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judicial races

Judicial Q&A: Robert Morales

(Note: As I have done in past elections, I am running a series of Q&As for judicial candidates in contested Democratic primaries. 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.)

Robert Morales

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

My name is Robert S. Morales and I am running to be the Family Court Judge of the 507th District Court of Harris County, Texas.

2. What kind of cases does this court hear?

This court hears cases related to the family relationship such as divorces, paternity, suits affecting the parent-child relationship, support cases, adoptions, etc. along with name changes and gender marker cases.

3. Why are you running for this particular bench?

I am running for the 507th Family District Court because it is the only family law court up for election in Harris County this election cycle. Also, “507” is not only this court’s designation, but the country code of Panama where I was born. So, that number holds a special significance to me.

4. What are your qualifications for this job?

I have been practicing family law every since I was a third-year student at the family law clinic at my law school. I even worked a few years in the Child Support Division of the Office of the Attorney General. In my current position as the supervising attorney of the Veterans Department of a non-profit organization, I also mentor and assist other attorneys navigate their pro bono family law cases. Finally, for the past few years I have assisted bar takers prepare for the Texas Bar Exam, including the family law essays.

5. Why is this race important?

This race is important because courts belong to society – the people, and judges are their custodians. As such, we should insist on the best possible representative of each court and not those who have been graded to “need improvement” after years on the bench. As this is a new year, a new decade, the people deserve to vote in a new judge accordingly.

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

People should vote for me in the primary because it is time to pass the torch to someone new. I bring the experiences of having been in court under different capacities including a noncustodial parent in a support case, a pro se litigant in a divorce, private attorney, and even government attorney. Those experiences I will always carry with me and use them to better relate to everyone who appears before me. Furthermore, as a father of young children, I know what is at stake when deciding what is in the “best interests of the child.” Whether it is as a soldier in the U.S. Army, a government attorney, mentor, teacher, or a non-profit attorney, I have been at my best when at the service of others and on the bench is where I will be able to do the most good serving society. As a future judge, I cannot make very many promises, but what I can promise is that I will treat everyone in my court with the same dignity and respect that I, myself, would like to be shown.

Update on the “Judicial Selection Committee”

Yes, this is a thing.

All but one member of the new Texas Commission on Judicial Selection indicated at the group’s first meeting Thursday that they believe partisanship is problematic in the state’s method of selecting judges.

Only Sen. Joan Huffman, R-Houston, said she’s unconvinced that partisan election of judges must go. But the senator added she planned to keep an open mind as the Judicial Selection Commission this year completes its task to study a number of selection methods, and report back to the Texas Legislature with recommendations for reform.
Much of the commission’s first meeting in the Texas Supreme Court building in Austin was devoted to spelling out the problems with the current system.

“You can’t solve a problem unless you know what the problem really is,” said Chairman David Beck, partner in Beck Redden in Houston.

Beck said Texas is one of only six states in the nation that uses partisan elections for judges.

“We are losing good, experienced judges,” he said. “I don’t care if they are Republicans or Democrats. It has nothing to do with their performance. It depends on the issues at the top of the ticket.

[…]

A candidate who can raise the most money from wealthy people and corporations, to put ads on TV, has the best shot at winning the bench in urban areas where voters do not know the judicial candidates, added Former Texas Supreme Court Chief Justice Wallace Jefferson. Instead, Jefferson said the emphasis in judicial elections should be on the merit of the candidates.

But Jefferson indicated that the election of judges is a good thing, too, because a candidate must travel the state and speak with attorneys and people about their concerns.

“I was able to bring innovation from all around the state to the judicial system because there were good ideas,” said Jefferson.

Another plus: The 2018 elections brought a racially diverse group of candidates into office, he said.

See here for the background. You know how I feel about this, so I’ll keep my comments brief. One, I will remind David Beck and everyone else who has ever utter a lamentation about the “good, experienced judges” that we lose via the partisan election process that we gained them in the first place via the partisan election process. Second, I would challenge Wallace Jefferson to show me the data on that claim about raising money for TV ads to win judicial elections. For one thing, very few judicial candidates actually raise that much money, and for two, even fewer of them run TV ads. That said, it’s quite interesting to see Jefferson, who has been an advocate for something other than the partisan election of judges for a long time to admit that the partisan elections we had in 2018 did an awful lot to diversify the judiciary in Texas. How much progress do you think we’d have made on that score in a judicial appointment system?

I mean look, I don’t want to claim that the partisan elections process for judges is the best system. I get the concerns about it, and like anything it’s worth considering how it could be improved. Really, my main problem is that the arguments put forward by proponents of change are such obvious tripe that I feel compelled to point it out each time. It’s wishcasting plus unsupported claims, and on top of it all no one has yet proposed an actual alternate system that can be objectively shown to be better than the one we have, and by “better” I don’t mean “would allow Republicans to regain or hold onto power in places where they have lost it or are losing it”. Everyone seems to take it on faith that Something Else would be better. I say show me the evidence. That in theory is what the Judicial Selection Commission is intended to do. I’ll believe it when I see it. Grits for Breakfast has more.

UPDATE: Well, there’s this:

Texas Lt. Gov. Dan Patrick is pushing back against the thought of eliminating partisanship from judicial elections.

In a statement Friday, one day after the new Texas Commission on Judicial Selection met for the first time and identified partisan judicial elections as a major problem, Patrick issued a statement saying he was surprised it appeared the commission supported eliminating partisanship before it began hearings.

“I expect the members to have an open mind on every issue—including the partisan election of judges—with the single goal of making sure Texas continues to maintain one of the best judicial systems in the country,” Patrick said. “Texans feel strongly about voting for their judges. The commission will need to make a compelling argument to the people and legislators to change the current system. I do not believe that support exists today.”

Having one’s viewpoint affirmed by Dan Patrick is a heck of a thing. Be that as it may, his opinion will carry a bit more weight than mine. I don’t know if this means he’s actually not on board with ending the partisan election of judges, which means he’s not on the same page as Greg Abbott, or just telling the committee to not give the game away before it even starts. Either way, very interesting.

Judicial Q&A: Judge Steven Kirkland

(Note: As I have done in past elections, I am running a series of Q&As for judicial candidates in contested Democratic primaries. 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.)

Judge Steven Kirkland

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

I am Judge Steven Kirkland, the incumbent Judge of the 334th District Court. I am running for re-election.

My experience – 15 years on the bench, 30 years of legal experience and a lifetime of service to Texas communities – has taught me that balance, equity and fundamental fairness are standards that all judges must strive for as we interpret the law and seek justice. I am the son of a truck driver, who worked my way through law school and learned from my parents always to fight against injustice. As a community leader, I fought to expand affordable housing and end discrimination. As a lawyer, I sued polluters to protect our neighborhoods. As a judge, I work to make our court system more transparent, accountable and fair.

2. What kind of cases does this court hear?

This is a Civil District Court hearing cases involving personal injury, property damages, contract disputes, constitutional issues and other civil complaints.

3. What are your main accomplishments in the past four years?

I was in the midst of trial in August 2017 when Hurricane Harvey devastated our community. The Courts were not spared and we lost a whole courthouse along with many days of operations for the entire justice complex. As a veteran of the impact that TS Allison brought to the Court system, I knew how to adapt Court operations to deal with the real impact of the storm not only for the Courts, but the lawyers and parties involved. We quickly adapted procedures and practice to keep the Court functioning at close to pre-storm efficiencies.

I also continued to be a leader and educator on lawyer wellness issues, specifically speaking to legal groups about the dangers of addiction, how to get help and offering tools to cope with the many triggers for folks coping with substance abuse issues.

4. What are your goals for the next four years?

In every Court that I have served in, I have adopted procedures and programs to improve process. Currently, I along with others in the Harris County District Courts are looking at several initiatives to address implicit biases, provide courtroom experience to young and diverse lawyers and to streamline jury service by implementing direct assignment of jurors to a court, rather than gather in the jury assembly area.

5. Why is this race important?

Judicial independence and diversity.

Word on the street is my opponent in the primary is being funded by a wealthy litigant who lost a case in my Court. If we want judges to have the courage to apply the law equally to all people, we have to re-elect judges who do so. My track record shows that is what I do. I do this in high profile cases which you can find with an internet search. But, I also do it in all cases, which is evidenced by the results from HBA’s judicial evaluations where lawyers practicing in my Court consistently rate me highly on fairness, hard work and efficiency.

My election is important to folks who value diversity. Diversity enhances legitimacy of the process and actually improves outcomes by ensuring many perspectives are bought to bear on a dispute. While we have made significant strides in increasing diversity of the bench in Texas, we still only have six open LGBT District Court Judges in the State of Texas. I am the longest serving open LGBT Judge in the state. If you believe as I do, that the people should see folks who look like them when they look at their government, then you have to ensure office holders who reflect the diversity of the population are elected and re-elected when they do a good job.

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

I have a passion for justice. This passion directs my politics, career and community choices and activities. All my life I have stood up for what is right and spoke out against and tried to change what is wrong. From my record, you know where my heart lies. My thirty years’ experience of activism and accomplishments in the community and the party shows it’s not just talk with me, I walk the walk.

Judge Powell back on the ballot

So be it.

Judge George Powell

A civil court judge Wednesday ordered that sitting criminal district Judge George Powell be included on the March primary ballot after the Harris County Democratic Party denied his application for candidacy last month.

Party officials had to accept Powell’s application within 24 hours, and he needs to appear as a choice for voters during the election, Judge Lauren Reeder ordered. But the ruling is technically temporary and could be subject to appeal by the party or Powell’s primary opponent, who was a third-party “intervener” in Powell’s suit against the party.

“I’m very happy that the judge granted our request for an injunction and that he gets the chance to run again,” said Kent Schaffer, Powell’s attorney. “Ultimately, it’s the voters who should decide who the candidate’s going to be, and not a select few people who feel like it’s their right.”

