Edgewood Independent School District v. Kirby , 804 S.W.2d 491 ( 1991 )

DOGGETT, Justice,

concurring.

Twice this court has labored arduously to speak with one, clear voice concerning this most significant case. Twice this court has achieved consensus in opinions, signed by a single member, but incorporating the work of all. Tragically, today this unity has been abruptly abandoned, shattering the good faith upon which it was founded. Determined to react to extrajudicial developments, the court exceeds its jurisdiction, contravenes its rules, and ignores limitations imposed on it by tradition and the Constitution. It muddles the law and meddles in the legislative process. Advice not properly sought is offered anyway, despite the warning of the Chairman of the Senate Education Committee that further judicial interference will be disruptive and his indication that the Legislature already has all the judicial advice necessary “to remedy the constitutionally flawed system of public education....” Amicus Brief on Motion for Rehearing, Sen. Carl Parker, at 2; see also Supplemental Response of Plaintiff-Appellants to Motion for Rehearing at 2 (Further action by the court “would likely impede, rather than facilitate this [legislative] process.”). Accordingly, the opinion on rehearing constitutes a frantic rush to influence the final stages of current legislative deliberations and will only prolong correction of our inefficient educational system at the expense of the school children of Texas.¹

Today a judge expounds on social policy preferences rather than resolving a motion. The underlying need for writing arises from the fear that the Legislature may otherwise fail to satisfy certain judicial desires, not that it may inadvertently pursue some further unconstitutional course. The restraint observed by a unified court has become the activism promoted by a majority of a divided one. For the reasons set forth herein, I dissent from the opinion on the motion for rehearing in the strongest possible terms but concur with the decision that this motion should be overruled.

This self-styled “Opinion on Motion for Rehearing” is a misnomer. It is not a true opinion generated in response to a party’s motion for rehearing; rather, it is an answer to a question that a movant never asked. The only motion before us consists of four narrowly crafted paragraphs concerning the validity of a single prior opinion:

This Motion for Rehearing is filed for the limited purpose of requesting modification or clarification of this Court’s opinion with respect to the continued force and effect of Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931).

Plaintiff-Intervenors’ Motion for Rehearing at 1 (emphasis added). If the court believed that this request was either merit-less or inappropriate, the direct response was simply to overrule the motion as recommended by three of the succinct replies. Instead, by overwriting and miswriting the court offers observations that are strangely at variance with one aspect of the recapture issue on which the Defendants, the Plaintiff-Appellants, and the Plaintiff-In-tervenors all agree.²

The court’s main objective is to misuse one party’s pleading on a single issue to benefit an opponent on other unrelated concerns.³ It wrongfully claims that the mov-ant’s

position raises the question of whether the legislature may constitutionally authorize school districts to generate and spend local taxes to enrich or supplement an efficient system.

804 S.W.2d at 499. The motion does not even remotely ask any such question. Rather, in a desperate effort to justify its misguided action, the court rephrases the motion to present a question that a judge wants to answer. The opinion converts the issue of whether locally-raised taxes may be used to fund other school districts elsewhere in the state to whether locally-raised taxes may be used locally to provide supplemental funds in the same district.

Today’s opinion reacts not to a movant’s properly filed pleading but solely to exigencies evidenced in pleadings of a different sort — media reports and commentaries, of the type set forth in Appendix A to this dissent. While constitutional interpretation involves some adjustment to changing societal conditions and must reflect “the understanding that the Constitution was ratified to function as an organic document to govern society and institutions as they evolve through time,” Edgewood Ind. School Dist. v. Kirby, 777 S.W.2d 391, 394 (Tex.1989) (Edgewood I); Damon v. Cornett, 781 S.W.2d 597, 599 (Tex.1989), we should not abruptly reinterpret the basic fabric of our jurisprudence because a judge is startled by what he reads in the newspaper. The true message sent forth today is “don’t write a legal brief, write a political column.” This is apparently the first time in its 151-year history that the court has operated in the manner it has today.

