If  Justice Owen’s views had become law: employees would have to endure almost limitless abusive behavior from  their bosses to maintain a valid lawsuit; a teenager paralyzed in a car accident due to a faulty restraint system  would not have been allowed to sue in Texas courts; a vacuum cleaner manufacturer that failed to conduct a  background check before hiring a salesman with a history of sexual misconduct could not be held liable for the  salesman’s on-the-job rape of a prospective customer; the Texas civil rights statute would require an employee  to carry the near impossible burden of proving that discrimination was the exclusive reason for her dismissal,  rather than a “motivating factor”; and a developer could have bypassed a city’s water quality laws on the  grounds that they infringed on its constitutional rights.  In the water pollution case, the court’s majority stated:  “Most of Justice Owen’s dissent is nothing more than inflammatory rhetoric and thus merits no response.”

Prior to her original nomination, in each of the many cases that came before her involving Texas’ Parental  Notification Act, Justice Owen voted against allowing a minor to obtain an abortion without notifying her  parents, often ignoring the law’s explicit exceptions.  In one case, she advocated requiring a minor to show an  awareness of the “philosophic, moral, social and religious arguments that can be brought to bear” before  obtaining judicial approval for an abortion without parental consent.  The statute contains no such requirement.  Attorney General Alberto Gonzales, when he was one of Justice Owen’s colleagues on the Texas Supreme  Court, criticized Justice Owen in another case for attempting to re-write the parental notification statute, calling  her dissent “an unconscionable act of judicial activism.”

Justice Owen has taken campaign contributions from law firms and corporations, including Enron and  Halliburton, and then, without recusing herself, ruled in their favor when their cases came before her.  After an investigation by a district attorney and a ruling by the Texas Ethics Commission, the Texas  Supreme Court revised its practice of allowing law clerks to accept money during their clerkships from their  future law firm employers, including those litigating before the court.  Justice Owen nevertheless defended  the practice and dismissed the matter as a “political issue dressed up as a good government issue.”

In one case, Justice Gonzales wrote a concurring opinion that said it would be an “unconscionable act of judicial activism” for a judge to contort a statute to reach a preferred policy outcome. A tortured reading of those five words forms the centerpiece of the Left’s campaign against Justice Owen. Unlike the guerilla smear groups, however, I had an unmatched front-row seat as our court decided this case, and I know exactly what Justice Gonzales meant.

Few things in life are 100 percent certain, but this one is: Alberto Gonzales was not calling Priscilla Owen, or any other colleague, a judicial activist. On this point there was never one iota of intra-court confusion. My colleagues and I knew that Justice Gonzales was not targeting anyone personally but making a point of personal principle — because I interpret this imprecise statute a certain way, it would be a personal act of judicial activism to let my subjective ideology trump my detached interpretation. His concurring opinion characterized what he believed he would be doing if he interpreted the statute to mean something other than what he thought it meant, even though his interpretation may have been “personally troubling to [him] as a parent.”

Bottom line: The Left’s allegation that Gonzales accused Owen of unprincipled activism spins his words 180 degrees and is patently false. I was there, and the facts are hostile witnesses. But the charge — repeated 24/7 by liberal interest groups and a compliant, soundbite-craving media — has acquired urban-myth status.

The supreme irony in all this is that liberals, who prefer an imperial judiciary inclined to activism, seized upon this five-word snippet precisely because they know full well, as Alberto Gonzales knows, that Priscilla Owen adheres assiduously to judicial restraint and refuses to tinker with text to reach politically preferred outcomes. It’s a shameful spin tactic, akin to a critical movie review that a studio blurbs beyond recognition, replacing “a triumph of depravity” with “a triumph!”

Take it from one who served alongside her, Priscilla Owen ranks among the most exceptional jurists in America. Left-wing activists understand this fully — hence their ferocity. But their savagery is inversely proportional to their candor. They seek to impose a glass ceiling on Justice Owen — who has endured two separate confirmation hearings and exhaustive Senate debates — because (1) they ascribe to her convictions that they believe are intolerable for women in high office to hold, (2) they view her (rightly) as U.S. Supreme Court material, and (3) she is a personal friend of the president and hails from Texas.
Yes, a lot has changed since Priscilla Owen was nominated on May 9, 2001 — the Boston Red Sox are world champions, for heaven’s sake — but one more change is indispensable: restoring the 214-year-old Senate tradition against judicial filibusters.

Aquilla, Attorney General Abbott's report has a glaring -- and in my view, highly suspicious -- omission: the Attorney General does not provide the full quote from Justice Gonzalez. I searched around and could not find the full quote. It seems that everybody prefers the sound bite version. Moreover, Abbott seems disingenuous in forcefully asserting that Gonzalez did not intend to criticize Owen; in fact, it is pretty clear that Gonzalez is criticizing an idea from Owen's opinion. While I agree that the distinction between the person and the idea is always important in civil discourse, Abbott is presenting it as a rebuttal to left-wing attacks on Justice Owen's qualifications for the Federal bench, so I don't think his comments add anything to our discussion. Gonzalez did appear to criticize Owen's opinion and characterize it in strong terms. If you can provide the entire quotation from Gonzalez, that would clear the matter up.

I'll remind you that hyperbolic rhetoric embodying such terms as "smear campaign" and "wacko left" only serve to distract us from the serious issues I have presented here. Have you any responses on the other charges laid against Justice Owen in the first posting?

Here Justice Brown claims that the true purpose of the FEHA is the betterment of society, not the protection of individuals. I find this claim to be, well, for want of an appropriate Latin term, wacko. To me, the sum and substance of her claim seems heavily weighted against the individual.