During a Tuesday court hearing, the local chapter of the Democratic Party sought to justify its decision in leaving Powell off the ballot, urging him to take responsibility for his application’s failure. A statement party officials issued after Wednesday’s ruling made little mention of the outcome, however, and pointed to issues with the election code.

Party leaders weren’t able to approve Powell’s candidacy because state rules prevented it, they said. The judge paid an insufficient filing fee too close to the filing deadline, meaning his application was denied and the problem couldn’t be fixed without breaking state rules, party chair Lillie Schechter testified Tuesday.

“The Harris County Democratic Party regrets the situation Judge Powell found himself in,” party officials said in a statement. “Without question, we believe all eligible candidates should have access to the ballot.”

See here for the background, and here for a pre-hearing version of the story, which was also covered by Texas Lawyer. On the one hand, I agree with the HCDP: The rules are easy to understand. He could have filed earlier than the very last minute, when there was no time to fix this easily-corrected mistake. The party doesn’t have much discretion according to the law. On the other hand, I hate seeing people bumped from the ballot for nit-picky reasons. The law in question should be amended to allow a post-deadline grace period to correct technical errors like this (though again, if you know you’re going to run, file at least a day before the deadline and save yourself the trouble).

This is probably the end of the story. The HCDP does not plan to appeal, and intervenor/primary opponent Natalia Cornelio does not appear to be appealing, either. Fine by me, let’s get on to the campaign. One more thing first:

Powell’s lawyers hinted in Tuesday’s injunction hearing that the party might have an interest in keeping the judge from running for re-election, even though paying the incorrect amount might have been no more than a convenient mistake. Schaffer clarified afterward that he believes Ellis is pulling strings in the local Democratic Party, and wants his employee to run unopposed for the 351st state judicial district.

Ellis and Cornelio both helped draft a landmark settlement over Harris County’s misdemeanor bail system, which a federal judge said was unconstitutional and discriminated against poor defendants.

Powell was one of 11 current and former judges in the area who were admonished by the State Commission on Judicial Conduct in 2019 related to complaints that they instructed hearing officers to deny no-cost bail to indigent defendants. That admonishment has since been retracted for unknown reasons.

Randle called the claims “ludicrous,” and Cornelio’s attorney, Mynor E. Rodriguez, said he hadn’t heard those accusations.

Yeah, that admonishment, whatever happened to it. I wasn’t inclined to vote for Powell before any of this happened. I’m less inclined to vote for him now.

After-deadline filing review: Courts

Let’s return to the wonderful world of scoping out our candidates. Today we will concentrate on judicial races. Previous entries in this series are for the greater Houston area, Congress, state races, and the Lege.

Supreme Court and Court of Criminal Appeals

I’ve actually covered all of these races, and given bits of info about the candidates, here and here. Go read those posts for the details, and here as a reminder are the candidates’ names and Facebook pages:

Supreme Court, Position 1 (Chief Justice) – Amy Clark Meachum
Supreme Court, Position 1 (Chief Justice) – Jerry Zimmerer

Supreme Court, Position 6 – Brandy Voss
Supreme Court, Position 6 – Staci Williams

Supreme Court, Position 7 – Kathy Cheng
Supreme Court, Position 7 – Lawrence Praeger

Supreme Court, Position 8 – Gisela Triana
Supreme Court, Position 8 – Peter Kelly

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

Court of Criminal Appeals, Place 4 – Brandon Birmingham

Court of Criminal Appeals, Place 9 – Tina Yoo Clinton
Court of Criminal Appeals, Place 9 – Steve Miears

First and 14th Courts of Appeals

Covered to some extent here, but there has been some subsequent activity, so let’s get up to date.

Veronica Rivas-Molloy – 1st Court of Appeals, Place 3
Dinesh Singhal – 1st Court of Appeals, Place 3
Jim Sharp – 1st Court of Appeals, Place 3

Rivas-Molloy and Singhal were mentioned previously. Jim Sharp is the same Jim Sharp that won in 2008 and lost in 2014.

Amparo Guerra – 1st Court of Appeals, Place 5
Tim Hootman – 1st Court of Appeals, Place 5

Both candidates were also previously mentioned. This is the seat now vacated by Laura Carter Higley.

Jane Robinson – 14th Court of Appeals, Place 1, Chief Justice
Jim Evans – 14th Court of Appeals, Place 1, Chief Justice

Jane Robinson has been mentioned previously. Jim Evans was a candidate for Family Court in 2014, and was appointed as an associate judge on the 507th Family Court in 2017, making him the first openly gay family court judge in Texas. He doesn’t have a campaign presence yet as far as I can tell.

Wally Kronzer – 14th Court of Appeals, Place 7
Tamika Craft – 14th Court of Appeals, Place 7
Cheri Thomas – 14th Court of Appeals, Place 7
V.R. Faulkner – 14th Court of Appeals, Place 7
Dominic Merino – 14th Court of Appeals, Place 7
Lennon Wright – 14th Court of Appeals, Place 7

Not sure why this court has attracted so many contestants, but here we are. Kronzer was the only candidate I knew of in that previous post; Cheri Thomas came along a bit later, and the others were all later in the filing period. Texas Judges can tell you some more about the ones that don’t have any campaign presence.

Harris County District Courts

The following lucky duckies have no opponents in the primary or the November general election:

Kristin Hawkins (11th Civil)
Kyle Carter (125th Civil)
Mike Englehart (151st Civil
Robert Schaffer (152nd Civil)
Hazel Jones (174th Criminal)
Kelli Johnson (178th Criminal)
Ramona Franklin (338th Criminal)

The next time you see them, congratulate them on their re-election. The following almost-as-lucky duckies are in a contested primary for the 337th Criminal Court, with the winner of the primary having no opponent in November:

Brennen Dunn, who had been in the primary for the 185th Criminal Court in 2018; see his Q&A here.
Colleen Gaido.
Veronica Sanders.
David Vuong
John A. Clark, whom I cannot positively identify. I hope everyone sends in Q&A responses, but I’m not voting for any candidate I can’t identify. I hope you’ll join me in that.

The following do not have a primary opponent, but do have a November opponent:

Fredericka Phillips (61st Civil).
RK Sandill (127th Civil), who in 2018 was a candidate for the Supreme Court.
Michael Gomez (129th Civil).
Jaclanel McFarland (133rd Civil)
Elaine Palmer (215th Civil).

Natalia Cornelio is currently unopposed in the primary for the 351st Criminal Court following the rejection of incumbent Judge George Powell’s application. That may change pending the outcome of Powell’s litigation in the matter.

The following races are contested in both March and November:

Larry Weiman (80th Civil, incumbent).
Jeralynn Manor (80th Civil).

Alexandra Smoots-Thomas (164th Civil, incumbent). Formerly Smoots-Hogan, now dealing with legal issues of her own.
Cheryl Elliott Thornton (164th Civil), who has run for Justice of the Peace and County Civil Court at Law in the past.
Grant Harvey (164th Civil).

Ursula Hall (165th Civil, incumbent).
Megan Daic (165th Civil).
Jimmie L. Brown, Jr. (165th Civil).

Nikita Harmon (176th Criminal, incumbent).
Bryan Acklin (176th Criminal).

Randy Roll (179th Criminal, incumbent).
Ana Martinez (179th Criminal).

Daryl Moore (333rd Civil, Incumbent).
Brittanye Morris (333rd Civil).

Steven Kirkland (334th Civil, incumbent). It’s not a Democratic primary without someone challenging Steve Kirkland.
Dawn Rogers (334th Civil).

Te’iva Bell (339th Criminal).
Candance White (339th Criminal).
Dennis Powell (339th Criminal), whom I cannot positively identify.
Lourdes Rodriguez (339th Criminal), whom I also cannot positively identify.

Julia Maldonado (507th Family, incumbent).
Robert Morales (507th Family).
CC “Sonny” Phillips (507th Family).

That about covers it. I should do a separate entry for JPs and Constables, and I did promise a Fort Bend entry. So there will likely be some more of this.

UPDATE: I missed Robert Johnson, the incumbent Judge of the 177th Criminal District Court (the court that now has Ken Paxton’s trial), in the first go-round. Johnson had an opponent file for the primary, but that application was subsequently rejected. He has no November opponent, so you can add him to the list of people who have been re-elected.

All have filed who are going to file

Barring any late challenges, disqualifications, or lawsuits, what we have now is our lineup for the March primary. Most of what there is to say was covered in yesterday’s post, but here are the highlights and there is some big news.

– Pretty much all of the “not yet filed” people did indeed file. There are three notable absences that I can see, though do keep in mind that the SOS page may be behind and shouldn’t be considered final until we have confirmation. Be that as it may, two people I don’t see are Judge Elaine Palmer (215th Civil Court; no one is listed on the Dem side for this court as of Monday night) and Precinct 1 Constable Alan Rosen. Hold those in mind, because there are news stories about some of the other interesting bits. Until I hear otherwise, the absence of any mention of those two suggests to me there’s no news, just a not-fully-updated SOS filing page.

– News item #1: Commissioner Steve Radack retires.

Steve Radack will not seek a ninth term as Harris County commissioner for Precinct 3, vacating a powerful position he has held for three decades that Democrats hope to flip next year.

Radack, 70, said he plans to invest his time and significant campaign account into helping Republicans regain seats after disastrous elections in 2016 and 2018.

“I’m not through being involved in public service, and I felt that there’s a lot I can do to help the Republican Party,” Radack said.

[…]

Radack and Harris County’s other Republican commissioner, Jack Cagle, endorsed Spring Valley Village Mayor Tom Ramsey for the seat.

