Sunday, May 22, 2005

BUSH JUDICIAL NOMINEE PRISCILLA OWEN REWARDS CAMPAIGN CONTRIBUTORS; PARALYZED BOY DIES BEFORE RECEIVING MONEY FROM LAWSUIT

Addams Family dropout Priscilla Owen rewarded Ford Motor Company's lawyers and Enron executives who donated thousands to her judicial campaigns


(This column ran in the 5-27-2005 THE ALBANY (Ga.) JOURNAL)

“Ford [Motor Company] ’s attorney had explicitly told Searcy’s attorney, Randall Sandifar: “... to make an offer they would find acceptable, or they would string this along until Willie died..”

If you were a United States Senator, would you vote to confirm a judge to the United States Court of Appeals if you knew the judge had ruled in favor of Ford Motor Company after taking $20,450 from lawyers representing Ford in a horrific traffic accident lawsuit that left a boy paralyzed? That’s exactly what President Bush has asked the Senate to do by resubmitting the nomination of Texas Supreme Court Justice Priscilla Owen to the 5th Circuit Court of Appeals. Owen’s nomination had been rejected by the Senate once before, but Bush’s resubmission of Owen’s name has resulted in a showdown expected to destroy all remaining vestiges of civility and bi-partisanship in the Senate.

The Republican fight in the Senate has ostensibly been about replacing so-called “activist judges” with “conservative” judges who will content themselves with applying the law rather than making new law. There was a period of time, from 1954 through 1969, when the label “activist” was accurate, at least insofar as it applied to the United States Supreme Court. In that 15 year period, the Warren Court (so named because it was led by former California governor Earl Warren, a Republican appointed Chief Justice by Republican President Dwight Eisenhower on March 1, 1953) ruled in favor of citizens’ constitutional rights in a sweeping set of decisions encompassing issues of critical national importance. Those decisions established rights under the Constitution that all Americans- Republicans and Democrats- take for granted today.

Some of the most famous decisions of the Warren Court outlawed State mandated racial segregation in education, (Brown v. Board of Education in 1954), applied the Fourth Amendment prohibition against police searches of homes without a judicial warrant (Mapp v. Ohio in 1961), ended the practice of government required prayers in public schools (Abington School District v. Schempp in 1963- a case often mischaracterized as outlawing unofficial voluntary prayers not mandated or sponsored by the government), protected citizens’ First Amendment rights to freely criticize government officials (New York Times v. Sullivan in 1964), overturned a State law making it a crime for a woman to purchase contraceptives (Griswold v. Connecticut in 1965), required police to inform persons in custody of their Fifth Amendment right to remain silent and to have a lawyer (Miranda v. Arizona in 1966), overturned a Jim Crow era law that prohibited interracial marriage (Loving v. Virginia in 1967), and ended Georgia’s practice of refusing to seat black people on juries (Whitus v. Georgia in 1967).

By the end of Chief Justice Warren’s tenure on the Court in 1969, the major decisions establishing citizens’ Constitutional protections were firmly in place. Nowadays when Republicans use the epithet “activist judges,” they actually mean the opposite, as in the Shiavo case when every State and Federal judge involved refused to violate clear mandates of existing law. “Activist judges” in Republican-speak also encompasses courageous judges who will follow the law as written and apply clearly established legal precedent when the person protected is a member of an unpopular minority (i.e. non-Christians or gays). Ironically enough, two of the Supreme Court decisions garnering the greatest Republican criticism as being “activist,” Roe v. Wade in 1973 (a woman’s right to choose to have an abortion in the first trimester) and Lawrence v. Texas in 2003 (overturned Texas law regarding private sex between consenting adults), were written by Republican Justices Harry Blackmon and Anthony Kennedy, respectively. Each was appointed to the Court by a Republican president- Blackmon by President Richard Nixon and Kennedy by President Ronald Reagan.

