Capitol Hill Hearing- Hearing of the Senate Judiciary Committee

Federal News Service

March 13, 2003 Thursday

SECTION: CAPITOL HILL HEARING

HEADLINE: HEARING OF THE SENATE JUDICIARY COMMITTEE
 
TOPIC: SETTING THE RECORD STRAIGHT: THE NOMINATION OF JUSTICE PRISCILLA OWEN
 
CHAIRMAN: SENATOR ORRIN HATCH (R-UT)
 
LOCATION: 106 DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.

SEN. HATCH: Well thank you. And my time is up. Senator Kennedy, we'll turn to you.

SEN. EDWARD KENNEDY (D-MA): Thank you very much, Mr. Chairman. I'll take just a moment here before asking our witness some questions just to pay a tribute to you and to other colleagues of the committee -- Senator Leahy, Senator Feinstein, Senator Hutchison -- for their work on the Amber Alert bill. I saw you last night, Mr. Chairman, just after the Elizabeth Swift (sic) was found, and we all, as others have pointed out, know of your deep involvement in a very personal way in this case, and also in the strong support of the Amber legislation. We've had a tragic situation in our own state, the Bish from Warren, Massachusetts just a year ago. And many of us have been trying to have our own state, Massachusetts, develop a similar kind of a case for the heartbreaking reasons that have surrounded the situation and the circumstance in the Elizabeth Swift (sic) case. So, we -- we'll work on that legislation. It is a pretty good indication that the committee can work and do some good work at a time and achieve a good objective.

SEN. HATCH: Well, thank you, Senator --

SEN. KENNEDY: And I'm glad that that -- appreciate the fact that you brought that up at the start of this hearing.

SEN. HATCH: Well, that means a lot to me, and as usual, your compassion comes through and our friendship is intact in spite of the fact that it came at -- (inaudible) -- disagree --

SEN. KENNEDY: Well, don't want to go too far -- (laughter) --

Judge Owens (sic), I want to welcome you back --

MS. OWEN: Thank you.

SEN. KENNEDY: -- Owen -- Owen, excuse me -- to the committee, and thank you for the willingness to take on the, you know, the responsibility for service on the courts, and thank you for your willingness to respond to these questions. I think, as you well understand, all of us have a responsibility in these -- in these considerations, and we want to try and ensure, as I'm sure you do, that we're going to have people, men and women on the courts that are going to insist that the courts are going to be available and accessible to listen to all sides and to evaluate all of the information that comes before the courts and give a fair and balanced judgment on these cases.

And my concerns, as I think you remember from the last time, is to what kind of -- whether the plaintiffs that are representing workers, or the disadvantaged, those that are left out and left behind, the individuals that have been injured or hurt in circumstances, whether they will be able to get a fair hearing in the courts. And so we look at your background in these areas to try and draw some conclusions. And I want to just again sort of mention these and hear you out once more on this.

As I mentioned, one of my major concerns is the way that you reinterpret the law to achieve currently the result that you want. Your decisions consist of support for the businesses and employers over the rights of the plaintiffs and I believe often stretched the law to do so. You're among the most frequent dissenters on the Texas Supreme Court with more than 20 dissents in cases involving the rights of employees, consumers and many others in the last five years. The Texas Supreme Court is notoriously business oriented, but you stand out at being to the right of most of the judges on the court. You've repeatedly criticized -- been criticized by your colleagues in the majority for putting your own views above the law. In the Jane Doe cases, you were criticized by your colleagues, including Judge Alberto Gonzales, who is now President Bush's counsel in the White House, for insisting on reading your own views into the parental notification statute on abortion. Judge Gonzales called your interpretation an unconscionable act of judicial activism.

And numerous examples occur in other cases involving labor protections, consumers protections, and environmental protections. In one case, the private landowners tried to obtain an exemption from the environmental regulations, and the court majority specifically criticized your harsh dissent saying it was nothing more than inflammatory rhetoric which merits no response.

In a case involving whether an insurance company had acted in bad faith, you joined a partial dissent that would have limited the rights of jury trials for litigants. And this dissent was criticized by other judges as a judicial slight of hand to circumvent the constraints of the Texas constitution.

In another case, a worker's arm had been partially amputated as he inspected a chopping machine. Your dissent would have severely limited the ability of injured individuals to obtain compensation from product manufacturers. The majority criticized your dissent for imposing a test more broad than any holding in this area so far.

And even when you joined the majority in favor of a plaintiff, you have announced views hostile to workers' rights, the GTE Southwest versus Bruce. You concurred with an otherwise unanimous court decision in favor of the three female employees, but you went out of your way to make it clear that in your view that not all of the supervisors' behaviors amounted to intentional infliction of emotional distress. The supervisors' behavior included yelling, cursing frequently at the employees, repeatedly threatening employees, verbally assaulting employees by physically charging and lunging at them and ordering a female employee to scrub a carpet on her hands and knees.

