. v. prominently than A Tale Two Cities. (Tex.2010) (an police legislative exercise of gives antique copy a birth- Admiral Kirk an as arbitrary when it is power "is not sustained day present, and the film itself is bookended omitted). unreasonable”) (footnote, citation closing passages. opening with the book's rights, urally operates abridge private day’s supermajority one ratified —the Constitution, to free- being our inclined our solemn Constitution.26 dom, that such requires encroachments slight possible: as “Private are Legislative police power constitu- greater never to be sacrificed to a extent regulate tional carte blanche to all than necessary.”25 life; spheres everyday preemi- judicial anything, If review means it is equal omnipotence. nence does not ev- judicial restraint does not allow Bill Rights Texas Yes,
erything. respect courts must dem- —enshrined recognize general, and establish great “the decisions; popular ocratically enacted principles liberty and essential and free sovereignty matters. But the Texas Con- government”27 emphatic govern- stitution’s insistence limited —declares myriad government “no” to matters, undertakings: ment and that also vision *35 office, liberty religious no test for powers personal enumerated no double jeop- once ow- quaint (perhaps self-incrimination, becomes courts ardy, no no curtailment ing ac- grasp “judicial to an off-kilter isj speech, free etc. It like its federal tivism”) limit- decide has counterpart, irrefutably framed in pro- power justified less to declare its actions And, scription. like its federal counter- by police At that power. constitutional part, exception-free; its limitations are not adjudication tipping point, more resem- desperate times permit desperate meas- bles abdication. (to point). ures But we steadfast- should police amorphous power’s ly defining
Whatever the
resist
desperation down. Ex-
(1)
boundaries,
things:
we know these two
ceptions to
guarantees
constitutional
are
Legislature may
ask for
sacri-
private
rare,
also
just
real but
modern
like
cita-
fice,
provided
private
and receive
Marbury
tions to
“The pow-
Madison:
it—
public
sacrificed are
outweighed
defined,
legislature
ers of the
are
and lim-
good, burdened as little as
possible,
ited;
and that
those limits
not be
amply
justified
on
public-necessity mistaken, or forgotten, the
is
constitution
grounds;
Legislature’s police
written.”28
elastic,
power
infinitely
extin-
is not
able to
“danger that liberty
The
should be un-
guish
noncha-
constitutional liberties with
necessarily
dervalued”
implicates “the ad-
long ago
lance.
have
Texans
and since
justment
it
boundaries between
constitutional,
limited,
meaning
embraced
social
remain judi-
control.”29 There must
government.
judiciary
The
has a su-
thus
on
cially
legislative
enforceable constraints
certain
perseding obligation
disapprove
actions that
irreconcilable with consti-
on liberty,
encroachments
no matter the
tutional
If
legislative
legislators
commands.
come to
way,
vote-count. Put another
judicial
police power
ever-pres-
believe that
an
thwarting
review sometimes means
is
today’s
yester-
from
majority
thwarting
trump
they
ent constitutional
can play
card
Madison,
(1 Cranch)
Spann,
Marbury
25.
S.W. at
515.
28.
5 U.S.
(1803).
voicing people confidence deference into dere- devolves against overreaching be the best sentries Legislature’s liction. The policymaking government: “[I convinced that vast, am] may be power but absent a convinc- may rely their we with good senses ing public-welfare showing, police pow- security preservation of a due most er cannot allowed to uproot liberties liberty.”35 right. Jefferson was degree in our enshrined Constitution. inva- We are our own best lookouts sions, well-intentioned, that si- however WAINWRIGHT, joined by Justice phon degree liberty” siphon- our “due — JOHNSON, Justice dissenting. subtly, occurs such ing that often with imper- as to be drop-by-drop, gentleness enacted 149 of ceptible. Practice Civil and Remedies Code businesses, protect acquired other sure, Leg-
To be Members of the Texas entities, from financial based sole- “preserve, islature disaster protect, have sworn ly upon acquired past, and defend the Constitution and laws entities’ discon- State,”36 the United States and of this products. tinued manufacture of asbestos they believe their enactments doubtless liability The statute limits the of the ac- guarantees. honor basic I constitutional business, quiring engaged which had not never mo- second-guess Legislature’s business, asbestos fair market (and needed goodwill tives and have never acquired value of the entity at the time of to); we are lawmakers blessed acquisition. Chapter 149, Through who serve with full But Texas hearts.37 Legislature balances limitations on asbes- concerned, the where the Constitution is tos-related recoveries against .protecting judiciary’s yet role as referee —confined employees the assets and of businesses consequential big-hearted- leaven —must illness, who did not cause the while leaving *37 tough-mindedness. ness with entirety liability intact the of potential and
damages proven against companies that
in the
were involved
business and
asbestos
Judges
Summing up:
properly
are
def-
are,
more
perhaps,
culpable. The Court’s
legislative judgments
erential
in most
matters,
holding
legislation
that
is unconstitu-
epochal
but
some
when
point,
at
police
prevents
talis-
tional
from ad-
power becomes a convenient
injustice
man waved to short-circuit our constitu-
an
from a crisis
dressing
arising
do).
they frequently
important point
35.
Thomas
Letter from
Jefferson to James
an
But
Madison,
(1787), in The
Paris
profound
must made: There
difference
Cyclo-
is a
Jefferson
pedia:
Comprehensive
judge
engaged
an
an
between
activist
and
Collection
of the Views
ed.,
(John
Foley
P.
judge.
I am honored
with none
to serve
Thomas
Jefferson
1900).
eight
Nothing
and
the former
of the latter.
in
this concurrence should be distorted into crit-
Const,
XVI, §
36. Tex.
art.
chapter
passed
icism of either lawmakers who
passed
My
judges
upon
who
it.
cau-
My dissenting colleagues’
anal-
meticulous
today
police power
tions
about unconstrained
ysis
today’s
shows that
difficult case has sev-
entirely
speaking
forward-looking,
moving
seemingly weightier
eral
pieces, each
happen
judges,
what
if
while not activist
can
perplexing
and more
before.
than the one
active,
properly
prefer-
are also
instead
every
Supreme
This is “a
Court case" in
sense
ring
police power unpoliced,
to leave
thus
occupied
and one that has
our attention for a
time,
inviting
other
to flex ever-broad-
long
arriving
branches
at the Court
our
before
My
judicial
powers.
er
centered on
two newest
So
concerns are less
Justices.
reasonable
(and
certainly
than on
minds can
differ
on this Court
this case
future ones.
analysis
The
approach.
uncertain
and the
new and
bankruptcies
dozens of
that caused
contrary to both
opinion
state and
Court’s
jobs
in this
thousands
loss of
federal courts of
among
rule
to asbestos-
the clear
country due
throughout
See,
have addressed the issue
e.g.,
appeals
Jonathan
litigation.
related
among our courts
majority
Liabilities
rule
Impact
The
of Asbestos
Orszag,
Firms,
rely on tradi-
Remarks
could
Bankrupt
appeals.
in
Court
on Workers
which,
in
Symposium
jurisprudence
Litigation
police power
at the Asbestos
tional
right
in Hous-
in
College of Law
if the Robinsons had vested
South Texas
even
(Mar.
2003),
action,
44 S. Tex.
courts
ton,
cause of
unliquidated
their
(describing re-
action
Legislature’s
whether the
consider
L.Rev.
indicating
sixty-one
study
constitutionally recog-
justified by
sults of
was
bankruptcy
into
entered
to act in the interest
companies
police power
nized
52,000
60,000
jobs
Indeed,
their
people lost
welfare of Texas.
health
litigation).
for retroac-
balancing
due to asbestos
new
test
the Court’s
pow-
analysis
police
is similar to the
tivity
balancing test reaches
new
Court’s
existing
expound
test I
under
balancing
er
an un-
By holding that
wrong
result.
law,
into the
newly incorporated
but
basis
claim with “substantial
liquidated
rea-
retroactivity doctrine. For all these
protec-
to constitutional
fact” is entitled
sons,
respectfully
I
dissent.
tion,
important principle.
ignores
retro-
126. The constitutional
an as-
protect
does not
activity doctrine
I. BACKGROUND
property
one does
entitlement
serted
Navy
Robinson served
John
own,
in a
judgment
a final
and until
time he was
twenty years,
during
claim
case,
know whether the
we do not
doors
pipes
to steam
and boiler
exposed
or refuted. The Court’s
will be vindicated
containing asbestos.
coated with insulation
to file a claim is
reasoning that
products
and other
Some of the insulation
retroactivity doctrine be-
protected by the
M,” the trade-
“big
were marked with a
cause,
the claim is well
part,
at least in
Corporation.