Brandon Rottinghaus, a political science professor at the University of Houston, said Radack’s impending retirement speaks to the shifting county electorate, which has helped Democrats sweep every countywide race since 2016.

“It is getting harder and harder for Republicans to compete in a rapidly changing county,” Rottinghaus said.

[…]

Several candidates from both major parties have joined the race. Ramsey, City Councilwoman Brenda Stardig and former West University Place Mayor Susan Sample will run in the Republican primary. The Democratic race will feature Michael Moore, chief of staff to former Mayor Bill White, former state Rep. Kristi Thibaut, educator Diana Martinez Alexander and three other candidates.

I wish Commissioner Radack well in his retirement. And I am very much looking forward to seeing a Democrat elected to succeed him.

– News item #2: Council Member Jerry Davis will challenge State Rep. Harold Dutton in HD142.

Houston City Councilman Jerry Davis filed Monday to run as a Democrat for House District 142, a northeast Harris County seat long represented by state Rep. Harold Dutton.

Davis, who has represented District B since 2011, is prevented from seeking re-election due to Houston’s term limits. His council district overlaps part of the House district, which includes the Fifth Ward and runs east and then north to FM 1960.

The move ensures Dutton, D-Houston, will have his most challenging primary in years. He was first elected to the Legislature in 1984 and frequently has coasted to victory without primary opposition. Last cycle, he beat primary challenger Richard A. Bonton, 65 percent to 35 percent.

Bonton is running for the seat again this cycle.

I always figured CM Davis would run for something else when his time on Council ended, it was just a matter of what opportunity there would be. I’ll have more to say about this later, but for now this is an exciting race.

– News item #3:

Well, I did hear that a “big name” was set to enter this race. Now we know.

– News item #4:

And now Beto has endorsed Sima. I’ve already published one interview in CD02, and I have another in the works. I’ll figure out something for this.

– Five Democratic incumbents in Congress do not have primary opponents: Reps. Lizzie Fletcher (CD07), Vicente Gonzalez (CD15), Veronica Escobar (CD16), Sylvia Garcia (CD29), and Colin Allred (CD32). Everyone else needs to be gearing up for March. As was the case in 2018 and for the second time ever, Dems have at least one candidate in all 36 districts.

– All of the statewide offices except CCA Place 9 are contested, with several having three candidates. Already, the potential for multiple primary runoffs is high.

– According to the TDP, in the end Dems have candidates in all but one of the Senate districts that are up (only SD28 is uncontested), and they have candidates in 119 of the 150 State House races. HD23 drew a candidate, but HDs 43 and 84 apparently did not. In Harris County, only HD127 is uncontested.

– There is now a third candidate for HD148, an Emily Wolf. I cannot conclusively identify her – maybe this person? – so it’s impossible to say more than that.

– And on the Republican side, State Rep. Mike Lang in HD62 is your promised surprise retirement. Dems do have a candidate in this not-swing district.

– Looking at the Republican filings, quite a few Democratic judges have no November opposition. We have officially come full circle.

Again, remember that the SOS page may not be complete. The parties have five days to notify the SOS of their candidates. It’s possible there are still surprises lurking, to be confirmed and reported. If you’re not sure about a particular candidate, google them or find them on Facebook, to see if there’s been an announcement. I’ll have more as we go this week.

The “Has Not Yet Filed” list

Today is the actual, official filing deadline. Anyone who has not filed for a spot in the primary by 6 PM today is not a candidate for a Democratic nomination in 2020. A whole lot of people have already filed, and a whole lot more will file today – I’m going to have a lot to talk about with this tomorrow and for the rest of the week – but there are still a few notable absences (with the caveat that the SOS list may not be complete). So with that in mind, here are the “why aren’t they there yet?” list to ponder as the hours tick down.

US Senate: MJ Hegar is not yet listed. John Love, the Midland City Council member who announced his candidacy in October, has ended his campaign, on the grounds that he lacked the time and finances. Good for him for recognizing his situation, and I hope he looks at 2022 for another possible statewide campaign. Eleven candidates have filed so far, Hegar will make it 12 when she makes it official.

US Congress: Reps. Joaquin Castro (CD20) and Colin Allred (CD32) are not on the list as of Sunday evening. Some of the more recent entrants in CDs 03 and 31 – Tanner Do, Chris Suprun, Dan Jangigian – are not yet on the list. Much-ballyhooed CD28 challenger Jessica Cisneros is not yet on the list. Wendy Davis has CD21 to herself right now, as Jennie Leeder has not yet appeared. CDs 19, 27, and 36 do not yet have Democratic candidates. And while this has nothing to do with our side, the Republican field in CD22 is mind-bogglingly large. Good luck with that.

Railroad Commissioner: Kelly Stone had not filed as of Sunday, but she has an event on her candidate Facebook page announcing her filing at 2:30 today. Former State Rep. Robert Alonzo has joined the field.

SBOE: All positions are accounted for. Letti Bresnahan remains the only candidate in District 5, the most flippable one on the board. I still can’t find any information online about her candidacy.

State Senate: No candidates yet in SDs 12, 18, 22, or 28. Not surprising, as none are competitive, but a full slate is still nice. Sens. Borris Miles and Eddie Lucio now each have two opponents, the field in SD19 is four deep, and Rep. Cesar Blanco still has SD29 all to himself.

State House: Far as I can tell, the only incumbent who hasn’t filed yet is Rep. Rene Oliveira in HD37. Of the top targets for 2020 based on Beto’s performance, HDs 23, 43, and 84 do not yet have Democratic candidates. Those are if not the bottom three on the competitiveness scale, with the first two trending away from us, they’re close to it. If they go unfilled it will still be a waste, but about the smallest possible waste. Rep. Ron Reynolds does not have a challenger. Sean Villasana, running for the HD119 seat being vacated by Rep. Roland Gutierrez as he runs for SD19, has the field to himself so far. In all of the big counties, the only one missing a Dem right now is HD99 in Tarrant, which is not particularly competitive.

District Courts: Limiting myself to Harris County, Judges Jaclanel McFarland (133rd Civil), Ursula Hall (165th Civil), Elaine Palmer (215th Civil), and George Powell (351st Criminal) have not filed. Other candidates have filed in the 165th and 351st, as have candidates in the 337th Criminal (Herb Ritchie) and 339th Criminal (Maria Jackson) where the incumbents are known to not be running again. Alex Smoots-Thomas now has an opponent for the 164th, and I am told another may be on the way.

Harris County offices: All of the candidates I’ve tracked for District Attorney, County Attorney, Sheriff, and Tax Assessor have now filed; I’m told another candidate may be filing for Tax Assessor, but I don’t know any more than that. David Brown has not yet filed for HCDE Position 7 At Large, but he was at the CEC meeting yesterday and I expect to see him on the ballot. Luis Guajardo has not yet filed for Commissioners Court in Precinct 3. There’s still no JP candidates in Precincts 4 and 8, and no Constable in Precinct 8. And Precinct 1 Constable Alan Rosen is still missing. Could that mean something? We’ll find out today. I’ll have a report tomorrow.

Former judge McSpadden rebuked by State Commission on Judicial Conduct

Good.

A former district judge who served on the Harris County bench for 36 years has received a formal reprimand from a state watchdog commission for comments he made to a Houston Chronicle reporter stating black defendants were getting poor guidance from their parents about how to behave when they’re suspected of crimes.

The commission’s rebuke also cited the former judge’s comments in an editorial he penned for the Chronicle expounding on black defendants’ attitudes toward the justice system.

The State Commission on Judicial Conduct issued a warning on Nov. 12 to Michael McSpadden, a Republican who served on the 209th Criminal Court from 1982 through the 2018 election, for “casting public discredit on the judiciary and the administration of justice,” based on a series of comments he made about defendants’ attitudes toward judges and police officers. The commission announced its decision on Monday.

The Austin-based panel found that McSpadden violated a portion of the Texas Code of Judicial Conduct that instructs judges not to do anything outside of court that casts reasonable doubt on the judge’s ability to act impartially. The panel also found McSpadden violated the Texas Constitution’s prohibition against “willful and persistent conduct that is clearly inconsistent with the proper performance of his duties or casts public discredit upon the judiciary or administration of justice.”

The warning does not prevent McSpadden from sitting by assignment as a visiting judge, according to Eric Vinson, former executive director of the commission.

[…]

Ashton Woods, president of Black Lives Matter Houston, who called for McSpadden to come under scrutiny for the comments, said the former judge’s statement in chambers and in his editorial called into question his ideology, indicating he could not be fair to black defendants and people of color who came before him due to his preconceived notions of how they may think.

“There’s already an imbalance … and when people put their thumb on the scale like McSpadden did, it increases the disparity,” Woods said. “There may have well been innocent people going through his court and he may have thrown the book at them because he had a bias toward them.”

Woods said he hoped all of McSpadden’s rulings would be reviewed for impartiality.

James Douglas, president of the Houston branch of the NAACP, said he did not think the commission went far enough.

“I think he should be banned from sitting on the bench,” Douglas said. “I don’t think he has the mental temperament or understanding of racial issues…Those views are not the views of a person who is totally impartial on the issue. He indicates he is not impartial when it relates to charges against African American males.”

See here and here for some background. The original comments from McSpadden, who was thankfully removed from the bench last year by the voters, came in a story about how he and others had “directed magistrates to deny no-cash bail to all newly arrested defendants”, over a period of nearly ten years. I agree that McSpadden’s previous rulings should be reviewed, and I definitely agree that he should never be allowed near a bench again. The visiting judge system needs an overhaul as it is, and it should be updated to exclude specifically problematic jurists like McSpadden. This is a no-brainer.

