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Wallace Jefferson

Time again to talk judicial elections

Here we go again, like it or not.

In the wake of a midterm election that swept some 20 Republican appellate judges out of office, Texas Supreme Court Chief Justice Nathan Hecht called on the Texas Legislature to reform a system he called “among the very worst methods of judicial selection.”

“When partisan politics is the driving force and the political climate is as harsh as ours has become, judicial elections make judges more political, and judicial independence is the casualty,” Hecht told both chambers of the Legislature on Wednesday morning in his biennial address, a wide-ranging speech that touched on judicial salaries, technology and bail reform. “Make no mistake: A judicial selection system that continues to sow the political wind will reap the whirlwind.”

In recent history, partisan judicial elections have played well for Texas’ majority party; the state’s two high courts, in which justices run statewide, comprise all Republicans, as they have for two decades. But last year, as turnout surged in urban areas and voters leaned heavily toward the straight-ticket voting option, Democratic judges were swept onto the bench on the coattails of candidates like Beto O’Rourke. All told, Hecht said, in the last election, Texas’ district and appellate courts “lost seven centuries of judicial experience at a single stroke.”

“Qualifications did not drive their election,” Hecht said. “Partisan politics did.”

It wasn’t a new criticism, nor was it the first time Hecht has made such a call. Justices on Texas’ two high courts have been among the most vocal critics of a system that requires justices to run as partisan figures but rule as impartial arbiters, and the state has been challenged in court over the practice. But the call took on new significance after a shattering judicial election for Texas Republicans, who lost control of four major state appeals courts based in Austin, Houston and Dallas. Judges and lawyers who practice before those courts have fretted not just about the startling shift in judicial philosophy, but also the abrupt loss of judicial experience.

Hecht called on lawmakers to consider shifting to a system of merit selection and retention elections — or to at least pass legislative proposals that would increase the qualification requirements for judicial candidates.

You know how I feel about this, so I won’t belabor the point. I don’t doubt that Justice Hecht is sincere But:

1. Republicans have had complete control of Texas government since 2003. That’s eight regular sessions, and however many special sessions, in which they could have addressed this but chose not to.

2. Hecht and former Justice Wallace Jefferson have spoken about this before, but if anyone was talking about it before 2008, when Democrats first started winning judicial races in Harris County, I’m not aware of it.

3. The judges who were voted out may well have been experienced, but that doesn’t mean they’d make better judges than the candidates who replaced them. And the main consideration people had was voting for change. Maybe as part of the party in power, Hecht should given that a little more consideration.

Anyway. Until someone proposes an actual system to replace the one we have, one that takes into account the inherent politics of the process and deals with it in a way that truly enables merit and produces a judiciary that reflects the population it judges, it’s all just noise to me.

(Justice Hecht also had some loud and laudable words in favor of bail reform, which I appreciate. Go read the rest of the story for that.)

We’re still lousy at funding schools

In case you were wondering.

BagOfMoney

Texas still ranks in the bottom third of states in spending per pupil in the U.S., with essentially no change in either amount or standing, a new study shows.

The finding doesn’t help, and could undercut, the state’s position in a long-running school finance case.

Figures compiled by the National Education Association and released Friday show that Texas schools are spending an average $9,561 per student in the current school year. That is well under the national average of $12,251 and ranks Texas 38th among the 50 states and District of Columbia.

Of neighboring states, only Oklahoma spends less, said Clay Robison, spokesman for the Texas State Teachers Association, the state NEA affiliate.

Last year, Texas also was 38th in the comparisons, based on numbers furnished to the NEA by state education agencies. In the 2014-15 school year, Texas spent $9,559 per student in grades K-12, based on average daily attendance. The national average was $12,061.

In recent years, Texas has fallen about $1,000 per child further below the national average, said Noel Candelaria, president of the state NEA affiliate. This school year, Texas is $2,690 below the national average. Five years earlier, in 2010-11, it was $1,685 behind, he noted. Back then, Texas spent $9,462 per child. The 2010-11 academic year was the last one before the Legislature whacked $5.3 billion from public schools.

“At a time when the Texas Supreme Court is considering a lower court ruling that found the state’s school finance system unconstitutional, these figures tell a shameful story,” Candelaria said in a statement.

[…]

Combining budget writers’ decisions in the past two legislative sessions, the Legislature put an additional $6 billion into public schools, Solicitor General Scott Keller noted.

But former Chief Justice Wallace Jefferson, who appeared as a private lawyer for Dallas, Fort Worth and dozens of other districts suing the state, said lawmakers have put the districts in a straitjacket by raising expectations of student performance while lowering the state’s share of the total tab.

Meanwhile, the Legislature effectively has imposed an unconstitutional statewide property tax because “once again local districts are without meaningful discretion over their rates,” he said.

Even if one accepts Keller at his word, that barely takes Texas back to where it was before the 2011 cuts, and that’s without accounting for enrollment growth or stricter accountability standards. I don’t expect Texas to be at the top of a list like this, but we do have an awful lot of students who live in poverty, and an awful lot of students who come from homes where English is not the primary language spoken. We also don’t do much in terms of pre-kindergarten, meaning that not only do we have a lot of high-need students to educate, we let them fall farther behind by not preparing them for school ahead of time. Yet we demand more of our districts and our students. It makes no sense.

The argument stated by former Justice Jefferson is basically what the Supreme Court found in the last school finance lawsuit, in 2005. That led to the 50-cent cut in local property tax rates, which was supposed to be made up by the state in the form of the business margins tax and other sources. We all know how that has gone. Having the state pay a higher share of the public education budget is the right idea – local districts have been shouldering an ever-increasing about of the burden in recent years – but it needs to be done in a way that doesn’t allow the state to shirk its responsibilities. I hope that’s what this Court has in mind, and if so I wish them luck in writing an opinion that will get the Lege to do what it needs to do.

Once again to the Supreme Court for school finance

Like deja vu all over again, and again and again and…

BagOfMoney

The Texas Supreme Court is again faced with determining whether the state’s method of funding public schools is unconstitutional, the latest in a series of school finance challenges stretching back more than 30 years.