Mundet
mark used
Cork
basis in fact”
founded with
“substantial
diagnosed
Robinson was
August
“more
from a “mature tort” with
springing
mesothelioma. He claims the disease
recovery,
troubling propo-
is a
predictable”
*38
exposure
of his
to
occurred as a result
It is unclear what
sition.
inventory, raw 2003, In late March more than 100 4, 1966, January accounts receivables. On Bill, amendments were submitted to the statutorily merged with Crown Mundet 17, including Article the asbestos succes- in predecessor, and 1989 Crown Cork’s sor-liability article. The article was debat- in Pennsylvania.1 was reincorporated Cork ed on 25, the floor of the House on March After he had been with meso- 2003 and diagnosed passed days the House three thelioma, Mr. later. Robinson his wife filed Both the House and Senate held hearings suit in 2002 Cork and twen- on Crown the bill as a whole. damages April ty meeting other defendants for caused of the Senate State Committee, exposure Ratliff, Mr. Robinson’s asbestos-con- Affairs Senator chair, taining products. sought Robinsons committee introduced on hearings each and several- jointly to hold defendant Senate Substitute to House Bill 4. He ly On liable. November Rob- described Article 17 as follows: partial summary insons filed a motion for Article limitations in civil actions liabili- judgment establish Crown Cork’s liabilities to certain relating mergers or actual ty damages for as Mundet’s succes- This, members, consolidations. is the sor. Crown Cork did not contest its suc- Crown Cork and Seal asbestos issue. liability compensatory damages, cessor in What we have this I put bill is what July on trial grant- 2008 the court understand an agreed to be arrange- motion, ed the Robinsons’ holding ment between all of the parties this— responsi- Crown Cork “is liable and bears matter. bility compensatory damages, if Hearings Proposed on the Senate Substi- any, awarded to Plaintiffs that are attrib- Comm, tute for H.B. 4 Before S. conduct, to the products,
utable or torts of Affairs, Leg., State 78th R.S. (Apr. predecessor Corpora- Mundet Cork (Statement 2003) Ratliff, of Sen. Bill tion.” Comm, Affairs). Chairman, S. on State Bill compre- passed May House a bill drafted to act the Senate on 2003; hensively perceived accepted address crises in medi- House Conference malpractice, asbestos, cal and other litiga- compromise Committee bill on June Texas, 2003; adopted tion issues was introduced in the both corrections on June 2003; Representatives signed Texas House of on Febru- and the bill was into law *39 17, 2008, ary provision the any regard- without Governor on June 2003. Act S., ing liability. Leg., successor Tex. H.B. June 78th R. ch. asbestos (codified Leg., Its Tex. purpose 78th R.S. was Gen. Laws at Tex. 149.001-.006). justice §§ to as a civil operate “comprehensive Civ. Prac. Rem.Code & "statutory merger” stock-purchase 1. The term is used to W. dis- transactions. 20A Robert tinguish mergers pursuant made business A. Hamilton, Miller, S. Elizabeth & Robert statutory incorpo- the scheme of the state of Organ- Ragazzo, Series: Texas Practice Business other, nonstatutory ration from forms of com- (2d ed.2004). § 43.2 izations binations, example asset-purchase for and losses, chambers, made, damages, in- in both whenever two-thirds vote With a immediately demnification, contribution, and was effect or other bill took relief the “pending of, on, all cases any made arising way out based or trial, in which the effective date and that asbestos, including” property related following mo- new trial or retrial any or asbestos, by caused the health ef- damage otherwise, tion, begins on or or appeal, any or claim exposure, fects of asbestos 17.02(2), § effective Id. after that date.”2 by any or on ex- person made behalf of 895; Gen. Laws at see also 2003 Tex. Tex. 149.001(1). § to asbestos. posed Id. Const, (“No Ill, passed by § 39 art. clearly intended to limit recov- Legislature except general appro- Legislature, “innocent” suc- only against eries so-called act, into go shall take effect or priation companies. cessor ninety days adjourn- force until after According experts, by to Crown Cork’s it was enact- of the session at which ment May paid agreed Cork had or Crown shall, ed, by a vote unless claims, pay asbestos related covered of all the members elected to of two-thirds insurance, by more than seven totaling House, direct; vote to otherwise said each present times the value of Mundet accord- by yeas nays, and entered be taken statutory July 3, ing to the formula. On journals.”). upon the 2003, Crown Cork filed a Motion for Sum- The act limits “cumulative successor mary Judgment affirmative de- raising the “incurred a asbestos-related liabilities” introducing fense of evidence as a in connection corporation result of or of the value of Mundet and total asbestos- merger or ... with or consolidation payments related made Crown Cork to corporation that are relat- into another or The Robinsons asserted that date. way to based on ed in asbestos claims “special statute was law” violation of ownership exercise of control or the III, article section the Texas Consti- 56 of corporation merger stock of before tution, deprived it the Robinsons prior or consolidation occurred” property right in violation of article May Civ. Prac. & Rem.Code I, Constitution, 16 of section the Texas §§ liabilities 149.001-.003.3 The asbestos the statute was an unconstitutional corporations “are limited to successor I, violating 17 of taking, article section gross fair market of the total value the Fifth Texas Constitution and as of assets of transferor determined to the Fourteenth Amendments United consolidation,” merger the time of the or Constitution, that it constituted 149.003(a), States § inflation adjusted id. deprivation process of substantive due rate simple prime at a interest rate of the 149.005(a). § id. An “as- under the plus percent, one Texas United States claim, Constitutions, “any Rob- deprived claim” is wherever or John bestos that, merger 2. The House also defeated an amendment a "successor after consolidation, making applicable only the bill to successor continued in the business of liabilities assumed or incurred after the effec- mining selling asbestos or in the business of Tex., Leg., tive date of the act. H.J. of 78th distributing fibers or busi- asbestos 818-19(2003). R.S. manufacturing, distributing, remov- ness installing asbestos-containing prod- ing, or provides excep- act 3. The also a number substantially ucts which were the same or tions, excluding, things, among other work- *40 products previously as those man- the same claims, compensation ers' an insurance cor- ... ufactured the transferor.” Id. bankruptcy poration, a claim made in a 149.002(b). § 2003, 1, begun prior proceeding April premises liability, or claims claims right, contrary I, eluded that inson of a contractual the statute viólated article (Frost, J., section I, 16. Id. at 551-52 article the Texas Constitu- dis- section 16 of senting). tion, Robinson of deprived and John his
