Justice Linda Reyna Yanez vs. Incumbent Phil Johnson | 2008 Texas Supreme Court Contest

Republican Incumbent
Phil Johnson

Democratic Challenger
Linda R. Yanez

Please describe the training and experience that qualify you for this
office? (50 words)

CANDIDATE QUALIFICATIONS



			1975 Texas Tech Law School honors graduate. Private practice of law over 20 years; supervising attorney in medium-sized law firm. Board certified in Civil Trial and Personal Injury Trial law. Texas Court of Appeals Justice and Chief Justice, 1999-2005. Texas Supreme Court Justice 4/2005 to present.



			Senior Justice on the 13th Court of Appeals, appointed by Gov. Ann Richards in 1993, authored 1000’s of appellate opinions, a former Clinical Instructor and current faculty member of the Trial Advocacy program at Harvard Law School. I am a former farmworker, elementary school teacher, and legal aid lawyer.

What does the term “activist judge” mean to you? Does this term
affect the public’s perception of the judiciary? Please explain (75
words)

VIEWS ON JUDICIAL ACTIVISM

An “activist judge” is one who bases decisions
on what that judge wants the law to be,
instead of on legal precedent, legal reasoning,
valid legal principles and strict construction of
legislation. Public perception of the judiciary
is hurt by charges that judges are “activist”,
even when the charges are made just because
someone disagrees with the result of the
judge’s decision.

Definition depends on whose ox is being
gored. Some consider that interpretations of
the law which consider the law as alive and
responsive to changing mores in the greater
society as “activists”. Others consider that
interpretations of the law which pretend to
“interpret” the “intent” of the original writers
as “activists”. Result oriented analysis
should be of concern. We need a system that
promotes a judiciary of independent thinkers
committed to the rule of law.

What method of selection of judges is most
likely to result in a qualified, diverse, and
independent judiciary? (75 words)

JUDICIAL SELECTION METHOD

I am not aware of studies relating methods of
judicial selection to quality or diversity of the
judiciary. Nor am I aware of studies relating
judicial selection methods to independence
of the judiciary. My opinion is that judicial
independence depends more on the length
of the term of office than on the method of
judicial selection.

If we are going to continue to elect our judges
then we should have single-member districts
for the two Supreme Courts. I favor a hybrid
system of appointment/election, which has a
non-partisan screening committee, including
members of the Bar and lay citizens. There
are many models in different states in which
appointed judges stand for retention elections,
reappointment procedures, Bar polls and other
permutations. Texans should consider these
alternatives to our current process.

Should a judge or justice recuse himself or herself from cases in
which the participating lawyers, their firms, or parties to the suit have
contributed substantially to the judge’s or justices’ election? Please
explain. (75 words)

CAMPAIGN CONTRIBUTIONS AND RECUSAL

The Texas Legislature has by law limited the
amount and timing of judicial campaign
contributions.
Limits apply to all persons, including
parties, lawyers and lawfirms. A judge
need not recuse from cases solely because
of a contribution which is made within limits.
However, if the circumstances might
reasonably cause a judge’s impartiality to be
questioned, then the judge should recuse from
the case.

The current rules regarding recusal and
disqualification
adequately address issues of
conflicts of interest regarding the judiciary.
As long as the judiciary is elected, judicial
candidates must raise money. In order to
significantly eliminate the issue of contributions
and the influence they may have on the
judiciary, Texans should have a better system
of judicial selection. I support eliminating the
election of our appellate bench. No system of
judicial selection is free of political influence.

2008 Opinions by Republican Texas Supreme Court Incumbent Phil
Johnson, Justice

Coastal Oil & Gas Corp. v. Garza Energy Trust, No. 05-0466 (Tex. Aug. 29, 2008)(Hecht)
(oil and gas, trespass, rule of capture)
Justice Willett delivered a concurring opinion.
Justice Johnson delivered an opinion concurring in part and dissenting in part, in which Chief
Justice Jefferson joined, and in Part I of which Justice Medina joined.

