In judiciously charitable terms, call it a loss of collegiality.

To put it more bluntly, the 10th Court of Appeals, the three-judge intermediate appellate court based in Waco, has become a statewide punch line among legal circles because of the frequency with which it disagrees and the eroding tenor of those disagreements.

Chief Justice Tom Gray, a Republican, and Justice Bill Vance, a Democrat, don’t like each other. They do not speak, except for the occasional, forced “good morning.”

The relationship between Gray, 50, and Justice Felipe Reyna, who Gray likes to point out “was elected as a Republican,” is “strained,” using Gray’s term.

Those relationship difficulties used to simmer behind the scenes, rising to the surface from time to time in one of Gray’s colorful barbs from one of his many dissenting opinions.

However, in the past six months, Gray’s pen has turned more vitriolic and his jabs appear to be aimed squarely at Vance, 67, and Reyna, 61.

Some references are more veiled than others. However, in recent published dissenting opinions, Gray has used terms such as schizophrenic, irrational and unlawful to describe the other justices. He has compared their work to a first-year law student’s, said one opinion was like a “mediocre law-review article” and charged that they have no respect for the rule of law.

“I’m passionate about what I do and I write with passion because I believe in the points of law that I am making,” Gray said. “I do not view those statements as a jab to my colleagues. My analysis and comments are directed at the legal analysis expressed in the opinions to which I am responding.”

But Gray’s feelings for his colleagues also are spilling over into public events, such as at a March 10 Ronald Reagan Day celebration by the Somervell County Republican Party in Glen Rose. The 10th Court hears civil and criminal appeals from 18 Central Texas counties, including Somervell.

The local party leaders invited Gray to speak and asked Reyna to introduce him. After a glowing introduction, Reyna asked the 60 members of the audience to stand and welcome “my good friend, the honorable Chief Justice Tom Gray.”

As Gray took the podium, he started by thanking Reyna for referring to him as his good friend.

“But really, we have nothing in common,” Gray continued. “I have never been in his home. He has never been in my home, and whenever there is a disagreement on the court, he always sides with Bill Vance.”

The crowd stared in hushed disbelief, not knowing how to take the comment. Reyna and his wife, Cheryl, did.

Fuel for dissents

It is those disagreements, lack of collegiality and breakdown in communication between members of the court that have fueled Gray’s eye-popping number of dissents in the past few years.

In 2005, the 80 appellate judges on the state’s 14 intermediate appellate courts wrote a total of 226 dissenting opinions. Gray wrote 107 of them, or 47 percent. Last year, Gray wrote 49 dissenting opinions, 26 percent of the statewide total of 190. So far this year, Gray has written 58 dissenting opinions, or 48 percent of the statewide 120 written thus far.

From 2000 to 2003, Gray, elected to the court in 1999 and formerly from Navarro County, averaged 25 dissents a year. In those same years, Vance, a former Brazos County judge elected to the court in 1990, averaged seven dissenting opinions annually.

By contrast, in 1997, when Rex Davis was chief justice, the entire court, which included Vance and Justice Bob Cummings, wrote 7 dissenting opinions. The year before, that same court issued six dissenting opinions.

In 1994, when Bob Thomas was chief justice, he, Vance and Cummings wrote a total of three dissenting opinions. The year before, Vance wrote five, Thomas wrote two, and Cummings wrote none.

Davis, one of only three living former members of the court, declined comment about the current operations of the court.

While dissenting opinions are not uncommon on appeals courts, it’s the sheer volume of those dissents and the tone with which Gray writes them that causes judges and lawyers gathered at statewide judicial conferences to start snickering at the mere mention of the 10th Court.

“As a dog returns to its vomit, so a fool repeats his folly,” Gray began a recent dissenting opinion, quoting Proverbs 26:11 and referring to a case that was returned to the court a second time by the Texas Court of Criminal Appeals. That one really grabbed the attention of those at a recent conference.

For their part, Vance and Reyna have chosen to respond by inserting footnotes into two recent majority opinions to express their views about the chief justice.

“I stand by what the majority opinion in the Kelly and Pena cases said,” Vance said. “The statements that were included in those dissents were unnecessary, they contributed nothing to the legal issue before us, they were highly unprofessional, they reflect poorly on the judge who made them and they undermine the integrity of the judicial system.”

Reyna declined comment, deferring questions about the situation to those footnotes, which also included a quote from U.S. Supreme Court Justice Anthony M. Kennedy.

“The collegiality of the judiciary can be destroyed if we adopt the habits and mannerisms of modern, fractious discourse,” Kennedy wrote. “Neither in public nor in private must we show disrespect for our fellow judges. Whatever our failings, we embody the law and its authority. Disrespect for the person leads to disrespect for the cause.”

Quoting from movies

Gray, who also has quoted from movies like Cool Hand Luke, My Cousin Vinny, Men in Black and Pretty Woman, and quoted from songs like “Skip a Rope,” said he tries to write in an interesting style and to make his points clearly so the general public at large, not just legal eagles, can understand.

“What difference does it make if we do not like each other or do not get along in our personal lives, because what we are elected to do is decide cases. If we get that right, it doesn’t matter. And that is what I am focused on — getting it right. Unfortunately, the high courts have told the majority of this court on many occasions that we did not get it right.”

Gray said the 10th Court was reversed more than 40 times in 2006 and he wrote dissenting opinions in 95 percent of those cases. That doesn’t mean that the court sided with him or reversed cases for points on which he dissented in all of those cases, he said.

