the State of Texas v. Volkswagen Aktiengesellschaftthe State of Texas v. Volkswagen Aktiengesellschaft
PER CURIAM
Justice Blacklock and Justice Young did not participate in this decision.
We lift the abatement order issued June 24, 2022, and reinstate these cases to our active docket.
Following the voluntary recusal of two of the Court‘s nine justices, the Chief Justice, pursuant to
I. Background
The Attorney General of the State of Texas, acting on behalf of the Texas Commission on Environmental Quality (TCEQ), sued two related foreign corporations—VW Germany and Audi Germany—asserting violations of Texas environmental statutes2 in connection with an alleged vehicle-emissions cheating scandal that has come to be referred to as “dieselgate.” Respondents filed special appearances challenging Texas courts’ authority to exercise personal jurisdiction over them. The trial court concluded Respondents are subject to personal jurisdiction in Texas, and Respondents appealed. A divided court of appeаls reversed and dismissed the State‘s claims. ___ S.W.3d ___, 2020 WL 7640037 (Tex. App.—Austin Dec. 22, 2020). The State sought review, and this Court granted both petitions and consolidated them for oral argument, which was heard on February 22, 2022. While the cases have been pending, two of the Court‘s nine justices recused sua sponte. The Court abated the cases on June 24, and the Chief Justice, relying on
Governor Abbott responded, appointing two active appellate court justices to participate in the Court‘s determination of the cases.3
Respondents submitted letters to the Court on June 29 and July 13, 2022, objecting to the Governor‘s appointment of the two substitute justices. They correctly point out that
one path forward if five of the seven remaining justices cannot concur on a decision as required by our Constitution: to dismiss the petitions as improvidently granted under
II. Governing Law
The United States Constitution guarantees that a state shall not deprive any person of life, liberty, or property without due process of law.
be defined with precision; “[c]ircumstances and relationships must be considered.” In re Murchison, 349 U.S. at 136.
While these constitutional guarantees protect the state‘s strong interest in judicial integrity, they rarely are implicated in disputes regarding judicial disqualification and recusal. See FTC v. Cement Inst., 333 U.S. 683, 702 (1948) (“[M]ost matters relating to judicial disqualification [do] not rise to a constitutional level.” (citing Tumey v. Ohio, 273 U.S. 510, 523 (1927))). “[O]nly in extreme cases would disqualification on the basis of bias and prejudice be constitutionally required.” Texaco, 729 S.W.2d at 844 (citing Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986)). Allegations of bias and prejudice typically are not enough to sustain claims that constitutional due-process rights have been violated. See Aetna, 475 U.S. at 821. Rather, the judge or justice must have “a more direct stake in the outcome” of the case. See id.
A further reason that constitutional guarantees are only rarely implicated in disputes regarding judicial disqualification and recusal is that Congress and the states, by legislation and rule, have imposed more rigorous protections of judicial integrity than our Constitutions mandate. The result is that most cases involving questions of judicial disqualification and recusal are determined under nonconstitutional standards. Tumey recognized this:
All questions of judicial qualification may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.
273 U.S. at 523 (citing Wheeling v. Black, 25 W. Va. 266, 270 (1884)).
- when the judge has a financial interest in the outcome of the case, see id. (judges may not preside over cases in which they have a “direct, personal, substantial pecuniary interest“);
- when the judge seeks to preside over a contempt proceeding against a witness who testified in secret before the judge, see In re Murchison, 349 U.S. at 137 (a judge may not act as a grand jury and then adjudicate contempt charges against “the very persons accused as a result of his investigations“); and
- when “a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge‘s election campaign when the case was pending or imminent.” Caperton, 556 U.S. at 884.
Outside of these situations, determinations whether disqualification or recusal is required are made by reference to the Texas Code of Judicial Conduct, the Texas Rules of Apрellate Procedure, and the Texas Rules of Civil Procedure.
The grounds for disqualification and recusal under Texas law are set out in
issues. Titled “Avoiding Impropriety and the Appearance of Impropriety in All of the Judge‘s Activities,” Canon 2 requires that “[a] judge shall not allow any relationship to influence judicial conduct or judgment.” TEX. CODE JUD. CONDUCT, Canon 2(B). Similarly, Canon 3 requires a judge to “perform judicial duties without bias or prejudice.” Id. Canon 3(B)(5). Notably, the Rules and Canons do not concern themselves merely with mandating disqualification or recusal where appropriate; Canon 3(B)(1) also prohibits unnecessary disqualifications and recusals by mandating that judges “shall hear and decide matters assigned . . . except those in which disqualification is required or recusal is appropriate.” Id. Canon 3(B)(1) (emphasis added). This prohibition reflects a recognition that a too-casual approach to disqualificаtion or recusal would threaten to frustrate our judicial system.