SEN. BROWNBACK: ….Finally, there's a topic I wanted to give you a chance to address while you on the Texas Supreme Court in June of 2000. And this came up during Judge Owen's hearing, of a case on a parental consent law that you wrote, I believe, the majority opinion on. And this was upholding the parental -- a decision regarding the parental notification law, where a minor sought an abortion. In this particular case, a minor was seeking an abortion without, as was required by Texas law, notification of her parents. You had some pretty strong words for those in the minority opinion who thought the law should be applied as written and was affirmed by the trial court. I just wanted to give you a chance to express your opinion on this case. It came up often during Judge Owen's confirmation hearing here. You were cited on the other side of that often. And I'd like to get your thoughts on that here for the record. And, do you believe that the interpretation of duly enacted legislation is open to interpretation by the courts in a manner not consistent with the strict reading of the law? That is the underlying issued involved with this.

MR. GONZALES: Thank you for that question, Senator. Let me just say at the outset regarding Judge Owen: I served with Judge Owen on the Texas Supreme Court, and I think she did a splendid job, a superb job as a judge. I think she would make a superb judge on the 5th Circuit, and that's why her name was recommended to the president. There were a series of very contentious cases -- opinions written in connection with six cases, I think, involving four minor daughters in the year 2000 while I was on the court. It is true that the law -- the legislature made it a policy judgment that they wanted more -- they wanted parents more involved with the abortion decisions of their minor daughters. But the legislature did not make the parental rights absolute; they provided three exceptions. And most of the decisions of the court involved -- are about interpreting those exceptions, allowing a judicial bypass.

My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case. If someone like Judge Owen in that case reached a different conclusion about what the legislature intended, it would have been perfectly reasonable for her to reach a different outcome. But as to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended, again, through the words of the statute and the way that the judicial bypass procedure would actually operate in practice.

Is Justice Priscilla Owen qualified to sit on the Federal bench?

It's funny that the lame duck, presidential candidate wannabe, Colorado governor Owens shares the last name and is also from Texas. It's irrelevant to this question, just a funny curiousity. Nepotism in government?

Anyway, the thing about Jusice Owens taking money from people she subsequently judged is itself a highly questionable practice. Back when I got little things from computer vendors, my employer limited the gifts to being worth $50 or below. That was an imposed ethical limit in order for my technical opinions to be free from corruption.

A judge should be ethical enough to do this on his or her own. My objection has to do with Justice Owens' sense of ethics. It looks like she plays favorites and accepts bribes.

We have enough corruption in our legislatures. Let's try to keep it out of the judiciaries.

a teenager paralyzed in a car accident due to a faulty restraint system  would not have been allowed to sue in Texas courts;

Now, there is very little information to go on here. Why doesn't someone expand on this a bit? On the surface at least this suggests that Owen has a questionable moral makeup, and morality certainly seems to be a criteria for judges nowadays.

UJ, there is a difference between the legal argument and the emotional one. Now i don't know the facts of the case, it requires more research...but its possible that the law says one thing and that the situation did not fit the guidelines. Do we want a court that makes decisions based on emotion or do we want a court that makes decisions based on reason and common law principle?

What an extremely inflammatory statement about Justice Owen!  What kind of proof do you have that she is unethical in any way?

A customer who was raped by a door-to-door vacuum cleaner salesman brought a negligence action against the manufacturer and the distributor, who operated as an independent contractor. Based on favorable jury findings, the trial court rendered judgment for the plaintiff for actual and punitive damages. The court of appeals affirmed the actual damages part of the judgment and reversed and rendered the punitive damages award. 945 S.W.2d 854. The question presented is whether a company that markets and sells its products through independent contractor distributors and exercises control by requiring in-home demonstration and sales, owes a duty to act reasonably in the exercise of that control. We hold that the company does owe such a duty. Accordingly, we affirm the court of appeals' judgment.
<snip>
In applying for employment, Carter listed three references and three prior places of employment. Had Sena checked, he would have found that women at Carter's previous places of employment had complained of Carter's sexually inappropriate behavior. Sena also would have found that Carter had been arrested and received deferred adjudication on a charge of indecency with a child, and that one of the previous employer's records indicated that Carter had been fired because of that incident. Further, Sena would have found that these records also contained witness statements, a confession, Carter's guilty plea, and the indictment charging him with the offense. Sena did not check. CaseLaw

I can't help but notice that Justice Owen's ethically and judicially questionable decisions are being relegated so that we can once again engage in a "well this pundit said this," and "this journalist" said that.

We are all (well, most of us anyways  ) capable of reasoning and critiquing on our own, so why do we insist on relying on soundbites and second-hand analysis and engage in some of our own? Erasmussimo provided a very concise selection of judicial decisions, and instead of actually assessing them this 'debate' has been reduced to a discussion of what a third party had to say about about the general tenor of her decisions. Call me crazy, but this seems counter-productive.



Now, there is very little information to go on here. Why doesn't someone expand on this a bit? On the surface at least this suggests that Owen has a questionable moral makeup, and morality certainly seems to be a criteria for judges nowadays.

Aquilla, you're changing the subject by quoting Gonzalez after he became part of the Bush administration. We're talking about Gonzalez' remark about Justice Owen before he became part of the Bush administration. We are considering the qualifications of Justice Owen for the Federal bench. A person intimately familiar with the issues made a remark that appears to question Justice Owen's judgment in one case. We need to determine the correct interpretation. As it stands, it does look highly critical of Justice Owen.

I think we can dismiss the remarks that Gonzalez made after he became part of the Bush administration; at that point he could no longer be considered an objective observer.

We must remember that this is just one of many charges laid at Justice Owen's feet, and we should consider at least the most important of these.

What an extremely inflammatory statement about Justice Owen! What kind of proof do you have that she is unethical in any way?

The more I hear from the opposition about these judicial nominations-- the more I support the constitutional option to rid the Senate of these judicial filibusters. Let all of these arguments be aired in the open on the Senate floor and let opponents put forth proof of these inflammatory accusations.

