Attorney asks Texas Supreme Court to ‘condemn’ appellate court’s ‘political statements’ in Exxon climate change case
JAN 25, 2022 | REPUBLISHED BY LIT: FEB 4, 2022
A Houston attorney is asking the Texas Supreme Court to “condemn” the asserted “political statements” the Second Court of Appeals made in its opinion concerning ExxonMobil’s climate change case.
Exxon’s legal fight to pull back the curtain on the authors of climate change litigation is currently before the Texas Supreme Court.
The oil giant’s petition for review asserts several California municipalities and Matthew Pawa, a Massachusetts lawyer, are attempting to chill speech and commandeer public policy, subjecting them to personal jurisdiction in Texas courts.
The case stems from a petition Exxon filed in Tarrant County District Court in response to climate change litigation, seeking pre-suit discovery for a potential lawsuit against the California municipalities and officials and Pawa.
Exxon’s case against the California municipalities ended up in the Second Court of Appeals after a Texas judge found the cities and counties were hypocritical in suing Exxon.
The municipalities had claimed doom to their infrastructures will be caused by rising sea levels, but when issuing bond offers to potential investors, they had neglected to mention this alleged, near-certain destruction.
The oil giant argued its suit against them belongs in Texas because they have purposeful contacts within the state.
However, on June 18, 2020, the Second Court found that was not enough to keep the litigation here, despite feeling “an impulse” to protect the energy sector.
On Jan. 24, attorney Murry Cohen submitted an amicus brief to the Supreme Court, stating that he doesn’t “care whether review is granted” or “who wins” but does care whether the high court will “publicly condemn” the language in the Second Court’s opinion.
In its opinion, the Second Court confessed to “an impulse to safeguard an industry that is vital to Texas’s economic well-being” and that the court was “acutely aware that California courts might 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 a 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,” the Second Court’s opinion states.
“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 viii state needed to satisfy the minimum-contacts standard that binds us.”
Cohen’s brief states that: “Chief Justice Sudderth went further, writing a concurring opinion suggesting she ‘loathed’ having to follow controlling law from this Court and the U.S. Supreme Court and rule against Exxon.”
In his brief, Cohen says the court’s language caused him and another attorney to file a complaint with the Texas Commission on Judicial Conduct, which was dismissed.
“Given the Commission’s decision, only this Court is left to protect the judiciary from this conduct,” Cohen writes. “This Court should condemn the panel’s political statements sufficiently to give pause to judges who would emulate it.”
Cohen asks whether it violates the Texas Code of Judicial Conduct for an appellate court in an opinion to “confess to an impulse to safeguard an industry that is vital to Texas’s economic well-being” and describe the “blessing” of being “a conservative panel on a conservative intermediate court in a relatively conservative part of Texas.”
“Unfortunately, the Court’s opinion added ‘Some Final Thoughts’ that ‘confessed’ its prejudice in favor of the Texas oil industry, effectively apologized for ruling against the Texas oil industry and Exxon, reassured the public of its conservative bona fides, and described the ‘blessing’ of being conservative,” Cohen’s brief states.
“The ‘Final Thoughts’ are a political advertisement misplaced in a judicial opinion. They violate multiple Canons of the Code of Judicial Conduct, discredit the judiciary, and should generate meritorious motions to recuse these justices by litigants opposing oil industry parties in the Second Court of Appeals.”
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Murry B. Cohen
Key Experience
- Served for more than 19 years on the Court of Appeals for the 1st District of Texas, deciding on both civil and criminal appeals from 14 Texas counties.
- Represents clients in trials and appeals in sectors including energy, health care, financial services and transportation.
Practice
Justice Murry B. Cohen retired from the partnership at the end of 2018. He was elected to four terms, from 1982 to 2000, to the Court of Appeals for the 1st District of Texas. In Houston Bar Association polls, Murry was the highest-rated appellate judge in 1997, 1999 and 2001 and highest-rated of 118 incumbent state judges in 1997 and 1999.