Filing update: Focus on Harris County

One more look at who has and hasn’t yet filed for stuff as we head into the final weekend for filing. But first, this message:


That’s general advice, not specific to Harris County or to any person or race. With that in mind, let’s review the landscape in Harris County, with maybe a bit of Fort Bend thrown in as a bonus. Primary sources are the SOS candidate page and the Patrick Svitek spreadsheet.

Reps. Sylvia Garcia and Lizzie Fletcher do not have primary opponents, though the spreadsheet does list a possible opponent for Garcia. As previously discussed, Rep. Al Green has a primary opponent, and Rep. Sheila Jackson Lee has three so far, with at least one more to come. Elisa Cardnell and Travis Olsen have filed in CD02. Mike Siegel and Shannon Hutcheson have filed in CD10, and none of the three known contenders have filed yet in CD22. (Before you ask, no, I don’t know why some candidates seem to wait till the last minute to file.)

In the Lege, the big news is that Penny Shaw has filed in HD148, so the voters there will get their third contested race in a four month time period. At least with only two candidates so far there can’t be a runoff, but there’s still time. Ann Johnson and Lanny Bose have filed in HD134, Ruby Powers has not yet. Over in Fort Bend, Ron Reynolds does not have an opponent in HD27, at least not yet. No other activity to note.

Audia Jones, Carvana Cloud, and Todd Overstreet have filed for District Attorney; incumbent Kim Ogg has not yet filed. Christian Menefee and Vince Ryan have filed for County Attorney, Harry Zamora has entered the race for Sheriff along with incumbent Ed Gonzalez, and Jack Terence, last seen as a gadfly Mayoral candidate in the late 90s and early 2000s, has filed for Tax Assessor; Ann Harris Bennett has not yet filed. Andrea Duhon has switched over to HCDE Position 7, At Large, which puts her in the same race as David Brown, who has not yet filed. Erica Davis has already filed for Position 5, At Large.

In the Commissioners Court races, Rodney Ellis and Maria Jackson are in for Precinct 1; Michael Moore, Kristi Thibaut, Diana Alexander and now someone named Zaher Eisa are in for Precinct 3, with at least one other person still to come. I will note that Precinct 1 Constable Alan Rosen has not yet filed for re-election, but three other candidates, two of whom filed within the first week of the period, are in for that position. Rosen’s name has been bandied about as a possible Commissioners Court challenger to Steve Radack, and if he is planning to jump to that race it makes sense that he’d take his time, since he’d have to resign immediately afterward. I have no inside scoop here, just a bit of idle speculation. There are no Dems as yet for either Constable or JP in Precincts 5 or 8.

This brings us to the District Courts, and there’s some interesting action happening here. There are a couple of open seats thanks to retirements and Maria Jackson running for Commissioners Court. Herb Ritchie is retiring in the 337th; two contenders have filed. One person has filed in Jackson’s 339th. Someone other than George Powell has filed in the 351st, and someone other than Randy Roll has filed in the 179th. I’m not sure if they are running again or not. Steve Kirkland has a primary opponent in the 334th, because of course he does, and so does Julia Maldonado in the new 507th. Alexandra Smoots-Thomas does not yet have a primary opponent.

Fort Bend County went blue in 2018 as we know, but Dems did not have a full slate of candidates to take advantage of that. They don’t appear to have that problem this year, as there are multiple candidates for Sheriff (where longtime incumbent Troy Nehls is retiring and appears poised to finally announce his long-anticipated candidacy for CD22, joining an insanely large field), County Attorney, and Tax Assessor (HCC Trustee Neeta Sane, who ran for Treasurer in 2006, is among the candidates). The Dems also have multiple candidates trying to win back the Commissioners Court seat in Precinct 1 that they lost in 2016 – one of the candidates is Jennifer Cantu, who ran for HD85 in 2018 – and they have candidates for all four Constable positions.

There are still incumbents and known challengers who have been raising money for their intended offices who have not yet filed. I expect nearly all of that to happen over the weekend, and then we’ll see about Monday. I’ll be keeping an eye on it all.

Filing report update

We’re a week out from the official filing deadline for the 2020 primaries. There’s still a lot of known candidates who haven’t filed yet, but I expect there will be a mad flurry of activity this week, as is usually the case. Don’t be surprised if we hear of an out-of-the-blue retirement or two, as that is known to happen at this time as well. I’m going to take a quick look at where we stand now, and will provide other reports as needed before the deadline on Monday. My sources for this are as follows:

The Patrick Svitek spreadsheet.
The Secretary of State Candidate Information page, which is quite handy and reasonably up to date.
Texas Judges, whose provenance is unknown to me, but they have the most information I’ve found about candidates for statewide and Courts of Appeals judicial races.
Jeff Blaylock’s Texas Election Source – I may be too cheap to subscribe, but the free info he includes is always worth noting.

SBOE

We have a third Democrat in the race for SBOE6, Kimberly McLeod. She is Assistant Superintendent of Education & Enrichment at HCDE and a former professor at TSU. She joins former HCDE Board member Debra Kerner (who has filed) and teacher Michelle Palmer (who had not yet filed, at least according to the SOS, as of this weekend).

We have a filing for SBOE5, the most-flippable of the SBOE districts up for election this year, Letti Bresnahan. Google tells me that a person by this name was a Trustee at San Antonio’s Northside ISD (she is not on the Board now). She was elected in 2008, narrowly re-elected in 2012, and I guess didn’t run in 2016; the Bexar County Elections report for May 2016 doesn’t list the NEISD Position 6 race, so who knows what happened. In 2015, she voted to keep the name of San Antonio’s Robert E. Lee High school; it was subsequently changed to Legacy of Education Excellence (LEE) High School in 2017, by which time as far as I can tell she was no longer on the Board. That’s a whole lot more words than I intended to write about her or this race – and mind you, I can’t say for sure this is the same Letti (Leticia) Bresnahan. I noted this because I’ve been keeping an eye on this race – the district was carried by Hillary Clinton in 2016, it was the bluest of the Republican-held SBOE districts in 2018, and the incumbent is a wingnut. So I was gonna write something when a Dem filed, I just didn’t expect it to be this.

State Senate

Someone named Richard Andrews has filed as a Democrat against Sen. Borris Miles. The Svitek spreadsheet has him as a General Election opponent, but his website clearly says “Democrat”, and the SOS has him as a Democrat. He’s a doctor, and that’s all I know about him.

State House

Current SBOE member Lawrence Allen, Jr, who is the son of State Rep. Alma Allen, has filed in the increasingly crowded Democratic primary in HD26. It’s one of the nine GOP-held districts that Beto won in 2018. Rish Oberoi, Suleman Lalani, and 2018 candidate Sarah DeMerchant have also filed.

Travis Boldt has filed in HD29, in Brazoria County. That was one of two near-miss districts (Beto got 47.0%) in which no Dem was on the ballot in 2018; HD32, which does not yet have a candidate filed, was the other.

Sandra Moore, who lost in the 2018 Dem primary to Marty Schexnayder, has filed to run again in HD133.

Ashton Woods has changed the name of his Facebook page to indicate he plans to run in the primary for HD146, currently held by second-term Rep. Shawn Thierry. He has not filed as of this writing.

So far, no one else has filed to run in the primary for HD148, where Anna Eastman is in the runoff for the special election, and has made her filing for 2020.

First Court of Appeals

I hadn’t gotten into the Courts of Appeals in my previous discussions, but especially after the sweep of these races by Dems in 2018 (and not just on this court), they will surely be of interest to multiple candidates.

Veronica Rivas-Molloy, who has officially filed, and Dinesh Singhal are in the race for Place 3 against incumbent Russell Loyd, who was elected in 2014. The Texas Judges website also lists Keith F. Houston as a candidate, but he appears to have decided not to run.

Amparo Guerra and Tim Hootman have both filed for Place 5, which had been held by the now-resigned Laura Carter Higley. There are three Republicans running so far, and there may be another if Greg Abbott appoints someone to fill the still-vacant seat prior to the filing deadline.

14th Court of Appeals

Jane Robinson is the (so far, at least) lone Democrat running for Chief Justice. I saw her at the HCDP Friendsgiving last month but did not have the chance to walk up and say Hi. The position is held by Justice Kem Thompson Frost, who is not running for re-election. Justice Tracy Christopher, who holds Place 9, is running for Chief Justice. She was last elected in 2016, so she would not otherwise be on the ballot. My assumption is that if she wins, she will move over from Place 9, which will make Place 9 vacant, and Abbott will appoint someone who would then run in Christopher’s spot in 2022. If she loses, she’ll remain in her spot and run for re-election (or not, as she sees fit) in 2022.

Wally Kronzer, who has filed, and Cheri Thomas are running for Place 7. Kronzer ran for Place 5 on this court in 2010. Ken Wise, in his first term, is the incumbent.

District courts

I don’t see any primary challengers yet for incumbent Democratic district court judges. I have heard someone is circulating petitions to challenge Judge Alex Smoots-Thomas, which I think we can all understand. I’m not in a position to say anything more than that as yet.

County offices

Audia Jones has officially filed for Harris County DA. Christian Menefee and Vince Ryan have both filed for County Attorney. Michael Moore has filed for County Commissioner in Precinct 3; Kristi Thibaut and Diana Alexander both announced their filings on Facebook over the weekend, but the SOS has not caught up to those filings yet. Bill McLeod, of accidental resignation fame, has filed to win his old seat on County Civil Court at Law #4 back. Incumbent Judge Lesley Briones has not yet filed. We will have a contested primary for at least one of the two HCDE at large positions, as Erica Davis has filed in Position 5; here’s her appointment of treasurer. Andrea Duhon, who had run for a different HCDE position in 2018, has already filed an appointment of treasurer for this race. David Brown is running for the other spot, Position 7, and as far as I know has no Dem opponent as yet.

Now you know what I know. We’ll all know a lot more in a week’s time.

We should have a full statewide slate

Nice.

