Engaging the Law: A Profile of Justice Michael Massengale, 1st Court of Appeals, Houston
by Meredith Parenti, Parenti Law PLLC

-What led you to consider a career in law?

As I was finishing college, I was ready to be done with school. But I was not a top student as an undergraduate, and as a government major, I wasn’t thrilled with my immediate career options. The one thing I was qualified to do was work as an underpaid junior legislative aide. I realized I needed professional training, and law seemed like the best fit for me.

-When did you first realize that you might be interested in becoming an appellate justice?

I started my legal career as a law clerk at the Fifth Circuit, so I had seen an appellate court up close, and I enjoyed that work.

My stint in private practice was predominantly devoted to commercial litigation, mostly during the pretrial and trial stages of proceedings. I enjoyed research and writing, and I believed those were my personal strengths. As I advanced in my practice, I found myself doing less of the research and writing that I enjoyed, and instead spending more of my time on other aspects of practice. Returning to appellate work was appealing to me, but I had already found my niche at my firm, and I did not see a path to make a transition.

I saw the possibility of an appointment to an appellate bench as a unique way to shift into public service, and at the same time transition into work that best fits my skill set. I was happy at my law firm and thought of it as something I might pursue in the future, but opportunity knocked sooner than I expected.

-After your appointment to the First Court of Appeals by Governor Rick Perry in 2009 and your election in 2010, were you surprised by any aspect of your new job as an appellate justice and, if so, which aspect of your new role has surprised you the most?

I was really looking forward to the writing aspect of the job. What I failed to fully appreciate before coming to the court was the significant difference in the caseloads for justices on the courts of appeals as opposed to the Supreme Court. We have many times more opinions to produce (usually in the range of 65-75 opinions each year), with less attorney staff to support us. What it means is that I can’t write every opinion from scratch, though I’d like to, and I also can’t spend as much time as I’d like perfecting every opinion. That said, the broad range of cases that come through our court ensures that there are always novel issues that justify extra attention. Between new statutes passed by our legislature every two years, and a constant stream of new precedents from the high courts, our court has lots of opportunities to write important opinions to provide guidance about how to apply new laws.

-What are your favorite aspects of being an appellate justice?

I feel quite blessed to have found a position that allows me to serve the community in a way that fits my professional strengths. The job remains interesting because we work in wide range of different substantive areas of the law. An unanticipated benefit is the job’s flexibility; I can read briefs and work on opinions from anywhere, and I do!

-How would you describe your judicial philosophy?

The proper role of the courts is to decide cases based on existing law, rather than acting as the primary engine for policy changes, which is primarily the role of the legislature. Judges should follow the federal and state constitutions, based on the original intent of the people, as expressed by the text of the documents. Likewise, courts should make every effort to apply statutes based on their plain text, resisting the urge to resort to extratextual authorities to justify a particular interpretation.

When I came to the court, I expressed my intended approach in terms of “judicial restraint,” and I still embrace the perspective that courts should be wary about the temptation to assume a policymaking function. In some circles it’s become fashionable to disparage the concept of judicial “restraint” as an abdication of the responsibility to enforce constitutional boundaries. That is not my conception of judicial restraint. Instead, I agree with the proponents of judicial “engagement” insofar as they insist judges must exercise independence in the application of constitutional standards.

-You recently ran for Place 3 on the Texas Supreme Court and lost by a close margin in the Republican primary against the incumbent. Did you gain any insights on the process and the unique challenges of running for statewide judicial office?

Running an effective statewide campaign is an enormous, exhausting undertaking. I have renewed respect for all statewide officeholders and candidates for the time they take away from their families and their day jobs to travel around the state, meeting with all kinds of people and talking about important issues facing the courts.

As long as we elect judges in Texas, citizens only will be able to cast informed votes if they have access to meaningful information about the candidates. However, judicial races do not get substantive news coverage on par with other comparably important elected positions, and there is a general dearth of reliable, objective information about these races. It is a problem with no obvious solutions, but the legal community is uniquely situated to help fill the information gap by engaging the process.

-Could you describe your work as a Commissioner on the Supreme Court of Texas Permanent Judicial Commission For Children, Youth & Families and how that might inform your work as a Justice?

Lawyers and judges who work on child-protection issues know these are sensitive matters, with the welfare of tens of thousands of young Texans in the balance. The Children’s Commission brings together all the major stakeholders in this system and facilitates continual improvement to improve outcomes for kids. It’s incredibly important work. I am serving my second term as a commissioner, and I currently chair the education committee, which oversees judicial and attorney education initiatives in the child protection area. We plan CLE conferences and webinars. I have been particularly involved with organizing a NITA-style trial skills seminar for child-protection lawyers from around the state. We also try to anticipate emerging legal issues so we can disseminate useful information to lawyers and judges.