In re Baylor Medical Center at Garland, No. 06-0491 (Tex. Aug. 29, 2008)(Brister)(HCLC, mandamus
proceeding abated to afford new trial judge opportunity to reconsider issue of granting / ungranting new
trial, plenary power) abatement order issued | stay order issued
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2.
Justice Johnson delivered a dissenting opinion. (would address problem raised by the case through
rulemaking)

Ulico Casualty Co. v. Allied Pilots Association, No. 06-0247 (Tex. Aug. 29, 2008)(Johnson)
(insurance coverage, non-coverage claim, waiver, estoppel)
Chief Justice Jefferson delivered a concurring opinion, in which Justice O'Neill joined.

State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)
(condemnation, fees to landowner reversed))
Justice O'Neill delivered an opinion concurring in part and dissenting in part.

In Interest of MN, a Child, No. 07-0698 (Tex. Aug. 29, 2008)(Johnson)
(termination of parental rights, appellate procedure, extension to file statement of points for appeal)
Justice Willett delivered a dissenting opinion.

Justice Johnson wrote a dissenting opinion in
Pleasant Glade Assembly of God v. Schubert, No. 05-0916 (Tex. 2008) (Majority Opinion by
Justice Medina) (constitutional law, first amendment freedom of religion clause, demon possession and
exorcism, intentional tort claim by church member for mental anguish damages barred by church's
religious doctrine immunity, estoppel claim rejected)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Medina delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice
Wainwright, Justice Brister, and Justice Willett joined.
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green joined, and in Parts II-A, III,
and IV of which Justice Johnson joined.
Justice Green delivered a dissenting opinion.

FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6,
2008) (Phil Johnson) (condemnation, implications of reduction of amount of land to be taken on land
owner's recovery of fees, partial nonsuit)
Justice Willett delivered an opinion concurring in part and dissenting in part

Justice Johnson wrote an opinion concurring and dissenting in part in Perry Homes v. Cull,
which was joined by Chief Justice Jefferson and Justice Green
Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)(Opinion by Scott A. Brister)

Justice Johnson delivered a dissenting opinion, in
Unauthorized Practice of Law Committee v. American Home Assurance Co., Inc., No. 04-0138 (Tex. Mar.
28, 2008)(Hecht)f

Fairfield Ins. Co. v. Stephens Martin Paving, LP, No. 04-0728 (Tex. Feb. 15, 2008)(Justice Wainwright)
(insurance coverage and indemnification of punitive damages arising from gross negligence)
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit.
Justice Hecht delivered a concurring opinion, in which Justice Brister, Justice Medina, and Justice Willett
joined.
Justice Johnson delivered a concurring opinion.

City of Rockwall, Texas v. Hughes, No. 05-0126 (Tex. Jan 25, 2008) (Johnson) (annexation, arbitration)
Justice Willett filed a dissenting opinion, in which Justice Hecht, Justice O'Neill, and Justice Brister joined.

2007 Opinions Written by Texas Supreme Court Justice Phil Johnson

National Plan Administrators, Inc. v. National Health Ins. Co., No. 05-0006 (Tex. Sep. 28, 2007)
(Johnson)(commercial law, contract, insurance law, insurance code, fiduciary duty)
NATIONAL PLAN ADMINISTRATORS, INC. AND CRS MARKETING AGENCY, INC. v. NATIONAL HEALTH
INSURANCE COMPANY; from Travis County; 3rd district (03-03-00306-CV, 150 S.W.3d 718, 09/10/04)2
petitions
The Court reverses the court of appeals' judgment and renders judgment.
Justice Phil Johnson delivered the opinion of the Court.

Guevara v. Ferrer, No. 05-1100 (Tex. Aug. 31, 2007)(Johnson)(auto PI, expert testimony to prove
medical expenses)

Quigley v. Bennett, No. 05-0870 (Tex. Jun. 8, 2007)(Johnson)(geologic services, no written contract,
royalty interest in minerals)

In Re Southwestern Bell Telephone Co., L.P., No. 05-0511 (Tex. Jun. 1, 2007)(mandamus, primary
agency jurisdiction)(Johnson)

In Re Bexar County Criminal DA's Office, No. 05-0613 (Tex. May 4, 2007)(Willett)(mandamus)
[discovery, testimonial privilege, work-product privilege, subpoena quashed]
Justice Willett wrote a separate concurring opinion in this case
Justice Johnson wrote a dissenting opinion in In Re Bexar County Criminal District Attorney's
Office