Because of such cases, and these are just a few examples, how we can have confidence that you will fairly interpret the law and fairly consider the claims of workers, victims of discriminations, or other injured -- injured individuals, and how could we have the confidence that you'll review the cases with an open mind.

In the hearing last fall, I asked you whether with all your dissents in favor of businesses, insurance companies and employers, you are dissented in any case, whether the majority of the court favored those interests, you mentioned a single case, in 1996, the Sands (ph) versus Fidelity Guaranty Insurance Underwriters. After reviewing that case, and I hardly think it offsets your anti-plaintiff record, you didn't write a dissent in the case, you joined an opinion written by another justice, concurring in part and dissenting in part. You actually agreed with the majority that a jury verdict for the plaintiff should be overturned. In fact, another dissent in the case would have upheld the jury verdict.

So, while you agree that there was a claim in that case that you would have allowed the plaintiff to pursue, but your long record of ruling against the plaintiffs -- is that the only case in which you dissented in favor of the plaintiffs in a worker's rights, consumer rights, or a civil rights case?

MS. OWEN: Senator Kennedy, there's a lot in your question, so let me try to go back and parse through some of the things that are in that question and what preceded it in some of your --

SEN. KENNEDY: Okay.

MS. OWEN: -- statements.

First of all, Senator Kennedy, I can assure you that I do not ever try to achieve a result, and I don't look at whether the -- whether I want one side to win or the other side, or one segment of our population to be favored over another. That is not my job. And I certainly don't keep score and say, "Okay, you know, X number -- 50 percent of -- this side has to 50 percent of the time, and this side has to win 50 percent of the time, and every six months or so we've got to even the score here." That is not what judging is about. That is not what I do.

And you mentioned that, I think you said in 20 cases I have dissented. Well, I have participated in over 900 written opinions from my court, and we have also denied writs of petitions and writs of error in my court, and we get about 1,400 of them a year, and we look at ever single one of them. And when we only take about 10 percent in writing opinions in, so in all of those thousands and thousands of cases, we have voted -- I, as part of the court, have voted to let the lower court judgment stand, and there are untold hundreds and hundreds of verdicts in those cases that we don't touch, that we do not set aside.

In the cases that do come to us, as Senator Cornyn explained, my former colleague, we get the tough ones. And we don't -- you know, the cases that come to us are generally not the easy cases. And what I try to do is to, as a judge, is to put aside personal feelings or put aside sympathetic or sympathy, and put aside the fact that yes, in some of these cases people are very injured. And the question is, do they -- what does the law say? What does the law require under these circumstances?

And Senator Kennedy, I tell you again that I judge cases by what is right. I do not judge cases by what is politically correct. I apply the law, and the law has to be predictable and it has to be fair, and that's what I do in these cases. Sometimes workers win. Sometimes big companies win. The outcome is determined by the law applied to the facts, not favoring one side or the other.

And I did submit, I believe in response to written questions this summer, a partial listing of significant cases where workers or consumers, plaintiffs had won significant victories in my court, and I can cite you others.

In terms of being criticized by my colleagues, I think as Senator Cornyn very ably pointed out today, the culture of supreme courts, state courts, is often, and certain it is in my case is we do criticize one another an opinions. That's frequent. That is certainly not out of the norm. Every single member of my court has been criticized by every other member of the court I am certain at one time or another, and sometimes in strong terms. That does not mean that I think any of my colleagues have ill motives, have political motives, are unfair, are unfit as judges. As Judge Cornyn, now Senator Cornyn I think explained, that is the way judges speak in their written opinions.

I won't go through to much more explanation, unless you'd like me to, on the Doe case where Justice Gonzales and -- former Justice Gonzales actually used the words that you quoted. You mentioned the FM Properties case. You characterized that in a certain way, but my position in that case was to uphold what the legislature had done. And I felt like the legislature had made a good faith effort. It was not unconstitutional. The Democrat attorney general in the state at the time, Dan Morales, filed a lengthy brief in support of the state, in support of the position I ultimately took.

You mentioned the Sonnier case. That was the decision that Senator Cornyn was describing earlier that involved the tomato chopper. And the issue in that case was -- it was in a prison system -- and it was a very large chopping machine. And the only issue in the case involved the so-called statute of repose. And the question was, has -- is it affixed to the property in such a way that it's part of the real property or is it just a fixture. And hard -- I -- nothing I said in that opinion had anything to do with expanding products liability law in the least. I said in my dissent in that case that this -- I couldn't tell from the facts, this is fact -- question that should go to the jury and let the jury decide. Sometimes the facts are very clear and the court can tell. But I said here, you know, I don't know whether this tomato chopper is sufficiently affixed. Let the jury decide. That was my position in that case.

