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Jane Bland

Dems ask some Supreme Court justices to recuse themselves from convention appeal

Stay with me here, this will all make sense.

The Texas Democratic Party on Friday called for four of the state’s nine Supreme Court justices to recuse themselves from a case involving the Texas Republican Party’s in-person convention, claiming each had a conflict of interest.

The campaigns of Chief Justice Nathan Hecht and Justices Jane Bland, Jeffrey Boyd and Brett Busby each sponsored the convention, according to an archived list of sponsors that since has been removed from the Texas GOP’s website.

[…]

Texas GOP officials are seeking a writ of mandamus from the court that would block Turner from canceling the convention, a day after a Harris County judge denied the party’s attempt to do so in state district court.

Democratic Party Chairman Gilberto Hinojosa said the four justices, each of whom is up for re-election in November, are “faced with an obligation to do the right thing and choose the law over political allegiance.”

“A justice who funds a dangerous convention should not judicially decide the fate of that same convention,” Hinojosa said in a statement. “All four have interests in the case coming before them and all four should recuse.”

See here for the background. The allegation is that by sponsoring the convention and being on the November ballot, these judges have a conflict of interest. A press release from the TDP provided the following justification for the petition:

Canon 3(B)(1) of the Texas Code of Judicial Conduct provides that Texas judges “shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.”

Texas Rule of Civil Procedure 18(b) requires a judge to recuse themself from a case when “(1) the judge’s impartiality might reasonably be questioned” or “(2) the judge has a personal bias or prejudice concerning the subject matter or a party.”

I’m not qualified to assess this claim, but I will note that if the four Justices do recuse themselves, there’s still enough justices left to issue a ruling, and since all nine are Republicans it doesn’t change the dynamic. Given the compressed timeline for this litigation, I presume we’ll get an answer quickly.

Coronavirus and the State Supreme Court

Just a reminder, nearly half of the State Supreme Court is up for election this November. You know, in case you had opinions about their recent opinions.

Typically not top of mind for voters, the nine Republican justices of the Texas Supreme Court have come under the spotlight during the coronavirus pandemic with a slate of high-profile and controversy-generating moves.

Actions on bailevictions, debt collections, vote-by-mail and a Dallas salon owner named Shelley Luther have foregrounded the court in a year when four incumbent justices face reelection — making it easier, Democratic challengers say, to make the case against them.

Last week, the high court lifted its coronavirus ban on evictions and debt collections, put in place in March as the economy shut down and hundreds of thousands were added to the unemployment rolls. And the justices temporarily put on hold a lower court ruling that expanded vote-by-mail access during the pandemic. Both decisions have infuriated some voters and energized the Democratic Party.

This month, the court ordered the release of Luther, who was jailed for contempt of court after refusing to shutter her salon under coronavirus orders; earlier this spring, it sided with state officials in limiting how many inmates could be released from county jails, which have become hotspots for disease.

Democrats, who have not won a seat on the state’s highest civil court in more than two decades, have reclassified the typically sleepy races as a “top-tier priority,” a designation party officials said comes with digital ad spending. And some candidates have already begun to speak out publicly against high court decisions they say disenfranchise voters and risk their safety.

“I think people’s eyes are opening up,” said 3rd Court of Appeals Justice Gisela Triana, one of the four women running for Supreme Court on the Democratic ticket this year. “What has been the sleepy branch of government … has woken up.”

There’s more and you should read the rest. For obvious reasons, these races are largely going to be determined by the Presidential race – if Joe Biden can run even with or ahead of Donald Trump, one or more of the Democratic candidates can break through. It surely wouldn’t hurt for their to be some money spent on these races, in part just to make sure voters are aware of them and in part to highlight some of the decisions that are not exactly in line with public preferences, but there’s only so much the individual candidates can do about that. In case you’re wondering, I have one Q&A from a Democratic candidate for Supreme Court from the primaries, from Judge Amy Clark Meachum.

On a more sobering note:

Justice Debra Lehrmann

One day after presiding over a hearing on the state’s mail-in ballot controversy via videoconference, Texas Supreme Court Justice Debra Lehrmann says she and her husband have tested positive for COVID-19.

“We began to exhibit symptoms last week, despite diligently complying with stay-at-home rules,” Lehrmann wrote on Twitter on Thursday. “Thankfully, this has not interfered with #SCOTX work, as the Court is working remotely. We are grateful for your thoughts & prayers.”

Her diagnosis marks the first known coronavirus case of a top state official. The justice did not immediately respond to requests for an interview but told the Dallas Morning News that she and her husband Greg had fevers and body aches early last week before getting tested at an Austin drive-thru testing center.

She also told The News that their Houston lawyer son, Jonathan, his wife Sarah and their six-month-old son Jack, who had been visiting them every other week, stopped and are believed to also be infected.

Her tweet is here. I wish Justice Lehrmann and her husband all the best for a swift recovery. (She is not on the 2020 ballot, in case you were wondering.)