“The cases with novel or close legal questions are the ones most likely to draw a dissenting opinion,” Vance said. “They are also the ones most likely to be appealed to a higher court. That’s why the higher courts exist. So, if a judge dissents in every one of those cases, he can boast that he was right when the higher court reverses the lower court’s decision. But nothing will be said about all the times the dissenting views do not prevail in the higher court.”

An attorney who follows the court closely said the higher courts agreed with Gray no more than 25 percent of the time last year in cases in which he wrote a dissent.

“I don’t like the infamy of being on the most reversed court in the state of Texas, but I can’t do anything other than to give them the opportunity to get to the right result and point that out in a dissenting opinion,” Gray said.

“My role here is not to go along or to be their friend or to be their confidante. It is to decide cases, disputes brought to us by litigants. In the sense that that may not be the good ol’ boy system, I don’t view it as my role to foster that system either as chief or as a judge,” Gray said.

‘It’s personal’

Brian Wice, one of Houston’s top criminal defense attorneys who specializes in appellate and post-conviction matters, has handled more than 300 appeals, including 13 death penalty cases. Included in the more than 30 cases he has successfully reversed was the Rev. Jim Bakker’s 45-year prison term in 1991.

He said he has watched the workings of the 10th Court in amazement the past few years.

“I don’t understand why Tom Gray continues to go to work if he hates these guys as much as his opinions suggest,” Wice said. “It is not business. It’s personal with him. To use his words, any first-year law student knows the canons of ethics preclude Bill Vance and Felipe Reyna from defending themselves.”

Wice disputes Gray’s contention that there are no intended personal affronts toward his fellow justices in the body of his dissents.

“Those are personal attacks. If you read some of them, Justice Gray believes Justice Vance and Justice Reyna are lawbreakers,” Wice said. “Do I need to bring in Ken Starr to answer the question, is it personal? He is calling them lawbreakers. This notion of judicial collegiality, it is Rule One in the playbook. It is as important as the 2,100 points you get on the SAT for spelling your name right.”

Wice said he continues to be surprised by the number and tone of dissenting opinions written by Gray. He says when judges attack their colleagues, it “totally devalues the currency of respect for the judiciary.”

“Judge Gray can’t possibly think that he has a monopoly on wisdom,” Wice said. “When you recruit judges from the human race, we are going to have human error. But nobody, particularly Judge Vance and Judge Reyna, could have possibly been wrong that many times.

“Is he entertaining in his opinions? Yes, but so is the village idiot. I don’t think you get style points for entertainment in your opinions. They just want the court to get it right,” he said.

‘Drag on output’

A Waco attorney who appears regularly before the court and who asked for anonymity because he feared reprisals said there is no question that Gray has gotten personal in his references to his fellow judges.

“The problem is the drag on the output of the court, because every time you have to dissent, three, four times a week, you cannot have the output of an appellate court,” the attorney said. “These courts are meat grinders because they receive all the criminal and civil appeals of the district courts. They are the workhorses of the state. If they are not putting out a product, then the system bogs down, and the truth of it all is, that is exactly what is happening.”

He said Gray’s judicial approach is “far, far different” from any other appeals judge he has known.

“I’m not saying the guy doesn’t have a point from time to time. He is certainly a bright guy and a scholar at times on the issues that he is right on. The problem is you dilute the issues that have merit by slogging through every minute issue and airing your dirty laundry out for all to see. It is out there forever. They are in bound volumes. He just has to tone the rancor down. I just don’t know why his need to dissent is there.”

Communication’s role

Earl Dudley, a professor at the University of Virginia Law School graduate program for judges, said it is important for appeals courts judges to maintain a high level of communication so that they can discuss cases and come to a reasoned decision.

“It seems to me that if a judge gets to the point where his or her comments and opinions are undermining the collegiality and the ability of the court to reason together collectively, you have a problem,” Dudley said. “But on the other hand, judges are people in public life and they know they have to have thick skins. But if you get to the point where the court is not operating as a deliberate, collective body, you’ve got problems.”

Dudley said the number of dissenting opinions written each year is increasing.

“If you look back to the turn of the 20th century, the Supreme Court of the United States had more unanimous opinions than it does today,” he said. “I think that reflects society’s increasing fragmentation in terms of how they approach and how they see legal issues.”

George Dix, a law professor at the University of Texas in Austin, said there is a big difference between respectful dissent and the kind of language that demeans judges and, in turn, the very issues before the court.

“It is unseemly and harmful to the court in general for there to be that kind of exchange that frequently,” said Dix, who is familiar with the work of the 10th Court. “It detracts from the work. Certainly, you read the opinions and you come away maybe not remembering what was held or what was discussed, but you do remember the personal animosity. It does detract from what otherwise might be good, professional work.”

twitherspoon@wacotrib.com

757-5737

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The hostility that 10th Court of Appeals Chief Justice Tom Gray has shown toward his fellow justices has surprised some observers. Some examples:

“It is hard to imagine how the majority could make more errors in a single proceeding.”

“It is impossible for me to convey the level to which I am disappointed by my colleagues. ... Their action shows that they have no regard for the rules of appellate procedure, and, therefore, no respect for the rule of law.”

“If the majority is going to throw the rule book away, then they should tell the world so litigants, and I, for that matter, understand what we are doing.”