“Our considered opinion is that Justice Paul Green is without question the most qualified and proven candidate in this race. Absent a specific concern about his performance on the court, to replace a known jurist with the qualifications and experience of Justice Paul Green with a wonderful activist like Mr. Rick Green would not be in the best interest of Texas or the Texas Supreme Court. Accordingly, the PAC recommends Justice Paul Green for re-election.”
– Texas Patriots PAC
Justice Paul Green has been on the Texas Supreme Court since 2004. He has almost 22 years’ experience as an appellate judge, having spent 10 years on the Texas Court of Appeals in San Antonio prior to joining the Supreme Court. Accordingly, an extensive paper trail of Justice Green’s opinions is available that demonstrate what kind of judge he has been. Justice Green spent the first 17 years of his legal career in private practice, primarily doing defense trial work. Justice Green has a well-earned reputation as a thoughtful, knowledgeable jurist with a strong work ethic. He has consistently supported the conservative positions in the cases that have come before him on both the Court of Criminal Appeals and the Supreme Court. The only possible reason we are aware of to question Justice Green’s re-election might be his joining with the majority in Texas v Naylor (last year’s same-sex marriage case). However, we have spent a considerable amount of time reviewing this case with Justice Green and other jurists and do not believe Justice Green’s position in this case provides any reason to disqualify him from re-election. In fact, we might argue it strengthens the case for his re-election (See more on Texas v Naylor below.)
It is important to note that a very small percentage of the cases that come before the Texas Supreme Court (something in the order of 2%), contain constitutional questions. While the non-constitutional cases are important and need to be correctly decided (they cover subjects like contracts, malpractice, personal injury, insurance, etc.), from the general public’s perspective they are often not considered as important as the cases that relate to the Texas and/or US Constitution. We believe it is a mistake to consider the non-constitutional cases of lesser import than the constitutional cases, as it is critically important to the credibility of our judicial system that all parties benefit from the highest level of justice possible. Our considered opinion is that Justice Green is without question the most qualified and proven candidate in this race. Absent a specific concern about his performance on the court, to replace a known jurist with the qualifications and experience of Justice Green with a wonderful activist like Mr. Green would not be in the best interest of Texas or the Texas Supreme Court.
Accordingly, the PAC recommends Justice Paul Green for re-election.
Texas v Naylor
There has been some suggestion in conservative circles that Justice Green should be replaced on the Supreme Court because he supported the majority opinion in the June, 2015 ruling in Texas v Naylor. The PAC’s review of this case concludes that these suggestions are without merit and that in fact, the Naylor ruling is an excellent example of why we need to re-elect Justice Green to the Supreme Court. Naylor was a 2010 case from a Travis County court which issued a divorce to a same-sex couple who had been married out-of-state. (Footnote 1 contains a brief synopsis of the case history.) Contrary to much of the press about this case, the issue presented to the Supreme Court in the Naylor was not about gay marriage. Instead, it was a narrow procedural question about whether the State of Texas’ effort to intervene in the case after the judgment had been rendered had been made in a timely manner. There must be closure in legal cases; a point in time when a judgment in a case is final. Otherwise, our legal system would do little but foster uncertainty. Accordingly, there are long established rules about when interested parties may intervene in a case to protect their interests. In Naylor, the State of Texas was clearly an interested party, since the question of whether a Texas court can grant a divorce in a marriage not recognized as legal by the State of Texas is a legal question that affects the State’s interests. But for reasons never explained, the Attorney General failed to attempt to intervene in Naylor until after judgment was rendered. The procedural rules at that point give the trial court judge the discretion to reopen the case and allow the intervention, which the trial court judge refused to do. In the majority opinion, the Supreme Court in Naylor refused to expand the exceptions to the existing intervention rules and allow the State to intervene in the case. This was not a ruling about whether the justices in the majority favor or do not favor same-sex marriage. That issue was not before the court. But had the Supreme Court expanded the intervention rules to allow the State to intervene, the case