Email, Michael Hull, attorney, Oct. 8, 2014

7:37 a.m.

Gardner, thanks for the visit. I miss the breakfast invites.

You asked whether there is any reason to “raise an eyebrow” that the AG would defend a state statute being challenged on constitutional grounds. On the contrary, the law requires that the AG be given notice if the constitutionality of a state statute is challenged and it is common for the AG to defend the constitutionality of state statutes, indeed, one might go so far as to say that it is the job of the AG to do so. The cases you called me about were filed in federal court.

Federal Rule of Civil Procedure 5.1 is set forth below:

Rule 5.1. Constitutional Challenge to a Statute

(a) Notice by a Party. A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly:

(1) file a notice of constitutional question stating the question and identifying the paper that raises it, if:

(A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity; or

(B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and

(2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned—or on the state attorney general if a state statute is questioned—either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.

(b) Certification by the Court. The court must, under 28 U.S.C. §2403, certify to the appropriate attorney general that a statute has been questioned.

(c) Intervention; Final Decision on the Merits. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional.

I have modified your notes below. I was driving on Mopac when we talked. More like moving very slowly on Mopac.

From: Selby, Gardner (CMG-Austin) [mailto:wgselby@statesman.com]

Sent: Tuesday, October 07, 2014 5:18 PM

To: Mike Hull

Subject: PolitiFact Texas inquiry

Thanks for visiting. I’m pasting what I have you saying in the interview below my signature in this email. Let me know if anything needs updating? Also, where were you during our visit (needed for footnotes)?

You can see the TV ad we’re reviewing here.

In March, the attorney general’s office said in identical filings in three federal cases that it has a statutory right to intervene in a case when the constitutionality of a state law is at issue. The provision in question, the filings go on to say, was part of a tort-reform measure passed into law in 2003, in particular removing “gross negligence” from the definition of malice in the Texas Civil Practices & Remedies Code. According to the state filings the plaintiffs (meaning patients and their families) were maintaining that the removal of proof of gross negligence as a factor in determining malice amounted to an arbitrary violation of common law effectively making it impossible to show the hospital liable for what the surgeon allegedly did.

Does this fit with what we discussed? If so, how? If not, how not

The TV ad makes the claim that the AG is “Using his office to go to court, against the victims”. This claim is both false and absurd. The AG was invited to defend a state statute and chose to do so.

A  person claiming a state statute is unconstitutional has the legal obligation under Fed. R. Civ. Proc. 5.1 to give notice to the AG that a constitutional challenge is being made. Giving the AG notice is so important that the same rule requires the trial court to independently give notice to the AG that a constitutional challenege is being made. Further, the same rules give the AG the absolute right to intervene in the case.

In 1997 the Texas Supreme Court ruled in St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503 (Tex. 1997), that it would recognize a common law right to pursue a negligent credentialing claim. The Court also held that in a negligent credentialing claim, the plaintiff must prove “malice” to recover. In 1997, the statutory definition of malice included:  (1) specific intent to harm; or (2) reckless intent to harm, which has two components, neither of which require proof of a specific intent to harm.   The Agbor Court referred to the 1997 statutory definition of malice in its ruling. The Agbor court did not adopt the statutory definition.

The statutory definition of malice was amended in 2003 so that it now only means specific intent to harm.

The plaintiffs in the federal challenge have filed a negligent credentialing claim. They have assumed that the common law Agbor negligent credentialing claim will require proof of statutory malice as amended in 2003. (“the removal of proof of gross negligence as a factor in determining malice amounted to an arbitrary violation of common law”) There is no Supreme Court precedent holding that the Agbor common law claim did anything more than refer to the pre-2003 statutory definition of malice. There is no Supreme Court precedent holding that the 2003 statutory amendment changes the Abgor use of malice as the term was used prior to 2003.

And, further, the federal court challenge goes to malice in all cases, not just med mal cases. The AG intervention is consistent with federal and state law. The AG is defending the constitutionality of a statute. His office has not taken a position on the facts alleged in the petition nor has the AG chosen to defend the hospital or the doctor.

Do you have any connection to the gubernatorial nominees that we should note?  None.