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Exxon and “Lawfare”

Wikipedia defines “lawfare” as “using legal systems and institutions to achieve a goal.” Some use the term to refer to the misuse of legal systems against an enemy, “such as by damaging or delegitimizing them, wasting their time and money, or winning a public relations victory.” The Fort Worth Court of Appeals used the term in an opinion that has caused quite a stir in legal circles.

The Fort Worth Court’s opinion, in City of San Francisco, et al. v. Exxon Mobil Corporation, et al., 2020 WL 3969558, describes a long-ongoing dispute between Exxon Mobil and California municipalities over lawsuits filed against Exxon and other oil companies in California related to climate change. The appeal is from a trial court decision in a suit brought by Exxon against these municipalities and others under Rule 202 of the Texas Rules of Civil Procedure. That rule allows a trial court to authorize a deposition either to perpetuate or obtain testimony for use in a potential suit, or to investigate a potential claim or suit. The defendants have pending claims in California state courts claiming that Exxon’s activities affect climate change and that its public announcements about climate change were intended to downplay its effects, and seeking damages for nuisance and other relief. Exxon’s Texas suit claims that the California lawsuits were brought to silence and delegitimize Exxon “as a political actor” and to coerce Exxon and other Texas-based energy companies into adopting “the climate change policies favored by special interests and their allies in municipal government.” In other words, lawfare. Exxon said it wants to investigate potential claims for violations of Exxon’s First Amendment rights, abuse of process and civil conspiracy.

The defendants moved to dismiss Exxon’s Rule 202 petition on the ground that the court had no personal jurisdiction over them. The suit could not proceed unless the defendants had sufficient contact with Texas to allow Texas courts to exercise personal jurisdiction. The trial court held that Exxon had established facts to show such personal jurisdiction. The Court of Appeals reversed, holding no such jurisdiction existed.

Exxon then filed a petition for review of the court of appeals’ decision. Today, the Texas Supreme Court denied Exxon’s petition.

In the Supreme Court a former court of appeals justice, Murry Cohen, filed an amicus brief. He did not take sides in the dispute, but instead asked the Supreme Court to “publicly condemn” certain language in the court of appeals’ opinion. After ruling against Exxon, the court said the following:

Some Final Thoughts
We confess to an impulse to safeguard an industry that is vital to Texas’s economic well-being, particularly as we were penning this opinion weeks into 2020’s COVID-19 pandemic-driven shutdown of not only Texas but America as a whole. Lawfare is an ugly tool by which to seek the environmental policy changes the California Parties desire, enlisting the judiciary to do the work that the other two branches of government cannot or will not do to persuade their constituents that anthropogenic climate change (a) has been conclusively proved and (b) must be remedied by crippling the energy industry. And we are acutely aware that California courts might well 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 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.

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 state needed to satisfy the minimum-contacts standard that binds us.

Chief Justice Sudderth wrote a concurring opinion suggesting she “loathed” having to follow controlling law from this Court and the U.S. Supreme Court and rule against Exxon.

Judge Cohen relates that, because of this language, he and Kenneth Marks filed a complaint with the Texas Commission on Judicial Conduct, but the Commission dismissed the complaint, finding that the language “did not rise to the level of sanctionable conduct.”

Judge Cohen contends that the above language violates several provisions of the Code of Judicial Conduct, including Canons requiring judges to uphold the integrity and independence of the judiciary, avoiding impropriety and the appearance of impropriety in all of the judge’s activities, and performing the duties of judicial office impartially and diligently. Cohen says “the Court’s criticism of Californians for ‘enlisting’ the California judiciary to engage in ‘lawfare’ is a political advertisement, i.e., it is judges using an opinion to audition for higher office, appease Exxon, avoid criticism, and discourage conservative election opponents.

Judge Cohen’s amicus can be viewed here. In separate filings, Kenneth Marks, Lonny Hoffman and Meredith Duncan (University of Houston law professors), Susan Fortney (Texas A&M law professor), Charles Silver (University of Texas law professor), and Larry Spain (Texas Tech law professor) all joined in Judge Cohen’s amicus brief.

Justice Sudderth says in her concurring opinion that “as intermediate appellate court justices, we are, on occasion, somberly reminded that our job is not to mete out justice, but to apply the law. For me, this is one such occasion. I urge the Texas Supreme Court to reconsider the minimum-contacts standard that binds us.”

I was taught in law school that the role of the law is to mete out justice. One legal dictionary defines justice as “a system of law in which every person receives his/her/its due from the system, including all rights, both natural and legal.” “Law is not law, if it violates the principles of justice” — Lydia Maria Child. Of course Justice Sudderth is correct that an intermediate court must follow the precedent laid out by the higher court, and I consider it proper that a court of appeals justice should point out to the Supreme Court when it believes that precedent should be reconsidered. Law as an instrument of justice is an aspiration, a goal never to be completely achieved. Witness Plessy v. Ferguson, Dred Scott v. Sandford, and more recently Citizens United v. Federal Election Commission. Judges, like all humans, are biased. It is perhaps refreshing that the justices in San Fransisco v. Exxon recognized and admitted to their bias but felt bound to follow the law. But I agree with Judge Cohen that it was probably not a good idea for them to so blatantly display their bias in a judicial opinion.

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