In oral arguments Tuesday, lawyers representing the state argued that the current system lives up to constitutional mandates that it provide a “general diffusion of knowledge” to public school students. Attorneys for the more than 600 school districts who sued the state said money cut from public education was never fully restored even as lawmakers instituted tougher standards on students.

“This is a case about who gets to decide and who sets education policy in the state. Our argument is simple: It’s the people’s representatives. It’s the Legislature,” Solicitor General Scott Keller said after the hearing. While the system isn’t perfect, he said, lawmakers rather than the courts should determine the future of school finance.

“The state’s interest here is (to) end this perpetual cycle of litigation,” Keller said.

I would certainly agree that the Lege has it within its power to fix this problem once and for all, or at least for longer than seven years at a time. The fact that we do keep coming back to the courts strongly suggests that they do a lousy job of it. There’s a reason why the conventional wisdom – backed by quite a bit of reality – is that the Lege only really addresses this when the Supreme Court orders them to do so. For a different perspective:

Richard Gray III, representing 443 school districts including Pflugerville and Hutto, said other statistics prove the state education system is falling short of its goals — including that only 38 percent of low-income students and English-language learners capable of earning a passing grade on entry-level college courses.

“I think that screams at you that this system is not doing what it desires to do,” Gray said.

Marisa Bono, representing school districts with high numbers of low-income students, said the state finance system “provides more advantages to students who already live in the most advantaged school districts.”

“Every year, the state delivers tens of thousands of young people into our economy who are wholly unprepared,” Bono said.

Arguing on behalf of large school districts, including Austin, Wallace Jefferson said the Legislature has failed to create a finance system that meets its goal of preparing high school students for college or a career.

“We believe we have proved that the system fails the Constitution because we have done the analytical work that the Legislature has failed to do,” said Jefferson, former chief justice of the court.

One hopes former Justice Jefferson knows how to get through to his erstwhile colleagues. We will get a decision when they’re damn good and ready, which for school finance cases usually means in a few months, so early-ish in 2016. Don’t worry, any special session will be for after the primaries. Trail Blazers and the Observer have more.

On succeeding, and defending, Ken Paxton

Ross Ramsay:

Best mugshot ever

While Ken Paxton fights to avoid convictions and jail time on indictments alleging securities violations — and to keep his job as Texas attorney general — a muted and unofficial conversation about who will succeed him is already underway.

[…]

That considerable legal predicament opens the conversation about whether Paxton can survive politically. Any felony conviction, whether it involves prison or not, would cost him his law license and probably whatever remains of his term. And that could set up an appointment of his successor by Gov. Greg Abbott — his predecessor as attorney general.

That leads to this: There is a political fluster underway that most people know nothing about.

Names of possible Paxton successors are floating around in Republican circles: Supreme Court Justices Don Willett and Eva Guzman; former Chief Justice Wallace Jefferson; current and former first assistants to the AG Chip Roy and Daniel Hodge; [Dan] Branch and [Barry] Smitherman, the two also-rans in last year’s Republican primary. It goes on, picking up Education Commissioner Michael Williams and state Rep. Jason Villalba of Dallas.

The people in the preceding paragraph have a few things in common. They are Republicans. They are lawyers. They are not openly campaigning for Paxton’s job. Some support Paxton and hope he emerges without a mark. And they make up a pretty good list of viable candidates for state office, whether it turns out to be this one or something in the future. They’re from different parts of the GOP, and the infighting, should an opening occur, could be fierce.

I hope Paxton digs his heels in deep and hangs on to run for re-election even if he’s been convicted. What does he care what a bunch of insiders and establishment figures think about his “effectiveness” or “ability to govern?” They’re not the ones who elected him in the first place, and they’re not the ones who are steadfastly supporting him against all comers and all evidence. Scott Braddock explains.

Employees of Tim Dunn’s Empower Texans, a self-proclaimed conservative group, have tried to make the case that Texas House Speaker Joe Straus is somehow to blame for the legal problems Paxton now faces.

As Quorum Report publisher Harvey Kronberg has pointed out, this alleged swindling of investors amounts to the same kind of shenanigans that helped give rise to the Tea Party in the first place back in 2008 following the collapse of Lehman Brothers and the subsequent Wall Street bailouts.

What’s gotten less attention is the company at the heart of the Paxton indictment, Servergy, received government economic incentives that are strongly opposed by Sen. Konni Burton, R-Colleyville, and others who claim to be as conservative as they come.

Sen. Ted Cruz – one of Paxton’s biggest supporters and the man who more than anyone put his political capital behind him in the GOP primary runoff against Rep. Dan Branch – regularly rails against government interference in the marketplace.

In his crusade against the Export-Import Bank, a top priority of many Texas employers, Cruz has called the Republican Senate Majority Leader Mitch McConnell a liar and has repeatedly used the word “cartel” to describe lobbyists who represent job creators in his home state and elsewhere.

At the time Paxton was rounding up investors for Servergy, allegedly without disclosing his financial interest in the firm, the company was getting government incentives to move to his hometown. Among the details of Paxton’s situation is the fact that Servergy received rental assistance from the City of McKinney so that it could relocate to North Texas from California.

[…]

Many of those same folks in the business community are understandably unaware of the way in which scorecards created and promoted by Empower Texans are reverse-engineered with the goal of aiding GOP politicians who have been adversarial toward Speaker Straus. Sen. Burton and AG Paxton have been beneficiaries of those tactics.

Paxton was also the recipient of at least $1.4 million in Empower Texans political money in the form of a $1 million loan and $400,000 cash as he ran for the Republican nomination.

As far as we know, Paxton is the only one of their allies who possibly gained from government economic incentives that went to a company from which he stood to profit financially.

If consistency or conservatism were the priorities of Dunn, his spokesman Michael Quinn Sullivan, and Sen. Burton they would likely be among the loudest critics of Servergy’s rental assistance.

But the name of the game for this particular cartel is control, not consistency.

Indeed, and that’s why I think any talk of who might succeed Ken Paxton is premature. Paxton knows where his bread is buttered. Until that support dries up, or until the voters actually do boot him out, I don’t believe he’s going anywhere.