Indicative of the true nature of this opinion is the near total absence of supporting legal authority excepting the single case raised by movants that provided the convenient excuse for further writing. Perhaps this is because the only true precedent for today’s action is an earlier embarrassing chapter in Texas jurisprudence that the court does not cite. Without parties, attorneys, or a pending appeal — solely on its own initiative — this court once declared legislation unconstitutional. See In re House Bill No. 537 of the Thirty-Eighth Legislature, 113 Tex. 367, 256 S.W. 573 (1923).⁴ While dressed in seemingly more respectable language, a similar judicial encroachment has occurred again today.

In denying the motion for rehearing and writing on this completely separate issue, the opinion deprives the movants of any opportunity to complain or request correction of this new discussion. Having received, to their surprise and undoubted chagrin, an answer to a question they did not ask, the movants can never again be heard because “[t]his court will entertain no further motions for rehearing in this cause.” 804 S.W.2d at 500. See Tex.R.App.P. 190(d). By including analysis of a new issue in an opinion denying the motion for rehearing, the court chisels these words in stone, arrogating to itself an authority beyond review. This precedent for deciding questions not properly presented should alert appellate lawyers in all cases to file motions for rehearing at their peril. Asking for rehearing is risky business because the court in its enthusiasm may rule on subjects not presented while denying further review.

And, having accomplished this coup today, why is a motion for rehearing even necessary? Since the court may issue opinions unrelated to points raised by a mov-ant, the motion itself is superfluous. Why should the court not encourage public debate of an opinion and thereafter fix whatever is necessary, resolving every dissatisfaction, and dispelling any confusion? This would further save litigants the expense of paying lawyers to file motions and provide legal advice.

The thickest camouflage for today’s judicial handiwork is provided by the disingenuous suggestion that a Friday afternoon reply by Attorney General Dan Morales to the only motion for rehearing had something to do with this Monday opinion. The only request from that belated filing on which the court acts is the suggestion that we answer at least one of the four questions addressed to us in an amicus brief. Defendants’ Response to Motion for Rehearing at 4-5. Eleven members of the Legislature asked us to engage in what they describe as the “extraordinary” step of prejudging their conduct.⁵ Amicus Brief on Motion for Rehearing, Rep. Junell, at 5. Having already determined to respond to newspaper pleadings, today’s opinion has no problem with simultaneously answering the query of these nonparties despite its impropriety.⁶

From the birth of our nation, courts have declined requests from officials in other branches of government to issue advisory opinions.⁷ In Texas this matter was specif-ieally addressed in the Constitution, see article IV, section 22, and interpreted by our court: “the Attorney General, a member of the Executive Department, is the only state officer expressly authorized to render such [advisory] opinions.” Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 644 (1933); see also Tex.Const. art. V, § 3 (delimiting Supreme Court’s jurisdiction); Tex. Gov’t Code Ann. § 402.042 (Vernon 1990) (broadening the Attorney General’s power to issue opinion letters).

Because rendering such advice has been constitutionally deemed to be an executive rather than a judicial function, this court has previously refused to issue such opinions even upon request of another court. See Morrow, 62 S.W.2d at 644. We have declared unconstitutional an enactment purporting to authorize our offering trial courts prejudgment advice on the constitutionality of state statutes and regulations. Id., 62 S.W.2d at 643-44. More recently, by enacting a resolution submitting a constitutional amendment for citizens’ approval to authorize our answering certified questions from federal appellate courts, the Legislature recognized that it could not statutorily confer this court with advisory power.⁸

Today’s opinion on rehearing subjects the court to requests for advisory opinions not just from all litigants, but any person who files an amicus brief or writes an editorial. Once a court engages in the business of offering such advice that business will prosper. Today one amicus presents four queries; tomorrow it may be forty.⁹ Soon we can expect inquiries concerning our view of a lottery or the methodology for replacing the State Board of Insurance. The volume of opinions issued by the Attorney General, some 193 in 1990 alone, 16 Tex.Reg. 289-92 (1991), suggests the breadth of this task.

