Judiciary, meet the legislative branch

It’s not often that the judiciary has a direct face-off with the legislative branch of government over a point of law. But that could happen at Southern Methodist University’s Dedman School of Law when the Texas Supreme Court holds oral arguments there on Oct. 16. That day, the court will hear re-arguments in Entergy Gulf States Inc. v. Summers. Entergy is a controversial decision involving whether a premises owner who hires an independent contractor but provides workers' compensation insurance for the contractor’s employees enjoys immunity from the tort claims of a worker injured at one of its plants. In a 2007 opinion, the court ruled that the immunity applied to the premises owner. But four legislators later filed an amicus brief arguing that the court relied on inaccurate legislative history to arrive at the 2007 decision. One of those legislators, state Rep. Craig Eiland, D-Galveston, filed a motion on Sept. 22 asking the court if the amici can address the justices during the arguments. Eiland says the court has not yet ruled on his request. But if it approves the request, Eiland says it’s likely he or state Sen. Rodney Ellis, D-Houston, will address the court. Both Eiland and Ellis are lawyers. All of the legislators who filed the amicus brief, including Eiland, Ellis, state Sen. Jeff Wentworth, R-San Antonio, and state Rep. Bryan Hughes, R-Mineola, did so in their individual capacities. Wentworth and Hughes also are attorneys. “This is unusual. It’s an unusual opinion and an unusual case that caused us to feel strongly enough to write a brief,” says Eiland, of Galveston’s Law Offices of A. Craig Eiland. “This is about the separation of powers and legislative intent."

UPDATE: The Supreme Court rejected the amici’s request to appear at the argument in an order released today. However, the court will allow them to argue for five minutes, if one of the parties in the case agrees to subtract five minutes from their 20-minute argument. “Pursuant to Texas Rule of Appellate Procedure 59.6, upon motion to the Court and with a party's consent, the Court will grant amicus curiae leave to share up to five minutes of the twenty minutes allotted to that party for oral argument,” the court stated in the order. Maybe it's just me, but if four lawyer-legislators go to the trouble to file an amicus brief to support my position in a case and are willing to argue before the Supreme Court, I’m giving up the five minutes.

-- John Council