common law action in violation causes of I, Open guarantee Courts article II. ANALYSIS section 18 of the Constitution. The Texas Court, In this only the Robinsons raise only retroactivity Robinsons raise and issues, grounded two both exclu special challenges before this Court. sively They argue Texas law. Implicitly finding that Crown Co!rkhad es- Chapter 149 of the Texas Civil Practice applied tablished that the to it statute as and Remedies Code is unconstitutional law, matter of that Crown Cork had “special law” it and that is unconstitution already paid liabilities excess of Mun-' ally retroactive applied when to the Robin- value, adjusted det’s trial grant- court sons’ effectively claims to bar recovery.6 ed for summary Crown Cork’s motion As the party challenging the constitution judgment on October It issued ality statute, of the the Robinsons must later, days an amended nineteen order overcome the presumptions Leg “the dismissing Crown against claims Cork islature intended for the law to comply brought by the Robinsons.4 Robin- with the United States and Texas Consti remaining sons nonsuited their claims tutions, to just achieve a and reasonable against appealed Crown and then Cork result, public and to advance rather than summary The court judgment.5 private interest.” Tex. Mun. League appeals Characterizing ju- affirmed. Intergovernmental Risk Pool v. Tex. risprudence rights on vested as “inconsis- Comm’n, Workers’ Comp. 74 S.W.3d tent a guide,” and difficult to use as (Tex.2002) (citing Gov’t Code court instead balanced Legislature’s 311.021; Fenchler, § Spence v. 107 Tex. police power against private rights im- (1915)). 443, 180 S.W. The Robin- statute, by the pacted held that the sons also showing bear the burden of statute was constitutional. provision the law is contrary to of the 520, 532-35 (Tex.App.-Houston [14th Dist.] See, e.g., state constitution. Walker v. Gu One pet. granted). justice tierrez, (Tex.2003). dissent- ed, arguing court retroactivity should have Robinsons’ claim is an as- applied a rights analysis applied challenge, they and con- means that which that, astutely The Robinsons’ remedies the other 6.The Court due
170 scope retroactivity prohibition. of that statute is un must demonstrate First, unconstitutionally a law operates practice is not retro constitutional League, impairs person’s Tex. Mun. 74 active unless it a “vested them. Second, a (citing Comp. rights.” E.g., Tex. Workers’ id. at law S.W.3d at 381 Garcia, if it unconstitutionally only n. not retroactive v. 893 S.W.2d 518 Comm’n (Tex.1995)). or special person’s remedy. 16 Their law chal modifies reduces the Likes, challenge, E.g., City v. 962 Tyler a facial which means S.W.2d lenge is (Tex.1997); Wood, must Holder v. 714 that the Robinsons demonstrate (Tex.1986). finally, that And is no conceivable set of facts S.W.2d there if the person’s which the would even law affects a vested could exist under statute Garcia, may rights, remedy, a law not constitutional. 893 S.W.2d not retroactivity violate the if the prohibition protecting government’s interest soci In this case the Court determines that ety, upon police power, outweighs based unconstitutionally the law is retroactive or her par the individual’s interest his the special and thus does not reach law right. E.g., Barshop ticular v. Medina However, for the that challenge. reasons Cnty. Underground Water Conservation follow, that the I would hold law survives (Tex.1996). Dist., 633-34 S.W.2d challenges, both but for different reasons The first two tests definitional—this ap- from those articulated court of has that a Court determined retroactive peals. I, law does article implicate not section the law Constitution unless both A. Retroactive Law impairs affects a actual I, Article section 16 of the Texas Consti- right, remedy procedure. or a merely a tution, Rights, of the Texas Bill part The third as an may operate exception test attainder, bill of ex post “[n]o declares related, Although to the rule. the review law, law, facto law im- E.g., each separate. doctrine is In re contracts, pairing obligation of shall be (Tex. J.V., 355, 361 A.V. & 113 S.W.3d Const, I, § art. made.” 16. A retro- 2003) (describing “exceptions” to retroac- away active law “takes or impairs vested Nissan, tivity); David McDavid S.W.3d rights under acquired existing laws....” at 219 (analyzing procedural/remedial (1851). Perez, 7 Tex. Paschal v. part rights exception test as the vested A applying retroactive law means law “procedural because and remedial statutes things past. City that are DeCordova v. typically right”). do not affect a vested Galveston, 4 Tex. Although the has not had Court occasion course, every Of law that affects recently to specific meaning address the relationships among parties upon based I, prohibition article section 16’s of retro occurring past events is automatical- laws, provide active precedents our use ly unconstitutional, just every as not ful roadmap. may affect a person’s right speak, may affect a contractual obligation, Rights 1. Vested person’s allow search of a “[cjonsider- warrant, dwelling without a from is unconstitu- Vested derive reliance, notice, tional. See Subaru ations of fair reasonable Am. David Nissan, Inc., Corning McDavid settled expectations.” 219 and Owens (Tex.2002). Carter, (Tex. This Court has articulated 1999). “A three doctrines that further retroactive statute violates define
171
if,
it
applied,
appeals
when
takes
of
our Constitution
court
called the vested
impairs
acquired
away
rights
rights analysis
or
vested
“inconsistent and difficult
existing
guide.”
law.” David McDavid Nis
under
use as a
251
at 526.
san,
parte
S.W.3d at
Ex
(citing
appeals
84
219
Other courts of
have
called
Abell,
255,
(Tex.1981));
613 S.W.2d
analysis
260
vested rights
“amorphous.” Sims
Yost,
174,
Alliance,
Adoption
213,
155 Tex.
284 S.W.2d v.
McCain
922 S.W.2d
216
(1955).
898,
1996,
denied);
900
(Tex.App.-San Antonio
writ
Kubas,
(Tex.
366,
Ex parte
83 S.W.3d
369
in
explained “vested
Ex
rights”
We
ref'd).
2002,
Christi
App.-Corpus
pet.
parte Abell:
Courts from other states and commenta
exists, when,
sense,
right,
legal
in a
[A]
tors have also criticized
rights
vested
anal-
consequence
given
the existence
of
yses, preferring an analysis requiring person
the law
facts,
declares that one
balancing of the nature
strength
entitled
another a
enforce
statute,
public interest
served
claim, or
given
to resist the enforcement
extent
to which the statute modifies or
urged by
may
of a claim
Facts
another.
abrogates
pre-enactment right,
which,
out of
exist
the course
time
right
See,
nature of the
the statute alters.
circumstances, a
given
right
or under
Chartrand,
e.g., Owen Lumber Co. v.
become
opera-
would
fixed or vested
753,
(2003);
Kan.
P.3d
755-56
Pe
law,
of existing
tion
but until
state of
City
terson v.
Minneapolis, 285 Minn.
which
give
facts
the law declares
shall
(1969);
173 N.W.2d
see
comes
right
into existence there cannot
Hochman,
also
B.
Charles
The Supreme
law a right;
be in
and for this reason it
Court and the Constitutionality
Retro
that,
constantly
has been
held
until the
active Legislation, 73 Harv. L.Rev.
vested,
right becomes
or
it is law-
fixed
(1960).
And the Court’s
opinion,
the lawmaking power to declare
ful for
rejecting
“bright-line
test for unconstitu
given
state
shall not
offacts
fix
activity,”
tional
and in
recognizing that
it,
such
constantly
laws have been
Texas Constitution “does not
ev
insulate
not to
held
be retroactive in
sense in
ery
right
vested
from impairment,” seems
that term
is used.
rights
abandon
vested
alto
analysis
(quoting Mellinger
gether, or,
minimum,
at a
detaches
Houston,
City
68 Tex.
3 S.W.
concept
of vested
from its tradition
(1887))
added).
(emphasis
“A right
significance
analysis.