Here you go, complete with footnotes: [link omitted]

Professional ethics in any field demand that one does not take money from outfits looking to buy influence. I know the legislatures are pretty loose on this, and it's a problem in Colorado as well. Owens brushed the ethics question aside with it's a "political issue."

No, it is an ethical issue. You took money from organizations who were later arguing their cases before you. That's called, among nice society, influence buying. I call it straight out bribery.

We're having a dickens of a time trying to stop the legislatures from selling their influences, and now we want the judiciaries to be similarly infected? Not me.

Now if the source is wrong about Owens and her actions as described above, please enlighten me with what really happened. I want footnotes too 

TPJ is hardly a disinterested observer of the legal system. Instead, it brings a particular
mindset to bear when weighing in on important matters of public concern. No one would argue that groups like TPJ should be silenced, or have no legitimate role to play in public debates, including debates over judicial nominations. But neither should TPJ be mistaken for an objective, impartial voice. The group’s pronouncements, like those of any activist group with a particular ideological orientation, should be taken with a grain of salt

http://www.usdoj.gov/olp/cfjreport.pdf

Given Justice Owen’s sterling pro-reform credentials, one would expect to count among her supporters Texans for Public Justice, or “TPJ,” a group that characterizes itself as “promot[ing] campaign finance and judicial-selection reforms.” Regrettably, TPJ’s recent report on Justice Owen is riddled with half truths and outright distortions. Although the organization is innocuously named, TPJ is in fact an advocacy group for trial lawyers. TPJ habitually denounces Texas judges who accept campaign contributions from businesses, but steadfastly refuses to criticize judges whose campaigns are funded by trial lawyers. Earlier in 2002, Elizabeth Ray ran for a seat on the Texas Supreme Court, and received 83% of her campaign contributions from trial lawyers. According to the Austin American-Statesman, “Ray’s top donors have been four plaintiffs’ firms, which gave her a total of $100,000.” AUSTIN AM.-STATESMAN, Mar. 27, 2002, at B1. Yet TPJ’s director refused to criticize her as beholden to trial lawyers, instead arguing that: “It shows she’s not locked into an anti-consumer, pro-tort reform agenda.” Id.

TPJ’s officers have admitted publicly that their principal sources of funding are trial
lawyers and liberal foundations. According to the Houston Chronicle, TPJ’s director “has said that $273,000 of his organization’s operating budget of $326,200 was raised mostly from liberal or progressive, public interest-type foundations.” HOUSTON CHRON., Nov. 28, 2001, at A29. The director further has acknowledged that: “There are some wealthy liberal individuals, including trial lawyers, who have given to me over the years.” HOUSTON CHRON., Nov. 4, 2001,at 2.

http://www.usdoj.gov/olp/cfjreport.pdf

More specifically, in an excellent article (with lots of footnotes), written by the Coalition for a Fair Judiciary, we get some valuable insight into this group (Texans for Public Justice) that serves as the source for these disparaging charges of unethical conduct.

I get it. The trial lawyers do the same thing as corporations, so that makes the practice of accepting money from corporations okay. I don't think either side is in the right when it comes to influencing judges, but that's another debate, and you do have a good point for it.

Oh pulleeezzzee....      Erasmussimo provided an analysis of judicial opinons from a far left website that is dedicated to opposing a number of President Bush's judicial nominees.  I provided first hand statements from two justices who served with Justice Owen on the Texas Supreme Court.  That you would find this counter-productive doesn't surprise me.  I'm sure a lot of liberals aren't thrilled with people in the know speaking highly of Justice Owen.

Attorney General Gonzales' comments I cited were in testimony under oath before the US Senate.  Are you claiming he perjured himself in that hearing?  That is a very serious charge, Erasmussimo.  Care to back it up?  I'm sure you can find some wacko website out there that "proves" Gonzales lied to Congress.

AuthorMusician, the Department of Justice has a good site about Priscilla Owen with a number of links to articles (all well footnoted  ) that describe Justice Owens stellar judicial record and debunk the “myths” that are being perpetuated by left wing advocacy groups.

http://www.usdoj.gov/olp/owen.htm

If you read the text and “footnotes” carefully of the piece that you cite in support of Owen’s unethical conduct, you will find that the authority/support for any charge of such unethical conduct stemming from corporate campaign contributions comes from a group called the Texans for Public Justice.

Instead of slinging mud at the various second-hand sources, why don't we address the facts themselves? I agree that the original source I quoted is a left-wing organization, and I asked for contrary information. Providing rah-rah quotes from Justice Owen's supporters does not address the particulars listed in the original topic posting. Can we please address those?


Attorney General Gonzalez was providing his personal opinions under oath. I do not claim that he lied about his opinions. I claim that his opinions at that time were prejudiced by his employment in the White House.


First off, let me point out that the DOJ report cannot be taken as any less partisan than the TPJ report. I'm not denigrating the report; my point is that it does not deserve any special esteem higher than that of all the other admittedly partisan reports. In wading through all this partisan fluff, it's difficult to find solid facts, but I agree that the CFJ report does dig into the facts in great detail, and is therefore a useful report.