More importantly the process in which the court today engages diminishes the quality of our opinions. As Justice Felix Frankfurter noted before his service on the United States Supreme Court:

The advisory opinion deprives constitutional interpretation of the judgment of the legislature upon facts, of the effective defence of legislation as an application of settled legal principles to new situations, and of the means of securing new facts through the process of legisla-tion_ [T]o submit legislative proposals to the judicial judgment, instead of the deliberate decision of the legislature, is to submit legislative doubts instead of legislative convictions. The whole focus of the judicial vision becomes thereby altered.

Frankfurther, A Note on Advisory Opinions, 37 Harv.L.Rev. 1002, 1005 (1924) (emphasis added).

I am keenly aware of the many obstacles and limitations imposed on members of the Legislature in undertaking the monumental task of restructuring the school finance system. But judges must follow time-honored limitations of a different character. Our function is to uphold the Constitution and, under appropriate circumstances, to refine and develop the common law.¹⁰ It is neither to draft legislation nor to render advisory opinions.

Courts safeguard liberties not only by their action but by their restraint. Through addressing only the questions properly presented in the context of genuine controversies, they preserve public confidence in our third branch of government as an arbiter of real disputes rather than as a clearinghouse for advice on contemporary problems. Respect for judicial authority arises from restraint in its use.

Undoubtedly, to some there is a certain allure to the notion of this court working hand-in-hand with the Legislature as different drafts are submitted for review. Each chapter, section, and sentence could enjoy the careful scrutiny of this court. We could negotiate away any misunderstanding over constitutional requisites perhaps at the same time that the Legislature was resolving the court’s budget.

While this approach might result in resolution of one significant problem, it would eventually transform the court into an extension of the Legislature. With its three separate branches of government,¹¹ our democracy does not always resolve problems in the most expeditious manner. To secure a considered, independent judicial review, we regard some delay acceptable as we sacrifice the gratification immediate answers bring. Disregarding our traditional separation of powers to provide a quick-fix answer undermines the foundation of democracy. Texans excluded from the joint legislative and judicial decision-making process would be denied all opportunity for unbiased judicial review of legislative conduct. Judges would become mere appendages to other branches of government.

Today’s opinion demonstrates the danger of overreaching to answer that which has not been properly asked. Our decision on local enrichment in Edgewood I, 777 S.W.2d at 397-98, was straightforward, and has been a puzzle primarily to those who preferred not to comprehend it or who disliked what they read. As a postscript to the court’s prior unanimous writings, this most recent effort adds more confusion than clarity.

The few generalizations about local supplementation,¹² without supporting legal authority or meaningful analysis, reflect the superficial nature of the court’s consideration of this very important question. Nor, despite the court’s contrary insinuation, 804 S.W.2d at 493 n. 1, have the parties fully briefed and argued this issue. The movant on rehearing did not, of course, brief a question it did not ask. Fortunately, today’s hasty supplement is pure dicta which is in no way binding on this or other courts in the future and is of highly dubious authoritative value. See Boswell v. Pannell, 107 Tex. 433, 180 S.W. 593, 596 (1915).

