Bob Gammage

Bob Gammage was a Democratic justice of the Texas Supreme Court (Place 8) from January 1, 1991 to August 31, 1995. While his judicial record was well-known across the state, particularly for his role in the Edgewood to draw attention to the increasing amount of influence that big campaign contributors and political action committees had on judicial elections. In 1999, he was featured on the national television program Frontline where he discussed the need to reform the method of judicial selection in Texas.

Approach to the law

“

Baseless and irrational discrimination in all of its forms, at whomever directed and whatever its source or motivation, is still baseless and irrational discrimination. In a free society we may not always be able to prevent its private exercise, but in Texas our fundamental law does not permit it in our public schools and other governmental institutions. They should not teach it, condone it, or engage in it, and our courts and other legal institutions should not—even passively and benignly—enforce it.

”

Education

Gammage received an associate degree from Del Mar College in 1958 and a B.S. degree from the University of Corpus Christi in 1963. He had an M.A. from Sam Houston State University and a J.D. from the University of Texas School of Law. In 1986, he earned an LL.M. from the University of Virginia School of Law.

Military service

Gammage served in the United States Army from 1959 to 1960 and the United States Navy Reserve from 1965 to 1995.

Career

• 1991-1995: Justice, Texas Supreme Court
• 1982-1991: Judge, Texas Third District Court of Appeals
• 1980-1982: Attorney in private practice
• 1980: Special consultant, U.S. Department of Energy
• 1979-1980: Assistant attorney general of Texas
• 1977-1979: Representative, United States Congress
• 1973-1976: Member, Texas State Senate
• 1971-1973: Member, Texas House of Representatives
• 1969-1970: Instructor of government, San Jacinto College
• 1965-1966: Dean of men and director of student activities, University of Corpus Christi
• 1963-1965: Teaching fellow, Sam Houston State University

Noteworthy cases

Gammage embraced an expansive interpretation of the legal doctrines and constitutional provisions that protect individual rights and equality. He rejected overly formalistic or positivistic thinking as well as the unwillingness to judicially review laws or policies that were constitutionally suspect. He had a strong record as a civil libertarian in the areas of the right to privacy and freedom of expression. He articulated a traditionally liberal position on discrimination on the basis of gender, race, and sexual orientation while at the same time maintaining a commitment to the principle of stare decisis and the express provisions of the Texas constitution. Gammage also rejected what he believed to be judicially-created, procedurally-based barriers that were erected to deny constitutional claims.

Barber v. Colorado Independent School District (1995)

Case number - Barber v. Colo. Sch. Dist., 901 S.W.2d 447, 448

Gammage dissented from the majority ruling

Case summary

Barber v. Colorado Independent School District was a class-action suit that challenged the legality of hair-length restrictions for male students imposed by the school district. Hair-length and dress-code cases constitute a substantial body of law and Barber was one of the most influential of these cases in Texas. The school district established the dress code to “teach grooming and hygiene, instill discipline, prevent disruption, avoid safety hazards, and teach respect for authority.” When Barber turned eighteen years old, his family requested that the school board suspend enforcement of the policy for him and other students who were eighteen years old and older. Further, the Barber family argued that the application of the hair-grooming and earring policy to males, but not females, violated their son’s constitutional rights.

The school board voted 4–2 to not suspend the enforcement of the policy. The trial court held for Barber, stating that the grooming policy violated the Equal Rights Amendment of the Texas constitution, the right to privacy, and the right to freedom of expression. The trial court also granted a permanent injunction against the school district, contending that the objectives of the grooming code could be accomplished by less restrictive means—that is, other than gender-based discrimination. The court of appeals reversed the trial court’s ruling, finding that Barber’s suit did not warrant judicial intervention into Colorado Independent School District’s (CISD) policy.

On appeal, the Texas Supreme Court rejected Barber’s claims as not substantial enough to “merit . . . intervention in this case.” Relying on several federal cases in the Fifth Circuit from the 1960s and 1970s that rejected challenges to high-school dress codes, the majority, per Justice Raul Gonzalez, reasoned that unlike adults in other settings, a high school student’s right to be unfettered by school-grooming regulations had never been recognized.

