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Texans for Lawsuit Reform

On when you should file a Harvey-related claim

It may or may not ultimately make a difference, but a new law that goes into effect on September 1 is about insurance claims and lawsuits.

For many Texans ravaged by the rain and winds Hurricane Harvey carried ashore this past weekend, filing an insurance claim for the damage their property sustained is probably the farthest thing from their minds right now. But waiting to submit a claim past Friday could cost them big.

A new law set to take effect Friday aims to crack down on frivolous insurance lawsuits. But House Bill 1774 also reduces the penalty interest rate insurance companies face for late payments if the policyholder files a lawsuit.

If insurance companies are late in paying claims as a result of a lawsuit, they must pay an additional penalty to policyholders. Under current state law, that penalty comes in the form of a fee that totals 18 percent of the claim. For claims filed after Friday, that rate will be determined by a market-based formula that is capped at 20 percent. Currently, the rate would be 10 percent.

While people filing claims by Friday would benefit from the higher penalty payouts in lawsuits, those same cases would be subject to provisions in the new law. Those provisions would decrease the chances insurance companies will have to pay the plaintiff’s attorneys fees in full and protect agents from being personally sued.

Jeff Raizner, a member of the Texas Trial Lawyers Association, which opposed HB 1774, said the law is a mixed bag.

“I want to be completely fair, there were some bad actors,” said Raizner, a Houston trial lawyer who has worked on insurance cases for 25 years. He added that some of what the new law requires addresses that problem – like the strengthened rules on communications regarding claims issues and the structure for paying attorneys’ fees.

But he calls the penalty changes an overreach.

“Much of this new law is a money grab by the insurance industry,” Raizner said.

“The intent of the bill was to cut off this ‘cottage industry’ that was happening around hailstorms after Hurricane Ike; lawsuits that didn’t need to be filed,” said Lucy Nashed, a spokesman for Texans for Lawsuit Reform. TLR supported the bill and argues that because the bulk of Harvey insurance claims will be flood-related, nothing will change.

I’m not a lawyer, and I’ve thankfully never had to file an insurance claim related to storm or flood damage. This explanation on Facebook from someone who is a lawyer strongly suggests that HB 1774 won’t affect the vast majority of people:

First and foremost, HB 1774 does not change the insurance claims process. A person making a claim with her insurance company after September 1, 2017 will go through the same process as a person making a claim before September 1, 2017.

The new law applies to a lawsuit that is filed against an insurance company by a policyholder when the policyholder’s insurance claim is not timely paid or is underpaid, or when the insurance company acts in bad faith in dealing with the policyholder’s claim.

Lawsuits are the exception, not the rule. The vast majority of Texans will go through the regular insurance claims process without needing to file a lawsuit.

Even under HB 1774, Texans continue to have the strongest consumer protections in the nation against insurance companies. This includes the full recovery of amounts owed under an insurance policy, plus penalty interest, court costs, and attorney fees. Additionally, if the insurance company acts fraudulently or in bad faith, Texans may recover triple the amount of their actual damages, which is unchanged by the new statute.

The only advantage to filing a claim before Sept 1 is that IF the insurance is slow to pay or underplays, their penalty interest will be a floating rate between 10-20%, rather than a stagnant rate of 18%. Lawyers may worry about that change in rate, but you shouldn’t. It doesn’t impact your coverage.

The primary purpose of the new statute is to require written notice of a dispute before a lawsuit is filed (so that the insurance company can adequately address the claim before a lawsuit is even needed). If a lawsuit is filed, it would happen months or years after the initial claim was made with the insurance company. Nothing in the new law passed by the Legislature earlier this year requires that the initial insurance claim be made in writing or by a specific date.

For what it’s worth, the new law will not apply to most claims or lawsuits arising from Harvey, as I understand it, because most of the policyholders’ claims will be for damage caused by flooding. These claims will be made under the federal flood insurance program and governed by federal law. The new law will not apply to lawsuits pursued against the Texas Windstorm Insurance Association (TWIA), which is subject to an entirely different statute governing post-disaster lawsuits. TWIA provides insurance for many people affected by Harvey directly on the coast.

I guess I would say that if you do have a claim to file, and you can do it by Thursday, go ahead and do it then. It probably won’t matter, but it probably won’t hurt. RG Ratcliffe and Mother Jones have more.

Views differ on SD26

From Campos.

Before the State Senate District 26 Special started, Rep. José Menéndez and fellow Rep. Trey Martinez Fischer were both good elected officials and good Democrats. This morning they are still good elected officials and good Democrats. Somebody had to win.

I have to admit I was kind of surprised with last night’s results. I guess Sen.-Elect Menéndez ran a better and smarter campaign.

Then this was tweeted last night:


I don’t know if the media is saying it was a Dem loss. I think some Dem activists might be saying it was a Dem loss. You can’t deny that the Texans for Lawsuit Reform (TLR) folks are feeling pretty good this morning. TLR racked up a decisive victory in Dem territory.

And then this tweet from Harold Cook:


How about played better and smarter?

Who might be saying it was a Dem loss? Well, BOR for one.

Sen. Jose Menendez

Last night, State Rep. Jose Menendez scored what has largely been viewed as an upset over State Rep. Trey Martinez Fischer, winning 59% to 41% in a special election to replace Senator Leticia Van de Putte in SD-26.

While Menendez and Martinez Fischer have both held office as Democrats and ran for the Senate as the same, Menendez’s win has been credited in part to his support from GOP voters and groups that traditionally back Republicans.

Martinez Fischer led going into the runoff by 18%, after 19,019 votes were cast in the first round in January. Curiously, more votes were cast in the run-off for a total of 23,523, which saw Menendez go from 4,824 votes good for 25.36% to 13,888 votes amounting to 59% of the tally while Martinez Fischer increased his share from 8,232 votes to 9,635 in the run-off.

So how did Menendez do it? Apparently, with Republican support.

Christopher Hooks and Ross Ramsey also buy into this logic. I don’t know about that. Remember, SD26 wasn’t the only runoff in San Antonio on Tuesday. HD123 was also happening. That district is almost entirely within SD26. If there was an unusual influx of Republican turnout in SD26, you’d think it might have had an effect on the HD123 race as well. Except that while Sen. Menendez was clobbering TMF, Diego Bernal was outperforming President Obama by three points, in a district that’s actually a teeny bit less Democratic than SD26 overall and a special election runoff, which as both Hooks and Ramsey note had lousy turnout. If there were a disproportionate number of Republicans voting in the SD26 race, why doesn’t it show up in the HD123 race as well? Does it make sense that all these Republican voters would also support Diego Bernal, an unabashed liberal whose opponent had Greg Abbott campaigning for him? It doesn’t to me. Yet none of the writers advancing the “Menendez won with GOP support” theory even mentions HD123. Sorry, but you all get an “incomplete” on that assignment. Get back to me when you’ve addressed all the evidence.

