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Chuck Silverman

Felony bail reform lawsuit moves forward

Pending the next appeal, anyway.

A federal judge ruled Tuesday that the case challenging Harris County’s felony bail system should proceed to trial. Nineteen felony judges represented by state Attorney General Ken Paxton immediately gave notice they planned to appeal to the 5th U.S. Circuit

[…]

The defendants include Sheriff Ed Gonzalez, who does not oppose the litigation, and 23 Harris County felony district judges, who have split into a larger group represented by Paxton, who opposes the lawsuit, and a smaller faction represented by attorney Allan Van Fleet, who represented the judges in the misdemeanor bail case.

In a 65-page opinion, Chief U.S. District Judge Lee H. Rosenthal denied the state and felony judges’ motions to dismiss the case, finding that the evidence involved “vigorously disputed factual allegations that must be developed further to resolve the legal issues the parties present.”

Lawyers for Abbott and 19 Democratic district judges argued in October the judges were protected by immunity, the federal courts do not have jurisdiction and the indigent arrestees do not have standing to sue.

Rosenthal found the court had standing and thousands of indigent arrestees, even though the individuals changed over time, had grounds, as a group, to sue.

See here, here, and here for the background. This was a motion to dismiss on largely procedural grounds, so there’s plenty of room for the Fifth Circuit to step in and throw this out without the merits of the case ever getting litigated. Obviously, I hope that does not happen.

This is the first I’d heard of the judicial plaintiffs being in two different groups; I need to understand what that means going forward. You know where I stand on this, and I plan to make a Big Deal out of which judges are on the right side of this issue, and which are actively obstructing it. So far, that standard hasn’t been met, but if the Fifth Circuit upholds this ruling then I will look very sideways at further appeals.

More on the motion to dismiss the felony bail lawsuit

Should get a ruling soon.

The bulk of Harris County’s felony judges sought Monday to get the federal case against them dismissed, saying they should not be party to the challenge on how bail is determined for thousands of poor people accused of crime.

Lawyers for Gov. Greg Abbott, Attorney General Ken Paxton and 19 Democratic district judges argued at a packed online hearing that the judges are protected by immunity, the federal courts don’t have jurisdiction and the indigent arrestees behind the case no longer have standing to sue.

The 2019 civil rights case challenges the county’s policy of setting bond that results in the jailing of people who can’t afford cash bail. Nearly 80 percent of the current jail population are people awaiting trial, mostly on felonies.

Although the group of judges asked for the entire case to be dismissed, or alternatively, their removal as parties to the case, the bail challenge is likely proceed regardless of the court’s ruling, since the remaining defendants — the county, Sheriff Ed Gonzalez and four felony judges who hired their own lawyers — are not seeking dismissal.

[…]

The state Attorney General’s Office, arguing on behalf of the majority of the felony judges, said the bail process is constitutional because it adheres to ODonnell v. Harris County, the county’s landmark misdemeanor bond case that was resolved through a seven-year consent decree.

But the plaintiffs say the felony bail case, Russell v. Harris County, raises new constitutional issues that the court never had a chance to address in ODonnell.

See here and here for the most recent updates. I will reiterate what I said in that last link: I want this system to be reformed in a manner similar to the misdemeanor case, I want the Democratic judges to be part of the solution and not an obstacle to it, and I will remember who is who and who does what. We’ll see what happens next.

Felony judges move to dismiss bail lawsuit

Of interest.

A group of district judges in Houston on Thursday argued for dismissal of a lawsuit alleging their felony bail practices are unconstitutional because they discriminate against poor people, keeping them jailed when they can’t pay bail.

Among the defendants are the 23 criminal district judges of Harris County, who argue that the plaintiffs lack standing, and the judges have immunity to the claims. They say the plaintiffs were all released on bail and they don’t have an injury that qualifies them to sue.

[…]

“The felony bail system in Harris County raises the same legal issues as the misdemeanor system, has the same devastating consequences for impoverished arrestees, is similarly coercive of guilty pleas, and is even more costly to the system,” said the second amended complaint in Russell v. Harris County.

The lawsuit argued that Harris County for felony bail must stop using a secured bail schedule to make release decisions and better ensure that detained defendants receive constitutional protections that will protect against “erroneous deprivation of the right to bodily liberty.”

The plaintiffs are all detained in Harris County because they couldn’t afford to pay bail. Their lawsuit seeks an injunction against the county’s felony bail practices. They say the county can’t base release decisions on money alone. It must make factual findings that a person is able to afford the bail, or if they can’t pay, that pretrial detention is necessary because there’s a specific, compelling government interest and there’s no less-restrictive alternative.