A final reason to avoid the temptation of pontificating is that the court lacks jurisdiction to do so here. By declining to take direct appeal jurisdiction in this cause and “treatftng] this proceeding as being [solely] in the nature of an original mandamus proceeding to direct the district court to reinstate our injunction,” 804 S.W.2d at 493, the court chose not to accept authority to address many issues raised in this proceeding, including cross-points brought by the defendants. The opinion in this cause on first hearing carefully sought to observe these jurisdictional limitations, declining to pass on the question of attorney’s fees, “which has nothing to do with the enforcement of our mandate,” 804 S.W.2d at 493, n. 4, and carefully limiting our consideration of other questions unnecessary to the ultimate issue of enforcement. Id. at-(refusing to address “conflicting prognostications as to whether Senate Bill 1 can or will be implemented to achieve efficiency among 95% of students”). Because we may address only those matters directly affecting enforcement of our prior mandate, the question of local supplementation is not properly before this court. Moreover, a determination of this matter would amount to an inappropriate final resolution of an issue on the merits in a mandamus proceeding that is limited solely to considering whether the trial court abused its discretion. See Brownson v. Smith, 93 Tex. 614, 57 S.W. 570 (1900) (refusing to pass on constitutional question that would clarify “the uncertainty which surrounds [the Victoria] school system” because resolution of the issue would not affect whether the writ of mandamus should issue).

The fact that it is racing to publish this opinion before the other branches provide their own solution bespeaks the majority’s eagerness to legislate rather than adjudicate. By the public display of disunity and new words of equivocation, today’s opinion ensures that this litigation which may be finally nearing an end will go on indefinitely. Neither the Legislature, the parties, nor school districts can act with any assurance concerning what this court will do in the future.

Thankfully Texas judges can be held accountable by the people through the election process. That process, however, has been the source of certain contradictions that have become evident today. Recognizing that Texans do not want even elected judges interfering unnecessarily in their affairs, some candidates have found it increasingly beneficial to identify themselves as proponents of judicial restraint and their opponents as judicial activists. To some, “restraint” is generally synonymous with turning back the clock. In reality, however, for them it is an elastic, self-assumed label describing their judicial conduct, expediently adjusted to fit whatever they wish to write. As they define it, their own conduct is an example of conservatism and restraint, even if, as in this case, it ignores precedent, the rules, and the Constitution. To me, it means — regardless of parties or causes — a reluctance to exceed our constitutional role as judges and a refusal to engage in the type of conscious manipulation that has occurred here. Today’s opinion offering advice where none is properly sought represents true activism of the most dangerous type. It reveals the true extent of commitment to restraint by those who sometimes celebrate its virtues so joyously.

MAUZY, J., joins in this concurrence and GAMMAGE, J., joins in this concurrence by separate opinion.

APPENDIX A

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1 . Judicial tampering that prolongs an equitable solution is especially discouraging given the time that has elapsed since this cause was originally filed. A child then in the first grade is now in the eighth. With today’s interference, another generation of children may conclude their public schooling before complete reform is achieved.

2 . Defendants’ Response to Motion for Rehearing, at 2-3; Plaintiff-Appellants’ Response to Motion for Rehearing; Plaintiff-Intervenors' Motion for Rehearing.

3 . The applicable procedural rule speaks clearly concerning the presentment and consideration of such motions:

A motion for rehearing may be filed with the clerk of the court within fifteen days after the date of rendition of the judgment.... The points relied upon for the rehearing shall be distinctly specified in the motion. The party filing such motion shall deliver or mail to each party, or his attorney of record, a true copy of such motion....

Tex.R.App.P. 190 (emphasis supplied). This rule limits our consideration to points brought forward by the parties. See abo, e.g., Tex.R. App.P. 131(e) (points of error brought to supreme court must be presented in motion for rehearing in court of appeals); Lone Star Steel Co. v. Owens, 302 S.W.2d 213, 223 (Tex.Civ.App.-Texarkana 1957, writ ref'd n.r.e.) (complaints not raised in a motion for rehearing are no longer before the courts of appeals for decision); State Bar of Texas, Appellate Procedure in Texas 552 (2d ed. 1979). The court today ignores requirements ordinarily imposed on the preservation and presentation of points of error. At issue here, however, is much more than a debate concerning the legal intricacies of appellate procedure.

4 . See also Calvert, Declaratory Judgments in Texas — Mandatory or Discretionary?, 14 St. Mary’s L.J. 1, 3 n. 3 (1982); Note, Courts — Constitutionality of Declaratory Judgments, 3 Tex.L. Rev. 483, 485 (1925).