Judge Gisela Triana

For Brandon Birmingham, a state district judge in Dallas, the 2020 race for Texas Court of Criminal Appeals started on election night 2018.

As he watched Beto O’Rourke win more votes than any Texas Democrat ever had in a statewide race, Birmingham — who himself won reelection that night with 100% of the vote in his countywide district — began to mull his own chances at winning Texas. Within weeks, he’d reached out to the state Democratic Party. By December, he’d sat down with party officials over breakfast in Dallas to discuss a possible run.

Now, as the 2020 election season begins in earnest after the start of the filing period Nov. 9, Birmingham is one of 14 Democrats seeking one of seven seats on the state’s two high courts — an unusually crowded and unusually qualified field for races that have over the past two decades plus proved suicide missions for Democrats. This year, with a controversial Republican president on the ballot and sky-high stakes for Texas Democrats, candidates are hoping the races look more like heroes’ journeys.

“In 2018, 2016, 2014, 2012, the last four cycles, the month of October was spent talking and begging people to come to us, to run for these kinds of offices,” said Glen Maxey, a former Texas House member who is coordinating statewide judicial races for the Texas Democratic Party. “That’s what’s different about 2020. We did not make a single phone call. … We have not twisted a single arm about doing this.”

In past years, Maxey said, the party was often scrambling to find “any qualified attorney” to put on the ballot. This year, nearly every race involves at least one sitting judge or justice with years of experience.

[…]

Strategists sometimes consider statewide judicial races the best measure of the state’s true partisan split: Whom do voters pick when they know little or nothing about either party’s candidate?

Statewide judicial races are “important to watch in terms of partisan vote behavior,” said Mike Baselice, a GOP pollster. They show a “good reflection of base Democratic and base Republican vote in the state.”

That also means that judicial candidates typically rise and fall as a slate: Most likely, either all of them will win or none of them will, strategists acknowledge. It’s a blunt theory, but it offers clear strategic guidance: A rising tide lifts all boats.

“We won’t have them each deciding to be at the same chicken fry in Parker County on the same Friday,” Maxey said. Instead, he said, they’ll tell nominees: “We need you to travel. We need you to be making appearances as seven people in seven different media markets every day, so that people are hearing a Democratic message about equal justice, all over, everywhere.”

I agree with Mike Baselice that judicial races do indeed do a good job of measuring partisan vote behavior. As you know, I’ve been using CCA races across the years as my point of comparison. I like judicial races at the county level even more because they are almost always straight up R-versus-D contests, but a lot of these go uncontested in counties that have strong partisan leans, so the statewides are the best overall proxy.

By that measure, 2018 was easily the most Democratic year in recent memory. The Supreme Court and CCA Democratic candidates ranged from 45.48% (in a race that included a Libertarian) to 46.83%, the best showing since Sam Houston got 45.88% in 2008 and Margaret Mirabal got 45.90% in 2002. I’d quibble slightly with the assertion that all the Dems will win or none of them will – there is some spread in these races, so if the state is basically 50-50, you could have a couple Dems sneak through while others just fall short. That’s basically what happened in Harris County judicial races in 2008 and 2012, after all. The presence or absence of third party candidates could be a factor as well, as more candidates in the race means fewer votes, and only a plurality, are needed to win. Again, this is only relevant if the state is truly purple, and the range of outcomes that include a split in the judicial races is narrow, but it could happen.

My one complaint here is that the story only names one Democratic CCA candidate, while teasing that there are many more. So I asked some questions, of reporter Emma Platoff and Patrick Svitek, reporter and proprietor of the Patrick Svitek spreadsheet of announced candidates, and now that Statewide tab is full. Here. for your perusal, are your Democratic statewide judicial candidates:

Amy Clark Meachum – Supreme Court, Position 1 (Chief Justice)
Jerry Zimmerer – Supreme Court, Position 1 (Chief Justice)

Supreme Court, Position 6 – Brandy Voss
Supreme Court, Position 6 – Staci Williams

Supreme Court, Position 7 – Kathy Cheng
Supreme Court, Position 7 – Lawrence Praeger

Supreme Court, Position 8 – Gisela Triana
Supreme Court, Position 8 – Peter Kelly

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

Court of Criminal Appeals, Place 4 – Brandon Birmingham

Court of Criminal Appeals, Place 9 – Tina Yoo Clinton
Court of Criminal Appeals, Place 9 – Steve Miears

Kelly is a Justice on the First Court of Appeals, elected in 2018. He doesn’t appear to have an online campaign presence yet, but a search for “peter kelly texas supreme court” yielded this.

William Demond is a “constitutional rights attorney” in Houston. Elizabeth Frizell is a former County Criminal Court judge in Dallas who ran for Dallas County DA in 2018 but lost in the primary. This story in The Appeal has some information about her candidacy from that year. Dan Wood is a criminal appellate lawyer who ran for the Fifth Court of Appeals in 2012 and for CD05 in 2018.

Brandon Birmingham, the one candidate named in the story, was elected to the 292nd Criminal District Court in Dallas in 2014, re-elected in 2018.

Tina Clinton serves as Criminal District Judge Dallas County Number 1, which is a felony court. I don’t know why the nomenclature is different from the other District Courts as I had not heard of this kind of court before, but similarly-named courts exist in Tarrant and Jefferson counties as well. She was elected to this court after serving eight years as a County Criminal Court judge, and you can scroll down the 2018 election results page to see more judges like her. Steve Miears is a criminal and criminal appellate attorney from Grapevine.

And now we’re as up to date as we can be The Secretary of State is now providing candidate filing information, which tells me that as of Friday Lawrence Praeger was the only one to have formally filed. More are to follow, and I’ll keep an eye on it.

Smoots-Thomas suspended from the bench

What you’d expect.

Alexandra Smoots-Thomas

A district court judge in Harris County has been suspended after she was indicted on federal wire fraud charges for allegedly misspending campaign donations.

Judge Alexandra Smoots-Thomas, 44, will be removed from her bench without pay until the State Commission on Judicial Conduct determines otherwise, the oversight board said Tuesday, the same day it was presented with the indictment and ordered her suspension.

“We’re not surprised, but we’re still very disappointed that the state chose to take that action,” Smoots-Thomas’ attorney, Kent Schaffer, said. “It just adds to the fight that we have before us.

[…]

The State Commission on Judicial Conduct has the authority to suspend judges, but can only recommend their removal to the Texas Supreme Court after conducting an investigation, according to the commission’s procedures.

Smoots-Thomas has rarely sat on her bench this year, Schaffer said, because she has breast cancer and has undergone several rounds of treatments.

See here for the background. I guess I can understand being disappointed in this entirely expected decision, but I don’t know what else might have happened. I can’t imagine a scenario in which a judge in similar circumstances would not be suspended. If nothing else, anyone appearing before her might reasonably question whether she could be on her game, since there would obviously be bigger things on her mind than whatever case was being argued.

I know that Judge Smoots-Thomas is collecting signatures to get on the ballot next year. I don’t know at this time if anyone else is doing the same. I’ll be surprised if that isn’t the case, but stranger things have happened. In the meantime, we’ll see how long this investigation takes.

District Court Judge Smoots-Thomas accused of wire fraud

Yikes.

Alexandra Smoots-Thomas

A Harris County judge is facing federal charges that accuse her of using campaign donations for personal expenses, including for mortgage payments, private school tuition and travel.

Judge Alexandra Smoots-Thomas, 44, is charged with wire fraud charges, according to federal prosecutors. She turned herself in to U.S. Magistrate Peter Bray, appearing before him with chains wrapped around her waist and ankles.

She pleaded not guilty to the charges, and the magistrate set a pre-trial conference for Jan. 6.

Wearing a gray and black suit, she kept her head down for most of the arraignment. Smoots-Thomas has breast cancer, and had a round of chemotherapy on Thursday, attorney Kent Schaffer said.

Schaffer denied the charges after the proceeding, alleging that the U.S. Attorney’s Office, under Ryan Patrick, was targeting Smoots-Thomas because she is a black female Democrat.

“She has not defrauded anybody,” he said.

Patrick’s office has been contacted for comment on Schaffer’s allegations.

A federal grand jury on Oct. 24 returned a seven-count indictment against Smoots-Thomas, who presides over the 164th District Court and has jurisdiction over civil cases within Harris County. The indictment was unsealed on Friday.

[…]

The indictment alleges Smoots-Thomas of soliciting campaign contributions on the premise the money would be used to help facilitate her re-election campaigns in 2012 and 2016, prosecutors said. She concealed the expenses from her campaign treasurer and the Texas Ethics Commission by filing false campaign finance reports, according to the charges.

Obviously, this is bad and upsetting. She is of course innocent until proven guilty, but federal prosecutors tend to prefer bringing charges in cases they feel confident about winning.

Judge Smoots-Thomas was first elected in 2008. She was known as Alexandra Smoots-Hogan then; I know she had gotten divorced, and I presume remarried. There’s always a question about whether elected officials who are accused of crimes should resign when that happens. This is where I point out that Ken Paxton is still Attorney General, and I have not called for his resignation because he has not yet been convicted of anything. I’m inclined to believe that Kent Schaffer’s allegation about Assistant US Attorney Ryan Patrick is more defense lawyer strategy than anything else, but if all it took was an indictment to force someone out of office, then it’s certainly possible to imagine a politically motivated prosecutor filing sketchy charges as a partisan tactic. Plenty of people have been unjustly prosecuted in other contexts, after all. It’s a terrible look and I’m sure Republicans are rubbing their hands with glee over the potential attack ads, but even public officials get their day in court.

You really have to plan for every election

Whether or not they actually happen.