As for Menendez being more “conservative” than average, according to Mark Jones’ magic formula, I have to ask: Can someone point me to a single consequential bill, on a subject Democratic voters care about, in which Menendez was an outlier? I’m sure something exists, but we all know who the troublemakers have been in the caucus, and Menendez’s name is not one that usually comes up. He voted against the sonogram bill in 2011. He scored a 92% on the 2013 TLCV scorecard, which was not only slightly above the Democratic average of 91%, it was also higher than TMF’s score of 86%. (The difference was a vote on SB 219, House Amendment #2: Resign to Run.) He got an A on the 2013 Equality Texas scorecard, same as TMF. He scored a nice, fat zero on the 2013 Texas Right to Life scorecard. He went to Ardmore in 2003. What am I missing here? Yes, TMF is loud and proud, and the Republicans justifiably hated him. But what are the substantive differences between them? That’s what I care about, and as far as I can tell no one can say what it is.

(OK, I can think of one difference: Labor. The Texas AFL-CIO supported TMF over Menendez in the race. I couldn’t find a scorecard for them, so I can’t quantify the difference. I can, however, quote from Ed Sills’ daily email from last night: “Menendez is no foe of labor – not by a long shot – and we don’t expect him to become one as a Senator. The Texas AFL-CIO raised no criticism of Menendez during the campaign; our materials were a positive promotion of the Martinez Fischer candidacy. We wish Sen.-elect Menendez well as he crosses over to the east side of the dome.” So again I ask: Where’s the beef?)

My point is that it’s not like the Dems just elected an Allan Ritter, or a pinche cabron like Aaron Pena. Honestly, the whole reason why this campaign – much like the one in SD06 in 2013 – was nasty and personal and not about actual issues is because there isn’t that much substantive difference between the two. I’m going to refer you to Jonathan Tilove for a good view on what happened in this race.

A lot of charges and counter charges were swapped between the old friends, but in the end, the terms of engagement, and what separated the two, was generally agreed upon and revolved around their opposite political temperaments, and the political posture Democrats – and particularly Hispanic Democrats – ought to strike in a state where they are now, but not likely forever, on the outs.

[…]

TMF is a talented politician. He has proved to be an important figure in the workings of the House, where he will remain. It would have been something beyond kabuki if he had landed in Dan Patrick’s Senate. This loss won’t kill him. All the greats – Nixon, Clinton, Obama – suffered devastating losses on their way to their destiny. He wants to play on the big stage. But the lesson of last night may be that, even on his home turf, his edges may be too rough, at least until the day that confrontational style demonstrably revs up Hispanic turnout.

That sounds right to me. And while TLR may have achieved their goal of making the Senate slightly more amenable to them, it will be a simple enough matter to keep track of Sen. Menendez’s actual votes, and challenge him in a Democratic primary if he loses his way. Which, to be clear, I don’t expect will be needed. My view is that Sen. Menendez did a better job turning out his voters, and won the argument about what style would better represent the district. And now we wait to see when the special election to fill his HD124 seat will be called and who will run for it.

Early voting is up in the special election runoffs

Make of that what you will.

Rep. Trey Martinez-Fischer

Rep. Trey Martinez-Fischer

If three days of early voting are any indication, the tense runoff fight for the state Senate 26 seat between Trey Martinez-Fischer and José Menéndez is attracting more voters than cast ballots in the first round election on Jan. 6, the result of record spending in the campaign that has pitted two Bexar County Democratic members of the House against one another in the fight to succeed departing Sen. Leticia Van de Putte, who is running for mayor.

The Jan. 6 state Senate ballot included two Republicans, Alma Perez Jackson and Joan Pedrotti, and a third Democrat, Al Suarez. Voter turnout was a miserable 5%. The five candidates in the first round drew only 19,158 voters, including 8,215 early voters. Martinez-Fischer finished well ahead of Menéndez and the others with 8,231 votes, or 43.28%. Menéndez finished a distant second with 4,824 votes, or 25.37%.

Special elections seldom draw many voters, and in most cases, a runoff would draw even fewer voters with one party knocked off the ballot. This time it’s different. A total of 6,977 people voted in the first three days of early voting this week, which continues today and Friday. At the current pace, that would add up to more than 11,000 early votes, or a 35% increase in the early turnout. If the same increased turnout occurs on Election Day the race will draw more than 25,000 voters, still a low percentage of registered voters, but enough of an increase to suggest a tight race.

You know I can’t turn down an opportunity like that to do some number-crunching. I looked at all the special legislative elections that included runoffs since 2010. Here are their respective vote totals:

Election Total Runoff Pct ===================================== SD22 5/10 29,851 24,557 82.3 HD14 11/11 13,519 6,736 49.8 SD06 1/13 16,369 18,141 110.8 HD50 11/13 14,936 10,520 70.4 SD04 5/14 30,348 22,605 74.5

“Pct” is the ratio of runoff turnout to total Round One turnout. Note that two of these special elections coincided with regular November elections, so it’s not terribly surprising that those runoffs lagged the most. Note also that the special election in SD06 in 2013 to succeed the late Mario Gallegos had higher turnout in the runoff than it did in the first round. That’s also the only race among these that was between two prominent Democrats, and as is the case this year it featured a nasty, negative overtime period. Not enough data to draw a firm conclusion, but the parallels are easy enough to see.

Having said all that, I kind of buried the lede a bit.

The increased turnout appears to be driven by negative campaigning and the role of outside money that aims to rally Republicans to cross party lines and vote for Menéndez. What’s different about this race is the role the powerful Texans for Lawsuit Reform (TLR), an ultra-conservative lobby, is playing, contributing more than $550,000 to finance broadcast ads and direct mail pieces attacking Martinez Fischer and supporting Menéndez. The Express-News reported Tuesday that more than $2.3 million has been spent on the race, including the TLR money that actually exceeds the $513,000 that Menéndez has spent to date.

[…]

Martinez-Fischer is a plaintiff’s lawyer and a vocal, at times coarsely spoken Mexican-American. He looks and sounds like a boxer. Menéndez, also a lawyer, is softer spoken and less combative. People who watch Austin politics more closely than I say newly elected Lt. Gov. Dan Patrick would prefer to keep Martinez-Fischer out of the Senate, which is now a bastion of ultra-conservative Republicans, who now outnumber Democrats 20-11. Regardless of the runoff outcome, the winner will be the least senior of the minority party, but Martinez-Fischer would be a thorn in Patrick’s side, while Menéndez has said he would cross party lines to try to be effective.