It's 66 pages long and appears to address all the major issues. I will for the moment tackle the accusation of unethical behavior with regard to campaign contributions. This issue has been twisted around. The original accusation was as follows: "Justice Owen has taken campaign contributions from law firms and corporations, including Enron and Halliburton, and then, without recusing herself, ruled in their favor when their cases came before her." Her defenders go to great lengths to prove that it is legal in Texas for justices to accept campaign contributions -- a distraction from the accusation. The accusation concerns her failure to recuse herself in cases involving her campaign contributors. Her defenders cite quite a few such cases. Their first defense is that Justice Owen ruled against her campaign contributors in some cases. That is a good sign but does not dismiss the accusation. They also defend her with the observation that in several such cases she joined a unanimous majority. I can accept that defense, too, but only on the grounds that no harm was done by her unethical behavior. But there remain a number of cases in which their defense was that her ruling was the correct decision, even though it was in the minority. I reject this defense. I would hold a justice to the strictest standard: that recusal is ethically required in all cases in which the justice has any personal association with either litigant. The justice should not even participate in discussions of the case with other justices. I admit that, in cases where she ruled against her contributor or with a unanimous majority, no harm could possibly have been done, but I still maintain that the strict ethical requirement should hold in all cases and in those cases where she was not joining with a unanimous majority, her unethical behavior could well have caused injury.

Is there anybody here who holds it ethical for a judge who has accepted campaign contributions from a litigant to fail to recuse herself from cases involving that litigant?

At the same time, and with less fanfare, Trial Lawyers, Inc. has ratch-eted up its longstanding activity in financing state judicial races. Lawyers traditionally have been the largest group of givers to state supreme court judicial races, and these formerly sleepy races have become the new hot spots.[186] Texas is historically notorious for high-spending judicial cam-paigns; as long ago as 1980, Texas became the first state to have a statewide judicial race cost $1 million.[187] In Madison County, Illinois, a “magnet court” jurisdiction (see box on page 8), over 75% of all recent judicial race contribu-tions came from Trial Lawyers, Inc.[188] Underwriting such campaigns has been a key tactic in preserving friendly judicial philosophies and rewarding judges congenial to expansive tort laws. This notion of “justice for sale” is a serious threat to judicial independence and the rule of law.

Careful what you wish for.  Were your strict standard come to pass, you would have just eliminated trial lawyer profession....   

A more reasonable approach is to let the judge handle it on a case by case basis.  If the judge believes they can be fair, then I don't have a problem with them hearing the case.

The whole point and purpose of any system of ethical standards is to objectively define those situations that require particular behaviors. By leaving this to the individual judgment of the individual, you appear to be arguing that there should be no ethical standards with respect to judges sitting on cases involving their campaign contributors. You would have us "just trust" all judges. I do not accept so liberal a regime. I maintain that ours is a government of laws and not of men, that we should never "just trust" our officials to behave properly, that there should be standards against which all public officials are held, and one of those basic standards should be that a public official who has received a consideration from a party to an issue that the official will decide should recuse himself from that decision.

I am not arguing that a set of ethical standards isn't appropriate.  However, the draconian standards you propose are unnecessary and unworkable under our present system.

No. That is not the point.  What is the point, is that this group Texans for Public Justice has a very specific agenda.  And it is really a shame that the Alliance for Justice is using their propaganda to smear Justice Owen.

Yeah, well in this debate everybody has a specific agenda and for the Republicans it is to get their right-wing extremist judges on the federal bench so they can apply their own brand of "judicial activism."

I found this somewhat odious example of Owen's jurisprudence from a NY Times article (yeah, another lefty, liberal commie rag, but what'cha gonnna do?).

Justice Owen was also criticized at her first confirmation hearing by senators who said she took a year and a half to issue an opinion that involved a young man injured in a truck accident. The man, who was on a respirator, died when the family could not afford nursing care because the appeal delayed the multimillion-dollar verdict. In her response at the time, Justice Owen did not address the delay but told senators, "There are a lot of cases that tug at the heartstrings, but I have to follow the law."

http://www.nytimes.com/2005/05/16/politics...ed=2&oref=login

"Tug at the heartstrings?" A year-and-a-half to issue an opinion? OH, yeah. Owen sounds like a real winner.

Just not my idea of a "compassionate conservative."

In a later abortion case, Alberto Gonzales -- then a Bush-appointed justice, now the U.S. attorney general -- accused Owen and two other dissenters of "an unconscionable act of judicial activism" by trying to rewrite the law.
<snip>
Her current foes include advocates for civil rights, consumers and labor, who accuse Owen of steadfastly promoting the positions of the business groups that helped put her in office. When the conservative court issues one of its infrequent rulings against a business, opponents say, Owen generally joins the dissenters. SF Chronicle

(emphasis mine)
Even Bush-appointed Attorney General labels Owen an "activist judge". Why don't the conservative cheerleaders for Owen come right out and admit they don't give a rip about "activist judges"; they just want their own "activist judges" put in place instead of the "other guy's"?

From Gonzales concurring opinion in Re Jane Doe, June 2000:

The dissenting opinions suggest that the exceptions to the general rule of notification should be very rare and require a high standard of proof. I respectfully submit that these are policy decisions for the Legislature. And I find nothing in this statute to directly show that the Legislature intended such a narrow construction. As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent's right to be involved in decisions affecting their daughters. See ___ S.W.3d at ___. But it did not. Likewise, parts of the statute's legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. See id. at ___ (detailing legislative history). Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so.

In her dissent, Justice Owen argues that "well-established common-law principles regarding appellate review" require us to recognize an implied finding that Doe is not mature as though this were an omitted element of Doe's claim. This purported "common-law" principle, and most of the cases cited to support it, are based upon Texas Rule of Civil Procedure 299, which provides that, when one or more elements of a claim or defense have been found, "omitted unrequested elements, when supported by evidence, will be supplied by presumption in support of the judgment." Tex. R. Civ. P. 299. Thus, the argument goes, if there is some evidence supporting the trial court's failure to find that the minor is mature, the judgment must be affirmed.