5 . One of these members ironically achieves more here as an amicus than he could at the trial court where an order striking his intervention was issued. Transcript at 168-69.

6 . See Fri v. Sierra Club, 414 U.S. 884, 94 S.Ct. 33, 38 L.Ed.2d 132 (1973) (finding that an amicus has no standing to independently seek a rehearing); Texas v. Jefferson Iron Co., 60 Tex. 312, 315 (1883) ("Our court has recognized the right of an amicus curiae to speak, and has held that while such volunteer action of counsel is permissible," the court, "upon being so informed, could do only that which it could do without such action of counsel, and no more.”); see abo Moseby v. Burrow, 52 Tex. 396, 403 (1880).

An amicus curiae is limited to making suggestions to the court, Jones v. City of Jefferson, 66 Tex. 576, 1 S.W. 903, 904 (1886), not posing new questions. See generally, J. Denton, Appellate Procedure in Texas 355 (O. Walker ed. 2d ed. 1979); Krislov, The Amicus Curiae Brief: From Friendship to Advocacy, 72 Yale L.J. 694, 695 (1963).

7 .Through a letter written by his Secretary of State Thomas Jefferson, President George Washington sought advice from the Supreme Court concerning several legal questions to “secure us against errors dangerous to the peace of the United States,” and to “insure the respect of all parties." Letter from Thomas Jefferson to Chief Justice Jay (July 18, 1793), reprinted, in W. Murphy & C. Pritchett, Courts, Judges, and Politics 225-26 (3d ed. 1979). While regretting any embarrassment that might befall the administration, the justices refused his request lest they violate the careful constitutional division of powers. Id. at 226.

8 . Tex.Const. art. V, § 3-c. The necessity for the amendment was explained: “[T]he Texas Supreme Court has determined that under the Texas Constitution judicial power does not embrace giving advisory opinions.” Senate Judiciary Committee, Bill Analysis, S.J.R. 10, § 1 R.S. (1985).

9 . As explained by another legislator: "Once the Court demonstrates its willingness to advise the legislature on the details of public school finance legislation, the questions will not end." Amicus Brief on Motion for Rehearing, Sen. Carl Parker, at 2. Perhaps to underscore his point he sought our advice in a subsequent filing by posing four questions whose answers would bestow judicial preclearance on specific pending legislation. Motion for Leave to Supplement and Amend Amicus Curiae Brief, Sen. Carl Parker.

10 . See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Winters v. Houston Chronicle Publishing Co., 795 S.W.2d 723, 725-26 (Tex.1990) (Doggett, J., concurring).

11 . See Bruff, Separation of Powers Under the Texas Constitution, 68 Tex.L.Rev. 1337, 1337 (1990) ("A strong separation-of-powers tradition is a prominent feature” of Texas constitutional law.).

12 . Today's opinion leaves unclear to what extent, if any, legislative enactments can restrict the taxing authority of school districts. If the Texas Constitution bars recapture, 804 S.W.2d 491, why are not other limitations equally flawed? Are legislatively-authorized roll back elections now an unconstitutional interference with local supplementation? Tex.Tax Code Ann. § 26.08 (Vernon 1982 & Supp.1991). Does the opinion on rehearing make unconstitutional the State Property Tax Board, which is authorized to ensure uniformity in local tax appraisal practices and procedures? Tex.Educ.Code Ann. § 11.71 (Vernon 1991). What effect does it have on those provisions historically included in school financing legislation that condition the receipt of certain benefits, such as accreditation, on the levying of a set minimum local tax rate? By apparently barring similar conditions based on state recapture, the opinion casts a constitutional cloud on other traditionally imposed legislative conditions upon taxation by school districts. By writing without considering the ramifications of overbroad and vague statements, the court, intending to grease the legislative works, simultaneously throws in a few wrenches.