I’ve said all along that TMF was my preferred candidate in this race. I had and continue to have nothing against Menendez, and I seriously doubt he’d be any more supportive of the evil trolls that make up TLR if he wins than he was in the House. But maybe he’ll be a little more supportive of them than TMF would be, and a couple hundred thousand bucks isn’t even pocket change to these guys, so all in they go. (They were a presence in the SD06 race as well, much as head lice is a presence in most elementary schools.) The point I’m making here is that even though this runoff is to them a choice between two candidates with whom they have little in common, they didn’t sit it out. They picked their lesser evil and did what they do to support him, in the hope that if it pays off, they’ll have an ever-so-slightly better Senate from their perspective. Say what you want about these guys – and believe me, I think they’re a greedy, rapacious, destructive force, too – it’s hard to argue that their approach had been anything but a big success. There may be a lesson in there for us somewhere, I dunno.

Anyway. It’s hard to know what effect this may have on the HD123 runoff, as HD123 is almost entirely within SD26. Like SD26, most Dems won HD123 by about ten points in 2010, the main exceptions being Bill White, who won it by more than 20 points, and Barbara Radnofsky, who lost it by a half point to Greg Abbott. I expect Diego Bernal to win easily enough, but one should never take anything for granted. Get out there and vote if you didn’t already do so. As for HDs 13 and 17, other than this report on campaign finances in HD17, there’s precious little news out there. I’ll have final results when they come in.

Special elections roundup

I haven’t seen any newspaper endorsements in the special elections that will conclude on Tuesday. I can tell you that the Texas Parent PAC has endorsed Diego Bernal in HD123 and John Cyrier in HD17. In the absence of further endorsements to report on, here’s a news roundup based on Google searches of the various candidates.

In SD26, it’s all about the money.

Rep. Trey Martinez-Fischer

Rep. Trey Martinez-Fischer

A powerful special interest group that has contributed millions of dollars mostly to state Republicans over the years is targeting Democrat Trey Martinez Fischer’s bid to fill a vacant Senate seat.

And now Martinez Fischer is attempting to draw connections between the group, Texans for Lawsuit Reform, and his main opponent in the race, Democratic state Rep. José Menéndez.

TLR is the richest and most influential tort reform group in the state, and its political action committee has already spent close to $180,000 to influence Tuesday’s special election in District 26, state records show. That includes research and polling, along with TV ads and mailers blasting Martinez Fischer.

In a campaign memo released Wednesday, Martinez Fischer leveled his strongest public accusations to date about links to the group and Menéndez, claiming the head of TLR has personally made calls to help Menéndez and to “thwart” Martinez Fischer’s own fundraising efforts.

Martinez Fischer, in the memo, goes on to note that TLR contract lobbyist Ed Lopez was named earlier this month as part of the Menéndez finance team and then claims another unnamed lobbyist working for the group recently held a fundraiser for Menéndez.

[…]

“In my estimation, José’s relationship with TLR is obvious,” Martinez Fischer says in the memo.

On Wednesday, Menéndez remained steadfast that he’s not in cahoots with the group.

“It is obvious to me that Trey is desperate to try to create a connection between TLR and myself that doesn’t’ exist,” he said. “We’re running our campaign, and we’re not in a position that we feel like we need any help from outside sources.”

Menéndez also said that Lopez, the TLR lobbyist Martinez Fischer cited in his memo, is a personal friend dating back to his days on San Antonio City Council, and that “he’s a supporter of mine because he believes in me as a person.”

TMF has greatly outraised Menendez, though a lot of his donations have been non-local. Both candidates are spending heavily on TV ads. When the first order of business is to make sure people are aware that there is an election going on in the first place, you do what you have to do.

Meanwhile, the candidates in HD123 are trying to be heard over that volume.

The ballot includes three Democrats: businesswoman Melissa Aguillon, former San Antonio City Councilman Diego Bernal, and Walter Martinez, also a former city councilman, who served in the Texas House in the ’80s.

The lone Republican is insurance agent Nunzio Previtera. Clinical psychologist Paul Ingmundson is the Green Party candidate, while Libertarian Roger Gary rounds out the ballot.

Gary, like the others, has education reform high on his list. He wants to get back to the basics, like, he says, teaching basic math. ”I’ve asked some other people who say they’re doing it all on computers; people’s grammar and spelling and math, let’s get back to those basics. That’s what we need. The rest of the stuff they’re squabbling about, what’s in a high school history book? Well, who cares if they can’t read and write.”

Republican Nunzio Previtera wants schools to put as much emphasis on vocational training as they do on college preparation. “The primary goal of our school system needs to be to provide our students with opportunities to prosper as working adults, get them ready to be adults. Our magnet schools have done a pretty good job, but they need to be expanded, and our primary schools need to put a lot more emphasis on vocational skills and training people for their adult life.”

Paul Ingmundson went to UT Austin, where he paid $50 a semester. He says college tuition today is outrageous. He wants the first two years of college to be free. He’d pay for that by taxing oil and gas producers. “We can address the fossil fuel problem and the education problem with one policy change. I think even Republicans are going to start to get used to this. They are going to look around for money, and if you’re going to look around for money, the deepest pockets are in the oil and gas fields.” 


More affordable higher education and technical training are also high on the agendas of Democrats Melissa Aguillon and Walter Martinez.

“It was challenging for my parents to put me through college,” says Aguillon. “I actually had to pretty much fund my own college tuition, and so, I want to make sure that higher education is accessible for all students that want to go to college.” But she adds, there are far more career paths available to those students now, and far more jobs being created, “21st century jobs that don’t necessarily require a four-year education.”

“I think it’s important that the necessary skills for trades are also accessible to them,” says Aguillon. Fellow Democrat Martinez agrees, and adds, “The delivery and implementation of workforce training, also providing technical training, to be able to provide the workforce that modern technology requires, those are all part of the agenda as far as supporting public education.”

Democrat Diego Bernal says the first bill he’d file would overhaul the way the state decides how much money each school district will receive. “The very first one I would file would have to do with public education and the formula that we use to pay for students who are either economically disadvantaged or English language learners. There’s a formula they use to give districts extra money and that formula hasn’t been updated since the mid-’80s. So if you want to know what my very first attempt at a bill would be, that would be it.”

Here’s an Express News overview of this race. The SA Current did Q&As with four of the candidates in the HD123 race – with Diego Bernal, Melissa Aguillon, Walter Martinez, and Roger Gary. They also profiled Bernal and noted that Aguillon had received financial support from a Georgia-based auto title loan business owner.

As for HD17, news is a lot harder to find. What little I have is from the Gonzalez Inquirer. Here’s their overview of the race:

Republican candidate John Cyrier, 41, of Lockhart, was in town Monday morning for a brief rally at the Roger M. Dreyer Memorial Airport to kick off early voting. He arrived by air in his Cessna Skylane II— which appropriately sported the colors red, white and blue.

[…]

The other Republican in the race, Brent Golemon, 46, of Bastrop, got a taste of politics early in life. Golemon worked as a legislative aide and chief-of-staff at the capitol after graduating Hampden-Sydney College while his father was a 35-year lobbyist in Austin.