January 2020 campaign finance reports: Statewide

There’s a whole lot of candidates of interest for state offices. I’m going to break them down into several groups, to keep things simple and the posts not too long. Today we will look at the candidates for statewide office. This will include the statewide judicial races, and both Republicans and Democrats. I have previously done the Harris County reports.

Roberto Alonzo, RRC
Chrysta Castaneda, RRC
Kelly Stone, RRC
Mark Watson, RRC

Ryan Sitton, RRC

Amy Clark Meachum, Supreme Court, Chief Justice
Jerry Zimmerer, Supreme Court, Chief Justice

Nathan Hecht, Supreme Court, Chief Justice

Kathy Cheng, Supreme Court, Place 6
Lawrence Praeger, Supreme Court, Place 6

Jane Bland, Supreme Court, Place 6

Brandy Voss, Supreme Court, Place 7
Staci Williams, Supreme Court, Place 7

Jeff Boyd, Supreme Court, Place 7

Peter Kelly, Supreme Court, Place 8
Gisela Triana, Supreme Court, Place 8

Brett Busby, Supreme Court, Place 8

William Demond, Court of Criminal Appeals, Place 3
Elizabeth Frizell, Court of Criminal Appeals, Place 3
Dan Wood, Court of Criminal Appeals, Place 3

Gina Parker, Court of Criminal Appeals, Place 3
Bert Richardson, Court of Criminal Appeals, Place 3

Tina Clinton, Court of Criminal Appeals, Place 4
Steve Miears, Court of Criminal Appeals, Place 4

Kevin Yeary, Court of Criminal Appeals, Place 4

Brandon Birmingham, Court of Criminal Appeals, Place 9

David Newell, Court of Criminal Appeals, Place 9


Candidate     Raised     Spent     Loan     On Hand
===================================================
Alonzo         1,500     8,458    7,340       3,840
Castaneda     46,297    42,196   26,000      46,297
Stone         25,331    23,465    3,875       3,018
Watson           750     3,762        0         750

Sitton       480,850   154,832  378,899   2,514,759

Meachum      139,370    42,854        0     119,067
Zimmerer      10,680    22,213   20,000      45,251

Hecht        296,168   146,575        0     531,660

Cheng          1,315    41,200   84,167       8,129
Praeger        1,280     5,227   10,000       1,280

Bland        335,707    73,945        0     277,965

Voss         100,696   135,076  100,000     169,470
Williams      55,154   105,936        0      59,074

Boyd         134,844   100,193      177     562,533

Kelly         30,527     7,037        0      50,963
Triana       100,970    39,710        0     106,577

Busby        260,378   129,825        0     542,918

Demond        4,250      5,050    5,000       3,599
Frizell       1,000        988        0          11
Wood          6,490     68,592        0      41,291

Parker       58,195     82,247   25,000      21,055
Richardson   52,975     21,690    4,500      35,207

Clinton           0     10,216   25,000       4,944
Miears            0      3,750        0           0

Yeary        14,355     11,203    3,004       6,245

Birmingham   29,770     16,375   10,960      25,003

Newell        8,879      7,370        0       1,391

Railroad Commissioner is not a high profile office and not one for which a bunch of money is usually raised, though Ryan Sitton has clearly made good use of his five-plus years on the job. If you’ve listened to my interviews with Chrysta Castañeda and Kelly Stone, you know that I’m a little scarred by goofy results in some of our statewide primaries in recent cycles. Strange things can and do happen when people have no idea who the candidates are, as the likes of Grady Yarbrough and Jim Hogan can attest. On the plus side, I’d say three of the four candidates running in this primary would be fine – Castañeda and Stone are actively campaigning, Roberto Alonzo is a former State Rep, you can have confidence they’ll do their best. As for Mark Watson, at least I could identify him via a Google search. It’s a low bar to clear, you know?

I don’t often look at finance reports for judicial candidates – there’s just too many of them, for one thing, and they usually don’t tell you much. None of what I see here is surprising. The Republican incumbents have a few bucks, though none of their totals mean anything in a statewide context. I’m guessing the Dems with bigger totals to report had cash to transfer from their existing accounts, as District Court or Appeals court judges. It’s possible, if we really do see evidence of the state being a tossup, that some PAC money will get pumped into these races, for the purpose of making sure people don’t skip them. Everyone has to be concerned about the potential for undervotes to have an effect on the outcome, in this first year of no straight ticket voting.

As for the Court of Criminal Appeals, well, the money’s on the civil side of the house. It is what it is. I’ll be back with the Lege next, and then the SBOE and State Senate after that.

Filing period preview: Statewide

Previously: Congress. As before, I am using the Patrick Svitek spreadsheet as my primary reference.

Statewide elections are much less exciting in Presidential years in Texas, since the state offices are on the ballot in the off years. We do have a US Senate race of interest, which I think you are familiar with. Beyond that, there’s the one Railroad Commission spot (there are three Railroad Commissioners, they serve six year terms, with one slot up for election each cycle), and the Supreme Court and Court of Criminal Appeals positions. We’ll take a look at those this time around.