The 23 judge-defendants’ motion to dismiss said the plaintiffs in the case were released on bail and they don’t have an injury that would grant them standing to sue the judges. The judges also argue they have immunity, and that an exception to immunity for constitutional violations does not apply, because the plaintiffs haven’t alleged a colorable constitutional claim.

“Plaintiffs’ claims all rest on an alleged fundamental right to pre-trial release, but the Fifth Circuit has already made clear that there is no such right. Consequently, there is no colorable constitutional claim in this suit,” the judges’ motion to dismiss said.

See here for the last update, which is when the judges were added to lawsuit. The story notes both the settlement in the misdemeanor bail lawsuit, which took a dramatic turn following the 2018 election when the Democratic slate won en masse and followed through on a promise to settle this, as well as the fact that two of the felony court judges, Chuck Silverman and Brian Warren, have filed motions in support of the plaintiffs. We’re still very much in the early stages of this litigation.

Because the felony (criminal district) courts are state offices, the felony judges are represented by the AG’s office; the misdemeanor court judges were represented by the County Attorney. It’s unclear to me how much influence Harris County government will have in this lawsuit. County Sheriff Ed Gonzalez, who favored the misdemeanor settlement, is a named plaintiff in both cases, so whatever influence there is will come via that. As far as I know, he has not yet spoken about this lawsuit.

I want this lawsuit to be settled as well, for the same reasons about equal justice for rich and poor, as well as serious concerns about jailing many non-violent offenders who have not been convicted of anything. It may be that the standing argument has merit – I’m not a lawyer, I don’t know – but that’s not really important to me. What I want is for the system to get a big dose of the reform it badly needs, and along the way I want these judges that I voted for to be part of the solution, not part of the problem like their now-former colleagues on the misdemeanor bench were. I’m willing to see how this plays out, but I need to see that we’re all moving towards a fairer and more equitable system. I’ll definitely be keeping this in mind the next time there are primaries.

Judges added to felony bail reform lawsuit

This could be a sign that things are about to happen.

All 23 Harris County felony judges have been added as proposed defendants in the lawsuit alleging that the region’s felony bail practices are discriminatory and damaging to poor defendants.

The amended filing came late Friday after a second judge on the court intervened in support of the 2019 civil rights lawsuit arguing that it’s unconstitutional to jail poor people before trial simply because they cannot afford bail. These two judges, Brian Warren and Chuck Silverman, could potentially become both defendants and intervenors.

Several other judges said they looked forward to being formally included in the case in order to make changes to the current protocol.

Lawyers for the indigent people at the jail asked in a motion Friday that nearly two dozen judges be included in the case. They said in court documents that amid rising COVID-19 infections at the jail, the judges have continued to mandate that thousands of arrestees come up with secured money bail without first determining that pretrial detention is necessary or the least-restrictive condition to ensure public safety or cooperation with court hearings.

These judges don’t routinely hold adversarial hearings to allow defendants to make their case about bail and make findings about defendants’ ability to pay bail, the motion said.

Warren, a Democrat who was elected as presiding judge of the 209th Criminal Court, defeating a judge who berated Black Lives Matter, said he supports “intelligent bond reform” in his request to join the case. Silverman, of the 183rd Criminal Court, was accepted as a party in the case Thursday, a day after he filed an unopposed motion to join it.

“The pandemic has brought this into stark relief,” Warren said. He noted that bail has disproportionately affected people of color.

“The implementation of bond reform is a complex issue. It requires well-reasoned and intelligent proposals,” his motion said.

The lawsuit was filed last January, and this is the first real news I’ve heard about it since. The misdemeanor bail reform lawsuit settlement was finalized in November and has been in operation since earlier that year. There are lawsuits in other counties over felony bail practices, such as in Dallas, but so far nothing has come to a courtroom.

A big difference between this lawsuit and the previous one in Harris County over misdemeanor bail practices is that all but one of the judges who were named as defendants in the earlier lawsuit were Republicans, and all but two of them (the one Democrat and one of the Republicans) opposed the plaintiffs’ arguments and refused to settle the suit. It wasn’t until Democrats swept the 2018 election, in part on a message of settling that lawsuit, that it came to its conclusion. In this case, all of the judges are Democrats. As of Friday, when this story was written, at least two of them have expressed a desire to join on the side of the plaintiffs. Brian Warren was mentioned in this story, and on Thursday we got this story about the first judge to speak up, Chuck Silverman.