Golemon co-founded GalleryWatch, the nation’s first online legislative tracking service in 1996, which was sold eight years later. His current occupation is listed as “entrepreneur.”

The closest Golemon gets to an elected office credential is a stint on the Tahitian Village Property Owners Association and a board appointment to the Bastrop County Water District. In his spare time, he enjoys coaching six-man football at a Christian-based athletics program for home-schooled and private school families.

The first of two Democrats on the ballot is Ty McDonald, 43, also of Bastrop. She is a 1993 graduate of Texas A&M University and is married to former Bastrop County Judge Ronnie McDonald.

McDonald’s early education into elected public service was as legislative director for State Rep. Yvonne Davis in the early 90s. She also served as campaign coordinator for John Sharp during his failed bid for comptroller.

After serving as a public school teacher for seven years, she was elected to a single term to the board of the Bastrop Independent School District. Her last year was served as president of that body.

After flirting with a run for state rep earlier this year, McDonald switched races to challenge incumbent Bastrop County Judge Paul Pape. She lost that contest in November.

The other Democrat is Shelley Cartier, 51, yet another candidate from the Bastrop area. Her business card describes her as a non-politician and small business owner.

On the issues, she supports local control and small growth. Public education is also in her platform and she says she is a “defender of property and water rights for all.”

In her spare time she advocates for the humane treatment of animals and hosts several rescue horses on her property.

Rounding out the list is the lone Independent candidate, Linda Curtis, 63, the final Bastrop resident. Her tagline is “If you can’t join ‘em, beat ‘em!”

They also have a profile of Cyrier.

Cyrier hails from Caldwell County where he and his wife Rachelle live on a ranch south of Lockhart. His political fact sheet touts many accomplishments for the 42 year-old—successful businessman, past county commissioner and former commander of the Fightin’ Texas Aggie Band. He now wishes to be State Representative for District 17, which includes Gonzales County.

His business career began after he received a degree in Mechanical Engineering Technology from Texas A&M University. A couple of stops in the general contracting business and branch office management led him to launch Sabre Commercial, Inc. in 2008, a commercial construction services company specializing in general contracting. It employs 51 people and has won numerous distinctions from the Austin Business Journal including a nomination for Best CEO Award in September.

“I surround myself with good people and I take care of them,” said Cyrier. The good working morale has led Sabre to three top-10 “Best Places to Work in Central Texas” designations from the Journal.

Cyrier’s political career began in 2010. There was a vacancy on the commissioner’s court in Caldwell County and longtime County Judge H.T. Wright, Jr., a Democrat, picked Cyrier based on his community accomplishments. The judge knew that he would take heat for the appointment since Cyrier was a Republican, but he saw a need to balance the court and invite all ideas to the table.

Turns out that Cyrier was only the second Republican to ever hold a seat on the court. Party designation didn’t matter to most voters, for he was elected outright later that year by 60 percent of the ballots and was named Judge Pro-Tem in 2012.

“I loved being a county commissioner,” he said.

Cyrier decided to serve out his term but opted not to run in the general election in 2012. He figured that he could do just as much good for the community away from the commissioner’s court than he could on it. The list of boards on which he currently serves include: Capital Area Metropolitan Planning Organization (CAMPO), Caritas of Austin, Lockhart ISD Education Foundation, Caldwell County Republican precinct chair—and the list goes on — prove just that.

During the Thanksgiving holiday he received a call from Bastrop County Judge Paul Pape. Rep. Tim Kleinschmidt had resigned and the county’s leadership was looking for a candidate to promote. One GOP candidate had already popped up in Bastrop, but they were looking for something more. They believed that Cyrier had the vision to be the district’s next leader.

With the added urging of longtime Bastrop County Commissioner Clara Beckett, Cyrier decided to run and continue his community service at the elected level. Soon he had a list of supporters that any candidate would envy.

There are three things that Cyrier lists as top priorities in the upcoming legislative session: education, water and infrastructure. Luckily for District 17, all three topics resonate throughout the five rural counties he would represent.

On education, Cyrier already counts superintendents from Bastrop, Smithville, Karnes, Lockhart, Gonzales and a host of other education professionals as supporting his candidacy.

He shows a strong command of the issues facing public schools in the state. His concerns are on elected officials that look to defund public education to send dollars elsewhere. Oftentimes school is the only place a child can eat a regular meal for breakfast, lunch— and more often now— even dinner.

Diverting public dollars would have an adverse affect on education, especially in communities like this one where the school system is the major employer. Cyrier looks to be a strong advocate for these independent school districts.

He also draws a parallel between the growth the district has seen based on underground resources—water to the north and oil to the south. Where Bastrop County has seen sprawl eat on its western flank, water developers look to siphon off the precious resource to far-flung housing developments throughout the I-35 corridor and down to San Antonio. Similar concerns can be seen here.

The other boom is down south with the shale explosion in the Eagle Ford. Gonzales County is experiencing growth and road degradation associated with this as is its neighbor to the south, Karnes County. Cyrier understands this and how public infrastructure funding is so important to the area.

Since all five counties in the district are still largely rural, he feels that the area shares the same challenges.

So there you have it. If you live in one of these districts, please make sure you vote.

Meet your “education reform” groups

The Observer provides a primer.

For 20 years, Texans for Lawsuit Reform (TLR) has been protecting our hospitals and business leaders from meddling trial lawyers, convincing the Texas Legislature to cap damage awards and closing the courthouse doors to some potential plaintiffs. For two decades, TLR has been wildly successful, perhaps the most successful special interest in Texas. Having conquered the civil justice system, TLR is moving on—to education.

Texans for Education Reform launched midway through the 2013 legislative session, and shares lobbyists, board members and a spokeswoman with TLR. (TLR president Dick Trabulsi, for example, sits on the school reform group’s board.) The two groups also share a few of the same deep-pocketed donors, wealthy individuals like Dick Weekley, Ray Hunt and Doug Foshee who helped the education group raise nearly $1 million for its new political action committee. Just under $200,000 was distributed to candidates ahead of the March primary.

It might seem strange that Texas’ preeminent tort reform advocates have taken a keen interest in public schools, of all things. But TLR’s move into education mirrors a nationwide trend over roughly the last decade: Advocacy groups and business leaders have spent big money trying to apply business principles to schools, a particular brand of school reform built around school choice and fewer job protections for teachers.

[…]

Texans for Education Reform emerged last year to make up for lost time and to shake schools from the status quo. “Most of the other interest groups in this space weren’t advancing agendas; they were restricting bills,” Texans for Education Reform consultant Anthony Holm told the Texas Tribune last year. The group dispatched 19 lobbyists to the Texas Capitol, many of them highly paid, pushing charter school expansion, online learning and state takeover of low-performing schools. Texans for Public Justice noted the group was the 2013 session’s most formidable newcomer, debuting by spending as much as $1.2 million on lobbyists like former Senate education chairwoman Florence Shapiro, Rick Perry’s old friend Mike Toomey, and Adam Jones, a former deputy education commissioner.