Equistar Chemicals v. Dresser-Rand Co., No. 04-0121 (Tex. May 4, 2007)(Johnson)
[commercial equipment failure, implied warranty, tort liability, economic loss rule, measure of damages,
jury charge error, preservation of error]

Justice Johnson writes separately in university's appeal in an employment dispute
Justice Johnson delivered a concurring opinion in Baylor Univ. v. Coley
Baylor v. Coley, No. 04-0916 (Tex. Apr. 20, 2007)(Hecht)(wrongful termination, tenure, constructive
discharge, claim of jury charge error, jury instruction, no evidence of breach of contract)

2006 Supreme Court Opinions Authored By Justice Phil Johnson

Barker v. Eckman, No. 04-0194 (Tex. Dec. 1, 2006)(Phil Johnson)(bailment agreement)

Mack Trucks v. Tamez, No. 03-0526 (Tex. Oct. 27, 2006)(Justice Phil Johnson)
[personal injury law, PI, auto accident, expert testimony, reliability, exclusion of evidence, take nothing
judgment]

Reata Construction Corp. v. City of Dallas, No. 02-1031 (Tex Jun. 30, 2006)(substitute opinion on
rehearing by Justice Phil Johnson)
[sovereign immunity, waiver of immunity by litigation conduct, waiver of immunity by suing or filing claim for
affirmative relief] Concurrence by Justice Brister

In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Justice Phil Johnson)
In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Concurrence by O'Neill)
[arbitration, motion to compel arbitration, arbitration clause, binding, nonbinding, unconscionable]

Marshall v. Houston Authority of the City of San Antonio, No. 04-0147 (Tex. Mar. 3, 2006)(Justice
Johnson) [forcible detainer]

Lopsided Arbitration Agreement Enforced by Mandamus

In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Justice Johnson)
In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Dissent by O'Neill)
[arbitration law, motion to compel arbitration, arbitration clause, binding, nonbinding, unconscionable]
This original proceeding presents the issue of whether the purchasers of a manufactured home must
arbitrate their claims against both the retailer and manufacturer of the home pursuant to a written
arbitration agreement between the purchasers and the retailer. The agreement specified that it inured to
the benefit of the manufacturer and gave the manufacturer a twenty-day period during which it could opt
out of arbitration. We conclude that the manufacturer’s opt-out right did not render the arbitration
agreement unenforceable and that the purchasers must arbitrate their claims against both parties.
Conclusion. . . .
We conclude that the trial court abused its discretion in failing to order the Ripples to arbitrate their claims
against the retailer and manufacturer. We conditionally grant the writ of mandamus and direct the trial
court to compel arbitration of the Ripples’ claims. The writ will issue only if the trial court fails to comply
with our directive.

Plaintiffs' Failure to Prove Causation With Proper Expert Testimony Entitles Defendant in Truck
Wreck Case to Summary Judgment

Mack Trucks v. Tamez, No. 03-0526 (Tex. Oct. 27, 2006)(Justice Johnson)
In this truck accident case the trial court excluded expert testimony as to what caused a post-accident fire
that burned the truck and the driver. After excluding the expert testimony because it was not reliable, the
trial court granted summary judgment. The court of appeals reversed. We hold that the trial court did not
err, reverse the court of appeals’ judgment, and render judgment that the plaintiffs take nothing.
Conclusion: The plaintiffs produced no evidence that the alleged defects of the Mack tractor were a
cause-in-fact of injuries to Abram Tamez. Because causation is a required element of each of the
Tamezes’ claims, the trial court properly granted summary judgment. Accordingly, we reverse the court of
appeals’ judgment and render judgment that the plaintiffs take nothing.

Dissents and Concurrences by Justice Phil Johnson

Brookshire Grocery Co. v. Taylor, No. 03-0408 (Tex. Dec. 1, 2006)(Hecht)
Justice Johnson delivered a concurring opinion
Justice O'Neill delivered a dissenting opinion, joined by Justice Medina

houston-opinions.com