Where, as here, a justice has determined that recusal is appropriate,
required since 1876 that when any
Our Constitution also authorizes the Governor to appoint judges when “[a] vacancy in the office of Chief Justice, Justice, or Judge of the Supreme Court, the Court of Criminal Appeals, the Court of Appeals, or the District Courts” arises, usuаlly due to death or retirement. Id.
III. Discussion
A. Commissioning justices does not amount to allowing the State to “be the judge of its own cause”
Respondents argue that allowing the Governor to commission two justices to participate in the Court‘s determination of these cases is tantamount to allowing the State “to be the judge of its own cause” and “would create an appеarance of partiality that the Court should avoid at all costs.” Respondents’ argument rests on two fallacies: (1) that the Governor is the State and thus effectively a party in these cases, even if not named as such; and (2) that commissioned justices, by virtue of having been appointed by the Governor, must be partial to the State or, at a minimum, will necessarily appear to an ordinary person to be partial to the State.
The claim that the Governor‘s commissioning of temporary justices would be attributable to the State, the named plaintiff, misunderstands the nature and structure of Texas‘s government. As Respondents concede in their July 13 letter, “Texas does not have a unitary executive.” See In re Abbott, 645 S.W.3d 276, 280 (Tex. 2022) (“[T]he Texas Constitution does not vest the executive power solely in one chief executive. Instead, the executive power is spread across several distinct elected offices . . . .“).
In Texas, it is not the Governor but the Attorney General, a distinct and separately elected officer, who has authority to initiate and conduct enforcement actions on the State‘s behalf. See
the enforcement actions here were brought not by the Governor but by thе Attorney General, as authorized by the Water and Government Codes. See
Our cases acknowledge the separateness of a government entity and its constituent government actors. In Abbott v. Mexican American Legislative Caucus, this Court considered the distinction between the State and the Governor for purposes of identifying the proper defendant. 647 S.W.3d 681, 698 (Tex. 2022) (“[C]laims . . . may be brought against the relevant governmental entity.” (emphasis added)). We determined that the State was not the proper defendant for one of the plaintiffs’ claims, whereas the Governor or the Secretary of State may have been. Id. at 698, 704. In short, actors within the executive branch, be they individuals or entities, are not interchangeable and cannot be considered alter egos of one another. For this reason, the fаct that these
enforcement actions were brought by the Attorney General on behalf of and at the request of TCEQ is insufficient to impute party status to the Governor.
Nor does the Governor‘s authority to appoint TCEQ commissioners or officers justify imputing party status to him. Though the Legislature creates agencies within the executive department, their “animating statutes do not subject their decisions to the Governor‘s direct control,” and where the Governor has the authority to appoint agency officers, the “enabling statutes rarely give the Governor formal control over the officers’ decisions once appointed.” Sеe In re Abbott, 645 S.W.3d at 280 & n.1. TCEQ‘s enabling statute is structured in this way. See
Respondents claim the Governor has a dirеct interest in this lawsuit because it will potentially increase the state‘s general fund. But the Governor, of course, holds no pecuniary interest in the general fund. And Respondents overstate the extent of his control over the state‘s appropriations and budgeting decisions. The appropriation of the state budget, including the general revenue fund, lies within the power of the
legislative department. See
Respondents’ claim that the Governor‘s commission of substitute justices under
participation in one case or to complete an unexpired term prior to a general election—will necessarily seek to advance the State‘s interests in the cases that come before them. Indeed, the very nature of an independent judiciary requires that judges act neutrally and not seek to further one party‘s interests. See Rodriguez, 491 S.W.3d at 33 (citing Brumit, 206 S.W.3d at 645) (judges are presumed to act impartially). Respondents’ complaint that a commissioned justice would be acting as “the State” in the State‘s cause is at odds with the very nature of judging.