Working on the Children’s Commission has exposed me to a significant segment of the bar that I hadn’t worked with before. It has broadened my perspective about an important part of our court’s docket. It’s not a practice area in which many appellate judges have a strong background, so my experiences at the Commission have helped to bolster our court’s expertise in these matters.

-On what devices (e.g., desktop at the court, remotely from home, hand-held devices) do you prefer to review appellate briefs? Do you have any suggestion for improving the readability of electronic briefs, as in particular styles, formats, or fonts that you find easiest to read?

The most common thing for me is to read briefs at the office, where I have three large monitors (portrait orientation for all three). When I’m working away from the office, I often review briefs on my iPad. If I am working on opinions remotely I usually use a laptop or my home desktop computer.

I know some practitioners have put a lot of effort into making briefs more readable, and those efforts are greatly appreciated. Our opinions all follow the same format, so the art of presenting writing electronically is not something I’ve tinkered with very much. I don’t have any suggestions other than the basics: always submit native-file PDFs instead of scanned briefs, don’t use Courier, do utilize bookmarks.

On the ongoing debate about the proper placement of authorities (text vs. footnotes), I do not have a dogmatic view. As a default, I avoid footnotes in my opinion writing when possible. But in complicated cases with lots of authorities, I will use footnotes to make the opinion more readable. I use my best judgment in each case and I trust practitioners to do the same.

-In your opinion, what are the top mistakes that practitioners make on appeal?

We get a lot of mandamus filings and interlocutory appeals. They all get expedited treatment compared to ordinary civil appeals. But they are not all treated as emergencies, because most of them are not true emergencies. When you do have a true emergency, act promptly, let the clerk know as soon as possible, be clear about what relief you’re requesting, and let us know by when you need it. Failure to do any of these is a big mistake.

While it’s probably not a problem for most lawyers who will read this, I am surprised by the frequency of conclusory arguments that are made without meaningful authority or legal analysis. We would always rather address a plausible argument on the merits, but sometimes the quality of briefs leaves us little choice but to find briefing waiver. It’s not our role to develop issues that the lawyers haven’t developed themselves, and we don’t have the resources to do it anyway.

Finally, I’ll note that zealous advocacy too often manifests as unnecessary disparagement of judges at all levels. Even if I agree that the trial judge, or my colleagues, got something wrong, I don’t want to read something that bashes them with unnecessarily harsh language. It’s better for lawyers to lay out a strong argument for reversal, and let the judges draw their own conclusions about how egregiously wrong it was. Harsh criticism of another judge will get my attention (and I assume that’s why lawyers do it), but not in good way.

-What do you wish practitioners would do to make the Court’s job easier?

Exercise self-help to identify and manage procedural hiccups. For example, if you’re waiting on a ruling on a motion or other action from our court, it is always appropriate to call or write the clerk to inquire about the status. Things get lost in the shuffle and sometimes a gentle reminder will clear a logjam.

If you’re relying on an important secondary authority that’s not available on the internet or Westlaw, provide a courtesy copy. If you found a great treatise that’s on point, I’d like to see it, but it may not be in the court’s library.

-What are the biggest challenges facing appellate courts in Texas in your opinion?

I don’t want to be held to saying it’s our “biggest” challenge, but I am concerned about the impact on our caseload stemming from the increased scope of mandamus review and the proliferation of interlocutory appeals. My sense is that these are occasionally being used strategically to gain leverage, impose burdens, delay trials, and generally bringing many matters to the appellate courts which otherwise never would have come to us because they are destined for summary disposition or settlement. Interlocutory issues often can be made more difficult by the undeveloped state of the case. In order to increase efficiency, I think it would be worth discussing a change to appellate rules to allow affirmance without opinion in interlocutory appeals, like we are permitted to deny a mandamus without opinion.

-What are your interests and hobbies outside of the legal profession?

I enjoy reading, usually about history and current events in law, politics, and religion. I listen to a wide variety of music, and I like going to concerts when I can. My wife and I are ambitious travelers, and I serve as in-house amateur travel agent, always planning the next getaway. Our trips usually incorporate a mixture of religious sites, local cuisine, and vineyards when we’re in wine country. I’m also a part-time concierge for Mollie, our 2-year-old Cavalier King Charles Spaniel.