On judicial elections and campaign finance

Ross Ramsey raises an interesting point.

BagOfMoney

It might seem silly to elect people who promise they won’t represent you, their political party or their donors, but that’s what we expect judges to do. They’re supposed to apply the law, and if they do any of those other things, they’re probably out of line.

Florida elects judges but bars them from raising their own campaign money. Lots of Texas judges — and Texas lawyers —would love to see similar restraints here.

“If you are an incumbent judge and you call a lawyer and ask for money, what is that lawyer going to say? No?” asks Wallace Jefferson, a former chief justice of the Texas Supreme Court who now practices law in Austin. “That incumbent judge is going to raise more money. But no one should feel pressured to contribute.”

Better, he says, to take the judges out of the fundraising business and leave the transactional part of politics to campaign committees and others.

It could happen: The U.S. Supreme Court upheld Florida’s law [in April] after challengers said it violated their First Amendment rights. That court was also concerned with whether asking for money sullied the impartiality of the elected judges. The court decided that was a serious enough public interest to justify the fundraising restriction.

“Simply put, the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors,” Chief Justice John Roberts wrote in the majority opinion.

[…]

This legislative session, state Rep. Rafael Anchia, D-Dallas, filed a bill that would start public financing of campaigns for appellate judges in Texas. It was sent to the House Elections Committee on March 9 and never heard from again.

Sen. and former state District Judge Joan Huffman, R-Houston, has a bill that would eliminate straight-ticket voting in judicial races — the idea is to free judges from the slings and arrows of party politics. That one is stalled, as is its identical twin in the House, filed by Rep. Kenneth Sheets, R-Dallas.

Jefferson and Tom Phillips, who preceded him as the Texas high court’s chief justice, wrote an amicus brief in the federal case, along with a couple of former chiefs of Alabama’s Supreme Court. “As former Chief Justices who have observed countless elections in our own States, and run as candidates for judicial office, we are well-acquainted with the genuine dangers — and sometimes actual abuse — present when judicial candidates personally solicit campaign contributions from parties and lawyers,” they wrote.

Now that the Florida law has been upheld, Jefferson thinks “it would be a step in the right direction” for Texas to take judges out of the campaign fundraising business.

“To me, money is not in the center except to the extent that the public believes, if a judge is accepting money from a lawyer or litigant, that they’ll be more likely to favor that lawyer or litigant,” Jefferson says. “I don’t believe that is generally true, but the public believes it. And I understand that belief. It undermines the ideal of impartial justice.”

I have been critical of Wallace Jefferson in the past for promoting the non=solution of making judicial elections non-partisan while ignoring the real problem of how judicial races are financed, so let me compliment him here for his advocacy for doing something about that problem. Pigs will fly before the Lege passes a bill allowing any kind of public financing of elections, but it’s still worth pursuing (kudos to Rep. Anchia for filing a bill this session to do that). If Jefferson, Tom Phillips, and Nathan Hecht can all support this, a bill like Rep. Anchia’s could get bipartisan support. The money people will fight it to the death, but that’s a fight we should all be willing to engage. Let’s get a nice long list of coauthors for this bill next time.

State bar grievance filed against Paxton

It’s getting to be hard to keep track of all of the complaints and legal actions being filed against the man who would be the state’s top lawyer. This one is a grievance filed with the State Bar of Texas by another watchdog group.

Sen. Ken Paxton

In its grievance, the Austin-based Texas Coalition on Lawyer Accountability requests that the state bar investigate whether Paxton broke at least four rules involving the disclosure of conflicts of interest.

“Like every other Texas lawyer, Mr. Paxton must comply with the legal ethics rules that govern the legal profession,” the coalition said in a news release.

Once a grievance is filed with the state bar, the Chief Disciplinary Counsel’s lawyers review it to see whether it actually alleges violations of the Texas Disciplinary Rules of Professional Conduct. If it does, it becomes a complaint that can lead to an airing of the issue in district court or before a panel of state bar lawyers from across Texas. If sustained, the complaint can result in the suspension or disbarment of an attorney.

Anthony Holm, a spokesman for the Paxton campaign, called the grievance “yet another political stunt” by a group with Democratic ties, pointing out the acting executive director does not have a law license. “Frankly, it’s a bit silly,” Holm said in a statement.

The coalition did not immediately respond to a request for comment Tuesday, but in announcing the grievance said it aims to hold lawyers accountable regardless of their political affiliations.

As you may recall, a criminal complaint was filed in July, and a complaint with the SEC was filed in May. I didn’t recall hearing about the Texas Coalition on Lawyer Accountability before, but I did note the complaint they filed in 2011 against Ken Anderson, John Bradley, and Mike Davis over the Michael Morton case. As a reminder, to myself as much as to you, they are “a nonprofit 501(c)(3) organization dedicated to educating the public and advocating the public interest to hold the Texas Legal profession accountable to its statutory, constitutional, and ethical obligations”. Their origin story is that the TCLA was established in 2010, initially to provide input from the public perspective on the proposed amendments to the Texas Disciplinary Rules of Professional Conduct. Here’s a letter they sent to then-Chief Justice Wallace Jefferson outlining their concerns. They eventually won a victory over this issue in 2011, when the proposed changes were voted down by the bar members.

Anyway. They’re definitely on the do-gooder side of things, but I wouldn’t dismiss their track record. Here’s their statement on the grievance, which outlines the basics of Paxton’s admitted and alleged bad deeds, the complaint narrative, which is the long version of the story, and the actual complaint form that they filled out. Any lawyers want to weigh in on this?

The money is the problem

A story of interest from North Carolina.

BagOfMoney

The ad first appeared on television the Friday before last, a black-and-white spot charging that Justice Robin Hudson coddled child molesters and “sided with the predators” in a North Carolina Supreme Court dissent. It has run constantly since.

As notable as the ad’s content and frequency, though, is its source. It was created and aired not by one of Justice Hudson’s two opponents in Tuesday’s primary election, but by a group that had just received $650,000 from the Republican State Leadership Committee in Washington, which pools donations from corporations and individuals to promote conservatives in state politics and is now broadening its scope to target judicial races.