B. This case is not like Caperton or any other case requiring disqualification or recusal
Respondents next contend that the Governor is constitutionally prohibited from commissioning justices to hear these cases. They rely heavily on Caperton, asserting that even if the Governor is not actually a party, he has a “personal stake” in the case such that his appointment of two substitute justices to participate in the determination of these cases would violate due process. Notably, Respondents do not complain that either of the two commissioned justices has a personal bias or individual circumstance that requires disqualification or recusal; indeed, Respondents objected to their appointment before their identities were known. Resрondents instead contend that the Governor‘s role in the
Caperton is the centerpiece of Respondents’ argument, and a recitation of its “extraordinary” and “extreme” facts demonstrates it does not control this case. See 556 U.S. at 887. Hugh Caperton had obtained a $50 million judgment against A.T. Massey Coal in West
Virginia state court. Id. at 872. After Massey appealed, Caperton challenged one justice‘s participation in the case on the grounds that Massey‘s president, chairman, and chief executivе officer, Don Blankenship, contributed $3 million to benefit the justice‘s judicial campaign while the appeal was pending. Id. at 873. The candidate won the election—becoming Justice Benjamin—and participated in the decision of the case over Caperton‘s objection. Id. at 873-74.
The case took strange turns on rehearing. Photos surfaced of one justice “vacationing with Blankenship in the French Riviera,” leading that justice to recuse. Id. at 874. Yet another justice recused on Massey‘s motion, based on his public criticism of Blankenship‘s role in the election. Id. at 874-75. But Justice Benjamin again denied a motion seeking his disqualification, despite the urging of a recused justice, who noted that “Blankenship‘s bestowal of his personal wealth, political tactics, and ‘friendship’ have created a cancer in the affairs of th[e court].” Id. at 875 (internal quotation marks omitted). Justice Benjamin then became the acting chief justice responsible for selecting two substitute justices to replace the two who recused. Id. Caperton again objected, but Justice Benjamin denied the motion anew, and the newly comprised court again reversed the judgment against Massey. Id.
The United States Supreme Court granted certiorari and held that due process requires recusal when a “person with a personal stake in a particular case ha[s] a significant and disproportionate influence in
placing the judge on the case by raising funds . . . when the case [is] pending or imminent” and the result is that, in effect, “a man chooses the judge in his own cause.” Id. at 884, 886. Blankenship held a personal financial interest in the outcome of the case and had disproportionate influence in securing Justice Benjamin‘s election to the court. See id. at 884. Justice Benjamin, in turn, obtained a multi-million-dollar benefit from Blankenship but nеvertheless participated in the decision of the case over Caperton‘s repeated objections and then proceeded to exercise the appointment power to choose two other judges. See id. at 873, 875. The Court concluded these circumstances created “a serious, objective risk of actual bias” sufficient to require Justice Benjamin‘s recusal whether or not actual bias exists or can be proved. Id. at 886. Yet it noted the unlikelihood that such a fact pattern would arise again, dismissing the dissent‘s concerns that its decision would result in “a flood of recusal motions” or “unnecessary interferenсe with judicial elections” because the facts were “extreme by any measure.” Id. at 887.
Caperton is different from this case in meaningful respects. First, the Governor has constitutional and statutory duties to appoint justices and judges.
interest in having the Massey judgment reversed. See Caperton, 556 U.S. at 886.
Second, analogizing the Governor to Blankenship does not work because, unlike in Caperton, the Governor does not confer on the commissioned justices anything of pecuniary value. The commissioned justices do not receive more pay for having been commissioned, and, on the other side of the coin, commissioning these justices requires no financial outlay by the Governor. There is no basis for imagining a quid pro quo exists between them. Blankenship made a multi-million-dollar outlay for Justice Benjamin‘s benefit and vacationed
Third, unlike in Caperton, the factors weighing against requiring recusal here carry vast significance for our judicial system itself. In Caperton, Justice Benjamin‘s recusal would have had no ill effect on the judicial system. Had he recused, another justice could have served in his stead. Massey would not have lost its right to appeal, only its desire to have it determined by Blankenship‘s preferred justices. Here, by contrast, adopting Respondents’ theory would hinder the normal operation of Texas‘s highest civil court. If no substitute judge or justice could ethically participate in the decision of these cases and the remaining justices could not reach a five-justice consensus, the Court would have no choice but to raise a white flag and dismiss the State‘s appeal without reaching its merits. Neither the due-process guarantee nor our ethical rules contemplate that their application would bring the сourts to such a grinding halt. See Cameron v. Greenhill, 582 S.W.2d 775, 776 (Tex. 1979) (“The Constitution does not contemplate that
judicial machinery shall stop. If this is threatened, the doctrine of necessity will permit the judge to serve.” (citing Hidalgo Cnty. Water Control & Improvement Dist. No. 1 v. Boysen, 354 S.W.2d 420, 423 (Tex. App.—San Antonio 1962, writ ref‘d))).
