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More on Keller

Here’s the Chron story about Sharon Keller getting off lightly in the report produced by Special Master David Berchelmann for the State Commission on Judicial Conduct. Of interest is the reminder that Keller isn’t out of the woods just yet.

Seana Willing, the commission’s executive director, said Berchelmann’s report is a recommendation and that Keller still faces five judicial misconduct charges. She said the 13-member commission will decide whether to dismiss the charges, reprimand her or recommend that the Texas Supreme Court remove Keller from office. No date has been set for a hearing.

I certainly hope that a reprimand is still a live possibility. Whether you believe Judge Berchelmann was harsh on Keller in his report or that he was misdirecting us, there’s no question that she didn’t do what she should have done. Surely that’s worth some official action. Grits certainly thinks so:

Bottom line: Judge Berchelmann was asked by the Commission on Judicial Conduct to serve as a fact finder, but instead he acknowledged then ignored the facts, characterizing them in a disingenuous way to excuse Judge Keller’s usurpation of the duty judge’s responsibilities under this “oral tradition.”

Mainly this document is not a statement of facts but an argument by Judge Berchelmann to the Commission about what the punishment should be. Judge Berchelmann’s recommendation that Judge Keller deserves no sanction primarily hinges on the conclusion that she violated no unwritten rules. If she had, the ruling implies, the need for stronger sanctions than “public humiliation” might be merited. For my part, I think it’s pretty clear she violated the court’s unwritten rules, its oral traditions, its verbal prescriptions or its lingual decrees, whatever you want to call them.

The Commission on Judicial Conduct should ignore Judge Berchelmann’s punishment recommendation and reprimand Judge Keller, but not recommend removing her, based on these findings of fact. Berchelmann is wrong: Keller did violate the court’s unwritten rules. And Keller brought any “public humiliation” on herself. But her technical distinctions between the court and the clerk’s office (at one point Berchelmann basically calls her a liar, saying no “reasonable person” would say she’d close the clerk’s office again under the same circumstances) probably obfuscate the legal question enough to conclude removal isn’t justified, even if “there is a valid reason why many in the legal community are not proud of Judge Keller’s actions.”

This outcome doesn’t surprise me; it’s what I predicted after the Commission’s charges first came out. But I do think that Judge Berchelmann got it wrong, and I’m disappointed that the thing ended up looking so much like a whitewash.

I don’t think I can add anything to that. Grits has links to more commentary at his site, and there’s a roundup of media coverage here. I hope the State Commission is paying attention.

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  1. […] sure, as Grits says, there are plenty of good reasons to not end it here. At the very least, a reprimand seems in order. Will we get that, or is the fix […]