Justice Owen acknowledges that Rule 299 conflicts with section 33.003 and does not apply. But even under its general principles, omitted findings are only supplied if they are necessary to the judgment. See, e.g., Wisdom v. Smith, 209 S.W.2d 164, 166-67 (Tex. 1948); Bednarz v. State, 176 S.W.2d 562, 563 (Tex. 1943). As we have explained, a negative finding on one element of the first prong is alone sufficient to support denial of the application. Thus, an implied finding on the second element is not necessary to the judgment and the general principle behind the rule does not authorize such a finding. Furthermore, as we have explained, a deemed finding on an omitted element against the minor would be contrary to the Legislature's intent in deeming an application granted if the trial court fails timely to make findings.

For these reasons, we cannot infer that the trial court based its decision on a determination that Doe was not mature. Rather, we consider whether Doe established that she is sufficiently well informed to make the decision to consent to an abortion without notifying a parent.

Despite acknowledging that the "common law" principle, upon which she bases a portion of her dissent, does not apply in this case, she felt the court should apply it anyway and that the court should have held that Doe was not mature in absence of a trial finding. Is that not activism?

Entspeak-- what was the cite to this case? I couldn't find it from your link. My understanding was that Owens position upheld the trial court, but I may be wrong and I want to check. There are a whole bunch of "Doe" cases so I don't know which one this is.

...even under its general principles, omitted findings are only supplied if they are necessary to the judgment. See, e.g., Wisdom v. Smith, 209 S.W.2d 164, 166-67 (Tex. 1948); Bednarz v. State, 176 S.W.2d 562, 563 (Tex. 1943). As we have explained, a negative finding on one element of the first prong is alone sufficient to support denial of the application. Thus, an implied finding on the second element is not necessary to the judgment and the general principle behind the rule does not authorize such a finding. Furthermore, as we have explained, a deemed finding on an omitted element against the minor would be contrary to the Legislature's intent in deeming an application granted if the trial court fails timely to make findings.

Nighttimer-- you are going to have to do better than that if you want to be persuasive in making the point that this woman is the heartless, cruel, extreme justice that you assert that she is.

Let me remind everyone that Owen has received the highest possible rating from the ABA-- an organization known for having a liberal bias in the ratings to begin with.  What is happening to her is unfair and extreme-- not the other way around.

I'm not a lawyer and I didn't stay at a Holiday Inn so I won't pretend that I totally follow the ebb-and-flow of the legal system and the machinations behind the rulings of a judge. I leave that to you, haleyanne, along with entspeak and Erasmussimo and as a layman I follow along the best I can.

Owen upheld the trial court, but the trial court did not make any finding in regards to whether Doe was not "mature" according to the statute.  It turned down her application on the premise that Doe was not "sufficiently well-informed".  Owen felt that just because the trial court did not include the "mature" portion in their decision did not mean that they didn't decide that fact.  She felt that it was "implied" by the trial court that Doe was not mature because the trial court looked at the first condition of the statute and rejected based on that condition -- that condition includes the "mature" wording and therefore Doe must be considered not mature.  She felt that under the common law principles of Rule 299 the implication should be considered and that the question of maturity should be addressed in this case.  The majority disagreed... they believed, and Owen acknowledges, that Rule 299 does not apply in these types of cases.  The majority further argued that if Rule 299 did apply:

I recognize that given the short time periods prescribed by section 33.003, the procedures set forth in our rules of procedure that complement Rule 299 conflict with section 33.003 and that the detailed process for requesting additional findings of fact and conclusions of law does not apply. See generally Johnstone v. State, __ S.W.3d __, __ (Tex. 2000) (holding that Tex. R. Civ. P. 329b, requiring a motion for new trial to preserve factual sufficiency challenges, conflicted with Tex. Health & Safety Code § 574.070, which required a notice of appeal from an order of temporary commitment to a mental health facility to be filed within ten days). But the fact that Rule 299 cannot be applied in parental notification cases does not mean that the Legislature intended to override well-established common-law principles regarding appellate review. See Cates v. Clark, 33 S.W. 1065, 1066 (Tex. 1931) (citing the "well-recognized rule of law" that, if the trial court has made findings of fact and the evidence in the record supports the trial court's judgment, it is presumed that all facts were found in support of the judgment); Lincoln Nat'l. Life Ins. Co. v. Anderson, 71 S.W.2d 555, 559 (Tex. Civ. App. -- Waco 1934,), modified on other grounds, 80 S.W.2d 294 (Tex. Comm'n App. 1935) (reasoning that if a trial court failed to expressly find a fact in support of the judgment, then that fact may be inferred if supported by the record); cf. Central Tex. Ice Co. v. Thomas, 45 S.W.2d 181, 182 (Tex. Comm'm App. 1932, holding approved) (holding that, because the evidence supported the trial court judgment, the court of appeals' affirming of the trial court's judgment did not violate the rule that an appellate court cannot presume a fact in support of a judgment that the record shows was not a fact); Henry Finch Holland, Appeal and Error -- Non Jury Trial -- Presumption as to Omitted Findings, 14 Tex. L. Rev.518, 519-22 (1936).

The Legislature directed trial courts to make findings of fact and conclusions of law. See Tex. Fam. Code § 33.003(h). The trial court in this case did so. Under well-established precedent, a reviewing court must presume that the trial court's judgment in this case is supported not only by its express finding that Doe was not sufficiently well informed, but also by its implied finding that Doe was not mature enough to make the decision to have an abortion without notification of a parent. Doe had the burden of establishing both elements of that ground fro proceeding with an abortion without notification. Nothing in the Family Code indicates that the Legislature intended to override the appellate principle that an omitted finding on one ground for relief will be presumed to support the judgment.

Entspeak-- Owen's view when that Rule 229 does not apply to the parental notification cases is not relevant. In Owen's dissent she said specifically:




Beyond, Rule 229, well established appellate principle requires a reviewing court to presume that the trial court's judgment is supported not only by its express findings, but also by its implied findings (consistent with the lower court judgment). As she explained in her dissent:




How can her conclusion be judicial activism? It supports established precedent in the area of appellate review.