Nor is this case like the others in which the United States Supreme Court has held due process requires disqualification. Tumey, on which Caperton relies, involved a city mayor who himself acted as the judge in cases in which he stood to receive a personal financial benefit if he obtained a conviction. See Tumey, 273 U.S. at 520. Here, by contrast, the Governor has not commissioned himself to serve as a justice in these cases. Likewise, the substitute justices have no financial incentive to favor one side over the other.
Aetna Life Insurance Co. v. Lavoie likewise illustrates that mere allegations of bias and prejudice of the type alleged here are insufficient to create a constitutional due-process violation. See 475 U.S. at 821. Aetna claimed a state supreme court justice, Justice Embry, was biased against it because Justice Embry had brought a pending class action against insurers, the outcome of which would be affected by the court‘s decision in Aetna‘s case. Id. at 817. Yet Justice Embry authored the per curiam opinion that had the “immediate effect of enhancing both the legal status and the settlement value of his own case.” Id. at 818, 824. The existence of this concrete, personal, pecuniary interest led the Court to cоnclude that Justice Embry had impermissibly “acted as a judge in his own case.” See id. at 824 (quoting In re Murchison, 349 U.S. at 136). Here, Respondents can point to no such personal, pecuniary interest that would justify disqualifying the entire Texas judiciary.
Aetna‘s treatment of justices other than Justice Embry is likewise instructive. The Court refused to disqualify the other justices despite Aetna‘s assertion that they were potential class members in Justice Embry‘s suit. Id. at 825. The Court concluded that any purported interest other justices might have was too slight and indirect and, importantly here, doing so on such a slight basis “might require the disqualification of every judge in the State.” Id. (noting that if circumstances did require all justices to recuse, a “rule of necessity” might apply so that “none of the judges or justices would be disqualified“).
Aetna is thus instructive on several fronts. First, mere allegations of bias and prejudice are generally insufficient to establish a constitutional violation; a violation
Texas courts have similarly concluded that a single campaign contribution to a judge, in the absence of other compounding factors, does not present an “appearance of bias and prejudice” that would rise to the level of a constitutional violation. See Texaco, 729 S.W.2d at
844-45. In that case, Texaco argued that disqualification of a judge who had received a campaign contribution from a lawyer participating in the case was required by Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145 (1968). Texaco, 729 S.W.2d at 844. The court of appeals distinguished Commonwealth on the basis that it involved the appeal of an arbitration award in which one of the arbitrators had an ongoing, sporadic business relationship with one of the parties, including “the rendering of services on the very projects involved in the lawsuit.” Texaco, 729 S.W.2d at 845. In contrast, the trial judge in Texaco had “neither participated with Pennzoil in the case being tried nor enjoyed even ‘the slightest pecuniary interest’ in the outcome of the trial.” Id. (quoting Tumey, 273 U.S. at 524). So too here. Because the commissioned justices do not enjoy even the slightest pecuniary interest in this case‘s outcome, their participation raises no constitutional concerns.
C. Ethical standards do not require per se disqualification of every justice or judge commissioned pursuant to Section 22.005
Respondents also assert that the Governor should not commission substitute justices because commissioning any justice or judge pursuant to
a reasonable person would necessarily look askance at even the noblest of judges with unquestionable ethics if they were commissioned to serve in these cases.
Yet, even leaving the presumption aside, we are not convinced that a justice‘s acceptance of the Governor‘s appointment to participate in the determination of these cases would create in reasonable minds a perception that the justice is unable to carry out his or her responsibilities with integrity, impartiality, and competence. The commissioning statute requires that a temporary justice be selected from among the state‘s “active appellate or district cоurt justices or judges.”
IV. Conclusion
The Governor‘s appointment of two substitute justices to participate in the determination of these cases does not, in and of itself, create a serious risk of actual bias under Caperton and therefore does
not violate the due-process or due-course-of-law provisions. Nor does it, standing alone, taint the commissioned justices with the appearance of partiality or impropriety under Texas ethical rules. We therefore deny Respondents’ requests to withdraw the Chief Justiсe‘s certification letter and to dismiss the petitions as improvidently granted.
OPINION DELIVERED: November 18, 2022