al
in a retroactivity
right
cannot
considered a vested
unless
However,
embodies’ discovery. the Framers See providing “new freedoms encompasses port Tex. Civ. imagine” (requiring § narrow-minded were too 74.351 Prac. & Rem.Code — -, Id., 130 S.Ct. at U.S. (quoting plaintiff expert report service of an (Stevens, J., dissenting))). 3099-100 demand liability claim and in a health care report the claim if the dismissal of ing is not of action to file a cause served); Cummings, timely Cire alleged to enforce an entitlement (Tex.2004) (holding claim, subject to S.W.3d expectation” “mere but a Abell, parte Ex of dismiss contingencies. penalty” sanctions numerous that “death 261-62; Mellinger, 3 S.W. warranted because claim was ing plaintiffs recovery ultimate plaintiffs at 252-53. A produce audiotapes failure to plaintiffs just than success contingent upon more plain proved disproved have that would *45 contingent it is example, For claims). at trial. Any in legal malpractice tiffs process— serving with finding upon law winning that a client knows formed —and inac defendant, may be an who right shut” suit, seemingly “open and even a defendant, or, in this foreign cessible certain, case, when particularly never case, out long since corporation be a multiple products and multiple defendants See, P. 103- e.g., Tex.R. Civ. of business. no injury, same may have caused the service); of (discussing methods 109a expecta has a “settled person reasonable Herrdum Trendanalysen B.G.A. GFTA monetary recovery achieving once tion” of Varme, Co., 991 & v. GMBH K.G. upon inflicted her. a harm she discovers curiam) (Tex.1999) 785, (holding (per 785 hold, Rather, with the I would consistent corporation by foreign special appearance Su- States jurisprudence of United jurisdiction). A challenge to did waive federal majority a of the preme Court8 contingent recovery may be plaintiffs of other a number proee- appeals,9 courts of following particular pretrial upon Prods., See, "contrary current federal constitutional Landgraf 511 to e.g., USI Film v. 1483, 244, 272, right in a tort precedent no vested L.Ed.2d that finds 114 S.Ct. 128 U.S. judgment”); (1994) final Zer cause of action before (recognizing that the “constitu- 229 Online, Inc., 327, (4th legisla- 335 impediments civil v. 129 F.3d to retroactive an Am. tional Hochman, modest”); 1997) ("No right person 73 a vested in a see also has tion are now Cir. ("[T]he judgment-”); Court has Arbour v. Jen at 717 & n.135 tort nonfinal Harv. L.Rev. Cir.1990) 416, (6th (q kins, application a many of F.2d 420 times sustained 903 uoti Labs, (In Sowell); ng accrued cause of v. Livermore retroactive statute to an Konizeski Testing Litig.), Atmospheric v. (citing & Nashville R.R. action.” Louisville re Consol. U.S. 265, 1987) 467, 982, (9th (quoting Mottley, 55 L.Ed. Cir. 219 U.S. 31 S.Ct. 820 F.2d 989 738, 297(1911))). Hammond); Huff, Grimesy v. 876 F.2d (9th 1989) (reviewing vested Cir. 743-44 8, States, takings rights under a Fifth Amendment F.2d 12 cases v. United 786 9. Hammond (1st Cir.1986) ("The analysis); Taxpayers the Animas-La Plata question whether the Plata Water Conser v. Animas-La plaintiff’s causes state-law asserted Referendum vancy 1472, (10th Dist., 739 F.2d 1477-78 cannot be answered of action are ‘vested’ 1984) rights, (holding "inchoate” already that looking been Cir. whether suit had to see legal right pursue remedies as the person a vested interest such filed.... No has purposes Colorado of the suit not "vested” for this is true after has [and] rule of constitutions); v. Salmon a state and federal to be true until been filed and continues Cir.1991) (10th Schwarz, final, 1143 948 F.2d judgment is obtained.” unreviewable Sowell); omitted)); v. Am. (citations (quoting Sowell In re Arbour quotations (11th Co., Cir.1996) TMI, (3d 805 Cir. Cyanamid 888 F.2d 1115 n. 9 89 F.3d 1989) ("The that the statute is fact (distinguishing holding accrued causes cases a calling [because] it unconstitutional rights, them does make be vested of action to states,10 majority appeals state,11 courts of to address the and a issue retarded; (2) legal no claim affords definite or advanced [enforce whether the statute right property gives until reduced final able] to or effects defeats the bona fide inten Price, judgment.”); see also expectations tions or reasonable of the affect Lunsford (5th Cir.1989) (holding individuals; F.2d 240-41 ed whether the statute applicability pending a statute to claims surprises individuals who have relied on a manifestly unjust); Wyeth- was not Garcia v. Nonetheless, court, contrary law.” Id. (6th Cir.2004) AyerstLabs., F.3d courts, recognize and the state’s lower do not (noting Michigan repose, statute of which accrued cause of action is a vested "prevent[s] accruing” causes action from right City per se. Greenwood Vill. v. Pets. retroactivity provisions did not violate Centennial, Proposed City 3 P.3d constitution); Symens federal v. SmithKline (Colo.2000) ("[Contemporary (8th Corp., Beecham 152 F.3d n. 3 precedent expectations also demonstrates Cir.1998) (noting regulations, federal parties litigation equivalent are not may preempt state law claims would Brannon, rights.”); vested see also Miller apply warranty plaintiffs' implied tort and ("A (Colo.App.2009) 207 P.3d plaintiffs claims had no vested “because right, right, property must be contract rights in at the time these unasserted claims right arising from the transaction in the (citing preemption was Land [the] modified” nature of a contract per which has become 1483)). graf, 511 U.S. S.Ct. degree dependent fected to the that it is not (2d Blige, But see Davis v. 505 F.3d on the continued existence statute or *46 Cir.2007) (recognizing, copyright in a case added) (emphasis (quotations common law." law, applying assign patent that a retroactive omitted)). destroys ment an owner’s vest "valuable and claim”); right Hoyt ed her Metal enforce Indep. 11. See Houston Dist. v. Sch. Houston Atwood, 453, (7th F. Co. 289 454-55 Cir. Co., 580, Publ'g Chronicle 798 S.W.2d 589 1923) (deciding judgment whether a is to be 1990, (Tex.App.-Houston [1st writ de- Dist.] right accorded the status of a vested and nied); also see Walls v. First State Bank of stating an accrued cause of action is a "[t]hat Miami, 117, (Tex.App.-Amar- 900 S.W.2d 122 right property vested is well settled.... Cer 1995, denied) (holding illo writ that retroac- tainly judgment property a is a vested application shielding tive of federal law em- States, right.”); 461 United F.2d de Rodulfa v. ployees reporting of a financial institution 1240, (D.C.Cir.1972) (indicating that "a suspected wrongdoing properly applied was action, emanating vested cause whether of prosecution to lawsuit malicious and defa- principles, may from common law contract or prior that had been mation filed the enact- property beyond power constitute of the final, "only stating ment of the law and that legislature away,” holding to take but not so judgments nonreviewable will accorded because no of cause action—interference vested, dignity constitutionally guarded of (emphasis contract —existed the case add rights, a law will be deemed to have a ed)). prohibited retroactive effect it im when pairs rights”); Exploration those Tex. Gas majority 10. I concede a states of other 28, (Tex. Corp. Corp., v. Fluor 828 S.W.2d directly the issue have that an address held denied) ("A App.-Texarkana party writ accrued, unliquidated yet cause of action is a action; vested of has no to a cause right” retroactivity “vested under either neither the Constitution United However, States process analyses. due a number of state nor this forbids the abolition of com provide other states a more nuanced view. rights Colorado, permissible legisla to attain mon-law a example, jurisdic For one of the Richardelle, objective.”); tive Aetna Co. v. Ins. pro a tions whose constitution also includes (Tex.Civ.App.-Corpus 528 S.W.2d legislation, hibition on retroactive has held n.r.e.) (noting Christi ref'd depen right” that a "vested is "one that is not writ though plaintiff's even cause action had dent on the but in common or statute child, against plaintiff independent a minor stead has an In re accrued existence." DeWitt, (Colo. proceed Estate 54 P.3d could because 2002). recovery Supreme The would amended statute to foreclose Colorado Court "independent against age determine children the and the existence” defendant’s "(1) balancing: public plaintiff acquired whether ‘title ... interest is "had not to the destroy rights; vested a “vested create action becomes a cause of of a vesting event for the retroactivity triggering for the constitutional right” controversy right is the resolution of a final deter- when it has reached analysis the fil- the final determination —not is, re- it has been where mination —that ing of the suit. in the judgment to an enforceable duced opin- in an aptly put favor.12 As v. Houston plaintiffs Indep. Sch. Dist. Houston Co., for the First Appeals ion of the Court Publ'g Chronicle 798 S.W.2d District: writ (Tex.App.-Houston [1st Dist.] denied). immediate right” an implies A “vested with the expec- rule is most consistent entitlement —it is not This
right or
understanding
property rights
of vested
contingency....
Engrained
tation or
the ratification of the 1876
is the
the time of
concept
rights
vested
It
with our
certainty....
filing
of a
consistent
Constitution.
idea
interpretation of the words of
pur-
subsequent
relief or
in order to obtain
lawsuit
Retroactivity
It
consistent
remedy is
held not to
Clause.13
generally
sue
”
jurists
from other states
future
of a demand’
commentators
present or
enforcement
omitted));
recently recognized
specific
v. Crown
(quotations
have more
Satterfield
Co.,
overly
retroactivity
read
& Seal
clauses should not be
Cork
C.J.,
(Law,
See,
George
(Tex.App.-Austin
pet.)
broadly.
e.g.,
no
D.
