Why I LOVE Living In Texas!

Don't you just love it? The only state that has worse organic law than Texas is ALABAMA! The Constitution of Texas has been amended 410 times since 1876. Blumenthal includes a lot of good analysis of this peculiar form of government as well as the incredible thought that the State President of the Texas Eagle Forum (Phyllis Schlafly's rightwing dingbats) is allied with LIBERALS in opposition to Prop. 12 (Tort Reform). Only in Texas. Hell, we don't need Chief Justice Roy (the 10 Commandments Judge) Moore! We have Goodhair, DeLay, and the Texas Medical Association. I may have to crawl to the polls today, but I'm a'votin' NO to EVERY Proposition. If it comes out of the State Legislature — with its Republican leadership — it's a given that ordinary folks are gonna get screwed. Trial lawyers are not saints, but they are a helluva lot better than the Republicans in the State Legislature. If this be a (fair & balanced) polemic, so be it!

[x NYTimes]

September 13, 2003

Hue and Cry Replaces Yawns in Vote on Texas Constitution

By RALPH BLUMENTHAL

HOUSTON, Sept. 12 — Yup, it's constitutional amendment time again in Texas. Time for another stab at improving, or at any rate expanding, an already enormous document of 82,800 words, more than eight times as long as the federal Constitution, that has been amended no fewer than 410 times since 1876, according to the Texas Legislative Reference Library. And 174 other efforts failed.

In other states, legislators pass bills. In Texas, they put it into the Constitution. It happens again on Saturday, when voters will decide on almost two dozen amendments to the bulging document. (Only Alabama's Constitution is longer — a whopping 315,000 words, with 740 amendments.)

Often the plebiscites are heavy with local minutiae and ignored by 93 percent or so of the electorate. The soporifics this year include a proposition allowing cities to donate surplus equipment to rural volunteer fire departments and one authorizing property tax exemptions for travel trailers not used for business.

But this referendum, surprisingly, is no yawner. Though it falls in late summer and seemed destined for the usual obscurity, it has turned into a lively scrape over citizen access to the courts and challenges to Gov. Rick Perry, a Republican, by some high-ranking Republican jurists and conservative interests, as well as a broad range of civic activists.

One such combatant is Ed Parton, a contractor and president of Texas Black Bass Unlimited, who is mobilizing his fellow fishermen to sink a hotly contested proposition backed by the Texas medical establishment and Governor Perry to supposedly cure a medical malpractice claims crisis and "save your doctor."

Critics, including leading Texas newspapers, say the proposition will overturn the Texas Bill of Rights.

"I think this is a horrible mistake," said Mr. Parton, 61, before launching his 21-foot red Triton into Lake Houston the other day. He said that it was less about medicine than water pollution, and that he had been sending e-mail messages to his group's 10,000 members to vote no.

Some doctors, in turn, have been lobbying for the measure by handing patients cards that say, "Your Next Appointment Is on Election Day." Some men who visited the Reliant Center for free prostate screenings on Thursday were asked afterward to vote yes.

The flashpoint is Proposition 12, which would bar the courts from setting or reviewing noneconomic damages against doctors and medical providers — claims for disfigurement and pain and suffering, for example. It does not set caps on such claims; the Legislature already did that in its last session. And it does not limit actual monetary damages for loss of income.

The proposition does not sound very exciting: "A constitutional amendment concerning civil lawsuits against doctors and health care providers, and other actions, authorizing the Legislature to determine limitations on noneconomic damages."

Backers like Governor Perry say it is needed to curb the influence of trial lawyers, to lower malpractice premiums and halt a drain of doctors out of Texas.

"We have evidence of good doctors leaving," said Ray Sullivan, a former press aide to Mr. Perry and his predecessor George W. Bush, and now a consultant to a group called Yes On 12. The rising cost of malpractice insurance, he contended, helped explain why 152 of the state's 254 counties have no obstetrician.

But Gary Keith, a lecturer in the government department of the University of Texas and a co-author of a textbook on Texas government and politics, said, "It is very cleverly or cynically designed to allow the Legislature to do whatever it wants."

"Medical malpractice is the Trojan horse to allow the Legislature to do things it never could before," Mr. Keith said. "This alters the openness of the courts."

Mr. Keith said the reason Texas' Constitution — its seventh since 1836 — was so unwieldy was that it was not drafted as a basic charter. "The drafters were so fearful of getting a government that they would not like that they seeded it with statute-level provisions," he said.

"It gets more and more gummed up every year," he added.

Deborah Hankinson, a former justice of the Texas Supreme Court and a Republican who is serving as treasurer of another opposition group called Save Texas Courts, is another high-profile critic. "Proposition 12 seeks to amend the Texas Bill of Rights," Ms. Hankinson said. "For me, this is a constitutional issue, not a question of health care in Texas."

And, Ms. Hankinson said, "there's greater protection in the Texas Bill of Rights than the federal Constitution." Texans are specifically guaranteed both the right to access the courts and to have a remedy. "We trace that to Magna Carta," she said.

Contrary to the way proponents portray the issue, she said, this was not a vote for caps on damage claims. The Legislature already voted to limit noneconomic claims to $750,000 a case — $250,000 against a doctor and another $250,000 against each of up to two hospitals or other health care providers. Many states have caps, she said. But only Texas would have a constitutional ban on judicial review.

Furthermore, opponents say, the provision opens the door to efforts by corporations accused in pollution or injury cases to close off defendants' access to the courts. The Legislature voted to require a supermajority of three-fifths to extend the proposition's reach to such other cases, but opponents say that is still an inadequate trade-off for closing off judicial remedies.

With the debate sharpening in recent days, the opponents now include Mothers Against Drunk Driving, AARP, the Dallas and Houston Police Associations, the Texas Federation of Teachers, the Sierra Club, and Cathie Adams, the president of Texas Eagle Forum, an affiliate of the conservative pro-family group founded by Phyllis Schlafly in 1972.

"It's so misleading that people are being told this will save their doctor," Ms. Adams said."

Copyright © 2003 The New York Times Company