From the court opinion:

A trial court that fails to make a finding on one of the two elements of the first statutory prong does not run afoul of these requirements because a negative finding on only one element supports denial of the minor's application. But because the minor must establish both elements to succeed, an appellate court that determines that the minor conclusively established the element on which the trial court based its denial must confront the effect of the trial court's failure to make a finding on the other element. This failure to find creates uncertainty, because it could reflect either that the minor met her burden of proof on that element or that she did not. By providing that an application is deemed granted if a trial court fails to make required findings, the statute indicates that we must resolve this uncertainty in the minor's favor if she has put on evidence of the element the trial court did not find.

According to well-settled Texas law, the Texas Supreme Court may disregard a trial court’s factual findings only if there is “no evidence” in the record to support them. In making that determination, the Court is “required to determine whether the proffered evidence as a whole rises to the level that would enable reasonable and fair-minded people to differ in their conclusions.”62 Ultimately, the Court cannot disturb a trial judge’s findings unless no reasonable person could have reached the same conclusion.63 Justice Owen’s commitment to upholding the powers of the trial courts—and not any hostility to the rights of minors—is what informs her decisions. (DOJ link to articles)

The “maturity” factor was not the only element considered by the court.  Doe had to establish both that she was mature AND sufficiently well informed.  The lower court held that she did not meet this standard. The appellate court agreed.  The explicit findings related only to the “sufficiently well informed” prong.

The "activism" came in the majority opinion, not in Owen's dissent.  They broke the established standard of review when they disturbed the trial court's findings on the "sufficiently well informed" prong.  Owen called them out on this and respected established precedent.  It is unfair to say that her opinion was "activism" when it was the reverse.

Doe also conclusively established that "she is . . . aware of the emotional and psychological aspects of undergoing an abortion." In re Jane Doe 1(I), __ S.W.3d at __. Doe spoke to an older relative and another minor about their abortion decisions and how they felt about them. After this, Doe discussed the emotional effects of abortion with the organization's counselor, who also gave Doe written materials about the emotional consequences of abortion. Doe read these materials several times. Although she did not discuss the emotional consequences of abortion with anyone opposed to abortion, she was not required to do so. See id. at __.

Doe testified that, after consulting these sources, she understood that many women experience guilt after an abortion and some women experience depression, but that abortion also provided many women with a feeling of relief. Doe did not merely consider these emotional consequences in the abstract; she carefully considered how each of these alternatives would affect her emotionally. She reasoned that all of her choices would involve guilt, but that she felt most comfortable with the decision to have an abortion.

Doe also indicated that she understood the gravity of her decision. She considered how abortion would affect her emotionally in light of its serious consequences. Doe asked to see the fetus on the ultrasound video, testifying that she considered it her responsibility to do so. Doe also testified that she understood and considered the fetus's development. Doe understood that her decision to terminate her pregnancy was irrevocable, and consequently recognized the seriousness of her decision. She also considered an abortion's effects on her spiritual well-being and concluded, based on her personal spiritual beliefs, that it would not have an adverse effect.

...the record indicates that Doe did not seek advice or counseling from anyone who was inclined to thoroughly explore with her the adverse emotional and psychological impact that an abortion may have.  Doe affirmatively avoided counseling from any source who might cause her to seriously examine her decision in a meaningful way, as notifying one of her parents may have caused her to do.

Owen's activism is apparent in the standard she would like a minor held to regarding this condition.  This is the reason why Owen feels that Doe was not "aware of the emotional and psychological aspects of undergoing an abortion":

"the record indicates that Doe did not seek advice or counseling from anyone who was inclined to thoroughly explore with her the adverse emotional and psychological impact that an abortion may have.  Doe affirmatively avoided counseling from any source who might cause her to seriously examine her decision in a meaningful way, as notifying one of her parents may have caused her to do."

This is part of what Owen would consider when analyzing whether a minor is "aware of the emotional and psychological aspects of undergoing an abortion."  What does Owen mean by "meaningful way?"  Is Doe's description of the emotional and psychological aspects somehow void of meaning?  It sounds like Owen feels it is necessary to have someone attempt to talk you our of an abortion before you can be eligible for exemption from parental notification.  And there is no requirement for Doe to thoroughly "explore the adverse emotional and psychological impact an abortion may have", only that she is aware of these aspects of undergoing an abortion.  It seems, based on her testimony that she was.  That doesn't appear to be good enough for Owen, who would hold Doe to a higher standard than the statute.  That is activism.

The reason the majority overturned the trial court's decision regarding the "well-informed prong" was that the trial court (and the court of appeals) was wrong in its analysis of Doe's considerations regarding alternatives to abortion... it seems that the trial court and the court of appeals held that because the court did not agree with the outcome of Doe's consideration of alternatives to abortion, she must not have sufficiently considered them.

After very careful, and sometimes very confusing, legal arguments on this judge and other judges being debated on this site- and I am definately more informed about each individual judge than I was at the begining, and some legal points of law  -

I see only two real statement boiled down into all this double speak:

1) The liberals appointed some extreme judges once, now it is our turn

2) Okay, they are activist, but OUR kind of activist, that makes decisions the way the right wing wants them too.

Really, at no point in any of the debates, has there been any real consideration that these were moderate poeple trying to do thier best to uphold the law- but rather, to right wrongs as percieved by the right leaning in the US. 

That is, pretty much by definition, an "activist" judge- and an extremist- re-inforcing the thought that the dems are doing a good job of keeping some very bad things happening to America.