Railroad Commissioner: We discussed this recently. Chrysta Castañeda and Kelly Stone are in, 2016 candidate Cody Garrett is thinking about it, and I will worry about Grady Yarbrough rising like a zombie to sow chaos until the filing deadline.

Supreme Court: There are four races, thanks to a previous retirement and appointment by Greg Abbott. Three of the races are contested.

Against Chief Justice Nathan Hecht, in Position 1, we have Amy Clark Meachum, a District Court judge in Travis County first elected in 2010, and Jerry Zimmerer, a Harris County judge elected to the 14th Court of Appeals in 2018.

For Position 7 against Jeff Boyd, the candidates are Brandy Voss, an attorney and law professor from McAllen, and Staci Williams, a District Court judge from Dallas County, first elected in 2014.

Position 6 is the open seat, where Jeff Brown was replaced by Jane Bland, a former First Court of Appeals judge who was defeated in 2018. Kathy Cheng, a Houston attorney who ran for this same position in 2018, finishing with 46.3% of the vote, and Lawrence Praeger, also a Houston attorney, are the contenders.

Position 8, held by Brett Busby, is the only one that has a lone Democrat, at least so far. Gisela Triana, a longtime District Court judge in Travis County who was elected to the Third Court of Appeals in 2018.

Court of Criminal Appeals: Three positions are up, as per usual: Bert Richardson (Place 3), Kevin Yeary (Place 4), and David Newell (Place 9). There are candidates running for Place 6, except that that election may not happen this cycle. The spreadsheet only lists the Place 3 race and doesn’t mention any Dem candidates, so at this point I don’t have any knowledge to drop on you. I’m sure there are people running for these positions, but for what it’s worth the one statewide office that Dems did not challenge in 2018 was a CCA slot. I will of course keep my eyes open for this.

Next up: SBOE, State Senate, and State House. Let me know what you think.

Another appeals court case to be proud of

By “proud”, I mean “deeply embarrassed”. Here’s Rick Casey discussing a decision by the 1st Court of Appeals in which the infamous case of death row inmate Calvin Burdine and his sleeping lawyer, Joe Cannon is referenced, and not in a good way.

“Like the ‘sleeping lawyer’ case, this case will stand as a significant embarrassment in the history of Texas jurisprudence,” wrote Justice Terry Jennings in a stinging dissent.

This isn’t a death penalty case, but a lawsuit in which child protection authorities sought to terminate a father’s parental rights. We Texans consider families so important that we give indigent parents a tax-paid attorney to represent them if the state tries to take away their children.

In this case, John Spjut (pronounced “Spyoot”) was appointed to represent Frederick DeWaynne Walker.

Spjut didn’t sleep through the trial. He simply didn’t attend it. Nor did he do much preparation. Walker testified he called Spjut’s office at least five times but never reached him.

Spjut’s bills to the county do not indicate any contact with his client. He did bill the county for filing an answer to the state’s termination lawsuit, writing two letters to Walker, and spending one hour preparing for trial. Total fee: $750.

But on the actual day of the trial, Spjut didn’t show. Instead, he sent his brother Dan to try the case.

It must have been a challenge. Without a lawyer guiding him, Walker had a hard time finding the right courtroom and didn’t show up until after lawyers for the state had put on their case against him.

[…]

By Jennings’ estimate, based on the trial transcript, Dan Spjut’s direct examination of Walker lasted less than four minutes.

The entire trial, Jennings estimated, took less than 45 minutes.

Yet the two other justices on the panel that heard Walker’s appeal ruled that his right to have a lawyer had not been violated. Justice George C. Hanks Jr., joined by Justice Jane Bland, wrote that Walker had to prove that he would likely have won if his attorney had done a better job.

Hanks wrote that Walker didn’t prove that the way Spjut conducted his defense wasn’t “the exercise of reasonable professional judgment.”

Jennings argues in dissent that Walker received “assistance” of counsel “far below that afforded to the criminal defendant in the infamous ‘sleeping lawyer case.’ ”

“Walker’s appointed trial counsel never discussed the case with Walker and then abandoned Walker on the trial date,” he wrote.

I guess if there’s somebody who can be called a “lawyer” that’s with you in the courtroom, that’s good enough. I wonder if any of the justices who render opinions like this have the same expectation of what a basic level of assistance would be from, say, a doctor or a broker.

Sadly, neither of the justices who thought this kind of lawyering was A-OK are up for re-election next year – we’ll have to wait till 2012 to render our own opinions. On a side note, in searching around for info about Calvin Burdine and his snoozing attorney, I came across this old blog post that detailed some fun and games then-District Court Judge, now State Sen. Joan Huffman played in Burdine’s retrial. I wish I’d have remembered it before her election last year, but oh well.