Saturday, September 5, 2009
Judicial Review of Independent Hearing Examiner's Decision Approved
In winding up the 2008-09 Fiscal Year last week with eleven opinions on Aug. 28, the Texas Supreme Court did not decide any arbitration disputes per se. In one public employment case, however, the High Court delved into the issue of judicial review of arbitration decisions, albeit under a different label. Authorizing Appeal of Arbitrator's Adverse Decision By Another Name At issue was the decision of an independent hearing examiner favorable to a police officer in a disciplinary proceeding. The Court, in a lengthy opinion by Justice Hecht - given additional gravitas with copious footnotes - came down on the side of permitting the city to challenge the hearing examiner's decision. Although the Court is otherwise big on enforcing arbitration and thus limiting the role of the courts, the Court's disposition hardly comes as a surprise, given that the dispute was between a city and a city employee/officer, and the arbitrator-examiner's ruling favored the latter. Says the Court: "[W]e hold that the hearing examiner exceeded his jurisdiction in summarily reversing an officer’s indefinite suspension and reinstating him with back pay and full benefits because the Act requires a hearing examiner to reach a decision based on evidence. Accordingly, we reverse the judgment of the court of appeals and remand the case to the district court for further proceedings." Over the course of several years, the Texas Supreme Court has established a pattern of siding with governmental entities in legal disputes with individuals, and has proven quite adept at devising jurisprudential theories to vindicate the interests of governmental defendants even where - as here - there is no statutory authorization for the city to even appeal from the hearing examiner's decision in the first place. Jurisdictionalization Trend Continues In conceptualizing the question of whether the examiner (arbitrator) did wrong as a matter of jurisdiction, the Court adds another precedent to the collection of new precedents that transform merits-issues into jurisdictional ones, thus providing a convenient basis for dismissal of claims for affirmative relief by plaintiffs (such as Whistleblowers or tort plaintiffs against TxDOT) for want of jurisdiction, or facilitating judicial review and reversal of a ruling unfavorable to governmental entities, such as in this case. The end - giving priority to the power and fiscal interests of government at the expense of the rights of individuals - appears to be sufficient to justify the jurisprudential innovations (at least as long as the opinion is heavily footnoted and thus better protected against charges of result-oriented judicial decisionmaking by fiat). City of Pasadena, TX v. Smith, No. 06-0948 (Tex. Aug. 28, 2009)(Hecht) (disciplinary appeal, authority of hearing examiner, police officer, UDJA and jurisdictional issues) CITY OF PASADENA, TEXAS v. RICHARD SMITH; from Harris County; 1st district (01-05-01157-CV, 263 SW3d 80, 09-14-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court. EXCERPTS FROM THE OPINION BY HECHT: The hearing examiner in this case violated that requirement. His ruling was based entirely on the absence of the department head, a witness the City did not expect to offer. The hearing examiner did not allow evidence to be presented. Nothing in the Act permitted him to rule as he did. Smith argues that the hearing examiner could reasonably have concluded that since section 143.1015(k) requires the presence of the department head at civil service appeal proceedings in Houston, the same rule should apply in other cities. But the Act does not empower a hearing examiner to make rules. He had no authority to impose on the City a requirement that the Act makes quite clear does not apply. Moreover, even when section 143.1015(k) does apply, it does not authorize rendition of a default judgment as an automatic penalty for noncompliance.47 Smith argues that the hearing examiner can be faulted only for a simple mistake of law, but it clearly exceeds a hearing examiner’s jurisdiction to refuse to hear evidence before deciding that a police officer was improperly disciplined, contrary to the express requirement of the Act. * * * The most accurate test we can state is that a hearing examiner exceeds his jurisdiction when his acts are not authorized by the Act or are contrary to it, or when they invade the policy-setting realm protected by the nondelegation doctrine. By that test, the hearing examiner in this case exceeded his jurisdiction, and therefore the City’s appeal to the district court was authorized under section 143.057 (j). The issue remains whether it was timely perfected. Since the Act does not expressly provide for an appeal by a city — we have construed it to do so to avoid constitutional problems — it understandably does not expressly set a deadline for a city’s appeal. We have held that “[w]hen a statute lacks an express limitations period, courts look to analogous causes of action for which an express limitations period is available either by statute or by case law.”51 Here, the parties disagree as to whether a deadline for appeal is jurisdictional or in the nature of limitations, and we need not resolve that issue. In either event, the same rule applies: we look to a provision related to the right of appeal for a deadline.