Mandamus v. Interlocutory Appeal

Early this Saturday morning, Todd Smith at the outstanding Texas Appellate Law Blog posted about the strange quirk in the law whereby trial courts’ refusals to compel arbitration are immediately reviewable by mandamus if one statute applies (the Federal Arbitration Act or “FAA”) or by interlocutory appeal is another applies (the Texas Arbitration Act or “TAA”). Mr. Smith noted that the legislature could amend the interlocutory appeal statute to provide that orders refusing to compel arbitration under either the FAA or the TAA could be immediately appealed. This would make sense, of course, since the FAA is unusual as a federal statute in that it was intended to be enforced and implemented by state courts; the FAA, in and of itself, does not serve as an independent basis for federal question jurisdiction in the federal court system.

At any rate, we would be remiss if we did not join the conversation, if only to provide a link to the D. Wilson Construction opinion from the Texas Supreme Court, handed down in late June of last year. We blogged on the opinion back when it came out, but inexplicably did not post a link; sorry about that.

At any rate, among other issues Wilson explains in wonderful detail the relationship between the FAA and the TAA and situations when the FAA may or may not pre-empt the TAA. Such topics are fascinating to us and we’ve written about them elsewhere. An offshoot of this, of course, is the ongoing discussion of reverse-preemption in the medical malpractice arbitration context.

The majority opinion, however, races right up to the threshold of fixing the problem noted by the Appellate Law Blog this morning but then does not do so. Much to Justice Brister’s chagrin. This entire blog post, therefore, is simply a lengthy introduction for a comment Justice Brister made in his concurring opinion in Wilson:

parties should not have to file both an interlocutory appeal and an original proceeding [mandamus]; even attorneys who can predict which one an appellate court will find proper may hesitate to gamble with their client’s money. I would allow them to file either, and then have the appellate courts treat it as they think proper.

So there you have it. A Supreme Court Justice’s comment on Mr. Smith’s post, sort of.

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