I understand what you are saying entspeak.  You (and the majority) think that Doe met the burden of the first prong "sufficiently well informed".  I do too.  But what you have to understand is that Owen was not arguing it the other way per se.  It was not her place -- and she understood that.  Both the majority and Owen acknowledged that it was a close case factually.  But the duty of the appellate judge is to give all benefit of the doubt to the trial court as fact finder.  When Owen spoke about the facts it was only to show that a reasonable fact finder could have found that the prong was not met.  In fact, unless the trial court was so far off base as to have been clearly erroneous in its findings, it should have been upheld by any appellate court.  That is the established precedent.  So Owen was being anything but "activist". 

It is very important that you understand that Owen was not making a judgment on the facts de novo here.  She was simply demonstrating how the facts could support the lower court and ultimately giving deference to its holding.  And the appellate court in the Doe case was also, doing as it should have done: giving deference to the lower court.  It was the Texas Supreme Court that broke from the established precedent.

From Justice Owen's dissent:

Although this is a close case, there is some evidence from which a trial court could reasonably conclude that Doe was not sufficiently well informed to make the decision to have an abortion without notification of a parent.

This isn't the bar for making the decision in the trial court. The bar is this: Is there evidence that the trial court could reasonably conclude based on a preponderance of evidence that Doe was not sufficiently well informed. There is no evidence of that. Owen believes that the narrower standard adopted by the trial court was the right one. She is wrong. As Gonzales points out... to hold to a narrower standard than is intended by the legislation is judicial activism

.


From reading the majority opinion, it looks very clearly to me that the Texas Supreme court undertook its own de novo review of the facts and ultimately concluded contrary to the trial court on whether the facts supported the first prong. It is unusual for an appellate court to do this. Usually the great deference mandated in appellate review will uniformly produce an opinion that upholds the finder of fact (trial court). It raises a red flag when an appellate court overturns a decision based on an application of the rule to the facts. As far as I can tell, the Texas Supreme court had already sent this case back down with directions as to how the standard was to be applied. When the lower court applied that standard and came back with a result other than the one that the Texas Supreme Court expected-- it overturned it. As such, it looks like the Texas Supreme Court delved into the facts in a de novo fashion -- something they ought not to have done.

She must show that she understands the alternatives to abortion and their implications. As with any medical procedure, part of making an informed decision is knowing the available alternatives. A minor should be able to demonstrate that she has given thoughtful consideration to her alternatives, including adoption and keeping the child. She should also understand that the law requires the father to assist in the financial support of the child. See Tex. Fam. Code 154.001; see also Tex. Const. art. XVI, 28 (garnishment of wages for court-ordered child support payments). She should not be required to justify why she prefers abortion above other options, only that she is fully apprised of her options.

The trial court found that Doe had not thoughtfully considered her alternatives because it concluded that she did not understand the intrinsic benefits of keeping the child or adoption, and the court of appeals agreed. Specifically, the trial court asked Doe what the benefits would be if she carried the baby to term. Doe responded that the benefit would be actually having the child, but she candidly admitted that she could not be sure what other benefits there might be since she is not a mother. Doe testified about the joy she experiences in working with children as a volunteer, and that she had taken a parenting class offered by her high school. She also testified that she had considered adoption, but did not feel that adoption was a realistic alternative because she could not give the child up after carrying her pregnancy to term. She further testified that she would worry that the baby would have an unsuitable environment or that the adoptive parents would not provide the proper love or care. The trial court found that Doe did not understand the benefits of keeping the child or putting the child up for adoption and denied the application.

When we wrote in Doe 1(I) that a minor must have considered the "benefits, risks, and consequences" of the various options, we did not intend to suggest that trial courts should create checklists that a minor must recite in order to establish that she has thoughtfully considered her options. ___ S.W.3d at ___. That a minor does not share the court's views about what the benefits of her alternatives might be does not mean that she has not thoughtfully considered her options or acquired sufficient information about them. It is, of course, beyond dispute that parenting or placing an infant for adoption can be deeply rewarding... But Doe 1(I) does not require the minor to mechanically list or recite the potential benefits of her options. See S.W.3d at ___. Instead, the focus of the inquiry is whether the minor has thoughtfully considered her alternatives, see id. at ___, and "the examining court must weigh her situation not against the ideal but against a standard of basic understanding of her situation, her choices, and her options."

This is what the trial court failed to do when it was sent back to them. Had Doe thoughtfully considered the options? Yes. The trial court apparently did not like the results of those considerations and held against her. The appellate court felt the same way. But that misunderstands the intent of making the determination. Doe's responses should not be held up to an ideal standard and judged. She simply has to have given thoughtful consideration to the benefits. It is not necessary that she see the same benefits the court does.

I understand this entspeak. The supreme court thought the lower court had been too mechanical in its application of the test. The sc then stepped in and in a de novo fashion applied the test to the facts. What Owens dissented from was that they did this. Her point is that normally all deference is given to the lower court's ruling. I think she is right. Unless the tc decision was way off base, the sc wouldn't normally step in. I don't see (as Owens did not see) that the tc ruling reached that level of error such that it needed to be overturned on appeal. That is the issue. The issue is not whose view of how the rule should have been applied to the facts is better. If there was no such thing as deference in the appellate review process I would whole heartedly agree with the sc.

Nighttimer, perhaps you've hit on something here that might impact the Senate vote: Lay people elect senators, and election season is starting up.

The appeals to authority arguments in all this are thicker than flies on a dump. Sorry, I reject all those appeals to authority. Authority is often wrong, blinded by a sense of self-importance that only comes from a system authorized by the people.

Or did everyone forget that little thing? You know, like we vote for or against candidates running for office? And why should we vote for people who are against our best interests? That's what I see happening. I bet every incumbent Republican senator is shaking in his or her dress shoes as this power play works on out, and the publicity gets pushed out, and the strident appeals to authority get hammered over our heads.

How dare we use our simple little common critical-thinking minds when looking at the actions of the Republican anointed ones?