The sums have been unusual for such elections. The primary race for Justice Hudson’s Supreme Court seat alone has drawn more than $1 million — the bulk of it by independent groups including the Republican committee and an arm of the state Chamber of Commerce, which has spent $250,000 to promote both of her opponents with money from companies including Reynolds American, Blue Cross Blue Shield and Koch Industries.

[…]

Chris Kromm, executive director of the Institute for Southern Studies in Durham, N.C., which is tracking spending and television ads, said, “The sitting justice could be primaried out because of this avalanche of independent spending on behalf of the two conservative candidates.”

Justice Hudson has raised a few hundred thousand dollars and spent $86,000 fielding a defensive ad. She has been spending long days attending breakfasts and barbecue benefits across the state’s 100 counties, seeking to build her name recognition and fire up supporters to vote in a primary where they may not see much at stake.

[…]

Judges on higher courts are elected rather than appointed in 22 states, and in 16 more they must face retention elections at some point after their selection, according to Justice at Stake, an advocacy group in Washington. Corporations and political parties — and trial lawyers and unions — seek ideologically compatible state judges, legal experts say, because their rulings can affect redistricting and laws on such key issues as liability, medical malpractice and workers’ compensation.

The growing influx of interest group spending is transforming judicial elections and raising concerns about conflicts of interest. In 2012, $30 million was spent nationwide on television advertising for state court races, often involving attack ads, according to a report last fall by the Brennan Center, Justice at Stake and the National Institute on Money in State Politics.

“Judicial races are getting swamped in this tidal wave of political money,” said Bert Brandenburg, a former Justice Department official who is the executive director of Justice at Stake. The Republican state committee has already used North Carolina as a test case. In 2012, it financed ads extolling a sitting Supreme Court justice, Paul Newby, known to be a Republican, to help him beat back a challenge from Sam “Jimmy” Ervin IV, an appeals court judge and grandson of former Senator Sam J. Ervin Jr., who died in 1985.

[…]

The explosion in outside funding is the latest development in a winding path for North Carolina’s judicial elections. In 2002, in an effort to curb spending and level the playing field, North Carolina, then under Democratic control, established public financing for races. It also said the races must be nonpartisan.

Emphasis mine. Did you hear that, Wallace Jefferson? This is happening in a state that already has non-partisan judicial elections. I’ve said all along that removing party labels from judicial candidates will do nothing to curb the influence of outside groups, and here’s the proof. North Carolina had a good idea, but recent Supreme Court decisions that have eviscerated campaign finance laws have rendered that idea moot. Until we do something about that, we’re not even tinkering around the edges. Link via Ed Kilgore.

As it happens, Judge Hudson made the cut in her primary and will be on the ballot in November, where I’m sure she’ll continue to face this kind of barrage. TheChron editorial board, in an otherwise laudable piece about the need for greater accountability among judges, also lamented the partisan election process for judges and pushed for an appointment-with-retention-elections system. Putting aside the fact that retention elections would have the same problems with big money that our current system has, you still have to design an appointment system that isn’t inherently political and also has the capacity to handle the thousand-plus elected judicial offices in Texas. As I keep saying every time this subject comes up, I don’t necessarily favor the system we now have. It has plenty of warts and weaknesses, no doubt about it. But all the would-be reformers I come across never mention the money issue, and they almost never discuss the pros and cons of their preferred alternative as well as the ones they don’t prefer. I’d be a lot more open to their suggestions if I felt like they they were honestly accounting for their positions instead of just dumping on the status quo. Convince me it’s a change for the better and not just a change for the sake of change. The system we have now may not be good, but that doesn’t mean that the alternatives would be an improvement.

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.

Wallace Jefferson to resign

This is his last month.

Hon. Wallace Jefferson

Wallace Jefferson, the first African-American to be chief justice of the Texas Supreme Court and one of the most respected jurists in the nation, is resigning his position effective Oct. 1.

In an interview Monday, Jefferson said that he informed Gov. Rick Perry of his decision last week and that an official announcement will be issued Tuesday.

The governor is expected to appoint a new chief justice quickly. That appointee will have to run for election next fall.

Jefferson has served on the state’s highest court for a dozen years, nine of them as chief justice. He said financial pressures led to his decision, but he said he also had achieved most of the goals he had set out to accomplish.

“I love being chief justice because it is a great job,” Jefferson said in a telephone interview Monday. “I’m going to move on to some new challenges, though I’m not sure what yet.”

Legal experts say that Jefferson’s departure will have minimal impact on how cases are decided by the state’s highest court because he is viewed as a moderate on a bench packed with pro-business conservatives.

[…]

Jefferson said his biggest disappointment as chief justice was his inability to push through judicial selection reform, especially the elimination of electing judges through the partisan process.

“It is an irrational way of selecting judges,” he said. “Just because you have an ‘R’ or a ‘D’ by your name does not mean you are more qualified to be a judge.”

While Jefferson expressed doubt that judicial election reform is politically possible, he said, “Whether it will happen or not, it is still worth the fight.”

You know how I feel about that. Jefferson’s term expires next year, so his resignation does not create an extra slot on the ballot. It does mean that his appointed replacement gets to run as the incumbent. Jefferson did some good things on the court with respect to legal aid and improving transparency, and I wish him well in the private sector. The Supreme Court is in dire need of some new and broader perspectives, but as the story notes Jefferson’s resignation won’t change much. As with everything else in this state, that will ultimately have to come from the ballot box. The Trib has more.

Jefferson pushes for judicial reforms

Most of what Texas Supreme Court Chief Justice Wallace Jefferson had to say to the Lege during his biennial address was good stuff that I hope the Lege will heed.

Wallace Jefferson

Presenting his State of the Judiciary speech to Texas lawmakers, Jefferson said that “wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free” and recommended the Legislature create a commission “to investigate each instance of exoneration, to assess the likelihood of wrongful convictions in future cases, and to establish statewide reforms.” He cited the recent exoneration of Michael Morton, who spent nearly 25 years in prison for murder.