The group’s spokeswoman, Sherry Sylvester, declined to discuss what the group will go after next session, offering only that it will advocate “research-proven reforms that empower parents, reinforce local control and provide pathways for intervention in chronically failing schools within a morally responsible timeline.”

Whatever that means, Texans for Education Reform will likely find itself in agreement with Democrats for Education Reform, which recently launched a chapter in Texas. That group—through a spinoff group called Education Reform Now Advocacy—has already distinguished itself as Texas’ No. 2 “dark money” spender in this year’s elections. Dark money is cash culled from undisclosed, usually corporate, contributors. In a flurry this spring, Democrats for Education Reform dropped $114,000 in anonymous cash on phone banks and mailers supporting four candidates: El Paso Reps. Marisa Marquez and Naomi Gonzalez; Ramon Romero, who upset longtime Fort Worth Rep. Lon Burnam in March; and Erika Beltran, a Teach for America alum who’s worked on school reform in Dallas, in a race for the State Board of Education.

[…]

Democrats for Education Reform has been around for years, with support from multi-billion dollar hedge fund managers. But its Texas branch is just getting started, led by Jennifer Koppel, whose past titles include vice president for growth at the IDEA charter school chain. Koppel says she’s still forming the group’s Texas-specific strategy. “We are definitely still trying to think about where we’ll get involved legislatively,” she tells the Observer, but that they’ll support candidates who’ve been engaged with school reform issues and aren’t “beholden to the old way of doing things.”

Texans for Education Reform may have the power of the Texas GOP establishment behind it, but Democrats for Education Reform’s national scope gives the group a different sort of strength. Koppel speculates her group might take Texas lawmakers to see school reforms in action in other states.

“For Democrats there is this constant questioning to say, ‘Are we doing the right thing?’” she says. “And they’re asking these questions. It’s hard in a vacuum to build that confidence.”

While conservative groups like the Texas Public Policy Foundation have embraced school choice from a free-market perspective, Koppel says there’s a simple reason Democrats should be enthusiastic about reform: “You’re looking at the places where these failing schools are, and they’re overwhelmingly places that are represented by Democrats. And you wonder where the disconnect is.”

Let’s start by stating the obvious: Texans for Lawsuit Reform is a malignant force in our politics, and any effort that is associated with them should be treated with deep suspicion, if not outright hostility. It’s always possible that they could end up on the right side of a given issue, but those cases are highly likely to be exceptional, and one should not lower one’s guard without a long and sustained demonstration of good faith on their part. Seriously, as much as possible, stay away.

As far as Democrats for Education Reform is concerned, the picture is a bit murkier. This is an area of often strong disagreement among people that otherwise agree on a lot of things. A lot of the dispute is about strategy and solutions, since for the most part there is common ground on what the problems are and what the goals, broadly speaking, ought to be. It’s a rift within Democratic circles that isn’t going away. Still, any time “dark money” is involved there’s ample reason for mistrust, and until Democrats for Education Reform articulate an agenda, it’s hard to know what to think. Keep your eyes and ears open and we’ll assess as we go.

Wallace Jefferson is still going on about judicial elections

In an interview in The Atlantic, former Supreme Court Chief Justice Wallace Jefferson rides his favorite hobbyhorse of partisan judicial elections.

Hon. Wallace Jefferson

I’ve been talking about this for a long time. And I am not the first one. Republican or Democrat Chief Justices for the last 30 or 40 years have been calling on the legislature to change the way judges come to the bench in Texas. It is a broken system. We shouldn’t have partisan elections. I do not like the concept of a Republican or Democratic judge. I think fundraising undermines the confidence in a fair and impartial judicial system. So I would change it completely if I were king.

The sad reality, given the system that we have, is that if a judge wants to remain on the bench they have to find a way to reach the voters. And the only way to do that in Texas is in the media market. If you are running a statewide campaign, there are about 26 million people in Texas. You have Houston, Dallas, San Antonio, and Austin, and all are major media markets. Even to mail campaign literature, you’ve got to spend hundreds of thousands of dollars. So I don’t defend the system. I would want to change it.

[…]

In your free time one day, take a look at the ballot in Harris County—that’s Houston—in a presidential year. If you look at that ballot, there will be several pages of judges who are standing for election, from the Supreme Court, Court of Criminal Appeals … There are district court judges, county court judges, probate judges, municipal court judges. In that one year in Harris County, there are probably 60 or 70 judges on that ballot. The voters have no clue about the experience or background of these candidates for office, and so what happens in Texas is that voters increasingly vote based upon partisan affiliation.

And we have the ability to straight-ticket vote here and so, in 2008, when I was on the ballot, it was McCain versus Obama, and Republicans in Texas by a large margin voted for McCain but they voted straight-ticket. So they voted McCain and every single Republican down the ballot. And in Harris County that year, Obama was extraordinarily popular so they voted for Obama and every Democrat down the ballot. I won [my] election easily, [but] in Houston there was almost a complete sweep of Republican judges — they were replaced by Democrats.

That makes no sense. These votes are not based upon the merits of the judge but on partisan affiliation and if its not party affiliation it’s the sound of your name. I said that almost all the Republican judges in Harris County lost—well, there were three exceptions. And in each of those cases, the Democratic candidate had an ethnic-sounding name. That’s no way to differentiate among candidates. And if it’s not partisan affiliation or the sound of your name, it’s how much money you can raise—which, as I said, undermines confidence in impartial justice.

We’ve discussed this before. I’m just going to note the following tidbit I learned from querying the Contributor records at the Texas Ethics Commission:

Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 5,000.00, 05/21/2001
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 8,015.00, 02/20/2002
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 5,000.00, 06/27/2002
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 5,000.00, 10/31/2005
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 2,500.00, 03/05/2007
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 7,500.00, 06/27/2008
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 2,500.00, 10/14/2008
Texans for Lawsuit Reform PAC, Wallace Jefferson For Texas Supreme Court, $ 5,000.00, 10/14/2008

When Wallace Jefferson is ready to talk about how judicial elections are financed, then I’ll be ready to take him seriously. Until then, as far as I’m concerned none of his proposals have any chance of actually achieving the reforms he says he wants.

Money in judicial races isn’t about partisanship

Dan Patrick isn’t the only one seeking to change how we select judges in Texas.

Rep. Justin Rodriguez

Freshman state Rep. Justin Rodriguez, D-San Antonio, is an attorney who has been frustrated for years by this state’s hyper-political process for selecting judges (and the big money that flows into those races), and he was tempted to prescribe a specific remedy during his first legislative session.

Rodriguez is a political realist, however, and he knows that any attempt to reduce the partisanship in our political system will itself be perceived as a partisan act. So he took a different course.

