“It’s not the size of the dog in the fight, it’s the size of the fight in the dog.”
— Mark Twain
State law preempts the City of Laredo’s anti-litter ordinance, which prohibited local merchants from providing to customers “single use” plastic and paper bags for point-of-sale purchases, according to the Texas Supreme Court in City of Laredo v. Laredo Merchants Association. Before engaging in its analysis and supplying reasons for its decision, the Court disclaimed that it had any “dog in this fight”:
The roving, roiling debate over local control of public affairs has not, with increased age, lost any of its vigor. From public education to immigration policy to fracking to shopping bags, the sides are always deeply divided. “Judges have no dog in this fight. Our duty is to apply the rules fairly and equally to both sides.”
This disclaimer is a curious way to begin a judicial opinion. For one thing, the issue in the case was not whether the judges personally agreed with any public policy, nor did any issue in the case involve public education, immigration, or fracking. So why begin with this disclaimer? Or maybe the following is a better question: Is it true that judges have “no dog” in any public policy fight? Footnotes 1 and 5 and Justice Guzman's concurrence in City of Laredo may answer both of these questions.
What about those Footnotes in the Opening Paragraph?
City of Laredo concerned “shopping bags,” not public education, immigration policy, or fracking; Yet, the Court made it a point to mention these latter “public affairs” over which local control over state control is desired by some Texas citizens. For each of these “public affairs” issues, the Court dropped a footnote. Footnote 1 is substantially different from Footnotes 2 and 3, even though all three footnotes serve the same purpose in drawing attention to contentious public affairs issues.
The first footnote starts out with an explanatory background from a prior Texas Supreme Court case, quoting some language from the majority opinion in Neeley v. West Orange-Cove Consol. Independent School Dist., 176 S.W.3d 746, 786 (2005). Interestingly, Justice Brister wrote a scathing dissent in which he advocated a strong public-policy preference for judicial intervention in creating an "efficient" public education system, going as far as saying that the Court cannot simply defer to the legislature when the Texas Constitution requires "a general diffusion of knowledge": "If efficiency is a justiciable question (as the Court holds), then we cannot simply suggest that someone else look into it." See Neeley, 176 S.W.3d at 802-03 (Brister, J., dissenting). Footnotes 2 and 3, on the other hand, simply cite to statutes which prohibit certain local policy-actions. Footnote 5 may provide some insight into why Footnote 1 sticks out the way it does.
Footnote 5 on its face appears completely benign. The Court cites to a concurring opinion from a case out of the Ninth Circuit Court of Appeals to which it attributes the quote, “Judges have no dog in this fight . . . .” U.S. v. Howard, 793 F.3d 1113, 1115 (9th Cir. 2015). A look at the Howard concurring opinion, however, reveals a similarity to Footnote 1. Judge Kozinski’s concurring opinion in Howard is written to address what he considered patent unfairness in the release conditions imposed on a criminal defendant by the District Court, prohibiting the Defendant from contacting certain witnesses, without an equal prohibition on the state. Judge Kozinski articulates a clear policy-preference.
After citing to Howard’s concurring opinion, Footnote 5 in City of Laredo adds the following:
For what it’s worth, “[a] person commits an offense if the person intentionally or knowingly . . . causes a dog to fight with another dog” or “attends as a spectator an exhibition of dog fighting.” Tex. Penal Code § 42.10(a)(1), (6). The latter is a Class A misdemeanor, the former a state jail felony. Id. § 42.10(e).
The majority opinion directs readers to two cases, Neeley in Footnote 1 and Howard in Footnote 5, both of which include individual judge's respective concurring and dissenting opinions that include a strong public policy opinion by the respective judges; that is, these cases provide examples of judges with a dog in the fight. Although Footnote 5 in City of Laredo bears no relevance whatsoever to the legal analysis, reason, or conclusion in the case, it may have been directed as a good-natured-professional chide at the concurring opinion written by Justice Guzman, who did “cause a dog to fight with another dog” when she articulated a policy position against the majority’s clear statement that judges have “no dog in this fight.”
Justice Guzman’s Dog in the Fight
Justice Guzman begins her concurring opinion by acknowledging public policy arguments are largely “legislative concerns” that are “constitutionally removed from judicial purview." Then, she enters the fray:
Even so, these complex public policy determinations have important ramifications for the environmental legacy the next generation will inherit. And allowing plastic debris—bags, Styrofoam cups, water bottles, and similar pollutants—to migrate unchecked into the environment carries grave consequences that must not be ignored. Though I join the Court’s opinion, I write separately to highlight the urgency of the matter. As a society, we are at the point where complacency has become complicity.
Her concurrence goes on for another 9 pages, discussing the deleterious impact improperly discarded plastics have on the environment and wildlife.
Justice Guzman’s concurring opinion concedes what the Majority wished to conceal: Judges are human beings and citizens of the state and are equally impacted, as every other citizens in the state, by the rights, duties, and burdens adjudicated by them. A judge may have children who might attend public school or friends whose kids may attend public school, and the way the judge comes down on public school funding will impact those kids. Every person, including a judge and his or her family and friends, may find themselves in need of fair and equal process in the face of a criminal prosecution. And every person, including a judge and his or her family and friends, are impacted negatively by a polluted environment. Every judge has a dog in the fight when public affairs are at issue.
Of course, it does not follow from the fact that every judge has a dog in the fight of public affairs that judges are incapable of impartially deciding an issue. Justice Guzman's concurrence demonstrates that judges are capable of deciding cases according to the law as written, even when the outcome goes against the judge's personal or best interest or preference. She agreed with the outcome, but used her concurring opinion to lend some urgency to the issue, with the hope and expectation that the State legislature will act.