The creation of such a commission nearly passed in 2011, but failed at the last minute. Part of the opposition has come from Jeff Blackburn, chief legal counsel of the Innocence Project of Texas, a nonprofit organization that attempts to overturn wrongful convictions and investigate why they happen in the first place. He said recently that such a commission would have to be “extremely well-funded,” and would more likely become “a paper commission that would give a lot of people an excuse to turn away from a lot of the real issues we face in the criminal justice system.”

But the bill creating such a commission, House Bill 166, by state Rep. Ruth Jones McClendon, D-San Antonio, got a favorable review from the House Criminal Jurisprudence Committee on Tuesday.

Jefferson also pushed for indigent defense and more money for civil legal aid. “We must do more,” he said, “to keep the courthouse doors open for all of our neighbors.” He called on lawmakers to increase the amount of funding dedicated to organizations that provide indigent civil legal aid and criminal defense.

Jefferson touted reforms in creating an electronic filing system to lessen the use of paper in courts statewide. “Our courts operate much like they did in 1891,” he said, “with paper, stamps on paper, cabinets for paper, staples, storage, shredding of paper.” He backed Senate Bill 1146, by state Sens. Royce West, D-Dallas, and Robert Duncan, R-Lubbock, to decrease the cost of electronic filing, which he called “a key to ensuring access to our judicial system.

“The era of big paper is over,” he said, prompting laughs and applause from lawmakers.

Finally, Jefferson announced the creation of a special committee of the Texas Judicial Council to look at reforming the state’s guardianship system, in which court appointees make decisions and manage the interests of incapacitated individuals. “An exploding elderly population will stress the guardianship system,” he said. “We must begin to address these issues and prepare.” Currently, he said, Texas has 368 state-certified guardians handling 5,000 guardianships. The number of individuals needing guardianship, he said, is 40,000.

The Statesman has more:

Jefferson also criticized the practice of writing Class C misdemeanor tickets for disruptive conduct in Texas schools, forcing children to answer the charge in court and leaving some, particularly those who cannot afford a lawyer, vulnerable to arrest and a criminal record.

About 300,000 such tickets are written each year, he said.

“We are criminalizing our children for nonviolent offenses,” Jefferson said. “We must keep our children in school, and out of our courts, to give them the opportunity to follow a path of success, not a path toward prison.”

Bills that have been filed to address these concerns are SBs 393, 394, and 395, all by Sen. Royce West. Everything mentioned here by Justice Jefferson is something I support. My only complaint is this:

Another regular feature of these speeches is a call for lawmakers to revisit the way judges are selected. Currently, the judges are elected in partisan contests. “A justice system based on Democratic or Republican judging is a system that cannot be trusted,” Jefferson said during his last speech before the Legislature.

This session, several bills aim to address this issue. State Sen. Dan Patrick, R-Houston, has filed SB 103, which would end straight-ticket voting in judicial elections, where a single selection of Democrat or Republican at the top of the ballot carries through elections for all offices, including judges. Two years ago, Jefferson explicitly called for this policy change, saying straight-ticket voting led to “hordes of judges replaced for no good reason.”

*sigh* You know how I feel about this, so I’ll spare you another rant. Let’s just say I hope the rest of Justice Jefferson’s agenda gets a higher priority from the Lege than this does. Grits and EoW have more.

Henson removed from DeLay appeals case

Score one for Team DeLay.

Are YOU fit to judge me?

Former U.S. House Majority Leader Tom DeLay has won a tactical victory with the removal of Justice Diane Henson, a Democrat, from his appeal.

A motion to remove Henson was granted late Friday without comment and posted on the 3rd Court of Appeals’ website. The action might put the much-delayed appellate case back on track.

“All we ever asked for was a level playing field,” said Brian Wice, DeLay’s appellate lawyer from Houston. “That wasn’t going to happen as long as Justice Henson’s DNA was on the case.”

In his motion, Wice had complained about what he called “anti-Republican” comments Henson had made about his client, a prominent Republican, several years ago.

[…]

When Wice challenged Henson, the 3rd Court was down to Chief Justice Woodie Jones, a Democrat, and Justice Melissa Goodwin, a Republican, to decide whether Henson could hear the DeLay case.

Texas Supreme Court Chief Justice Wallace Jefferson added a third, temporary justice to hear the motion against Henson. He appointed San Antonio District Judge David Berchelmann Jr., a Republican and a former criminal appellate justice.

With Henson now off the case, Wice said Saturday he expects Jefferson will appoint a justice to hear oral arguments with Jones and Goodwin.

See here, here, and here for background. I seriously doubt this ruling would make any difference in the outcome of DeLay’s appeal, but now there’s one less cause for appeal if he loses again. Let’s get this show on the road already. Postcards and Hair Balls have more.

Will the last judge on the Third Court of Appeals please issue a ruling on Tom DeLay?

The way this is going, we may have to start importing judges from other states.

Are YOU fit to judge me?

Former U.S. House Majority Leader Tom DeLay’s appeal has taken an unexpected turn as three Republican justices removed themselves from his money laundering case in just a matter of days.

That leaves the fate of DeLay, a high-profile Republican who argued that he couldn’t get a fair trial in the Democratic Travis County, in the hands of a 2-1 Democratic majority on the 3rd Court of Appeals.

For now.

On Friday, DeLay’s appellate lawyer, Brian Wice, filed a motion to remove Justice Diane Henson, a Democrat, because of “anti-Republican” remarks she made at the state Democratic Convention in 2006.

[…]

In his motion, Wice said Chief Justice Woodie Jones, a Democrat, and two Republicans, Bob Pemberton and Jeff Rose, were initially scheduled to hear oral arguments.

Then, last week, Wice said he learned that Henson had replaced Pemberton and that Rose was stepping aside as well. But Rose’s replacement, David Puryear, another Republican, removed himself Thursday.

That left the lone remaining Republican on the court, Melissa Goodwin, to join her two Democratic colleagues.

Justices typically don’t say why they recuse themselves, but in Pemberton’s case, his re-election opponent is Bryan Case, a prosecutor involved in the DeLay case.