Judge Michael Keasler

For months, Democrats Mark Watson and Mike Snipes have been running 2020 campaigns for Texas Court of Criminal Appeals Place 6. They’ve raised money, filed official paperwork, gathered signatures, traveled to far corners of the state, devoured East Texas delicacies, created Facebook pages, won endorsements, launched websites and given interviews with journalists.

There’s just one problem: There is probably not going to be an election.

The current occupant of that seat, Republican Judge Michael Keasler, is 77, and according to the state’s mandatory retirement law for judges, he must finish his decades of service on the state’s highest criminal court by the end of next year at the latest. State law permits him to finish four years of the six-year term he was elected to in 2016.

According to the Texas Constitution, Keasler’s seat will become vacant at the end of next December, and Gov. Greg Abbott is empowered to fill judicial vacancies. But the little-known and rarely relevant law seems to have led to some confusion: Would Keasler’s seat be filled in 2021 by the governor, or in 2020 by the voters?

If the Democrats were confused, they certainly weren’t the only ones.

In August, when an official from the state Democratic Party emailed state elections administrators to ask whether there would be a race, a lawyer for the secretary of state’s office reported that there would.

“I figured it out,” wrote Christina Adkins in an Aug. 15 email obtained by The Texas Tribune. “Judge Keasler is subject to mandatory retirement so his position is on the ballot in 2020.”

The race was included on the state’s list of offices up for election in 2020, posted earlier this year, and remained there as recently as Wednesday morning. Later that day, a Texas Tribune journalist emailed the agency to ask whether the seat would be up in 2020. As of Thursday, it was no longer listed on the state’s website.

A spokesman for the agency said Friday that “there is no vacancy until December 31, 2020, and the office is not already on the ballot.”

The story includes a before-and-after screenshot from the SOS website, which one day did list CCA6 as a 2020 race and then the next day did not. At this point, I’d have to say that barring anything unexpected this race will next be on the 2022 ballot as currently scheduled. At least Watson and Snipes will be ready to hit the ground running when that time comes around.

Justice Higley resigns

This is clearly the best course of action.

Justice Laura Higley

Justice Laura Carter Higley, who lives in West University and served on the Houston-based court, submitted her notice to Gov. Greg Abbott, the appeals court’s clerk confirmed Tuesday. In the letter, she did not offer a reason for stepping down from the bench, he said.

“Her service is appreciated by us and the state of Texas,” clerk Christopher Prine said.

The justice, a Republican, has held Place 5 on the court since 2002. She was re-elected in 2008 and 2014, with her term set to expire December 2020.

[…]

It’s unknown whether Justice Higley has been on the receiving end of any official complaints related to her work. Those would be brought to the State Commission on Judicial Conduct, the oversight group for judges, interim executive director Jacqueline Habersham has said.

See here for the background. Greg Abbott has accepted the resignation, and will appoint a new justice, who will be on the ballot in 2020 as Higley would have been. If recent patterns hold, he’ll appoint one of the Republican judges who were ousted in either 2016 or 2018. Regardless, I wish Laura Higley all the best with her health and care.

The case of Justice Laura Higley

This is a sad situation, one with potentially fraught political implications.

Justice Laura Higley

An appeals court justice serving Southeast Texas continues to sit on the bench as she suffers from Alzheimer’s disease, all while facing familial discord over the control of her $8 million estate, court records show.

Her sons launched an effort this month to become her legal guardians, alleging that Justice Laura Carter Higley, 72, is continuing with her daily routine in a manner contrary to the path of her failing cognitive health. That includes driving herself to work downtown and serving in her capacity on the First Court of Appeals based in Houston, said sons Garrett C. Higley and Robert Carter Higley.

“Due to the recent (and rapid) progression of her Alzheimer’s disease, Justice Higley’s mental state has deteriorated to the point that she is no longer able to care for her own physical health or manage her own financial affairs,” the Higley brothers said in the filing for guardianship.

Laura Carter Higley became the subject of the guardianship case in mid-October, just a week after receiving an official diagnosis of Alzheimer’s disease, according to documents filed in Harris County Probate Court No. 2. Her wellness issues began more than a year earlier with a diagnosis of an unspecified mild neurocognitive disorder, the sons said in their attempt to pull decisions regarding Higley’s care away from her husband, West University Place Mayor Bob Higley.

[…]

The judge began experiencing mild neurocognitive issues as early as November 2017, according to her sons’ filing. The unspecified disorder progressed to a mild neurocognitive disorder stemming from possible Alzheimer’s disease in March, which again worsened to a diagnosis of Alzheimer’s disease on Oct. 9, court records show.

The justice’s name is not listed next to any decisions made on appeals cases since her diagnosis earlier this month, according to the First Court of Appeals website. But she has been involved in hundreds of decisions on civil and criminal cases since March.

Higley is one of nine justices on the court, which serves Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller and Washington counties. The judges mostly hear appeals on cases decided in lower district and county courts in their jurisdiction.

Lillian Hardwick, a Texas attorney who wrote the “Handbook of Texas Lawyer and Judicial Ethics,” said that judges may be fearful of leaving their bench too early while facing an illness. They might enjoy the work, be hesitant to cut off retirement benefits or may not know the scope of their problem.

On the other hand, a justice might feel they’re having issues remembering certain things at home, but “by golly, she can tell you the family law code backwards and forwards,” Hardwick said. Only in the event their disability impedes the ability to perform their duties would they be violating constitutional requirements.

“They should either be retired by somebody or they should be removed,” she said. “That judge is not able to be a judge, it’s pretty simple.”

The justice’s colleagues might be in the best position to notify the commission of a potential unfitness for office, said Jonathan Smaby, the executive director at the Texas Center for Legal Ethics.

The Texas Code of Judicial Conduct requires judges to be competent and diligent, he said, although the justice might not be aware of their own lack of competence.

“It’s not always obvious to the person when they’re suffering from age-related decline,” Smaby said. “To say it’s an ethics violation makes it sound like it’s intentional.”

There’s a lot more in there about the dispute between Justice Higley’s husband and sons. I don’t want to get into that, but we have to consider the implications of Justice Higley’s health. That assumes there is an issue with her health – we have allegations but no confirmation, so we’re in the realm of speculation, which is an uncomfortable place to be. I hope she is well, and I hope that if that changes, or if any of her colleagues has reason to believe that it has changed, that they take appropriate action with the State Commission on Judicial Conduct. The people who have cases before the First Court of Appeals deserve judges who are all at the top of their game.

In the meantime, Justice Higley will be up for re-election in 2020. It is certainly possible that she will step down and allow Greg Abbott to appoint someone to her seat, so that person would run instead. Like I said, all speculation. I expect we’ll hear something more in the near future.

The visiting judge and the public defender

I want to understand more about this.

Commissioner Rodney Ellis is calling for a review of the process used to select substitute judges after fielding a scathing letter from the county’s public defender outlining two decades of allegations against ex-Judge Jim Wallace and questioning whether he is eligible to still sit as a “visiting” jurist in light of his disciplinary history.

The former elected judge, a Republican who left the bench in 2018, was one of 11 publicly admonished by state oversight officials in August for allegedly violating judicial canons by ordering hearing officers to deny no-cost bail to thousands of poor defendants.

That admonishment — which the State Commission on Judicial Conduct later retracted, according to Wallace’s attorney — was just one of nearly a dozen incidents outlined in the two-page letter, which also detailed Wallace’s previous disciplinary actions and a more recent courtroom spat when he suggested that a female attorney was objecting too often and told her she should just “stay standing through the whole trial and save your knees.”

The letter, signed by Chief Public Defender Alex Bunin, called those actions “prejudicial to a fair trial” and suggested that the county get a legal opinion on whether Wallace is still eligible to get work as a visiting judge in light of his history.

The regional administrative judge who approves such appointments said that Wallace does qualify because his disciplinary matters were considered lower-level infractions. Wallace, meanwhile, disputed some of the allegations against him, and argued that his other actions were justified or taken out of context.

“They’re bringing up a bunch of stuff that’s totally not true and inaccurate,” he told the Houston Chronicle. “I’m a judge that comes from the old school but I’m not gonna be intimidated by the public defender’s office.”

To Ellis, the letter raises questions about whether judges who were voted out of office or left the bench should still be overseeing local courtrooms. Though he conceded it’s not clear what changes county-level elected officials could implement, on Friday he added the issue to the next Commissioners Court agenda and said he planned to go to the county attorney for advice.

“I’m not sure what can be done,” he said, “but I’m sure what cannot be — and that’s for us to turn a blind eye.”

See here for more on that admonishment. I for one would like to know for sure if the State Commission on Judicial Conduct did in fact retract it, which if true seems to me to be a big deal and a key fact, or if this one judge’s lawyer is just saying they did. The rest of the story goes into the charges levied by Alex Bunin and Judge Wallace’s responses to them. I don’t have nearly enough information to assess them, so I support Commissioner Ellis’ call to review the entire system, which I’m guessing hasn’t had any such review ever. Maybe everything is working fine, maybe there are a few tweaks here and there that could be made, and maybe a wholesale overhaul is in order. Now is as good a time as any to do that, so let’s move on it and see what we find out.

Rodney Ellis may have an opponent in 2020

Keep your eye on this:

Here’s a Chron story about Judge Jackson’s resignation, which does not mention the challenge-to-Rodney-Ellis possibility, since at this point that’s mostly informed gossip. It does mean, as the story notes, that Greg Abbott will get to appoint a replacement, which if past patterns hold will be a Republican that had been booted out by voters in either 2016 or 2018. Which in turn means there will be at least one judicial slot available in 2020 for a Democrat who doesn’t want to have to primary someone. I’m sure that will draw some interest.

As far as the rumored challenge to Commissioner Rodney Ellis goes, no one gets or deserves a free pass, and a real challenge is better for democracy than the usual no-name crank filing against an otherwise unbothered incumbent for the office. If we’re going to have an election, let’s have one between real, qualified, purposeful candidates. I supported Ellis in that weird precinct chair election in 2016, I’ll happily support him in 2020, and I fully expect he’ll cruise to an easy win in March, if indeed Jackson runs against him.