Saying the bail system “perpetuates inequalities” and can have “devastating” consequences on lives and livelihoods, State District Chuck Silverman of the 183rd Criminal Court filed paperwork Wednesday to intervene in the 2019 federal civil rights lawsuit brought on behalf of poor defendants stuck at the jail. In addition, fellow jurist Brian Warren, of the 209th Criminal Court, said he planned to file his own motion to join the case this week, with hopes of reforming the way judges handle with pretrial release.

Silverman said he thinks the majority of his colleagues on the felony bench want to revise how PR bonds work and “want to make the cash bail system obsolete or to make it work better.”

Like his colleagues on the bench, Silverman, a Democrat elected in 2018, is not a party in the lawsuit. He sought to intervene to ensure equal protection and due process rights are fairly administered, while protecting public safety.

Silverman said in an interview that negotiations on the bail lawsuit had been moving slowly and he learned in his civil practice prior to becoming a judge that the best way to push it forward and accomplish true bail reform was to intervene.

“We need systemic change in the cash bail system because it disproportionately affects minorities and the poor,” he said. “The time to do something proactive was now.”

The unopposed motion argues that cash bail discriminates against people who can’t access funds, often forcing them to settle for guilty pleas rather than await trial in lockup.

Neal Manne, one of the lawyers for the indigent plaintiffs, applauded Silverman’s “courageous” move and encouraged other judges to follow his lead.

“Any state judge looking in good faith at the cash bail situation in the felony courts in Harris County can see that the system is broken and requires reform,” Manne said. “I am delighted that Judge Silverman has acknowledged that the current situation violates the rights of poor people.”

I too would like to see all of the judges join with the plaintiffs to work towards a fair and equitable solution as quickly as possible. The way COVID-19 has burned through all the jails in the state, as well as the ever-increasing jail population, should make this an urgent priority, from a public health standpoint as well as a justice standpoint. I hope that most if not all of the judges will take similar action as Silverman and Warren have done, and I am damn sure that those who don’t will need to account for their actions in the next primary election. We know what is right, and we know what needs to be done. There’s plenty of room to negotiate the details and particulars, but the goal is clear and we need to get there. Let’s make this happen.

Judicial Q&A: Chuck Silverman

(Note: As I have done in past elections, I am running a series of Q&As for Democratic judicial candidates. This is intended to help introduce the candidates and their experiences to my readers. I am running these responses in the order that I receive them from the candidates. You can see other Q&As and further information about judicial candidates on my 2018 Judicial page.

Chuck Silverman

1. Who are you, and what are you running for?

I am Chuck Silverman and I am the Democratic Party candidate for the 183rd Criminal District Court in Harris County, Texas.

I grew up in Corpus Christi, Texas and attended Tulane University where I received my undergraduate, master's and law degrees. I have lived in Houston since 1986. I am married and have three children. In my spare time I enjoy cycling and shooting skeet and sporting clays.

For more information please visit www.Chuck4Judge.com.

2. What kind of cases does this court hear?

The 183rd District Court handles felony cases. Felonies are the most serious criminal cases and include murder, aggravated robbery, and sexual assault. The sentences in these cases can range from a period of probation to life imprisonment or in some instances, death.

3. Why are you running for this particular bench?

I am running for this bench because I am passionate about the law and how it should be applied equally and fairly to all, regardless of race, religion or financial situation.

4. What are your qualifications for this job?

I have a broad range of legal experience that will serve me well as a district court judge. I have practiced law for over three decades and have represented hundreds of clients in state and federal trial and appellate courts. In addition to my litigation experience, I have represented clients in administrative hearings and alternative dispute resolution forums throughout Texas. For the last 11 years I have been the General Counsel of a multinational corporation. I believe that a judge must be an effective administrator and a fair-minded decision maker. I am confident that I can be both.

5. Why is this race important?

One of the major issues facing the criminal justice system in Harris County is the fact that for too long Harris County has had two systems of justice. One for those who have money and the other for those who don’t. A significant percentage of those incarcerated in the Harris County Jail are awaiting trial. Consequently, I think there is a need to reform the systemic denial of personal recognizance bonds to nonviolent defendants in felony cases.