Braden,
dissenting) (noting
plaintiffs had no
that the
an Annotated
Constitution
State of Texas:
remedy
liability
(1977) ("The
right in the
successor
other
Comparative
Analysis
are "cer
concerning
Crown because vested
prohibition
'retroactive
laws’
enforceable,”
immediately
the suc
suspicion
tain and
spring
general
re-
seems to
from a
theory
liability
create a cause
cessor
does not
garding all
which the three
retroactive laws of
action,
attainder,
Facto,
interests could be
and economic
post
mentioned
bills of
[ex
*47
police
balancing). But
power
in
considered
impairing
obligation
laws
the
of con-
(holding
Satterfield,
court
And it is more
appeals
of
This rule makes
ambi-
predictable
permit
and avoids confusion and
sense because
barred
“[t]o
claims
guity
Legislature attempts
years
when the
to be revived
later would undermine
affecting past
a law
constitutionally
society’s
repose,
craft
interest in
which is one of
conduct.
principal justifications
for
of
statutes
Hughes,
limitations.” Baker
12 S.W.3d at
significant
This Court’s first
discussion
words,
4. In other
when the statute extin-
retroactivity
Mellinger City
occurs
action,
guished a cause of
a defendant
Houston, 68 Tex.
legislation is not
by bring
Id.
he lives simply
active.
arose and where
Id.
In
ing suit in Texas.”
at 573.
other
Finally,
specifically
has
held
Court
words,
if the
even
statute of limitations
retroactivity exception,
Mellinger
that the
Melling
“grace period” rule articulated in
receive
requiring
party
that a
reasonable
plain
because
apply,
er were to
Alabama
preserve
rights,
which was re
time
expecta
tiffs
Alabama law
applying
had no
Likes,
exception
on in
has an
itself.
lied
Carter,
borrowing
tion
the continuation of the
Corning
In
997
Owens
S.W.2d
(Tex.1999),
statute,
upheld
a retroac
role
play
560
Court
“such concerns
a minimal
application
borrowing
tive
of an amended
justify
application
and do not
challenge.
a constitutional
statute
TMI,
grace period.”
(citing
Id.
In re
underlying
time the
At the
lawsuit
the case
(3d Cir.1996)).
1106, 1116
F.3d
filed,
borrowing
pro
was
statute
Texas’s
recognized
This
has
that contin
Court
injured
that a
who was
vided
non-Texan
gencies,
expectations, and mere
future
bring an
foreign
state could
action in
rules
law do not
vested
constitute
Texas,
period
if
even
the limitations
retroactivity
rights.
upheld
We have
chal
run,
plaintiffs
long
home state had
so
a final
lenges only when it interferes with
begun
pro
the action was
within
time
judgment,
parent-child
involved
565;
Igal
Id. at
vided
Texas law.
cf.
attempts
or when the
relationship,
statute
Inc.,
Grp.,
Brightstar
Tech.
Info.
a cause of
previously
revive
action
(Tex.2008)
(holding
S.W.3d
E.g.,
barred
statute of
by the
limitations.
judicata
relitigation of
res
bars
administra
A.V.,
168;
at
County,
Milam
54 Tex.
In re
tively
facts and distinguishing
determined
(Tex.2003);
113 S.W.3d
Baker
a rule where “a claimant whose action is
Otherwise,
at
Hughes,
in one
12 S.W.3d
we
precluded
limitations
state court
laws,
pursue
many
still be able to
the same action
have
held
occasions
longer
in a
different state with
limita
explicitly
even
retroac
apply
those
period”).
early
tions
while the
tively,
Retroactivity
not violate
do
plaintiffs’
pending,
Leg
lawsuits were
See, e.g.,
Clause in article
section 16.
to require,
islature amended the statute
Nissan,
David McDavid
2. Police Power
enjoyed
implied
under an
limitation
But
yield
police power.
and must
the
there is no
argue
Robinsons
must
obviously
implied
the
limitation
interests in the
balancing
for a
of
room
limits, or
contract and due
have its
the
retroactivity analysis. They contend
gone.
clauses are
process
vested,
it
be affected
right
if a
is
cannot
Mahon,
Pa. Coal Co.
260 U.S.
of
legislation.16 Regardless
(1922);
158, 67
see also
43 S.Ct.
L.Ed. 322
ex-
the “vested
threshold
rights”
whether
583,
Marriage
16 Cal.3d
Bouquet,
In re
ists,
expecta-
balancing
interests
427,
1371, 1376
Cal.Rptr.
128
546 P.2d
retroactivity
integral
part
tions is
(1976)
(noting
rights may
vested
juris-
the
analysis
jurisprudence,
in Texas
necessary to
“reasonably
when
impaired
states,
of other
and commenta-
prudence
health,
morals,
safety,
of the
protection
the
Although
area.
tors and scholars
this
people”);
well
of the
interests,
general
being
much in
also balances
the Court
Curiale,
N.J.
608 A.2d
Phillips
way I
jurisprudence
the same
believe our
(1992); Hochman, Harv. L.Rev.
pursu-
that we balance interests
demands
(advocating
abrogation of the
police
the
at 697
the
power,
ant to the state’s
Court’s
analyz
rights” concept and instead
analysis
points.
overlooks a few critical
“vested
Supreme
jurisprudence on
ing U.S.
Court
carefully
that a retro
recognized
Courts
retroactivity
the nature of the
balancing
affecting
rights
law
active
served,
interest
the extent to which
public
if the
nonetheless be constitutional
over
pre-en-
the statute modifies the asserted
the
riding public purpose of the act and
right,
nature of the
actment
legitimate
po
exercise of its
Legislature’s
alters).
the statute
outweigh
expec
power
lice
the interests
considering
balancing
to be
test
E.g., Bar
party.
tations of the affected
case,
appeals
the court of
bal-
applied
shop,
The Court asserts that what “constitutes degree of facilitation of impairment rights municipal of vested is too much bor- you eye rowing. of the to serve Of beholder as a course cannot decide retroactivity for ... “outweighs” test unconstitutional interest the other deep there a division over whether deciding [and is] without which interest is more restriction on a cause of ac- important you. that always And will retroactive rights.” impairs tion vested 335 S.W.3d be the case. I would abandon the ... vanquishes 126. So the Court the vested balancing enterprise [used dormant rights jurisprudence because is too hard commerce altogether.... cases] clause to decide and it believes some cases apply- Dep’t Davis, v.Ky. Revenue 553 U.S. ing it in the past were inconsistent. What S.Ct. L.Ed.2d 685 jurisprudence span areas of two cen- (2008) (Scalia, (em- J., concurring in part) are subject turies the same criti- added). phasis cisms? No one who has raised children bathing baby doubts the statement Assuming that the Robinsons’ accrued risky and challenging can be a. but unliquidated per- cause action for chore, tough but it must be done. The injury right sonal is a under vested baby Court throws out it once em- Clause, I Retroactivity consider whether along braced with the bath water. It will the Legislature’s general exercise surprise as no the new come balanc- police power private outweighs inter- ing test the Court establishes evaluat- ests at issue.
ing
will be
legislation
fraught
with at
similar
many
challenges,
least as
Balancing
Applied
a. The
Test to be
have
precedents
guidance.
but
no
The
We have
opportunity
fully
not had the
balancing
retroactivity
test in
juris-
Texas
police power
discuss the
contours
is,
prudence
candidly,
baby
new
in new
exception
retroactivity
vis-a-vis a
chal
Certainly,
bath water.
there are limits
lenge.
Barshop
Medina Under
imposed by
on legislative
the Constitution
District,
(as
ground Water
we
Conservation
judicial
well as
power
executive
upheld
Aquifer
authority),
the Edwards
Act
insightful-
but as
Scalia
Justice
ly explained
retroactivity
where
balancing
challenge
about a
test under
landowners
Aquifer argued
the Commerce
of the U.S.
above the
Clause
Consti-
Edwards
tution:
the Act
vested
to with
affected their
draw
unlimited amounts water from the
problem is that courts are less well
(Tex.1996).
Congress
perform
suited than
Aquifer.
every
kind of
case.