would likely have been remanded back to the Austin trial court where it would be reopened to allow the State to argue the constitutional issue relating to same-sex marriage in Texas. And this is why many on the right are unhappy with the ruling. The Naylor case is an awesome example of the temptation that comes before our jurists to allow expansion of government power in order to achieve a social or political end. The primary reason we have the federal government’s incessant expanding power grab, is that the US Supreme Court has increasingly succumbed to this temptation. But inevitably, government has used their court-granted increased power as a license to expand its intrusion into other areas. To only way WE THE PEOPLE can stop this, is to make sure we support judges who will adhere to the rule of law in all cases. As US Supreme Court Justice Samuel Alito has observed: “A judge can’t have any preferred outcome in any particular case. The judge’s only obligation – and it’s a solemn obligation – is to the rule of law.” The majority in Naylor case ruled that allowing the State to intervene in the case was an impermissible expansion of the State’s powers. From a political perspective, the PAC would have preferred an outcome resulting with the liberal court in Austin being forced to retract what we believe was an unconstitutional judgment. But we appreciate, and believe it is important, that we have justices who make the tough decisions and adhere to the rule of law; thereby avoiding the expansion of the State’s power and the unintentional consequences that will undoubtedly follow.The PAC does not pretend to be legal appellate experts, but we know a number of people who are. As part of our review of Naylor, we have consulted a number these experts, some of whom support Justice Willett’s dissent on Naylor. Their support of the dissent is another awesome example how conservative justices acting in good faith can reach opposite opinions of the same issue. Many of the issues coming before an appellate court (especially the Supreme Court) do not fall in a convenient “black and white” matrix. And in fact, the PAC endorsement of Justice Guzman (Place 9), who dissented in Naylor case, is an indication that we view the arguments on either side of Naylor closely matched. Naylor presented a very narrow issue of law and we don’t see the dissent arguments as suggesting judicial overreach.
Texas v Naylor was a case involving a same-sex couple, who were married in Massachusetts in 2004 and obtained a divorce in Texas from a Travis County court in February, 2010. In the divorce filings, the one of the women originally contested the divorce on the grounds that the Texas court had no authority to grant the parties a divorce since same-sex marriages were unconstitutional and not recognized in Texas. The trial court recognized this constitutional concern, but did not address the issue. Instead, after the trial court had repeatedly urged the women to settle the case, the women suddenly reached a settlement and the trial court immediately granted a divorce pursuant to their settlement agreement. The Attorney General of the State of Texas had a legal right to intervene in Naylor because the case presented a State constitutional issue of whether Texas courts have authority to grant divorce in a marriage not recognized by the State. The Attorney General had representatives in the courtroom monitoring the Naylor trial, but the State did not exercise its right to intervene in the case before the trial court rendered the judgment of divorce. The day after judgment was granted, the State of Texas filed a petition opposing the divorce judgment and asking the court to reopen the case to allow the State to intervene in order “to defend the constitutionality of Texas and federal laws that limit divorce actions to persons of the opposite sex who are married to one another.” The State argued that the trial court lacked jurisdiction to grant a divorce, but could declare the marriage void under the Texas Family Code. Under the law, the trial court has discretion on whether to reopen a case after judgment is granted. In the Naylor case, the trial court refused to reopen the case and denied the State’s petition on the grounds that the attempted intervention was untimely. The State appealed. In January, 2011, the Texas Court of Appeals in Austin denied the State’s appeal because the intervention was untimely and “because the State is not a party of record and lacks standing to appeal.” The State then appealed the case to the Texas Supreme Court, which heard the case in November 15, 2013. On June 19, 2015, a divided Supreme Court ruled 5 to 3 (Justice Lehrmann inexplicably did not participate in the decision) affirming the decision of the Court of Appeals and denying the State’s petition for writ of mandamus, holding that the State failed to secure standing by properly presenting its arguments to the trial court and court of appeals, and consequently, the Supreme Court had no jurisdiction to reach those issues.