Your point is well taken AuthorMusician.  There is a certain elitist attitude among some of the legal academics that they should thrash out the fine points of the law and the judiciary among themselves while the great, unwashed masses meekly stand by shocked and awed into silence as the elite debate.

Which is of course, utter and complete crap.

The common people have every right to enter into a debate on the people who would sit in judgment over us.   The legal academic elitists might wish otherwise

Beyond the numbing and dull musings of these elitists reciting dry case law, a larger issue is coming into focus and that is how vitally important any President's appointments to the federal bench are.  What we are witnessing with Priscilla Owen and Janice Rogers Brown is what can happen when judges are elevated not due to their judicial temperament but how well they have played the game of politics.

So when you present the legal academic elites with facts counter to thier agenda it's not a complete surprise their response it to ignore the facts.  The facts are that Priscilla Owen is out of the mainstream of both political and judicial thought.  She should not be confirmed to the federal judiciary when she has established she barely passes muster as a associate justice on the Texas Supreme Court.   It would preferable to keep her there where she can will wreak less havoc than she would with a lifetime appointment.

Why should we want brilliant judges? Why not bland mediocrities? It seems to me that the lower federal courts, in particular, positively call for bland mediocrities who will adjudicate cases according to statute and precedent without doing much of anything that's remotely brilliant. Even at the Supreme Court level why should I want a judge who, like Posner and other brilliant legal theorists, has put forward revolutionary new understandings of the law?

I would like to express my appreciation for the detailed analysis of this case that entspeak and hayleyanne have provided. It's always interesting to see the nuts and bolts come out piece by piece, and the arguments picked apart. This is the finest kind of discussion, so well done that I have chosen to stay out of it and just watch in fascination. I have been tempted to throw in my two cents' worth at several points, but I didn't want to break the flow of your discussion. I may have some points to make or questions to ask later.

I agree completely nighttimer that everyone should be involved in the debate.  If you watch the CSPAN debates, it is a problem though.  Because the politicians know that people are not going to take the time to really look at the work of these judges, they get away with alot of broad generalizations.  It takes a lot of work to educate yourself.  Just this little exchange between entspeak and I took a lot of work on my part.  I had to read the majority opinion and dissent as well as an outside commentary on just one of the cases of Priscilla Owen to be able to understand where some of these charges are coming from.  Ultimately, I resolved that in the Doe case it was a very close call.  Entspeak presented the majority view (that the trial court was way off base) and I presented Owen's dissent (that deference for the trial court was paramount).  Both are reasonable views.  But what do we get from the politicians?  Charges that Owen doesn't support reproductive rights.  Charges that the Attorney general called her an "activist".  Just a bunch of distortions. 

I certainly hope you are not referring to me as the one who is reciting dry case law nighttimer.  Without delving into it, there is no way to form an independent opinion.  I sure don't trust Chuck Schumer or Rick Santorum or Harry Reid to do it for me.

So when you present the legal academic elites with facts counter to thier agenda it's not a complete surprise their response it to ignore the facts.  The facts are that Priscilla Owen is out of the mainstream of both political and judicial thought.  She should not be confirmed to the federal judiciary when she has established she barely passes muster as a associate justice on the Texas Supreme Court.  It would preferable to keep her there where she can will wreak less havoc than she would with a lifetime appointment.

These are inflammatory charges against Priscilla Owen, nighttimer.  You have pointed to one case and it had to do with the timeliness of her opinion that was issued.  I don't know why it took so long.  Nothing that I have seen has provided any context whatsoever.  But that is neither here nor there as it does not give any indication of her judicial philosophy in any case.  All that I have seen, indicates to me that she exercises much judicial restraint.  As in the Doe case, she will not revisit the application of the rule to the facts-- even when the trial court's conclusion was quite close on the facts.  But that is a plus IMO.  I want judges that exercise more restraint.  If you don't-- that is your choice, but at least be honest about your preference.  Don't call her the activist. 

Why should we want brilliant judges? Why not bland mediocrities? It seems to me that the lower federal courts, in particular, positively call for bland mediocrities who will adjudicate cases according to statute and precedent without doing much of anything that's remotely brilliant. Even at the Supreme Court level why should I want a judge who, like Posner and other brilliant legal theorists, has put forward revolutionary new understandings of the law?

Brilliant jurist-- does not equal activist jurist.  We need "brilliant" jurists who understand judicial restraint.

I strongly disagree that Owen's ham-fisted handling of the Willie Searcy case is "neither here nor there."  It indicates to me that she has a demonstrated bias for the protection of the rights of business over those of the individual.  Her dilatory tactics were inexcusable and her blase attitude over Searcy's death is contemptable.

The fact that she brought into the case areas of the law that neither side explored indicates to me a meddlesome streak to find a loophole to deny both justice and due process to Searcy.   That is the very definition of judicial activism.  Owen has given no credible explanation for the two-year delay in writing the opinion.  Justice delayed is justice denied and in this case it had fatal consequences

Brilliant jurist-- does not equal activist jurist.  We need "brilliant" jurists who understand judicial restraint.

Agreed.  But from both the Left and the Right of the political spectrum.  That's not what's happening now with some of the judges Bush has sent up for appointment.

Ultimately, I resolved that in the Doe case it was a very close call.  Entspeak presented the majority view (that the trial court was way off base) and I presented Owen's dissent (that deference for the trial court was paramount).  Both are reasonable views.

WASHINGTON — The Senate on Wednesday confirmed Priscilla Owen as a federal judge, ending a four-year effort by Democrats to derail one of President Bush's prime judicial nominees.

The vote was 56-43 in favor of sending Owen to the federal bench. Rhode Island Republican Sen. Lincoln Chafee (search) opposed her confirmation. Democratic Sens. Robert Byrd of West Virginia and Mary Landrieu of Louisiana voted for Owen.