Jackson will have several obstacles to winning a primary against Ellis (if, again, that is what she intends to do). Ellis is popular, has a strong base, has been a prime mover of policies widely supported by Democrats while on Commissioners Court, especially while he’s been in the Dem majority post-2018, and has a lot of money in his campaign treasury. Jackson, by contrast, has $13,812 on hand, and will now have to raise money in large quantities in a short time frame. Her one contribution from this cycle came from the Texans for Fairness PAC, which supported a lot of local Dems in 2018, and whose co-founder is Amir Mireskandari, of that weird poker club situation that I haven’t said anything about in part because I have no idea what to make of it. It’s not hard to see how that could be a loud sideshow in a Jackson-Ellis primary battle, which again, as of this time isn’t a thing. But it could be, and so we ought to be aware of what might come with it. Stay tuned.

The Harris County GOP thinks it can come back in 2020

They’re so adorable.

Never forget

Once a rock of Republican politics in Texas, Harris County has become nothing short of a nightmare for the GOP over the last four years as Hillary Clinton and Beto O’Rourke carried the county and Democrats dominated further down ballot in local races.

But as bad as it has been of late, party leaders say it’s foolish to consider Harris County blue, based on just two election cycles. They insist the party has learned key lessons over the last four years and made changes that will not just stop the Democratic trends, but lead to GOP victories in 2020 and beyond.

“We are still a strong force here,” Harris County Republican Party chairman Paul Simpson said.

He sees 2016 and 2018 as more of temporary Democratic run than a change of the guard. There have already been big changes that will affect 2020, he said, pointing to the end of straight-ticket voting, better minority community outreach and a renewed commitment to registering new voters as three things that will lift GOP candidates in Harris County.

That’s not to discount the pain of the last two election cycles. Shifting demographics and an emboldened Democratic Party that has registered new voters at record speed allowed Clinton in 2016 to win the biggest share of the vote for a Democratic presidential candidate in Harris since Texas icon Lyndon Johnson was on the ballot in 1964.

And in the governor’s race in 2018, Democrat Lupe Valdez — who ran a campaign that was mediocre at best — won Harris County over incumbent Republican Gov. Greg Abbott, becoming only the second Democratic gubernatorial candidate to carry Harris County in 25 years.

“There was shell shock,” Republican media consultant Vlad Davidiuk said.

[…]

Months before the 2018 election, Abbott’s political team was warning allies about what was happening in Harris County. That summer at a training session in San Antonio, Abbott campaign advisers told workers that Democratic-leaning voter registration groups such as Battleground Texas were making big gains registering new voters in Harris County.

Davidiuk, who was working with the Harris County Republican Party then, said others saw it coming, too.

“We didn’t have a response to that,” he said. “If there was a response, it was too fractured.”

That voter registration push has only grown the Democratic advantage at the polls the last two years.

“Our historic voter base is shrinking in both real and absolute terms,” the 2016 post election analysis says. “As a consequence, we are at risk of becoming a minority party within Harris County.”

Later it makes clear that “Donald Trump’s loss in Harris County and its down-ballot impact in 2016 could foreshadow future elections if we do not broaden our voter base.”

I’ve already said most of what there is to say about this. The rationales they give – it was Beto! straight ticket voting! Trump! why don’t those minorities like us? – are as predictable as they are pathetic and self-unaware. The straight ticket thing I’ve beaten to death (but feel free to reread this for one of my responses to that trope), but I think what we need here is to throw some numbers at these claims.


Year    R Pres   D Pres   R Judges   D Judges
=============================================
2004   584,723  475,865    535,877    469,037
2008   571,883  590,982    541,938    559,048
2012   586,073  587,044    563,654    568,739
2016   545,955  707,914    605,112    661,404

Republicans have basically not done any better at the Presidential level in Harris County since George W. Bush in 2004. They have grown some at the judicial level (the numbers you see above are the average totals from the District Court races, my go-to for measuring partisan vote totals), which highlights Trump’s extreme underperformance, but their growth (plus 70K from 2004 to 2016) is dwarfed by Democratic vote growth (plus 192K) over the same period. This is my thesis, which I’ve repeated over and over again and which has clearly not sunk in. This is the problem Republicans need to solve.


Year  R Judges   D Judges    R Str    D Str  R Str%  D Str%
===========================================================
2004   535,877    469,037  370,455  325,097   69.1%   69.3%
2008   541,938    559,048  343,919  391,488   63.5%   70.1%
2012   563,654    568,739  404,165  406,991   71.7%   71.6%
2016   605,112    661,404  401,663  472,030   66.4%   71.4%

These are the countywide straight ticket voting totals, and the percentage of each side’s average judicial total that came from straight ticket votes. Looked at this way, Democratic straight ticket vote total growth is proportionate to their overall vote total growth. In other words, the increase in Democratic straight ticket voters wasn’t inflating their overall strength, it was merely reflecting it. Meanwhile, fewer people voted straight ticket Republican in 2016 than they did in 2012. Sure, some of that is a reaction to Trump, but that’s still a big problem for them, and it’s not something that the elimination of straight ticket voting will help them with in 2020. Note also that Republicans have been pretty heavily dependent on straight ticket voting as well. I do not understand the assumption that its removal will help them.


Year  Voter Reg   R Pres%  R Judge%  D Pres%  D Judge%
======================================================
2004  1,876,296     31.2%     28.6%    25.4%     25.0%
2008  1,892,656     30.2%     28.6%    31.2%     29.5%
2012  1,942,566     30.2%     29.0%    30.2%     29.3%
2016  2,182,980     25.0%     27.7%    32.4%     30.3%

The first column is the total number of registered voters in Harris County in the given year, and the percentages are the percentage of each of the total registered voter population. As a share of all registered voters, Donald Trump did worse than John Kerry, while Hillary Clinton did better than Dubya. The share of all voters choosing Democratic judicial candidates increased twenty percent from 2004 to 2016, while the share of all voters choosing Republican judicial candidates declined by three percent. This is what I mean when I say that the Republicans first and foremost have a “not enough voters” problem in Harris County. Their second problem is that they have no clue what to do about it.

For what it’s worth, here’s a similar comparison for the off years:


Year  R Judges   D Judges    R Str    D Str  R Str%  D Str%
===========================================================
2002   333,009    270,564  185,606  171,594   55.7%   63.4%
2014   359,842    297,812  254,006  210,018   70.6%   70.5%
2018   531,013    651,975  410,654  515,812   77.3%   79.1%

Year  Voter Reg  R Judge%  D Judge%
===================================
2002  1,875,777     17.8%     14.4%
2014  2,044,361     17.6%     14.6%
2018  2,307,654     23.0%     28.3%

Couple things to note here. One is that there wasn’t much in the way of growth for either party from 2002 to 2014, though as we know there were some ups and downs in between. The 2018 election was a lot like a Presidential election in terms of turnout – you’ve seen me use 2012 as a point of comparison for it before – but one in which the Dems did a much better job. No Republican, not even Ed Emmett, came close to getting 600,000 votes. Here, I’ll agree that having unpopular politicians at the top of the ballot, like Ted Cruz and Dan Patrick and Ken Paxton, as well as having to fly under the Trump banner, helped propel Dems, in part because of former Republicans crossing over. But they were starting from a lower point to begin with.

Note, by the way, the jump in voter registrations from 2012 to 2014. Mike Sullivan deserves some credit for that, as he was the first Tax Assessor in a long time to not be hostile to voter registration, but this was also the point at which Dems started really focusing on registering voters. For sure, that has helped, and I’ve no doubt that Abbott’s people had reason to be alarmed going into 2018. I find it kind of amusing that Republicans are turning to voter registration themselves as a way forward. I have to wonder if that will lead to any bills getting advanced that would make voter reg easier and more convenient. My guess is still No, on the grounds that they probably figure they can throw money at the problem and would still rather have it be hard for Dems, but we’ll see.

I could go on, but you get the point. And as a reminder, the numbers themselves aren’t the whole story about why Republicans are struggling and will continue to do so in Harris County:

Simpson, for one, is glad to see the parade of Democratic presidential contenders coming to Harris County because it puts their ideas — particularly on climate change — front and center. Let them bring their calls for banning fossil fuels, he said.

“They don’t want us to eat beef, drill for oil or even use straws.”

Because it there’s one thing younger voters really hate, it’s trying to solve climate change. Way to be on top of the trends there, dude.

We talk once again about straight ticket voting

We have a new study, so we have a new reason.

The state’s decision to kill straight-ticket voting could cut turnout in down-ballot races in the 2020 elections — even if more voters show up to the polls.

Sure, those additional voters will cast ballots for president and U.S. Senate. But voter interest and knowledge gets thinner and thinner as the ballots go on and on.

Without straight-ticket voting — where voters register support for all of their parties’ candidates with a single vote — down-ballot candidates will have to win with the support of the relatively few voters who make it past the marquee contests.

Two-thirds of Texans voted straight ticket in 2018. In 2020, candidates for offices like constable and justice of the peace will need all the help they can get from friends and family; it won’t be enough to rely on the straight-ticket voters.

In particular, Democratic candidates depending on a growing base of voters may suffer, according to a study done by the Austin Community College Center for Public Policy and Political Studies.

“Most analyses of the election contend that straight-ticket voting helped the Democratic Party candidates in certain types of counties — metropolitan and some suburbs,” authors Stefan Haag and Peck Young wrote. “And we agree that the increased competitiveness of Democrats in many counties was abetted by straight-ticket voting.”