Without
whether
balancing
deciding
always
groundwater
rights,
burdens
in-
were
we
and the benefits
stated
*52
Galveston,
pro
we struck down a statute
authority
“required
the
was
that because
[aquifer] to
complete
of the
viding
City
for the effective control
the
of Galveston a
life,
supplies, the
...
... water
protect
injury
by
caused
defective
defense
industries,
the
existing
of
and
operation
roads, streets, sidewalks,
public
or other
of the state” and
development
economic
limits,
places
city
noting
the
that
within
general
“vital to the
aquifer
the
itself was
wel
public policy
general
broad
“[n]o
state,”
economy and welfare of
justify
to
fare considerations
advanced
Retroactivity
in the Texas Con
the
Clause
exer
the
as a reasonable
provision
charter
“absolutely bar
Leg
does not
the
stitution
think
cise of
can
of
police power [and w]e
from
Id.
enacting
islature
such statutes.”
inasmuch as
none that could
advanced
Leg.,
Act of
73d
R.
(quoting
May
ex
operational
provision
the
effect
the
1.01, 1.06(a),
”
S.,
§§
Gen.
ch. 626
city
the
154 Tex.
tends
to
limits....
2355,
29,
by
May
Act of
Laws
amended
S.,
Leg.,
74th
ch.
1995 Tex.
R.
states, however, have created a
Other
2505).
A.V,
In In re
we
Sess. Law Serv.
examining
fuller
the balance be-
rubric
upheld
application
retroactive
a statute
police power
prohibition
tween the
and the
parental
allowing
the termination of
laws. Each formula-
retroactive
who
for an ex
for those
are incarcerated
nature of
tion seems to balance the
the
period of time because the state
tended
Legisla-
public
by
interest articulated
the
duty
protect
safety
has a
the
and wel
ture,
modi-
extent to which the statute
the
children,
fare of its
and
‘valid exer
“[t]his
na-
abrogates
right,
fies or
the
the
vested
police
by
of the
the
power
cise
alters,
right
ture of the
the statute
and the
safeguard
safety
the
and welfare’
public
application
of the
of the new stat-
fairness
recognized
to the
exception
is a
unconstitu
retroactivity
ute.17
chal-
The Robinsons’
tionality of
retroactive laws.”
(Tex.2003)
and
lenge
as-applied challenge,
is an
thus
(quoting Barshop,
633-34).
the
must
that the
City
S.W.2d at
In Lebohm
Robinsons
demonstrate
disrupt
E.g., Phillips,
(articulating
application
tive
of the new law would
Pub.
Util.
Fourth,
Legislature rationally
the
drew
Nissan,
(Tex.2007);
McDavid
84
David
it
Chapter
problem per
149 to address
219;
Abell,
at
S.W.2d
parte
S.W.3d
Ex
613
very
ceived
effects on
important
—the
260;
at
This
3 S.W.
254.18
Mellinger,
at
be
economy
employment
the Texas
lawsuit
is a multi-defendant
where
case
bankruptcy
companies
cause of
which asbestos
is difficult
determine
sold,
manufactured,
never
or distributed
Mr.
products were the cause of
Robinson’s
asbestos-containing products. The asbes
injuries.
recog
had
litigation
tos
“crisis”
been well
journals
nized
and even court
deprive
149
the Robin-
academic
does
de
any
prohibit
of action or
decisions at the time
sons
cause
House Bill
Orsz
right
any party.
E.g.,
bated and enacted
simply
their
sue
It
1078-81;
ag, 44
Tex. L.Rev. at
Amchern
recovery against
off
innocent defen-
S.
cuts
Prods.,
Windsor,
point
have
Inc. v.
U.S.
dants at
defendants
(1997)
liabilities the
S.Ct.
rather
leg-
public
un-
perceived
interest
mediated the
attenuated.
Legislature
remedy alto-
islation,
retroactivity,
moderate.
foreclosing
and its
fairness
merely
remedy
limiting
but
gether,
response
acted in
company’s
acquired
fair value of the
and acted with a
litigation
known
crisis
assets.
response
narrowly
reasonable and
tailored
& Rem.Code
Civ.
Prac.
case,
149.001,
ex-
.003. In
that is
§§
Individuals
on the current climate.
based
total
happened. Crown Cork’s
actly what
personally believe
may or
and manu-
for the asbestos sold
liabilities
but it
particular legislation,
wisdom
Mundet’s
by Mundet far exceeded
factured
second-guess legisla-
province
not our
Mundet nev-
fair value. Had
present-day
we
with its
agree
because
do not
tion
Cork,
pay-
its
acquired
been
Crown
er
Ramirez, McIntyre
See
policy.
ex-
liability would have
for asbestos
outs
(Tex.2003).
741, 748
concern, it
going
its value as a
ceeded
and, al-
bankrupt,
have
likely would
been
Critique
Test
A
of the Court’s
b.
have re-
certainly,
money
no
would
most
disagree
I
with the Court’s
Although
claims if
pay
the Robinsons’
mained
arriving at
analytical framework in
*56
judgment
it. See
they
against
obtained
the un-
balancing test and
three-factor
Litig.,
E. & S.
Asbestos
In re Joint
Dists.
ap-
it
foundedly rigorous legal standards
(E.D.N.Y.2002)
F.Supp.2d
302-06
disagree
I
with the
plies, do
wholesale
(discussing
procedural
the
and
factual
up
it has
to determine
categories
set
the
of the Man-
background
bankruptcy
unconstitu-
retrospective
law is
whether
the
the
Corporation,
ville
establishment
However, the
tionally retroactive.
Court’s
bankruptcy to
following
Manville Trust
of the
the facts
application
law to
claims,
reformation
asbestos
and its
pay
Leg-
more
for the
case creates
difficulties
was
that the trust was
once it
discovered
the
of our state in
islature and
courts
that beneficiaries
“deeply insolvent” and
laws,
reviewing retroactive
and creates
full,
be able to
or even
paid
would not
be
unnecessary impediments
significant
all).
acquire
to
paid at
Crown Cork chose
ability to correct law
Legislature’s
to the
through
statutory merger
Mundet
changes in
legislative
and make beneficial
it re-
through an asset
but
purchase,
the future.
purview
Legislature
mains the
continuing liabili-
modify
legal
the
effect of
First,
disagree
“compelling
I
with the
the
ty
mergers
of such
in Texas to avoid
by the Court.
applied
reason” standard
possessing
ruin of businesses
assets
law,
precedent,
in our
case
Nothing
nothing
production
to do with asbestos
had
of ret-
such a
review
requires
heightened
legisla-
the
Importantly,
or manufacture.
legislation.
repeatedly
roactive
The Court
right nor the
tion restricts neither
heavy
against
presumption
mentions
remedy
plaintiffs
prove
who
that Crown
presump-
legislation,
retroactive
but the
only
injury;
caused
it
itself
them
Cork
away
presump-
falls
this case.
tion
imputed
liability.
addresses
successor
legislature “itself
tion is removed when a
affirmatively
potential
has
considered
short, for the
articulated
reasons
application
unfairness
retroactive
above, in their ac-
Robinsons’ interest
action,
price
crued,
acceptable
is an
unliquidated
is
determined
but
cause of
countervailing
benefits.”
any,
pay
expectancy,
low. Their vested
if
272-73, 114 S.Ct.
511 U.S. at
recovery
Landgraf,
for the
minimal. Their
“con-
Legislature
Not
did the
injuries complained
not foreclosed.
of was
ease, unwieldy,
in this
potential
suggesting
sider
unfairness”
that the Legislature
apply Chapter
retroactively
it voted to
can enact
legislation
retroactive
affecting
by a
supermajority.
point
Court’s
long
substantive
so
as there is a
fully
legis
that we should view
matter,
chance that it will not
at the end of
taken;
lation
is well
skepticism
how
day.
ever,
presumption against
retroactivity
Third, the statute does not affect settled
unnecessary
Legislature
when
ex
expectations
degree alleged
to the
by the
pressly concludes
the statute is to
alleges
Court. The Court
that the statute
Id.;
applied retroactively.
accord Lock will affect
recovery
“to which the Rob-
882, 896-97,
heed Corp.
