AUSTIN - A Houston attorney is asking the Texas Supreme Court to “condemn” the asserted “political statements” the Second Court of Appeals made in its opinion concerning ExxonMobil’s climate change case.
Exxon’s legal fight to pull back the curtain on the authors of climate change litigation is currently before the Texas Supreme Court.
The oil giant’s petition for review asserts several California municipalities and Matthew Pawa, a Massachusetts lawyer, are attempting to chill speech and commandeer public policy, subjecting them to personal jurisdiction in Texas courts.
The case stems from a petition Exxon filed in Tarrant County District Court in response to climate change litigation, seeking pre-suit discovery for a potential lawsuit against the California municipalities and officials and Pawa.
Exxon’s case against the California municipalities ended up in the Second Court of Appeals after a Texas judge found the cities and counties were hypocritical in suing Exxon.
The municipalities had claimed doom to their infrastructures will be caused by rising sea levels, but when issuing bond offers to potential investors, they had neglected to mention this alleged, near-certain destruction.
The oil giant argued its suit against them belongs in Texas because they have purposeful contacts within the state.
However, on June 18, 2020, the Second Court found that was not enough to keep the litigation here, despite feeling “an impulse” to protect the energy sector.
On Jan. 24, attorney Murry Cohen submitted an amicus brief to the Supreme Court, stating that he doesn’t “care whether review is granted” or “who wins” but does care whether the high court will “publicly condemn” the language in the Second Court’s opinion.
In its opinion, the Second Court confessed to “an impulse to safeguard an industry that is vital to Texas’s economic well-being” and that the court was “acutely aware that California courts might be philosophically inclined to join the lawfare battlefield in ways far different than Texas courts.”
“Being a conservative panel on a conservative intermediate court in a relatively conservative part of Texas is both a blessing and curse: Blessing, because we strive always to remember our oath to follow settled legal principles set out by higher courts and not encroach upon the domains of the other governmental branches; curse, because in this situation, at this time in history, we would very much like to follow our impulse instead,” the Second Court’s opinion states.
“In the end, though, our reading of the law simply does not permit us to agree with Exxon’s contention that the Potential Defendants have the purposeful contacts with our viii state needed to satisfy the minimum-contacts standard that binds us.”
Cohen’s brief states that: “Chief Justice Sudderth went further, writing a concurring opinion suggesting she ‘loathed’ having to follow controlling law from this Court and the U.S. Supreme Court and rule against Exxon.”
In his brief, Cohen says the court’s language caused him and another attorney to file a complaint with the Texas Commission on Judicial Conduct, which was dismissed.
“Given the Commission’s decision, only this Court is left to protect the judiciary from this conduct,” Cohen writes. “This Court should condemn the panel’s political statements sufficiently to give pause to judges who would emulate it.”
Cohen asks whether it violates the Texas Code of Judicial Conduct for an appellate court in an opinion to “confess to an impulse to safeguard an industry that is vital to Texas’s economic well-being” and describe the “blessing” of being “a conservative panel on a conservative intermediate court in a relatively conservative part of Texas.”
“Unfortunately, the Court’s opinion added ‘Some Final Thoughts’ that ‘confessed’ its prejudice in favor of the Texas oil industry, effectively apologized for ruling against the Texas oil industry and Exxon, reassured the public of its conservative bona fides, and described the ‘blessing’ of being conservative,” Cohen’s brief states.
“The ‘Final Thoughts’ are a political advertisement misplaced in a judicial opinion. They violate multiple Canons of the Code of Judicial Conduct, discredit the judiciary, and should generate meritorious motions to recuse these justices by litigants opposing oil industry parties in the Second Court of Appeals.”
Supreme Court case No. 20-0558