6. Why should people vote for you in November?

My hard work ethic, calm demeanor, impartiality, courtroom experience and knowledge of the law make me a superior candidate. I have more than 32 years of legal experience and have many published appellate court decisions. Additionally, I have a good judicial temperament, would be fair to lawyers and litigants and have the extensive depth of legal knowledge required of a district court judge.

Judicial Q&A: Chuck Silverman

(Note: I am running a series of Q&As for judicial candidates in contested Democratic primaries. There are a lot of judicial races on the ballot in Harris County this election, and so this is intended to help introduce the candidates and their experiences to those who plan to vote in March. I am running these responses in the order that I receive them from the candidates. I will also be conducting some in-person interviews of candidates who will be involved in contested primaries for non-judicial offices. Please see my 2010 Election page for a full list of Q&As and interviews.)

1. Who are you, and what are you running for?

I am Chuck Silverman, a 49 year old native Texan and I’m running for judge of the 157th Civil District Court in Harris County, Texas. I have enjoyed practicing civil litigation as an attorney at law in Harris County for over 23 years. I have been married to my wife, Liz for 22 years and we have 3 children – an 18 year old son, a 15 year old daughter, and a 7 year old son. Also included in our family are several dogs and cats. I have actively supported democratic clubs, organizations and candidates, I have always voted in democratic primaries and I have been a sustaining member of the Harris County Democratic Party for many years. For more information please visit www.Chuck4Judge.com

2. What kind of cases does this court hear?

This court hears civil actions such as constitutional issues, breach of contract claims, employment disputes, real estate matters, personal injury and death and insurance disputes. This court does not hear matters involving family law, probate, juvenile and criminal cases.

3. Why are you running for this particular bench?

I am passionate about the law and how it should be applied equally and fairly to all, regardless of race, religion or financial situation. I ran for judge in 2006, at a time when it was almost impossible to find anyone willing to admit they were a democrat, much less make a commitment to run for public office. In 2006 the court system was dominated by the Republican Party. In fact, a Democrat hadn’t been elected county wide in over 14 years. I was disgusted with the abuse of civil rights and liberties that occurred during this period. I wanted to make a change, try to make a difference, fight back. So I ran and almost won. At the time, my race was the closest civil court race in over a decade. I still believe that the judiciary needs to be changed to more accurately reflect our society’s values so I’m running again.

4. What are your qualifications for this job?

After receiving my B.A., M.B.A. and law degree from Tulane University I began my legal career in Houston, Texas in 1986. I actively represented hundreds of litigants in federal and state trial and appellate courts for 20 years. I have been involved in over 284 cases filed in Harris County Civil District Court. In addition to my litigation experience, I represented clients in administrative hearings and alternative dispute resolution forums throughout Texas. As a result of my extensive trial practice I have a solid understanding of the rules of civil procedure and evidence and I have extensive knowledge of judicial practices and procedures.

For the last 3 years I have been the General Counsel for the largest cookware manufacturing company in the US. In addition to managing litigation throughout the country I also oversee corporate governance of domestic and international subsidiaries, administer contracts and financial and legal issues including employment, intellectual property, real estate, equipment and material lease and finance, and customer safety.

I believe that a judge must be an effective administrator and a fair-minded decision maker. I am confident that I can be both. I have a solid understanding of the rules of civil procedure and evidence and will be able to effectively conduct judicial hearings and trials. Also, I have a broad range of legal experience which will serve me well as a district court judge.

5. Why is this race important?

The 157th Civil District Court has been dominated by the Republican Party for many years. It is important that the legal system be well-balanced and provide the foundation for the civil liberties and freedoms enjoyed by the citizens of our state and country. Courts should be free from the influence of money and special interests. Unfortunately, our legal system has become a target for those who fear its independence. These attacks have weakened our legal system and have resulted in the loss of civil liberties and the encroachment of government into our homes and personal lives. It is time to elect judges who are neither subservient nor willing to pander to politicians or special interests at the expense of the citizens. As a judge, I will work hard to be apolitical and protect and preserve the rights and civil liberties guaranteed to everyone by the United States and Texas Constitutions.

6. Why should people vote for you in the primary?

My hard work ethic, calm demeanor, impartiality, courtroom experience and knowledge of the law make me a superior candidate. I have 23 years of legal experience to my opponent’s 13. I have been involved in 284 civil court cases in Harris County; my opponent has been involved in just 4 civil court cases. I have many published appellate court decisions, my opponent has none. Additionally, I have a good judicial temperament, would be fair to lawyers and litigants and have the extensive depth of legal knowledge required for a successful candidate.