Spink,
517 U.S.
entitled,”
insons
again
once
presuming
116 S.Ct.
L.Ed.2d 153
that the
Robinsons’ claims
Crown
(“[When]
temporal
effect of a statute is
Cork will be successful.
tion and
are unwarrant
ture because the legislation does not con-
Congress
ed when
its unambiguous
states
tain expressed
“findings
justify Chapter
intention that
apply
the statute
retroac
149.”
Second, the Court’s evaluation of the
are
helpful
determining
most
in
legislative
Robinsons’ interest seems to be focused on
intent,
Lopez,
United States v.
514 U.S.
pretrial
evaluation of not
the exis-
549, 562-63,
1624, 131
115 S.Ct.
L.Ed.2d
claims,
tence of the Robinsons’
but their
(1995) (concerning
626
the Commerce
strength.
argues
The
that the
Court
Rob-
Clause), I
no
am aware of
Texas case that
insons’ claims have “a substantial
in
basis
fact,
And,
requires them.
in
if the Legis-
fact” and that
claims are
their
“mature
required
lature were to
for every
be so
bill
tort[s],
recovery is more pre-
[such that]
in
police
may
which their
power
be chal-
dictable.”
even if the (citing Tex. Boll Weevil Eradication long purpose phy” as the but so purposes, valid Lewellen, 952 S.W.2d Found. to be true.” considered “may have been (Tex.1997))). special on prohibition Hahn, 1, 11, 112 Nordlinger v. U.S. added to Texas Constitution (citations laws was 120 L.Ed.2d S.Ct. of many practical of 1876 as one answers omitted). legislative prevalent to the abuse Thus, it is to aban- imprudent I believe power that occurred Texas executive rights jurisprudence, vested don our A.J. Thom following the Reconstruction. not have do applied, Robinsons’ Thomas, as, Wynen Ann Jr. & Van of action their causes 1876, 35 Tex. L.Rev. Texas Constitution of Even if the Robin- Crown Cork. against session of the one hold rights, are vested I would sons’ claims five hun post-Reconstruction legislature balance, that, exercise Legislature’s Id. special passed. dred laws were Sec power outweighs the Robinsons’ police “logroll thus prevent tion 56 was seen to Chapter and thus 149 does rights, granting to ensure ing,” I, of the Texas violate article section 16 special privileges, prevent and to lawmak Constitution. trading ers from votes “for the advance public personal ment of rather than inter Special B. Law Cnty., v. El est.” Miller Paso Because the Court determines (1941); Shel unconstitutionally retroac- Chapter 149 don, 22 Robinsons, it to the does applied tive as early century, In the twentieth argu- address the Robinsons’ second developed reviewing Court a test ment, 149 is an unconstitu- a law providing privilege whether law.” I that it is “special tional would hold actuality a veiled particular class at not. particular to a tempt provide privilege 56(b) Sheldon, III, section of the Texas Article member of the See class. 450-51; gener provides Maple Constitution that “where S.W.3d at Run at Austin *58 made no local or Dist. v. 931 applicable, Monaghan, al law can be Mun. Util. S.W.2d Hill, 941, (Tex.1996); be v. special law shall enacted.” 945 Robinson 507 Tex. Const. 56(b). 521, (Tex.1974); R.H.O, Ill, § A law” is a “special art. S.W.2d 525 Recent Case, particular persons Statutes—Special statute that “relates to Rea sonab Laws— class,” Classification, the class 11 things or of a rather than leness L.Rev. (1932) Finley, (collecting whole. v. 93 Tex. cases de as a Clark added), scribing legal 345 the for review of a (emphasis 54 S.W. standard law). States, Lucas v. 757 first special cited in United Court determines (Tex.1988); a 700 also Ford whether there is reasonable basis S.W.2d see Sheldon, law, 456 made by v. 22 S.W.3d classification then Motor Co. (Tex.2000) (defining operates a law” as one the law “special determines whether Rodriguez all “impermissibly distinguishes equally between on within the class. 1994, writ) (citations omitted), by "Logrolling” App.-Austin has defined our 19. been no Appeals in a bill of Courts of as "the inclusion "trading personal votes to advance rather subjects having no connection with State, several interests,” public than v. 68 Diaz order to each other in create a combination pet. (Tex.App.-El 684 Paso S.W.3d bill," support interests in of the whole various denied). State, (Tex. Skillern S.W.2d Gonzales, sports 227 S.W.2d industry, 148 Tex. entertainment but the Sheldon, (1950); given tax is at relief businesses be- Only if the law fails both tests is longing to or teams in supporting leagues law and unconstitutional. special or conferences “National” their name but not with or leagues conferences of a ba- determination “reasonable name, with “American” in their the classifi- invita- for the classification is not an sis” likely cation would no have rational rela- weighing to engage for the tion Court purpose tion to the of the statute. pros particular relative and cons of a Legislature. As policy choice made part The second of the test examines ago: over years this Court stated similarly parties whether situated are Now, propose we led off do not similarly classification, treated under into discussion what any extended as to or whether classification makes an ir is a for the of a proper application class category considering rational the intent of general tendency law. The of the recent See, Rodriguez, the statute. e.g., subject, decisions seems upon &e as it S.W.2d at 794 (holding setting that Statute us, into is to drift refinements special procedures out collecting delin specious profit- rather more than quent parcels greater land taxes than able .... or To what class classes 1,000 acres situated in counties bordering persons apply a statute things should whose Mexico and title emanated from the is, rule, ques- general legislative as a King Spain as an spe unconstitutional tion. of the legislature When the intent law, cial as there was “no substantial dif clear, of the policy law .is a matter ference in situation or circumstance of which does not concern the courts. border counties suits for delin relating to Clark, 54 S.W. at 345-46. We do taxes”); Miller, quent S.W.2d at 1002- analyze the Legislature’s classification (holding unconstitutional statute whether the classification is a determine providing development economic tax Davis, See good bad idea. Smith v. 426 only population in counties meeting re (Tex.1968). 827, 831 Rather we quirements, due to that the the fact stat analyze to ensure that the classification is ute’s classification was not distinct in prohibition not made to “evade manner other substantial from counties by making laws special constitution as state). Back example, to the the tax applicable pretended class, to a likely relief above be uncon statute would ” is, Clark, in fact no class.... 54 S.W. stitutional, to provide as its effect relief valid, presume We the statute is to the Houston Astros Dallas Cow *59 of opinion” “a mere difference between the boys support the and businesses that them Legislature and the will not be suffi- Court (as Astros are a of the Na the member to the of va- presumption cient overcome League, Cowboys tional and the are a Smith, lidity. at 831. 426 S.W.2d of the member National Football Confer ence), Rodriguez two-part The would not relief to provide sup test’s structure but porters the framework to of the Houston Texans and the provides determine (as “pretended Rangers whether a class class.” are a is Texas the Texans mem part The first of the test examines the ber of American Football Conference the Rangers delineated class vis-a-vis the and the are a member of the purpose legislation. Rodriguez, League). at classification is a the S.W.2d American The purpose “pretended For if the of the class” the classifica example, because provide purpose is to relief to in tion no relation to the of the law tax businesses has classifications, the similarly less of the wisdom of law situated teams and treats rationally are related to the classifications the differently. Although Court does The act to objective sought the of the bill. Legislature to determine defer to the corporations. protect “innocent” successor special, it does general is whether a law “innocent,” Legisla the To define the most policy choices Legislature’s defer to the mergers occurring prior ture chose to limit is that constitutional. and presumes Robinsons May to 1968. The claim 831; Smith, McIntyre See arbitrarily that this chosen date was (Tex.2003) Ramirez, 109 S.W.3d the in the work dangers of asbestos (“Our however, here, is to second- role place prior were to the ACGIH’s known our guess choices inform policy the However, this is the modification. date the effectiveness of weigh or to statutes upon by Legislature, the and it decided rather, results; task to inter their our to the relationship legisla has a rational in a manner that effec pret those statutes have, doubt, no tion —the could intent.”). Legislature’s tuates the any of cutoff dates to de chosen number case, law has purpose corporations are the cide successor expressed by Legisla- clearly been “innocent,” most and while others dis eliminate the unfairness created ture —to agree appropriateness to merged with a smaller corporation when a date, merely such be a “difference of would en- corporation previously that had been opinion,” basis over and insufficient of asbes- gaged in the manufacture sale Smith, 426 turning statute. S.W.2d at liability tos to asbestos exceed- exposed 831; Corp. see Exxon Mobil Alti also ing acquired corporation, the value of more, (Tex.App. corporation such a from bank- to save (dis pet.) Houston no [14th Dist.] Tex., Leg., 78th R.S. ruptcy. H.J. the basis cussing, in the context of for a (2003) (HB Legislative 4 Statement of punitive damages award “scientists’ knowl Intent). Leg- To address concerns in the refinery edge the risk to workers” islature, was in the measure restricted asbestos, noting originating studies First, original transfer of ways. three 1970s). 