Gammage's dissent

Dissenting, Justice Gammage argued that the majority’s dismissal of Barber’s claim without the benefit of providing a full legal analysis was more a matter of judicial abdication, rather than “nonintervention.” Justice Gammage seemed puzzled as to why the majority relied exclusively on federal precedent, when Barber had “pleaded his case exclusively on state constitutional grounds.” Justice Gammage recognized the validity of Barber’s privacy and free-speech claims under the Texas Constitution, but chose to analyze the CISD policy under the Texas Equal Rights Amendment (ERA).

Star-Telegram, Inc. v. Doe (1995)

Case number - 915 S.W. 2d. 471 (Tex. 1995)

Gammage wrote the majority opinion

Case summary

Ruling In Star-Telegram, Inc. v. Doe, the Texas Supreme Court was asked to weigh the freedom of the press against the individual’s right to privacy, and, more specifically, “whether a newspaper may be held liable for disclosing private facts about a victim of sexual assault . . . .”

The case originated when The Fort Worth Star-Telegram published a news article based on a police report for a crime. The article did not name the victim, but it provided so much detail about her that it was almost impossible for acquaintances and neighbors not to know her identity. The “police beat” reporter for the newspaper obtained information about the crime from an unredacted police report at the Fort Worth Police Department. Jane Doe sued the newspaper and reporter for invasion of privacy.

The newspaper argued that the information published was of legitimate public concern, citing the federal constitutional standard set forth in Florida Star v. B.J.F., which provides that “[i]f a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information absent a need to further a state interest of the highest order.”

The trial court granted summary judgment [in favor of the newspaper and reporter] without specifying the ground on which judgment was based. The Texas court of appeals reversed and remanded the case for the trial court to answer the question of whether the information had been lawfully obtained by the newspaper. The Texas Supreme Court unanimously reversed the court of appeals and held that no privacy violation had occurred, since the private facts disclosed about Doe, a crime victim, were of legitimate public concern.

Gammage's opinion

Writing the opinion for the unanimous court, Justice Gammage began his analysis of the competing-rights claim by citing the famous 1890 Warren and Brandeis Harvard Law Review article, which argued for the first time that the right to personal privacy, or the “‘right to be let alone’ is as much a part of personal liberty as the right to be free from physical restraint and the right to possess property.” The article provides the foundation for the modern constitutional right to privacy, including its articulation in Griswold v. Connecticut and Roe v. Wade decided by the U.S. Supreme Court. Gammage wrote:

“

The right to personal privacy was first articulated in 1890, in an article arguing that the ‘right to be let alone’ is as much a part of personal liberty as the right to be free from physical restraint and the right to possess property. The concept has since been incorporated into a common-law tort in Texas and serves to protect individuals from invasion of privacy.

”

Valenzuela v. Aquino (1993)

Case number - 853 S.W. 2d 512 (Tex. 1993)

Gammage dissented from the majority opinion

Case summary

In this case, the Texas Supreme Court addressed a conflict between an anti-abortion group’s freedom of expression and a private citizen’s right to privacy. The case originated when a physician, Dr. Eduardo Aquino, sued Eliseo Valenzuela, Jr. and other anti-abortion protesters for negligent infliction of emotional distress and breach of privacy caused by incessant protesting outside of his home. On appeal, the Texas Supreme Court reversed the trial court’s permanent injunction and remanded the case back to the trial court.

Writing for the majority, Justice Nathan Hecht refused to address what he believed to be the “hypothetical” constitutional question of whether the award of damages constituted a chill on free speech on the grounds that no tort cause of action for negligent infliction of emotional distress exists in the state. Aquino, theoretically could have recovered damages for breach of privacy, but first, the trial court needed to determine whether the picketing “would be highly offensive to a reasonable person.”