Puryear stepped aside Thursday, and Wice filed his motion challenging Henson’s impartiality the next day.

First they have to decide who will hear Wice’s motion to recuse Judge Henson, which may require a judge from another court being appointed for that hearing by Supreme Court Chief Justice Wallace Jefferson. Then, if Wice is successful in his attempt, a third judge will need to be appointed to hear the case, since there are no more judges on the Third Court who haven’t already recused themselves. Recusals have been the norm in this case and in the related case of DeLay associates Jim Ellis and John Colyandro. I once suggested we skip all of this folderol and go straight to the World Court in The Hague. Looks to me like that’s still a good idea.

Again with judicial elections

Here we go again.

Texas is one of seven states that holds partisan elections for judges, a practice that one watchdog group says can lead to conflicts of interest.

“We have a judiciary at the highest level, the Texas Supreme Court, that gets 40 to 50 percent of its campaign money from the very people who are practicing before that court,” said Craig McDonald, head of Texans for Public Justice, a follow-the-money political watchdog.

He thinks a fix is pretty easy: Move to an appointed judiciary. And he’s not alone. Texas Supreme Court Chief Justice Jefferson Wallace said as much in his State of the Judiciary speech before the Legislature in 2011.

“A justice system built on some notion of Democratic judging or Republican judging is a system that cannot be trusted,” Wallace told lawmakers.

He argued that appointing the judiciary would keep judges from bending to political winds.

“I would eliminate straight-ticket voting that allows judges to be swept from the bench, not for poor work, not for bad ethics, not for bad temperament, not even for controversial but courageous decisions — but purely because of party affiliation,” he said.

McDonald said the biggest problem with party affiliation is that it can draw judges into the same ideological battles fought by candidates seeking legislative office.

“Our judges act as if they’re politicians,” he said. “They run on partisan ballots, they raise money, they get elected on partisan ballots. They’re more politicians then they are judges in many respects.”

I’ve said this multiple times, so I’ll try to keep this brief. I believe it is naive in the extreme to think that you can de-politicize the process of selecting judges. If you go to a gubernatorial appointment system, it means that judicial wannabees will spend their time sucking up to whoever is Governor. Under this Governor, that would mean every judge would be a federal-government-hating Republican. Even with a more even-handed Governor, if the appointment system comes along with “nonpartisan” retention elections, do you really believe that players like Texans for Lawsuit Reform will sit idly by? Of course they won’t. About the only difference I can see is that fewer people would be casting the ballots. How exactly is this an improvement?

I’m not saying the current system we have is best, just that every time another one of these stories about how appointing judges would lead to a golden era of puppies and sunshine appears no one ever bothers to bring these points up. To me, this debate is roughly equivalent to the debate over term limits. Both are presented as solutions to the problem of how money influences elections, but to me they’re at best workarounds and at worst admissions of defeat. If the problem is with the influence of money on elections, then the solution is to reform how elections are financed. How we get there in the era of Citizens United is, I freely admit, a daunting challenge. Maybe a kludgey workaround is the best approximation of a solution we can achieve. If that’s the case, then let’s at least be honest about it.

Court of inquiry appointed in Morton case

Maybe now we’ll get some answers.

A special court will examine whether Georgetown District Judge Ken Anderson acted improperly when, as Williamson County’s district attorney in 1987, he prosecuted Michael Morton for a murder the authorities now acknowledge he did not commit.

Texas Supreme Court Chief Justice Wallace Jefferson convened a court of inquiry Thursday to examine allegations, leveled by Morton and his lawyers, that Anderson hid evidence that could have spared Morton from the murder conviction and almost 25 years in prison.

Jefferson also appointed District Judge Louis Sturns of Fort Worth to conduct the court of inquiry, a rarely used feature of the Texas criminal code designed to determine whether state laws have been broken.

“This is a historic moment for Texas justice,” said John Raley, a Houston lawyer who has represented Morton for free for the past eight years.

[…]

A court of inquiry is a fact-finding exercise that cannot result in a criminal conviction or punishment against Anderson, but a finding of misconduct could lead to criminal charges or disciplinary proceedings before the State Bar of Texas, according to Morton’s lawyers.

I have no idea how long this may take, but we may finally get some closure on this.

In the meantime, this made me angry.

[Last] week, the State Bar of Texas opened testimony in its lawsuit against a Lubbock attorney who faces possible disbarment for taking millions of dollars in compensation from 12 men cleared after DNA evidence showed they were innocent of charges. Attorney Kevin Glasheen acknowledges he collected $5 million in fees, a 25 percentage contingency fee taken from the payments the state of Texas pays to wrongfully convicted prisoners who prove their innocence.

Glasheen claims the fees are fair, saying his clients received more money from the state because he successfully lobbied for legislation increasing state payments to exonerees, from $50,000 to $80,000 for every year served in prison. He also says he kept only $3.5 million, sharing the rest with Amarillo attorney Jeff Blackburn, chief counsel for the Innocence Project of Texas, who assisted with the cases because of his expertise.

The Lubbock attorney entered into contracts with the wrongfully convicted men because he intended to file federal civil rights lawsuits on their behalf. But he changed his strategy, and chose to lobby for passage of legislation awarding more state compensation, rather than pursue the federal lawsuits.

Sen. Rodney Ellis, D-Houston, who has made helping wrongfully convicted people his signature legislative issue, was appalled at Glasheen’s enormous fee – and his reasons for collecting it. “It’s amazing, when a bill passes the Legislature, how everybody other than the people in the Legislature are responsible for it,” said Ellis, a co-sponsor of the legislation. “My staff and I did a heck of a lot of work.”

Ellis is board chairman of the Innocence Project of New York, an entity separately run from the Innocence Project of Texas, where Blackburn works. Ellis said he knows nothing about the inner-workings of the Texas-based group.

“I did not know they had this arrangement,” referring to Blackburn and Glasheen’s fees from the exonerated men, Ellis said. When they appeared at the Capital favoring his bill, “I thought they were there because they cared about the issue. I’m very disappointed.”

The State Bar ultimately lost their lawsuit, so Glasheen and Blackburn stand to collect their lobbying fees. Good luck sleeping at night, fellas.