1940s, 1950s, 1960s, Simi prior May had to occur liabilities larly, the also second and third limitations the date 1968. This was in which to those businesses protection seek limit In- American of Governmental Conference were with the manufac not involved adopted change first Hygienists dustrial asbestos, or ture or those distribution limit for the recommended threshold premises. on the actually had asbestos air of a Sec- workplace. asbestos This is a rational distinction: also ond, legislation, the benefit of the get those Legislature sought protect busi corporation not contin- acquiring could to with nothing nesses that had do asbes Third, if the ue in the asbestos business. nothing had do prior merger, tos to a to control premises successor continued merger, and had no asbestos after the successor would con- merger, after the premises. asbestos on its classifica be liable for asbestos-related tinue to tions rational. from the premises liabilities received *60 argue The also that law is Robinsons
predecessor injuries caused on those a “special a because it created class of law” premises. Id. at 6043-44. (a) that the fact by one—evidenced Crown any other businesses identify attack these limitations did not The Robinsons Cork (b) pretexts just applied, as limit relief to to which the law Crown Cork’s to Crown and However, that, lobbying in Texas other regard it is clear for the law Cork. (c) states, by members The argue statements Robinsons that the law spe is they addressing were cial because Crown Legislature that Cork lobbied for the legislator and Seal act and that at “the Crown Issue.” least one Cork called the Act the “Crown in Cork issue” a com cite The Robinsons to Millers statement hearing. mittee This evidence is also una enough that “must be classification broad First, vailing. beneficiary law, as a of this ...” mean to include a substantial class to certainly lobby Crown Cork would for its that it of the proponent is the burden But again, public enactment. then interest to prove apply the law to that the law must individuals, groups, regu businesses Miller, more than one person. lobby for larly legislation that affects them contrary, 1001. On the the size or as an directly industry, lobbyists class, itself, While is determinative. regularly legislation draft for legislators. exacting reviewing courts must be more See, Victoria e.g., F. Nourse & Jane S. only a to one appears apply law that Schacter, Legislative The Politics of Draft party, equate a does “substantial” class ing: Congressional A Study, 77 Case hundreds, thousands, to a or class with 575, 588, 587, L. REV. N.Y.U. even are no dozens of members. There number (noting by legisla a of responses many doubt Texas laws that to a apply lobbyists regularly tive aides that draft the rather, small a population; subset of the text of bills debated in Senate Judicia “substantial” class is one that has sub- ry discussing Committee an account entities, persons stance—a real class of by legislative a aide a companion where opposed “pretended” as to a created class “negotiated bill by lobby was and drafted a pretext. as only ists and introduced with ‘minor evidence of is no pretext Robinsons’ ”). changes’ Many involved the “sau argu- evidence at all. The Robinsons’ bare making”20 developing task of sage law use ment that Cork a of one” Crown is “class lobbyists to draft the text bills because First, is insufficient. is not Crown lobbyists provide valuable information and Cork’s, but the Robinsons’ burden dem- perspective being on the bills introduced. onstrate law. special am Cognizant Id. at 583. as I of the need Second, even if the Robinsons could show gifts given by avoid currently applied the law individuals, to favored Robinsons must Cork, Crown alone fulfill would not come with more than the up evidence mere special. burden that the law was As fact that Crown Cork was involved in the above, discussed the Robinsons show must drafting, passing, even the of the act in Legis- made classifications question. rationally lature were not to the related Likewise, the Robinsons’ evidence of law, objective of the and the Robinsons Senator Ratliffs statement also not evi- legislation must show treated that the has “special dence House Bill law” 4’s sta- similarly dif- company situated successor tus. The senator described Article as ferently They from have done Crown. “the Cork and asbestos issue.” Crown Seal neither. First, the statement is no evidence be- cause, stated, The only repeatedly other evidence the Robinsons as Court has provide legislative history. single legislator is evidence of statement single "Laws, sausages, inspire previously cease re attributed like tation has been to Otto spect they Graham, proportion as we know how von See re Bismarck. id.: Saxe, Godfrey quoted made.” in (Fla. John 1958). So.2d quo This Quotations Yale Book of *61 intent and legislative not evidence
does Petitioner, YAMADA, M.D., Roy Kenji legislative intent. not determine does Tex., T L.P. AT & E.g., Commc’ns of Co., 186 517, Bell Tel. Sw. Corp. v. De La (Tex.2006); Gen. Chem. FRIEND, Individually as Laura (Tex.1993).
Lastra, 852 S.W.2d Representative the Estate Personal Second, statement as countenance Deceased, Friend, Elizabeth Sarah authority as be might “persuasive even Friend, Individually, Re- and Luther learned scholar given the comments spondents. Lastra, subject,” De La of the No. 08-0262. to the would to do a disservice at be ei process. Countless laws legislative of Texas. Supreme Court or by particular person championed ther the circumstances entity or arise out of March Argued experienced be that will or have been an individual or a business.21 Decided Dec. sum, the meet neither of Robinsons Rodriguez
the factors in the test. Legis- that the
Robinsons have not shown classifications are irrational or
lator’s statute, nor objective
related to they that the has
have shown by excluding “pretended” class
created
similarly entities. situated
III. CONCLUSION Chapter 149 not an
I would hold that law, and not un- special
unconstitutional as
constitutionally applied the law limited
the Robinsons because destroy did not
available remedies and I re- rights.
Robinsons’ vested therefore
spectfully dissent. Act,” Disney exten- Brady Hand- Mouse because lobbied 21. No one could claim that sively prevent- gun the act and because the act Violence Prevention Act 921-22, Mickey original cartoon § White ed the Mouse U.S.C. advanced former Willy” entering public from Secretary Brady Press and his "Steamboat House James Sarah, domain, Depoorter, Lives proliferation Megan’s Ben The Several wife see or Laws, dealing Expanding e.g., Mickey § Mouse: The Boundaries N.J. Stat. 2C:7-1 Law, Property registration throughout sex Intellectual offender Tech, Va. J.L. & n.2, Kanka, special country, Megan Spring no. would named after a minor individual, even merely sexually Jersey, in New laws because who was assaulted Act, Disney, strenuously that for them so Copyright Term lobbied even Extension eventually "Mickey named for them. bill was which was sometimes known notes odd pending case, defendants the time of the enact- procedural posture of the as well as Mr. by Chap- ment of the not limited statute was untimely passing, Robinson's is unclear remedy against ter but their Crown Cork legal being allegedly claims are retro- eventually was. The Robinsons recovered at actively extinguished. parties Because the $850,000 least from other defendants sued in only raise whether 149 is unconstitu- addition to Crown Cork. tionally applied to Mr. Robin- as (kept through son’s alive common law claims 5. On after the November trial court pursued derivatively the survival statute and granting summary entered its amended order I, statute) judgment, through wrongful death as the John Robinson died. Mrs. Robin- Court, prosecute son continued to her indi- arguments. claims How- address those vidually representative estate of ever, below, fully as more discussed the fact John Robinson. Because claims still live that the Robinsons’ claims are statute-based independently, one for Mrs. Robinson and reinforces the of this vested conclusions Robinson, opin- one for the estate of John analysis. petitioners ion will refer to as the Robinsons.