Gammage's opinion

In his dissenting opinion, Justice Gammage agreed that under the Texas constitution, a person cannot win damages from a group engaged in protected speech; however, the targeted individual or group may be allowed to recover damages that arise from conduct unrelated to protected expression. Justice Gammage doubted that the group was interested in simply expressing their moral opposition to abortion, as the protesters targeted Aquino’s home only at times when they knew he would not be home. The protesters’ intent was to intimidate and disrupt his family to the extent that he would stop performing abortions. Even if the speech component of the group’s demonstrations are protected, the conduct components—if they are aimed at intimidation—are not constitutionally protected and may permit recovery of damages.

State v. Morales (1994)

Case number - 869 S.W.2d 941 (Tex. 1994)

Gammage dissented from the majority opinion

Case summary

Seven years before the U.S. Supreme Court’s landmark ruling in Lawrence v. Texas, two gay men and three lesbian women challenged the law on the grounds that it violated the constitutional right to privacy, due process, and equal protection provisions of the Texas constitution. In a surprise ruling, the Texas trial court declared the statute unconstitutional and enjoined the enforcement of the law. The State countered with a procedural argument that the civil court was precluded from deciding the case, because the court’s equity jurisdiction did not extend to questions regarding the constitutionality of criminal statutes. The court of appeals rejected the State’s procedural argument and affirmed the trial court’s ruling. The appellate court found that the right to privacy contained in the Texas constitution offered broader protections than the right to privacy under the U.S. Constitution.

The court concluded that the sodomy law violated the fundamental right of two consenting adults to engage in private sexual behavior. The court added that the law did not advance any compelling governmental interest. In a 5–4 decision, the Texas Supreme Court rejected the appellate court’s reasoning and remanded the case back to the trial court with orders to dismiss. The narrow majority argued that when no actual or threatened enforcement of a statute occurs, a civil court cannot enjoin the enforcement of the statute.

Gammage's opinion

In his dissenting opinion, Justice Gammage responded:

“

This court also offers a confusing discussion of lack of jurisdiction because reaching the merits would be an advisory opinion, which is somehow linked to this absence of harm. . . . The State stipulated that plaintiffs’ job choices are limited, that they face discrimination in housing, family, and criminal justice matters, and that they suffer psychological harm to their relationships because they are labeled criminals by the very existence of the statute.

”

Edgewood Independent School District v. Kirby (1989)

Case number - 777 S. W. 2d 391 (Tex. 1989)

Gammage joined the majority

Case summary

Edgewood Independent School District v. Kirby was a complex and controversial Texas Supreme Court decision. The Edgewood case is actually a series of six rulings between the years 1989 and 1995 that were intended to force the Texas State Legislature to create a more equitable system of education funding. The Texas Supreme Court reversed the court of appeals, adopted the principles set forth in Gammage’s dissenting opinion in Kirby v. Edgewood (1988), and left in place the trial court’s ruling in favor of the Edgewood Independent School District plaintiffs. In a brief opinion, the court relied mainly on the position that the school-financing system violated the Texas constitution’s efficiency provision set forth in article VII, section 1, and noted the strong nexus between inefficiency and the denial of equal rights. The funding system at issue provided for a limited and unbalanced diffusion of knowledge contrary to the intent of the framers of the Texas constitution. Justice Oscar H. Mauzy wrote:

“

Property-poor districts are trapped in a cycle of poverty from which there is no opportunity to free themselves. Because of their inadequate tax base, they must tax at significantly higher rates in order to meet minimum requirements for accreditation; yet their education programs are typically inferior. . . . The amount of money spent on a student’s education has a real and meaningful impact on the educational opportunity offered that student.

”

Kirby v. Edgewood Independent School District (1988)

Case number - 761 S.W.2d 859 (Tex. App.—Austin 1988)

Gammage dissented from the majority opinion

Case summary

Kirby v. Edgewood Independent School District originated when the Mexican American Legal Defense and Educational Fund filed a lawsuit in 1984 against William Kirby, the Commissioner of Education, on behalf of the Edgewood Independent School District. The lawsuit alleged that the State of Texas’s public school funding system violated the principle of equal protection by discriminating against students in low-income school districts.