GTE, I thoroughly agreed with the court in that case that what the supervisor in this case did was way out of bounds. The plaintiffs in this case were certainly entitled to recover for intentional infliction of emotional distress. I voted to uphold that verdict. The only thing I said in that case, in terms of -- and this is a term of art -- I said that some of the evidence that the court cited was legally insufficient. That does not mean it is not admissible. Certainly it's admissible. But the question is, if you just had isolated instances that I cited by themselves, that would not be sufficient to constitute intentional infliction of emotional distress as had been defined by the restatement of the law of torts, which is a nationally recognized, 50-state treatise that our court had adopted, and I cited the specific examples and said this is the kind of things precisely that the restatement was talking about, so I was -- and I was trying to square what we said in GTE with two very recent cases that the court had decided.

I can tell you that I have upheld decisions for workers where I have been criticized by my colleagues. One case was the Ethel case. It involved asbestos workers. There were several hundred asbestos workers suing a number of defendants, and the trial court chose 22 of those cases against, I believe it was five defendants, to try as sort of an all in one trial, as an efficiency means to do it faster than one case at a time. And the defendant came up on mandamus and asked us to stop the trial and say, you know, this is too many plaintiffs to try at once. And I wrote the opinion for the court. I said no, the defendant has not established that the court abused its discretion and this trial should go forward. I did the same thing in a breast implant litigation case and I was criticized for it by the dissent. I can go on and on. I dissented in SV versus RV, and I was criticized for my dissent where I would have let a girl who was -- who said she was sexually molested by her father, go to -- I would have to hold the statute of limitations because she asserted at the pleading stage that she repressed her memories of that until she got away from her home and was in college.

So, I can go on and on about cases where I have either written or joined opinions, significant decisions that upholds verdicts or establish rights for injured parties, injured workers, plaintiffs, consumers. So I think when you're looking at my record, you have to look at the entire record, and that's a whole lot of opinions, Senator.

SEN. KENNEDY: Well, I'm looking at the whole entire record, but I'm looking at the particular kinds of actions that have been taken with regards to workers rights, civil rights, environmental rights, women's rights. And those are areas that I was particularly interested in -- particularly interested in. And when I was talking about the dissents, we were talking about the dissents, not 20 dissents -- obviously you have dissented more, but on particular cases involving those rights, I think in a fair kind of review of your record in terms of workers' rights, environmental rights, people's rights, civil rights, you would not find the kind of balance that you've just stated or claimed. I -- that's why I asked in the -- in the last time whether there was any time that you've stood up for the plaintiff, any single time over the -- over -- differing with the other members of the court. And you gave only this one case, which really is -- it doesn't really say that -- there was a dissent but you weren't a part of it, that would have upheld the jury verdict.

So, my point is here -- I'm not saying that you've never supported a plaintiff. I know you -- that you've sometimes joined pro-plaintiffs majority. The point is that you're extremely active in any plaintiff dissent on an already conservative court. And we're not simply discussing a few cases, but I think an extensive record.

And the question is whether you've shown the same kind of dedication in protecting the rights of individuals that you've shown to protecting businesses, insurance companies and other employers when they harm individuals and violate the law. That's the area.

And if you have -- if you don't feel that I've been fair in that and you think that there are other parts of your record that would reflect that and show that and give that kind of balance, I welcome that submission for the record.

Just a final point. I inquired of you -- I know we've gone over the Ford versus Mills (sp) case. In your response to me, you said, "With regard to the motion to expedite, the court considered the Ford versus Mills (sp) case an important one, but we did not give it precedence." Do you know any reason why you didn't give it precedence?

MS. OWEN: Senator Kennedy, I hope you appreciate that I do operate under the code of conduct in Texas, which means I can't disclose the deliberations internally. But I can say this, that a motion like that would have taken a majority of the court, five members, to agree to put it ahead. And five members didn't do that. And we, in hindsight --

SEN. KENNEDY: All right. Well, I don't want you to violate the code. If there was some indication that in the five that you tried to do it and the others wouldn't do it, it would be something that would be noteworthy.

MS. OWEN: We all agreed, including me, after the fact, that we should have granted those motions. I'm not sure it would have made any difference, but we should have.

SEN. KENNEDY: Thank you very much for your appearance here. You come very warmly endorsed by our colleagues, which we're grateful for. And I thank you for coming back.