Rethinking school discipline

Wow.

Nearly 60 percent of junior high school and high school students get suspended or expelled, according to a report that tracked about 1 million Texas children over a six-year period.

About 15 percent of the Texas seventh- through 12th-grade students tracked during the study were suspended or expelled at least 11 times and nearly half of those ended up in the juvenile justice system. Most students who experienced multiple suspensions or expulsions do not graduate, according to the study by the Council of State Governments Justice Center and the Public Policy Research Institute of Texas A&M University.

“The findings in this report should prompt policymakers in Texas and in states everywhere to ask this question: ‘Is our (public) school discipline system getting the desired results?’ ” said Michael Thompson of the justice center, one of the report’s co-authors.

The findings suggest an urgent need to stop the criminalization of students for simply misbehaving, said Sen. John Whitmire, D-Houston, longtime chairman of the Senate Criminal Justice Committee, and Texas Supreme Court Chief Justice Wallace Jefferson.

Some highlights from the study:

The report also found that during a six-year period, about 15 percent of the students studied were suspended or expelled 11 times or more — and more than half of those students had been on probation or incarcerated by juvenile justice authorities.

The study also found that:

• Nearly 6 in 10 public school students studied were suspended or expelled from at least one class during grades seven to 12, most of them at least four times.

• Only 3 percent of the disciplinary actions were for conduct for which state law mandated suspensions and expulsions; the rest were made at the discretion of school officials primarily in response to violations of local schools’ conduct codes.

• Repeated suspensions and expulsions predicted poor academic outcomes. Only 40 percent of students disciplined 11 times or more graduated from high school during the study period, and 31 percent of students disciplined one or more times repeated their grade at least once.

• Schools that had similar characteristics, including racial composition and economic status of the student body, varied greatly in how frequently they suspended or expelled students.

Michael Thompson, director of the Council of State Governments Justice Center program and one of the report’s authors, said classroom removal is highly related to an increase of students repeating a grade, dropping out or entering the juvenile justice system.

“We see significant differences in the rates of suspension and explusion for similar student populations, indicating, I think, that it’s possible for schools, by relying less on suspension and expulsion, in theory, to actually reduce juvenile justice involvement and improve academic performance,” Thompson said.

You can find the report and related information here. It’s a first of its kind longitudinal study – every seventh grader was tracked for six years. I think we would all agree that every kid at that age occasionally engages in some knucklehead behavior. What we need to do with all this data is learn how to better distinguish between and deal with the good kids that do dumb things and the real troublemakers. The Trib notes that some school districts are already taking steps.

What the report ultimately means is that schools’ current methods of punishing kids are ineffective, said Deborah Fowler, a contributor to the report and director of Texas Appleseed, an Austin-based nonprofit social justice research and advocacy group.

“The good news is that we know there are alternatives that do work,” Fowler said. She said schools can stop disciplinary problems from happening in the first place with an approach that emphasizes positive behavioral intervention and support, or a “PBIS” model. That allows teachers “to focus less time on disciplinary referrals and … more on the purpose of their role, which is educating the students.”

Several school districts across the state have implemented PBIS models, Fowler said, including Austin, Leander, Amarillo and Pflugerville.

Jane Nethercut coordinates a positive behavioral support program at Austin ISD. She said the model was based on praising students when they are doing something right, rather than punishing them when they are doing something wrong — and that it has “changed the schools” around the district.

“Disciplinary referrals have gone down; attendance rates have gone up,” she said, “This is not rocket science — in the schools that practice PBIS, academic performance has also gone up. We have seen thousands and thousands of hours of recovered learning time.”

That’s the goal, right? Click on to see the full press release from the Council of State Governments Justice Center. There’s a lot we ought to be able to learn from all this data.

(more…)

Texas Supreme Court dismisses voting machine lawsuit

This came out late Friday.

Dealing a blow to critics of electronic voting machines, the Texas Supreme Court on Friday dismissed a case brought by Travis County voters that alleged the machines were not secure or reliable.

The machines “are not perfect. No voting system is,” Chief Justice Wallace Jefferson said in his opinion.

But “we cannot say that (electronic voting machines) impose severe restrictions on voters, particularly in light of the significant benefits such machines offer,” he said.

The lawsuit, filed in 2006 but held up on procedural questions, sought to force Travis County to provide voters with a paper copy of their just-cast ballot to review for accuracy. That ballot would then be submitted to create a record that could be checked in event of a recount or problem with a machine.

The current system, which tabulates all votes cast on a machine but does not provide printed ballots, cannot ensure accuracy or provide a backstop to a voting system that has had problems in the past, the voters said in the suit.

Lawyers for Secretary of State Hope Andrade, the defendant in the case because she had certified the machines, argued the voters cannot show they have been harmed by the voting machines and therefore had no standing to sue.

Although the court held they had standing on some issues, it ultimately found that the machines did not unduly impinge on the right to cast a ballot.

Andrade “made a reasonable, nondiscriminatory choice to certify” the machines, Jefferson wrote.

Friday’s decision reverses opinions by the state District Court in Travis County and the 3rd Court of Appeals , which had ruled that the lawsuit could proceed to trial.

So five years after the lawsuit was filed, the Court has ultimately ruled that the lawsuit cannot be heard. I’m not a voting machine conspiracy theorist, but I would have liked to have seen their evidence presented in a courtroom. Guess that’s not going to happen.

Questions and concerns about electronic voting machines have been around as long as the machines themselves. There have been numerous instances of weird happenings, but so far nothing catastrophic. At least, nothing that we know of. I believe electronic voting machines are an improvement over what we used to have, and I don’t think paper ballots are a panacea, but the system could definitely do with some redundancy. As noted later in the story, many counties will be replacing their voting equipment, as the current machines are at the end of their life cycle. Which means that now would be an excellent time to push your county clerk or elections administrator to include requiring a paper component for the new machines. You’re not going to get any relief from the courts, that’s for sure.

Perry gets to keep his secrets

Quelle surprise.

