If I said one day, " I go to work, I sue the federal government, and then I go home," I would be accused of filing frivolous lawsuits. When Greg Abbott says the same thing, that he goes to work, sues the federal government, and then goes home, he is accused of effective politics. The Federal Rules of Civil Procedure provide that we may not present to the court any motion or pleading for the purposes of delay, harassment or to needlessly increase the costs of litigation. Any claim or defense should be warranted by existing law or by a non-frivolous extension or reversal of current law. Fed.R.Civ.Pro. Rule 11. Papers filed in court should be well-grounded in fact and legally tenable. Primus Automotive Financial Svcs v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997). "Frivolous" speaks to the motive for filing a particular lawsuit.
Mr. Abbott, as Attorney General, has sued the Obama administration 27 times and the Bush administration 3 times. Of these 27, his office declares ten as outright wins, two were clear losses and four were dismissed. Well, where I sit, a dismissal is a loss. Eight cases are still pending, but among those, four have been dismissed and are on appeal. See Texas on the Potomac blog. Well, again, where I sit, a dismissal is a loss. Yes, sometimes, dismissals are overturned, but appeals are always an uphill climb. Mr. Abbott has served as Attorney General since 2002 when he was first elected.
Is this the best the Attorney General’s office can do? Ten wins out of 27 would get most District Attorneys dismissed from office. Like the local County District Attorney, the Attorney General can pick and choose his cases. The AG, like the local DA, should have a win rate of 90% or better.
Sure, some cases are filed to change the law, or to seek equity of some sort. All lawyers should support such lawsuits from time to time. But, 37% is a lot of "let’s improve the law" sort of cases. Any private lawyer would be out of business doing that many Don Quixote cases.
The Attorney General has spent close to $4 million on these Quixotic lawsuits. He has hired outside counsel for many of these lawsuits. Nearly half this amount, or $2.4 million was spent on two lawsuits regarding voting rights changes which affected minority voters. Another $1.9 million has been spent on defending the state against minority concerns regarding re-districting. That $1.9 million is not included in the almost $4 million, because Mr. Abbott did not initiate that lawsuit. But, one could argue that defense represents another frivolous defense.
More than half of his lawsuits have been brought against the EPA. Other lawsuits were filed regarding the federal health care law, a lawsuit in response to the federal government’s cut of funding after Texas defunded Planned Parenthood, a lawsuit regarding red snapper regulations, and a provision that kept $830 million in education funding from reaching Texas. See San Antonio Express News report. And, lawsuits regarding pollution regulations and re-districting laws will require the use of expert witnesses. So, litigation expenses will double.
And, one of his claimed wins, the lawsuit regarding redistricting is suspect. The AG filed two lawsuits to avoid the pre-clearance requirement and lost both. Two separate courts found evidence of discriminatory motive by the state Legislature. One would think the AG lost those lawsuits. But, in a separate suit, the Supreme Court struck down the pre-clearance requirement.
As lawyers, we are expected to educate our clients regarding the risk of a lawsuit and sometimes to even tell the client their lawsuit will not fly. Indeed, most lawyers want to avoid a reputation for filing weak cases. I myself have had to decline a case to many sincere, well-intentioned persons. … But, not many lawyers have the luxury of a very large litigation budget, regardless of the outcome of any one particular lawsuit.