Rodriguez filed legislation Thursday that would create a bipartisan interim committee to study all options for improving the selection of state appellate and district judges. The committee would consist of five senators and five representatives and present its recommendations to the Lege at the beginning of the 2015 legislative session.

“I had a little bit of heartburn over this (bill), because I’m not the kind of guy who likes to study the life out of things,” Rodriguez said. “But realistically, this had the best chance of passing, and it starts the dialogue.”

It’s a dialogue that definitely needs to happen. This state is one of only six that continues to elect its supreme court justices in partisan races, and partisan judicial races tend to attract the most fundraising money. Between 2000 and 2009, $211 million in contributions flooded into state supreme court races in the United States, a 150 percent jump from the previous decade, according to a 2012 report by the Center for American Progress.

This culture of big-money bench manipulation inevitably seeps into appeals- and district-court races, with individual candidates standing in for the competing interests of the progressive Texas Trial Lawyers Association and the conservative Texans for Lawsuit Reform.

Removing party labels from judicial races wouldn’t be a panacea, but it likely would reduce bundling by large-scale party donors and lift some of the pressure that Texas judges feel to follow the party line.

Once they’re elected, a retention-election system could keep judges accountable by allowing constituents to decide whether they can stay on the bench. It might also alleviate the all-too-real nightmare of grandstanding Texas district judges sentencing 18-year-old kids to eight years, with no chance of parole, for graffiti and pot possession charges.

“If justice is truly blind, then we have to figure out a more sublime way of selecting the referees in these matters,” Rodriguez says. “I wish I could tell you what the silver bullet is, but I’m hopeful with this bill we can have a good debate on it.”

Rep. Rodriguez’s bill is HB 2772. I appreciate that Rep. Rodriguez doesn’t claim to already have an answer, unlike some people, but I continue to not understand the fascination with non-partisan and retention elections. As I’ve said before, I don’t see how the money disappears if the partisan labels go away. Labels or no labels, the money will be there because the interest in the outcomes will be there. It’s true that TLR tends to fund Republicans and TTLA tends to fund Democrats, but that’s because each group’s interests tend to align with the parties in question. TLR pours plenty of money into Democratic races as well, as we saw in the recent SD06 special election, because they seek to maximize their influence. If Democrats start dominating statewide races like Republicans have been doing, I guarantee you TLR will be right there backing the candidates that they think will be the most amenable, or the least hostile, to their interests. It’s the way of the world. If you want to change that, you have to take the money out of these races, which is an impossible thing to do in a post-Citizens United world.

Maybe I’m missing something. Maybe there is a way to truly blunt the influence of big campaign financiers that won’t run afoul of current law and precedent and which still allows the election of judges, if that’s what you want. I’m having a hard time seeing any path that doesn’t lead to an appointment system, if there is no change in campaign finance law. But maybe I’m wrong, and maybe Rep. Rodriguez’s study will come up with something that I’m not seeing. I doubt it, but it can’t hurt.

If eliminating straight ticket voting is the solution, then what’s the problem?

With the opening day of bill-filing season comes the recurrence of a not-so-old chestnut that like many other bills is a solution in search of a problem.

Sen. Dan Patrick, R-Houston, said he wants to end straight-ticket voting for judges because the political winds often determine the fate of a judicial candidate instead of qualifications.

“Most voters have no idea of who they are voting for, for judges,” Patrick said.

Patricia Kilday Hart calls Sen. Patrick’s bill a “step in the right direction”. Sorry, but I can’t agree with that. I’ll stipulate that most voters don’t know who they’re voting for in judicial races. Unless you’re a lawyer or otherwise have regular business with the legal system, how can you possibly evaluate judges and wannabe judges? The problem I have with Sen. Patrick’s solution is that it does nothing to add to the publicly-available body of knowledge about judicial candidates. If anything, it subtracts from it. Partisan identity is a blunt instrument to be sure, but it does at least tell you something about Judge Johnson or Attorney/Candidate Smith. How is taking away that bit of information going to help the average voter know who they’re voting for?

As I see it there are more pressing problems with the way we elect judges in this state, and Sen. Patrick’s bill does nothing to address them. As I’ve said before, big players like the Texas Trial Lawyers Association and especially Texans for Lawsuit Reform, of which the state Supreme Court is a wholly owned subsidiary, will not be constrained in any way by Sen. Patrick’s proposal, or by non-partisan judicial elections, or by retention elections in an appoint-and-retain system. For that matter, the ability of a crank with a grievance against a sitting judge to finance an opponent for that judge would also be left unmolested. If the concern is about the effect of money on our judicial elections – and Lord knows, there needs to be concern about this – then making judicial elections publicly financed is likely to be the optimal solution, assuming they can withstand the inevitable lawsuit and a suitable funding mechanism can be found. If you think that electing judges at all is the problem, I can sympathize with that, but then you need to propose a system that can handle the appointment of nearly 2000 non-municipal judges statewide that isn’t likely to become a patronage mill. Again, I agree that our system of partisan election of judges is problematic. It’s just that all of the proposed solutions I’ve seen so far do nothing to actually address those problems.

30 Day campaign finance reports, selected legislative races

Here’s a sampling of 30 day finance reports from state legislative campaigns. I used the Back to Blue list as a starting point and added a few races of interest to me from there.

Dist Candidate Raised Spent Loan Cash ========================================================== SD10 Davis 843,878 346,466 0 1,537,783 SD10 Shelton 606,586 153,204 0 566,825 SD25 Courage 27,603 14,791 0 14,546 SD25 Campbell 566,920 592,332 90,000 7,407 HD12 Stem 29,228 23,325 0 24,566 HD12 Kacal 58,460 33,438 0 30,196 HD23 Eiland 134,051 80,923 0 101,419 HD23 Faircloth 92,890 46,816 30,000 43,089 HD26 Nguyen 12,051 22,808 0 10,840 HD26 Miller 45,765 27,995 1,000 9,496 HD34 Herrero 69,722 49,667 0 25,655 HD34 Scott 125,430 68,349 0 255,629 HD43 Toureilles 46,170 23,973 0 11,585 HD43 Lozano 260,590 185,421 0 89,770 HD45 Adams 48,020 25,800 36,000 32,241 HD45 Isaac 128,502 44,595 140,250 69,918 HD78 Moody 73,754 48,371 0 21,858 HD78 Margo 306,071 82,170 0 202,898 HD85 Olivo 9,738 3,490 2,150 10,143 HD85 Stephenson 34,696 16,146 0 21,677 HD102 Hancock 27,245 4,924 0 7,380 HD102 Carter 112,821 109,543 0 66,776 HD105 Robbins 24,687 36,999 1,505 30,583 HD105 H-Brown 123,449 68,244 52,615 87,997 HD107 Miklos 74,020 56,401 0 24,707 HD107 Sheets 280,354 96,777 0 146,778 HD114 Kent 121,236 89,824 0 132,748 HD114 Villalba 172,885 147,326 0 42,612 HD117 Cortez 48,015 44,610 1,844 18,620 HD117 Garza 52,559 72,669 0 62,371 HD118 Farias 51,015 34,925 0 25,482 HD118 Casias 23,730 21,714 0 852 HD134 Johnson 217,346 103,699 0 263,301 HD134 Davis 332,120 99,582 0 232,383 HD136 Stillwell 61,060 20,842 2,000 8,632 HD136 Dale 112,273 22,798 35,000 82,853 HD137 Wu 58,221 55,152 50,000 32,263 HD137 Khan 55,351 40,877 10,000 23,894 HD144 Perez 104,939 30,082 0 107,729 HD144 Pineda 77,357 49,460 0 33,428 HD149 Vo 38,665 27,632 45,119 48,768 HD149 Williams 134,990 56,342 1,500 74,222

