600 Commerce
Commercial Litigation
in the Dallas Court
of Appeals

Election En Banc

March 8, 2020

In the 2018 election for a Dallas County Justice of the Peace position, Democratic candidate Margaret O’Brien obtained a default judgment that her Republican opponent, Ashley Hutcheson, was ineligible for the position because of her residence. IAfter the election, in December 2018, a Fifth Court panel reversed, finding that the order was void because an Election Code provision bars default judgments in election cases, and further finding that the matter was not moot and required a further trial-court order because the judgment included an award of attorneys’ fees.

Litigation continued before the en banc court (the makeup of which significantly changed in the same 2018 election), which ultimately settled. In a short opinion by Chief Justice Burns on March 6, 2020, a majority of the Court dismissed the case as moot and withdrew the panel opinion.

Controversy ensued, as reflected by the four other opinions issued that day:

 

  • A dissent by Justice Schenck found that the matter was not moot (as it was capable
    of repetition, etc.), agreed with the reasoning of the panel, and criticized the decision to withdraw the panel’s opinion (joined by Justices Bridges and Evans);
  • Another dissent, by Justice Whitehill, criticized the decision to withdraw the panel’s opinon for other reasons (also joined by Justice Bridges);
  • A concurrence and dissent by Justice Bridges (the author of the panel opinion) agreed with the conclusion that the case is moot, disagreed with the withdrawal of the panel opinion, and reiterated the reasoning of that opinion (joined by Justices Myers, Whitehill, Schenck, and Evans — the full complement of Republican Justices on the present court);
  • A concurrence by Justice Molberg clashed with the substantive reasoning of the dissents, but concluded that the order was void for another reason – ripeness – as the election had not yet occurred at the time of judgment. This opinion was joined by all other Democratic Justices on the court except Justice Pedersen, who did not participate in the case.