A trial court ruled in favor of the plaintiffs but the Texas Third District Court of Appeals reversed the ruling by a 2–1 vote. The court of appeals argued that education was not a fundamental right, wealth was not a suspect classification, and that the state’s system of school financing did not violate equal protection rights, the due course of law, or the efficient school system provisions of the Texas constitution. Furthermore, the majority argued that the court of appeals believed—given the complexity of a vast school system, which educated three million students—that the question of educational efficacy was fundamentally a political question that should not be subject to judicial review.

Gammage's opinion

In a long dissenting opinion, Justice Gammage argued in support of the trial court’s ruling and set forth his position on equal protection as it applies to school funding and educational opportunity. Justice Gammage began by noting that “[t]he Texas Constitution imposes on the State the burden of . . . providing for public education.” As an alternative to a centralized system of school funding, the legislature created school districts and allowed for local property taxation for the support of schools within those districts. The Texas constitution does not allow for the creation “of any school system other than one which is efficient and which comports with the requirements of equal rights under the law.” The adequacy and, thus, equality of education in a competitive free market economic and political system is relative.

Justice Gammage noted that four provisions of the Texas constitution provide a solid foundation for equality in education. First, article I, section 3 provides that “[a]ll free men,” in forming “a social compact, have equal rights, and no man” or group “is entitled to exclusive separate public emoluments, or privileges . . . .” Second, article I, section 3(a) requires that “[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” Third, focusing on public education, article VII, section 1 comments that “[a] general diffusion of knowledge being essential to the preservation of the liberties and rights of the people,” makes it a “duty of the Legislature . . . to establish and make suitable provisions for the support and maintenance of an efficient system of public [education]. Lastly, and specifically with respect to funding, article VII, section 3(a) provides that tax revenue “shall be set apart annually for the benefit of the public free schools . . . .”

A year later in Edgewood v. Kirby the Texas Supreme Court adopted the principles set forth in Gammage’s dissent and rules in favor of the plaintiffs.

Colquette v. Forbes (1984)

Case number - 680 S.W.2d 536 (Tex. App.—Austin 1984, no writ)

Gammage wrote the majority opinion

Case summary

The case raised the question of whether a consensual agreement made between two persons, free from governmental interference, violates the right to privacy. The case originated when Nancy Colquette claimed that the terms of the property settlement of her divorce decree violated her constitutional right to privacy. Thomas Forbes agreed to convey his interest in the marital home to Colquette if she signed a promissory note that would come due in five years, “with immediate acceleration of maturity upon her remarriage or . . . cohabitation with an unrelated adult male” at the home.

Gammage's opinion

Justice Gammage argued that Colquette had willingly agreed to the terms of the contract so that she could keep her house. The only involvement of the State in this case, was the “judicial enforcement of private contractual obligations.” Colquette consented to the intrusion into her privacy and relationship choices when she signed the promissory note. Judge Gammage also rejected Colquette’s contention that the judicial enforcement of the cohabitation clause of the promissory note was contrary to public policy and in violation of Shelley v. Kramer. In Shelley, the U.S. Supreme Court struck down judicially enforced racially-restrictive covenants. If the State by law had required the cohabitation clause, then it might have been possible to challenge the law under Shelley—asserting that a state action had violated the Constitution.

See also

• Texas Supreme Court

Additional reading

• South Texas Law Review, "The Jurisprudence of Texas Supreme Court Justice Robert A. "Bob" Gammage: A Legacy of Civil Rights & Liberties," by John C. Domino. Fall 2013.

External links

• The Supreme Court of Texas, "Court History - Since 1945"

Footnotes

Texas courts

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Federal courts:

Fifth Circuit Court of Appeals • U.S. District Court: Eastern District of Texas, Western District of Texas, Northern District of Texas, Southern District of Texas • U.S. Bankruptcy Court: Eastern District of Texas, Western District of Texas, Northern District of Texas, Southern District of Texas

State courts:

Texas Supreme Court • Texas Court of Appeals • Texas Court of Criminal Appeals • Texas District Courts • Texas County Courts • Texas County Courts at Law • Texas Statutory Probate Courts • Texas Justice of the Peace Courts

State resources:

Courts in Texas • Texas judicial elections • Judicial selection in Texas