Representative Work
- Advised Sky View at Las Palmas in a case disapproving interpretations of Texas law by U.S. Court of Appeals for 5th Circuit and by Texas appellate courts and rendering judgment for settlement credits.
- Represented Texas Mutual Insurance Co. in a matter overruling prior Texas Supreme Court decision and holding that common-law and statutory claims for breach of the duty of good faith and fair dealing may not be asserted against a workers’ compensation insurer.
- Assisted a client in a case that reversed a $2 million breach of fiduciary duty judgment against attorney.
- Advised in a matter that reversed judgment in class action seeking multibillion dollars in damages under the federal Telephone Consumer Protection Act.
- Provided counsel in a matter reversing district court ruling and holding that a citizen’s email to school board trustees urging the board not to contract with plaintiff concerned a matter of public importance was not commercial speech, and defendant was protected from suit by the Texas Anti-SLAPP statute.
Speeches
- “Magna Carta- Lessons from 1215- 2014,” panel discussion before the St. Thomas More Society of Houston, with Justice Terry Jennings, Judge Charles Spain and David Furlow, First Court of Appeals Courtroom, June 12, 2014.
- “ADR on Appeal,” South Texas College of Law, with former Justice David Keltner and former Chief Justice Alice Oliver-Parrott, May 2, 2014, before the Houston Bar Association Section on Alternate Dispute Resolution.
- “Briefing on Appeal,” with Justice Terry Jennings, first-year students, University of Houston Law Center, March 31, 2014.
- Judged final round of moot court competition with Justice Evelyn Keyes and former Justice Wanda Fowler. Thurgood Marshall School of Law, Texas Southern University, March 24, 2014.
- “Appellate Advocacy,” with Justice Terry Jennings, University of Houston Law Center, 2011-14.
- “Texas Appeals – A Few Tips and a Few Tales,” to the Akin Gump Texas Litigation Partners’ Meeting, March 10, 2011.
- “Oral Argument,” University of Houston Law Center, March 11, 2011.
- “Texas Supreme Court Update,” Harris County Judicial Education Conference, August 9, 2010.
- “Chu v. Hong: Formulating a Winning Appeal” (co-presenter), State Bar of Texas Advanced Civil Appellate Practice Course, Practice Before the Texas Supreme Court, April 17, 2009.
- “Preservation of Error in Probate Litigation,” presented to Attorneys in Tax and Probate, November 4, 2008.
- “Oral Advocacy in the Trial Court and on Appeal” with Justice Eva Guzman, 5th Circuit Judge Jennifer Elrod and Professor Gerald Treece, South Texas College of Law Advanced Civil Trial Seminar, February 22, 2007.
- “Punitive Damages,” State Bar of Texas Advanced Civil Appellate Practice Course, September 9, 2005.
- “Post-Verdict Preservation of Error,” State Bar of Texas Advanced Civil Trial Course, November 10, 2004.
- “Preserving Error for Appellate Review and Avoiding Malpractice,” Houston Bar Association, November 5, 2004.
- “Daubert in 2004: 10 Topical Approaches to Attacking Expert Testimony,” Houston Bar Association Appellate Section, October 20, 2004.
- “Presenting Oral Argument,” with Texas Court of Appeals Justices Dori Garza, Ann McClure, Brian Quinn and Bea Ann Smith, State Bar of Texas Advanced Civil Appellate Course, September 9, 2004.
Public Service and Affiliations
- Justice, Court of Appeals for the 1st District of Texas, 1982 to 2000.
- Certified, Texas Board of Legal Specialization, civil appellate law and criminal law.
- Life fellow, Texas Bar Foundation.
- Life fellow, Houston Bar Foundation.
Recognition
- The Best Lawyers in America, “Lawyer of the Year,” Appellate, Houston region, 2019.
- The Best Lawyers in America, Appellate Law, “Bet-the-Company” litigation, commercial litigation, 2006 to 2018.
- Chambers USA, Texas Appellate Law, 2006 to 2017.