Here’s a sampling of July reports for comparison. A few thoughts:

– I don’t think I’ve ever seen a greater disparity in amount raised and cash on hand as we see here with Donna Campbell. Campbell, of course, had a runoff to win on July 31, which covers the first month of this filing period, and a cursory perusal of her detailed report shows the vast majority of the action was in July, as you’d expect. I’d still have thought she’d collect more cash after the runoff, since she’s a heavy favorite to win in November. Assuming she does win, we’ll need to check out her January report from 2013.

– Overall, the Republicans have done a very good job of raising money to protect their vulnerable incumbents. The main exception to this is John Garza in HD117, though he still leads his opponent, Phillip Cortez. The difference between Rs and Ds on amount spent is a lot smaller, which may indicate that their strategy is to do a late blitz, or it may mean they’re just sitting on a lot of cash.

– Turncoat Rep. JM Lozano initially filed a report with almost no cash raised and no expenses listed. Apparently, he “forgot” over $250K in contributions. That total includes $100K from Associated Republicans of Texas, almost $68K from Texans for Lawsuit Reform, $25K from Texas Republican Representatives Campaign Fund, $6K from the Texas House Leadership Fund, $15K from Bob Perry, and just for good measure, $2K from Koch Industries. Hey, I’d want to forget about all that, too. Here’s his current corrected report; there may be another to come.

– After a somewhat anemic July report, Rep. Sarah Davis kicked into overdrive for this period. Ann Johnson, who has an ad I’ve seen a few times on the Headline News Network, did a pretty good job keeping pace, and still has a cash on hand advantage. I presume Davis has some ads running as well, since she got a $100K in kind contributions from Texans for Lawsuit Reform for TV advertising, but I have not seen any such ads myself. She also collected $100K total from Associated Republicans of Texas ($65K) and Texas Republican Representatives Campaign Fund ($35K), plus $20K from Bob Perry.

– Mary Ann Perez had the next most impressive haul after Ann Johnson, showing some very strong numbers for that open swing seat. I presume her strategy is the do a late push as well, given the cash she has on hand. And given the money they’ve sloshed around to so many other candidates, I’m surprised David Pineda hasn’t been the beneficiary of a few wads of dough from the usual suspects. We’ll see what his 8 day report looks like.

– If your eyes bugged out at Dianne Williams’ totals in HD149, I assure you that mine did as well. A closer look at her detailed report shows that nearly $115K of her total came from one person, a Mrs. Kathaleen Wall. Another $5K or so was in kind from various Republican PACs. Take all that out and her haul is much less impressive. The money is hers to spend, of course, it’s just not indicative of some broad-based support.

That’s all I’ve got. Anything interesting you’ve seen in the reports?

Mighty pricey Main Street you’ve got there

My Irony-O-Meter goes to eleven.

Can I be your sugar daddy?

A Houston-based super PAC is targeting a dozen Democratic and Republican incumbents to reshape the political landscape in five states, including Texas where critics say an election law loophole is being used by a wealthy family to buy a seat in Congress.

The Campaign for Primary Accountability, a conservative political action committee whose largest donor is Houston builder Leo Linbeck III, is working to defeat Rep. Sylvestre Reyes, D-El Paso, and Rep. Eddie Bernice Johnson, D-Dallas.

The PAC is funding challenges to Reyes and Johnson and congressional Democrats in Ohio deemed entrenched and vulnerable to strong challengers.

[…]

The Super PAC has raised $1.8 million to aid challengers in contested primaries where incumbents hold an advantage because of seniority and backing from special interests and Washington lobbyists.

Ellis said the PAC is helping strong challengers against incumbents by leveling the playing field and dilute the power of special interests.

“It’s not about party, it’s about process,” Ellis said. “We want the people of Congress to fear Main Street, not K Street.

“The insiders, the lobbyists, give the incumbents the advantage. We want to equalize that,” Ellis said.

And the way they want to do that is by giving challengers their own obscenely wealthy benefactor:

The largest donor to the Campaign for Primary Accountability, Linbeck, gave $775,000. He is a staunch advocate for tax reform and smaller government.

“We are not funding parties and we are not funding incumbents,” Ellis said. “We are using the power of the system the way it has been adjudicated at the Supreme Court level.”

Well, I can’t argue with that, though I do hope that SCOTUS will rethink the wisdom of that decision. I just can’t say I know anyone on my street who can afford to drop $775K on political campaigns. Forget Main Street, my problem is that I don’t live on Linbeck Street. Leo Linbeck III is the son of Leo Linbeck, Jr, who is one of the founders of Texans for Lawsuit Reform and one of the longtime occupiers of a seat in the owners’ box at the Texas Lege. Always nice to see a son follow in his daddy’s footsteps, isn’t it?

The Super PAC supports Dallas lawyer Taj Clayton in a crowded Democratic primary.

They also support Beto O’Rourke in El Paso. Both Clayton and O’Rourke did very well in the last quarter’s fundraising report, and no doubt some Linbeck love helped them considerably. As ludicrous and distasteful as I find this, I don’t consider this to be a disqualifier for either candidate. O’Rourke has some solid progressive credentials; I don’t know much about Clayton but in general I’m supportive of new young faces on the scene. Ideally, if either or both were to win, I’d hope they spend their careers pushing legislation that the Leo Linbecks of the world abhor. But folks usually do dance with them that brung ’em, and I certainly won’t argue against anyone who would oppose them for taking Leo Linbeck’s money. In the meantime, consider this Exhibit 459,831 for Why We Need Real Campaign Finance Reform.

Still more evidence that tort “reform” is a scam

Recently, I blogged about a Public Citizen report that documented the ways in which tort “reform”, specifically medical malpractice damage caps, are a scam that has done none of the things its backers promised. You might have read that and thought “sure, but Public Citizen is a lefty group, and so they would never have liked med mal caps to begin with”. If so, then you should know that a researcher at the libertarian Cato Institute just released a paper that came to similar conclusions. Here’s a quote:

When asked how consumers benefit from medical malpractice insurance, industry executives typically mention only patient compensation. Yet much more is at work.

