Archives|
Archives |
|
August 10, 2007
Free Speech for Judges By Jack D. McNamara The Texas judicial class appears to be snarled in legal contests attempting to vindicate their First Amendment rights, as we have indicated previously. Justice Hecht Texas Supreme Court Justice Nathan Hecht survived an attempt by the Texas Commission on Judicial Conduct to admonish him last year. Justice Hecht was charged with a violation of the commission’s code in that he actively promoted his friend of long standing, Ms. Harriet Miers, for a position on the U.S. Supreme Court. Ms. Miers was indeed nominated by President George W. Bush, but the President withdrew her name after a firestorm of criticism asserting that she might be a fine family lawyer for the Bush family but she had few if any qualifications for the Supreme Court. A three-judge panel of Texas Appeals Court judges dismissed the admonition in October after a high profile defense in which Chip Babcock, a Houston lawyer, argued that Justice Hecht had a First Amendment right to promote Ms. Miers’ candidacy. The legal bill of Babcock’s law firm was $342,416. Now, Texas Watch, a watchdog group, has filed a complaint with the Travis County District Attorney, Ronnie Earle, alleging that Justice Hecht received a $100,000 “discount” from Mr. Babcock’s law firm, Jackson Walker. Such a financial arrangement may be a Class A misdemeanor punishable by a $4,000 fine and a year in jail for a Texas judge who accepts a gift from parties who practice before him/her. Justice Hecht did not report the alleged reduced legal fee as an acceptable campaign donation. Babcock told Clay Robinson of the Houston Chronicle (as published 7/25/07 in the San Antonio Express online, “Discounted legal bill keeps Judge under fire”) that the bill “was reduced 25% because he (Babcock) believed the case involved an important public issue — freedom of speech.” Judge Jenevein At the same time that Justice Hecht’s alleged discounts were breaking into the news, another gnarled Dallas legal scandal was breaking. The Fifth U.S. Circuit Court of Appeals issued an opinion that partly overturned another (http://www.ca5.uscourts.gov/opinions%5Cpub%5C06/06-50368-CV0.wpd.pdf) Texas State Commission on Judicial Conduct censure against Judge Robert Jenevein, who presided over County Court at Law No. 3 from 1999 to 2002 (Jenevein v. Willing, No. 06-50368, July 20, 2007). The formidable Justice Patrick Higginbotham thundered that Judge Jenevein’s First Amendment rights were violated by a censure order from the Judicial Conduct Commission. At the same time, the Court upheld that part of the censure order which criticized Judge Jenevein for holding a press conference in his chambers, in his robes. The case reached back to late 1999 when Judge Jenevein and his wife were having breakfast. They were approached by a Dallas attorney, Stephen Stodghill, who was looking for a judge. Stodghill wanted a judge to dissolve a temporary restraining order issued by an 80-year-old visiting judge (Leonard Hoffman) just before the Christmas vacation. The case involved a potential $6 billion Internet company, Yahoo!. Judge Jenevein obliged and arranged to meet the lawyers for both sides later that day at another Dallas restaurant, Dakota’s. Too many people showed up so they adjourned to Stodghill’s office, where Judge Jenevein dissolved Judge Hoffman’s order. The New Year brought a flood of new motions, objections, requests for recusals and all the flimflam attendant to a $6 billion set of deep pockets. The 80-year-old judge was disqualified and his orders annulled. Then the case was transferred to yet another Dallas County Court at Law Judge, David Gibson. The rather overactive lawyers greeted Judge Gibson with an affidavit from the judge’s former personal attorney and friend which alleged that Judge Gibson had solicited bribes from some of the parties in the case. Judge Gibson recused himself and “became the subject of significant press coverage,” in the rather laconic words of the Court. The next morning the enthusiastic lawyers filed another motion alleging Judge Gibson had exchanged rulings for sex, had made frequent assignments to Judge Jenevein’s wife, “with whom Gibson is alleged to have a more intimate relationship” in the Court’s words. When Judge Jenevein learned of the allegations he drafted a press statement, faxed it to the local media, and held a press conference in his chambers that afternoon (the statement is quoted verbatim in the court decision). The judge denied all and lambasted the offending attorney. After the press conference the judge went to his office computer and sent emails to about 76 friends and colleagues. The adversarial lawyer filed a grievance against Judge Jenevein. The judge made several attempts to get the controversy adjudicated, finally succeeding with a civil rights action in U.S. District Court. But the Court ruled with the Judicial Conduct Commission and Judge Jenevein appealed to the Fifth Circuit. Judges are lawyers, of course, so they often have both time and career interests to pursue such matters. Only when scandal touches the legal abstractions do we become interested. In these cases, however, the First Amendment issues are very similar to the events here in Alpine in early 2005. We have no scandals, certainly, but we do have similar state agencies which require correction. The Texas Commission on Judicial Conduct was represented by our old friends in the Texas Attorney General’s Office. They lost the most important issue in the Jenevein case. Perhaps the challenge to the Texas Open Meetings Act’s constitutionality which started here in early 2005, with a single email by a city councilperson, will bear a similar comeuppance for the State of Texas. • (Also published by the Big Bend Sentinel of Marfa, Texas August 9, 2007.)
|