The Texas Supreme Court this morning ruled that details of Gov. Rick Perry’s travels can remain secret, overturning two lower court rulings that found travel vouchers filed by state troopers should be made public.

In an opinion written by Chief Justice Wallace B. Jefferson, the court ruled that the threat of physical harm trumped the state’s open records law.

“The public’s right to ‘complete information’ must yield when disclosure of that information would substantially threaten physical harm,” he wrote.

The Houston Chronicle, the San Antonio Express-News and the Austin American Statesman had filed suit in 2007 to obtain the detailed travel vouchers for the governor’s security detail.

The Department of Public Safety, which provides security for Perry, argued that public scrutiny of those expenses would jeopardize the governor’s safety.

The newspapers argued that the public has a right to know how its money was being spent.

Two lower courts had ruled that the records should be public, but Perry, through the DPS, appealed to the state Supreme Court.

In a 7-0 decision, justices sent the case back to district court, but noted that it considered concerns about the safety threat to be real.

The threat that revealing the full extent to which a small group of rich guys finance Perry’s global gallivanting might be poorly received by the public is even bigger, of course. The Lege got involved in related matters at the end of the special session. You’d think that all those supposedly suspicious of government teabagger types would not like this sort of thing, but if you do you’re hopelessly naive. None of this will matter to them until Texas gets a Democratic Governor. In the meantime, what are you looking at? Nothing to see here, move along.

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.

The effect of the “Citizens United” decision on judicial elections

Republican attorney David Schenck makes the case in the Trib that the recent Supreme Court decision in Citizens United v. FEC, which basically said that corporations could spend money as they saw fit in political campaigns, signals the imminent death of judicial elections in Texas. I have three things to say about this.

1. I continue to be amused by the amount of attention Republicans have been giving to the flaws and dangers of judicial elections ever since the Harris County near-sweep of 2008. Prominent politicians from State Supreme Court Chief Justice Wallace Jefferson to Sen. John Cornyn have weighed in on it with proposals that were mostly irrelevant to the dangers they claimed to be worried about but which would have done a good job of addressing the problem of too many Democrats winning those races. Whatever the merits of Schenck’s arguments – and I will say, he makes a good case without being disingenuous about it – I feel confident we’ll be hearing more from that crowd again now that there’s a new angle to take on it.

2. I’m open to the idea of finding a different way to put judges on the bench, but let’s be clear about one thing: You cannot take the politics out of it. You can talk all you want about nonpartisan commissions whose charge is to find the bestest and merit-est to don the robes, but someone has to pick the members of that commission, and I guarantee that those selectors will have been elected in partisan elections. It’s not out of the question that the commission could become even more politicized than the current process of partisan elections because it will be an issue for the small number of party activists who pay attention to this stuff to rally around, much in the way that the US Supreme Court nomination and confirmation process has become a flashpoint that has little if anything to do with a potential jurist’s actual qualifications. The point I’m making is that the people who care the most about the outcome will find a way to influence that outcome. I’m not saying that this will be any better or worse than what we’re doing now, I’m just saying we shouldn’t be surprised by it when it happens.

3. Given that, it’s also entirely possible to me that the same actors who influence judicial races now could try to do the same with a “nonpartisan” nominations committee. (Needless to say, they could very easily do this for retention elections, if we went down that path. I assure you, groups like Texans for Lawsuit Reform know very well who they like and who they don’t, and the presence or absence of party labels won’t slow them down at all.) We know from the Bill Ceverha case that big donors sometimes also give money to non-officeholders for whatever the reason. Who’s to say that wouldn’t happen with Nonpartisan Judicial Nominations Committee members? And who wants the TEC to be in charge of sanctioning them when it does happen? I’d almost prefer to let the attack ads fly, because at least that would be out in the open. Again, my point is that interested parties will find a way to have influence over the outcome, we shouldn’t be surprised by this, and if we decide to go down this kind of road, we ought to really think about how we plan to deal with it.

Public financing for judicial races

In addition to the other ethics and campaign finance reform bills that I mentioned previously, one other bill set to come up in committee hearings on Wednesday the 15th is HB3146 by Rep. Rafael Anchia, which would allow for the creation of a public financing system for certain judicial races in Texas. It’s only at the appeals court and higher (Supreme Court and CCA) levels, and it’s an option rather than a requirement, so it’s not quite the solution that I’d press for to deal with the issues of judges taking campaign cash from attorneys and other interested parties that regularly appear before them, but it’s light years better than the “solution” of non-partisan judicial elections being pushed by the likes of John Cornyn and Wallace Jefferson, since it actually has something to do with the problem at hand. If nothing else, I consider this to be a good start. Vigilant has information if you want to register your support for this bill in committee.

There is a solution, you just don’t see it

Sen. John Cornyn, apparently with some free time on his hands, takes his turn tackling the pernicious issue of Democrats winning judicial races – er, the problem of partisan judicial elections. I’ll give him credit for this much – he puts his finger on the main issue.

As the cost of political campaigns in Texas increases, particularly for those seeking statewide office, judicial candidates must spend more time raising funds from the narrow set of donors most interested in seeing them on the bench.

The demands of fundraising are especially corrosive for the judiciary. Campaigns for legislative or executive office typically are supported by a broad donor base with a wide variety of interests, making it less likely that the interests of one group will dominate to the disadvantage of the general public. Judicial elections, by contrast, are funded largely by the lawyers and other interest groups most likely to appear in court or be directly affected by judicial decisions.

But like his fellow alarmist Justice Wallace Jefferson, he doesn’t follow this trail of bread crumbs to the obvious solution, which is stricter campaign contribution limits for judicial candidates, plus a public finance system for judicial races. (He also doesn’t acknowledge the fact that the all-Republican Supreme Court, of which he was once a member, is one of the more egregious offenders on this score.) He doesn’t actually propose a solution, he just lists the usual suggestions, including appointment-and-retention (which as I’ve noted before would still have the same players getting involved) and making these elections non-partisan (ditto). It’s fascinating to see the same rather large blind spot, but when you think about it, it’s not surprising. After all, once you realize what problem it is that they’re trying to solve, then their proposed solutions make sense.

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.