Competition in the market for medical malpractice insurance, and each insurer’s interest in reducing its exposure to malpractice awards, leads insurers to provide oversight that protects consumers from physician negligence. Malpractice underwriters review physicians annually. They evaluate claims histories and investigate loss of hospital privileges, substance abuse, and loss of specialty board certification. They alert the medical community to situations that result in bad outcomes and offer advice on how to reduce such outcomes. The evidence presented here shows that physicians pay a price for putting patients at risk. Carriers reward claims-free physicians and physicians who take part in risk-management activities. The industry provides oversight of risky practitioners, dictates patterns of practice, monitors the introduction of new procedures, imposes policy exclusions for specific activities, and denies coverage in the most egregious cases, precluding affiliations that require insurance.

More broadly, patients derive protection from an interdependent system of physician evaluation, penalties, and oversight that includes hospital and health maintenance organization credentialing and privileging activities, specialty boards, and the medical malpractice insurance industry. Underlying nearly all of these activities is the threat of legal liability for negligent injuries. Reducing physician liability for negligent care by capping court awards, all else equal, will reduce the resources allocated to medical professional liability underwriting and oversight and make many patients worse off. Legislators who see mandatory liability caps as a cost-containment tool should look elsewhere.

So there you have it. And in the irony department, Texas Watch adds this:

The Cato paper is written by Shirley Svorny, an economics professor at Cal State-Northridge and an adjunct scholar at Cato. Her bio reports that she has participated in health policy summits hosted by the Texas Public Policy Foundation.

That would be the right wing, tort-“reform”-touting TPPF. Something tells me Professor Svorny will not be invited to share this research at their next meeting.

Credit where credit is due

State Supreme Court Chief Justice Wallace Jefferson calls on the Lege to protect legal aid funding.

The budget crisis threatens to leave the state’s neediest without legal representation, Jefferson said, and even now “the courthouse door is closed to many who have lost their jobs, veterans and women who struggle with physical abuse.” As he asked the Legislature to appropriate $20 million in general revenue dollars for basic civil legal services, he said 6 million Texans currently eligible for legal aid have been turned away because of a lack of funding.

He also emphasized the importance of rehabilitation, psychiatric care and vocational training for juvenile offenders.”Let us endeavor to give these kids a chance at life before sending them into the criminal justice system,” he said.

He said these remarks during his State of the Judiciary address, which you can read here (PDF); he also had praise for Sen. Rodney Ellis’ innocence efforts. I’m glad to hear him say these things, and I hope the Lege listens to him.

Also of interest to me is a subject that has come up before:

Echoing his 2009 address, Jefferson also strongly criticized the state’s system of electing judges on a partisan basis. “A justice system based on Democratic or Republican judging is a system that cannot be trusted,” he said.

Possible solutions? A constitutional amendment for the merit selection of judges or, at the very least, the elimination of straight-ticket voting for judges, which he said results in judges losing elections not for “poor work or poor ethics or controversial or courageous decisions” but because of partisan tides.

I criticized Justice Jefferson about this back in 2009, when it was easy to suspect partisan motives in the wake of widespread Democratic success, so I must give him credit for bringing this up again in the aftermath of 2010. (Far as I can tell, I can’t give the same credit to Big John Cornyn, not that this surprises me.) While I’m happy to note Jefferson’s admirable consistency on this issue, I still think his proposed solutions are inadequate and don’t address the real problem at all, which is the effect of big donors in judicial races. The Supreme Court is basically a wholly owned subsidiary of Texans for Lawsuit Reform, which is now a far greater offender in this area than the trial lawyers that TLR was formed to oppose ever was. When Justice Jefferson gets around to that, then we can have a real conversation about how to make the system better. Abby Rapoport has more.

If you’re going to reform it, reform it right

I agree with State Supreme Court Justice Wallace Jefferson that the way we elect judges in Texas needs reform. I just don’t think he’s proposing a real fix for the problem he’s identified.

Texas remains one of only seven states with partisan judicial elections. It requires judicial candidates to raise vast amounts of money, which leaves a skeptical public assuming that money influences the outcome, Jefferson said.

“The status quo is broken,” he warned.

He has issued the same warning to previous Legislatures. Sen. Robert Duncan, R-Lubbock, has tried several times to convert the state’s partisan judicial elections to merit-based judicial appointments followed by retention elections. But that plan has never passed.

“Sadly, we have now become accustomed to judicial races in which the primary determinants of victory are not the flaws of the incumbent or qualities of the challenger, but political affiliation and money,” Jefferson said. “In 1994, 2006 and again in 2008, district judges lost elections due to partisan sweeps in the urban counties.”

Jefferson acknowledged that his own re-election in November might just as well have been tied to Republican John McCain’s success in Texas as to any stellar credentials that his candidacy offered.

“And this is the point. Justice must be blind – it must be as blind to party affiliation as to the litigant’s social or financial status,” he said. “The rule of law resonates across party lines.”

Jefferson endorses a merit system as “the best remedy.” A merit system would allow the governor to appoint judges, who later would face voters in a keep-or-remove election.

“The state of our judiciary will be made stronger if we appoint our judges based on merit and hold them accountable in retention elections,” he said.

The Observer also reported on this; the Chron has more here and here. First and foremost, I’m sorry, but I can’t help but be suspicious at the motives of a Republican to propose such a scheme right after the Democrats began winning judicial elections in the two biggest counties. Yeah, he mentioned the sweep of 1994, too, but I don’t remember anyone calling for this reform then, or any other time in the 90s when the Republicans were taking over the state judiciary. Forgive my cynicism, but this sounds far too much like the newfound alarm over the evils of straight-ticket voting, which somehow managed to not corrupt the body politic when it favored the other team.

The main objection to what Justice Jefferson proposes is that it doesn’t seem to fit the problem. If we’re concerned about the effects, real and perceived, of big donors to judges and judicial candidates, how exactly does removing party labels help? Are you telling me that Texans for Lawsuit Reform would sit on the sidelines in those nice little non-partisan retention elections? Cause if you are, I’m not buying it. If the problem is too much money coming from too few donors, most of whom have business before the court, why not impose stricter limits on who can give to judicial candidates, and how much they can give? You can balance that out by creating a public campaign funding system for these races, available to candidates matching funds with some multiplier effect for small-dollar donations. That actually addresses the issue, in a way that Justice Jefferson’s proposal does not.

Finally, I guess I just don’t see the allure of gubernatorial appointments instead of elections. I mean, does anyone think Rick Perry is going to make these decisions based on merit, and not politics? Not me. I say if finances are the problem, then reforming the finances has to be the solution. Anything else strikes me as missing the point. Let’s start with Sen. Kirk Watson’s bill, which would require that “in an order granting, refusing, dismissing, or denying a petition for review, the supreme court shall state how each member voted on the petition or application”, and go from there.

UPDATE: What Burka said. I couldn’t agree with him more.