Because the precedents protecting the rights of citizens are now firmly established, these days a truly “activist judge” is much more likely to be a conservative Republican who will ignore established law to reach a predetermined outcome. For an example, one need look no farther than Priscilla Owen, the most controversial of President Bush’s Federal appellate court nominees, who is at the epicenter of the epic fight in the United States Senate over the use of the filibuster. Owen is currently a Texas Supreme Court justice who was first elected in 1994 with hundreds of thousands of dollars in contributions from litigants who have since benefitted from her rulings. One of her donors, the infamous Enron Corporation, saved $224,989 in school district taxes when Owen ruled in Enron v. Spring Independent School District that: “... we need not decide the consequences of transfers [i.e. shuffling inventory among subsidiaries] that occur for tax evasion purposes.”

Enron’s PAC and executives gave $8,600 to Owen’s campaigns. (The case is reported at 922 S.W.2d 931 (Tex. 1996)).

But the case that should awaken the conscience of even the most hidebound Republican Senators is Ford Motor Company v. Miles, (reported at 967 S.W.2d 377 (Tex. 1998)), where Owen rewarded the law firm which had donated $20,000 to her campaigns. The firm, representing Ford Motor Company, lost a jury trial and the first appeal in the Texas Court of Appeals, but won a victory in a Texas Supreme Court opinion written by Justice Owen which ultimately ended up costing a paralyzed Texas teenager his life.

Willie Searcy, riding in his stepfather’s Ford Ranger pickup truck, was paralyzed in a traffic accident when another car hydroplaned and hit the Ranger. Ford was sued because the Ranger’s dysfunctional seat belt severed Searcy’s brain from his spinal cord. The jury reviewed evidence which included a 1983 Ford engineers’ study that found the faulty seatbelt could result in increased passenger injuries and deaths (the tension eliminator left too much slack in the belt), and awarded Searcy and his parents $30 million in actual and $10 million in punitive damages.

Justice Owen took almost two years to rule in the case, even though both sides requested an expedited hearing. And her ruling dragged out the case further, calling for remand to the trial court to transfer the case to another county where “venue” (“venue" means the county where the case is filed) would be more beneficial to Ford. Venue was not among the issues the Texas Supreme Court said it would consider two years earlier, it was not argued or briefed by either side on appeal, and the statute had been changed since the lawsuit was heard- so it was extraordinary for the decision to have been reversed on that issue. Moreover, the four dissenting justices on the Court noted that the trial court had already ruled on the issues of fact regarding proper venue.

Three years later, a Texas court had finally ruled in the family’s favor on another procedural issue, and it appeared that the case would finally be resolved in a new trial. But four days after that decision, on July 3, 2001, Searcy died when a ventilator malfunctioned during the night and his breathing stopped. If his parents had received any of the money awarded them years earlier by the jury, they would have been able to afford a night attendant to monitor the ventilator. In an April 2003 story The Texas Observer reported that when the lawsuit began, Ford’s attorneys had explicitly told Searcy’s attorney, Randall Sandifar:

“... to make an offer they would find acceptable, or they would string this along until Willie died.”

In this case the so-called “conservative” judge had done just what the Republicans have accused “activist judges” of doing: she used a technicality in the law to overturn the verdict of 12 ordinary citizens on the jury, and substituted her judgment for that of the jury, the trial judge, and the judges on the Court of Appeals. Worse yet, instead of excusing herself from participating in a decision involving some of her biggest campaign contributors, she helped them carry out their threat to Searcy’s lawyer- a delay long enough that Willie Searcy died before he ever saw a dime of the jury’s award. Ford’s lawyers had recouped their $20,000 investment in Justice Owen a thousandfold.

Texans for Public Justice reported that “Owen’s 11 biggest litigant-donors (including Enron Corp., Farmers Insurance, and Dow Chemical) appeared in her courtroom 26 times. While these big docket donors prevailed an enviable 77 percent of the time before the court as a whole, Owen was even kinder—favoring them 85 percent of the time.”

If the United States Senate wants to reject judicial activism, it should start with Justice Priscilla Owen, an activist judge whose biases favor corporate and insurance interests.

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