It’s not so much that Democrats were depending on straight tickets for their strength; it’s that strong candidates at the top of the ticket — like Democrat Beto O’Rourke — were making it easier for the rest of the party’s candidates to win some votes.

[…]

“The greatest effect of the elimination of straight-ticket voting will probably not be the elimination of Texans voting for all candidates of one political party — the essence of straight-ticket voting,” the two wrote. “The effect will be that people will spend more time in the voting booth.”

You can see the study here, and you can read everything I’ve had to say on the topic here. The authors get some things right, in my opinion, including the conclusion that I quoted at the end there, but I’m not convinced yet that there will be a huge effect on downballot races. I’m especially not convinced that this is going to help Republicans win judicial races in Harris County again. The Harris County GOP has much bigger problems than that.

The main effect is to make voting take longer, which (it is hoped by the GOP) will not only make some (Democratic) people skip some races, but will also make lines longer and thus discourage some (Democratic) people from getting in to vote at all. There are other techniques they are employing towards this end as well.

The Texas Legislature never seems to pass up a chance to make voting harder, scarier, or more confusing. True to form, Texas was one of several states this year that restricted—rather than expanded—access to the polls.

HB 1888, which Governor Greg Abbott signed into law in June, goes into effect this week, effectively banning the use of mobile polling places, a strategy adopted by some counties to facilitate early voting in communities where people may have a harder time getting to a polling site. Travis County, for instance, has for the past several years operated dozens of temporary polling places at various times during the state’s two-week early voting window, opening up temporary sites at colleges, rural community centers, and senior living facilities. More than 28,000 people voted at those rotating polling sites last year, or nearly 6 percent of all Travis County votes cast during the 2018 midterm election.

However, since the county can’t afford to turn all of those temporary polling places into permanent early voting sites, as required by HB 1888, some areas accustomed to having early voting won’t get it during the 2020 election, according to Travis County Clerk Dana DeBeauvoir. “We’re struggling with what to do for some of these communities now,” DeBeauvoir told the Observer. “We won’t be able to open polling places that some people have gotten used to.”

It’s all of our responsibility to find ways to keep lines manageable and give everyone the best chance to vote in a timely manner. A couple of suggestions come to mind:

1. If you are 65 years old, or will be by Election Day, you are eligible to vote by mail. Take advantage of it.

2. The best days to vote early are Tuesday through Friday of the first week of early voting, and the Monday and Tuesday of the second week. If you’ve made it to Thursday of the second week of early voting, go ahead and wait till Election Day. Those last two days of early voting, especially the very last day, are by far the busiest. Don’t make it more so.

3. If you really want to go the (literal) extra mile, find the lower-volume early voting locations and vote at one of them. You can look back at my daily EV reports to see which places to seek out. Vote first thing in the morning (7 AM during the second week), later in the morning (like between 9:30 and 11), or early afternoon (say between 1:30 and 3) to avoid the commute and lunchtime crowds.

4. If you have the time, sign up with your county to be an election judge, so that if they do want to open another EV location, they will have the staff for it.

Every little bit helps. When we finally take over state government, we can work on actually fixing this. Until then, do what we can to not make things worse.

The felony judges who abused the bail system

Shame on them all.

Three sitting judges and eight former district judges in Harris County were publicly admonished by the State Commission on Judicial Conduct in response to complaints that for years they violated state law and judicial cannons by ordering hearing officers to deny no-cost bail to thousands of poor defendants.

But the actions this week came too late to affect most jurists’ behavior on the bench. Seven left their district seats last year either because they didn’t run or lost elections. One lost re-election back in 2016.

The misconduct probes of all 11 judges began in February 2018, when the Houston Chronicle obtained copies of memos and notes that showed that for a full decade most of Harris County’s felony court judges had provided different types of written or verbal instructions to the county’s hearing officers to routinely deny no-cash bail to all or most newly-arrested defendants.

The agency’s findings confirm most bans were in effect for years and largely went unnoticed and unchallenged until 2017 when Harris County judges and other officials were civilly sued in federal court for allegedly violating the rights of poor defendants by routinely failing to provide no-cost bail in many misdemeanor as well as felony cases.(The county is now in the process of settling that lawsuit).

In its August disciplinary orders, the commission concluded that through various actions all 11 Harris County district judges willfully violated judicial cannons and also “failed to comply with the law and failed to maintain competence in the law” by instructing hearing officers not to issue personal bonds even though under state law the hearing officers had the authority and duty to do so, the orders say. Under state laws and ethical cannons, the hearing officers are supposed to consider each defendant’s case and circumstances individually.

Let’s be clear here: These judges were found by the State Commission on Judicial Conduct not just to have violated rules of conduct that they are expected to follow, they actually broke the law by systematically denying personal recognizance bonds to poor defendants. This is serious stuff.

You may say “but these are FELONY defendants!” Sure, but it’s still the case that some number of them will never be convicted of a crime. Some of them will agree to a plea deal for a misdemeanor or lesser felony for which the sentence includes no jail time. Some, regardless of how their case gets adjudicated, represent little to no risk to public safety. How big a risk they are to public safety is completely unrelated to how much cash or collateral they can scrape up to buy their way out of jail. Again, Robert Durst got bailed out. There remains a bail lawsuit in Harris County over the practices in the felony courts, and there’s a similar lawsuit in Dallas that’s working its way towards a resolution. Standard practices are going to change, because they have to change.

The judges who were admonished included former longtime Harris County District Judge Michael McSpadden, who retired last year after many years presiding over the 209th District Court. The commission found McSpadden had, like many other longtime judges, issued blanket instructions to deny all personal recognizance or PR bond requests from Nov. 20, 2009 to Feb. 1, 2017. McSpadden had previously written a letter to the Houston Chronicle in March 2018 where he admitted that “it is true I have instructed the magistrates not to grant these bonds in our felony cases to all defendants, never specifying a certain race or gender.”

McSpadden told the Chronicle on Thursday that he stands behind his decision to deny PR bonds even if it violated the law.

“I have great respect for the work of the commission. But I still feel the same way. I, as the elected judge, would like to make the decision on free bonds for accused felons rather than turn those important duties over to the magistrates. And it would take one more day to do this,” he said.

[…]

The three active Harris County District Judges who were admonished were: Hazel Jones, of the 174th District Court, Herb Richie of the 337th District Court and George Powell of the 351st District Court.

Michael McSpadden’s first duty as a judge was to follow the law. He did not do that. I don’t give a crap what his feelings were. He failed to do his job, and I am glad he is no longer on the bench.

I am not happy that three Democratic judges were also found to be doing this. All three are up for election next year, and there are no more Republican judges on the district or county courts for Democrats to aim for. But we can still perform upgrades, and these courts are at the front of the line for that. Democrats with a criminal justice background, an interest in becoming a judge, and a commitment to following the law, should look here first.

(Obligatory copy editing nitpick: A “cannon” is a big gun. A “canon” is a fundamental principle or general rule, and is the thing that these judges violated. Spelling counts, y’all.)

There’s no reason to trust the Republican study to “reform” the judicial election process

Oh, hell no.

After a punishing election for Republican judges, state leaders are set to take a long look at Texas’ often-criticized judicial selection system — a partisan election structure that Texas Supreme Court Chief Justice Nathan Hecht has described as “among the very worst methods of judicial selection.”

This summer, Gov. Greg Abbott signed a law creating a commission to study the issue — signaling that the GOP-led Legislature could overhaul the system as soon as 2021. That move comes after Democrats killed a sweeping reform proposal that Abbott had quietly backed.

In Texas, one of just a few states that maintains a system of partisan judicial selection all the way up through its high courts, judges are at the mercy of the political winds. They are required to run as partisans but expected to rule impartially. They are forced to raise money from the same lawyers who will appear before them in court. And in their down-ballot, low-information races, their fates tend to track with the candidates at the top of the ticket.

That means political waves that sweep out of office good and bad, experienced and inexperienced judges alike. And while sweeps are perennial problems for the judiciary, 2018’s elections “set records,” said Tom Phillips, a former Texas Supreme Court chief justice.

Democrats, riding on the coattails of Senate candidate Beto O’Rourke, left the election with majorities on appeals courts where they had previously held zero seats. Republicans were entirely shut out of major urban counties. Voters, largely uninformed about judicial races, differentiated very little between well-funded, experienced candidates and those who had done little but throw their hats in the ring. The judiciary lost hundreds of years of experience.

“Make no mistake: A judicial selection system that continues to sow the political wind will reap the whirlwind,” Hecht warned lawmakers in January, exhorting them to change the system.

But reform is similarly fraught with politics. Voters don’t like having choices taken away from them, even if vanishingly few recognize judicial candidates’ names on the ballot. And any new system has to win the approval of both parties, as a two-thirds majority in each chamber is required for the constitutional amendment needed to change the system.

[…]

Texas Republicans dominate the state’s judiciary: All nine members on each of the state’s two high courts are Republicans, as are lower-court judges across much of the state. But that dominance began to wilt after last fall’s elections, particularly on intermediate courts of appeals, where Democrats now hold majorities on 7 of 14 courts.

After scores of Republican judges lost their jobs last fall, Abbott set about appointing many of them back to the bench. He also became more vocal on the issue of judicial selection reform.

Eyebrows went up in February, when he tweeted a Houston Chronicle column criticizing the partisan judicial election system. The governor commented, “We need judges devoted to the constitution and strict application of the law, not to the political winds of the day.”

Advocates began to believe this might be the year to push the issue — or at least to tee it up for a big swing in 2021. It was around that time that a group of would-be reformers — attorneys, former judges and donors — formed a non-profit organization, Citizens for Judicial Excellence in Texas, to push the issue in Austin. One lobbyist registered to represent the group at the Capitol this spring.

With powerful supporters in his ear calling for change, Abbott was also pushing the issue more quietly. In March, he met with state Rep. Brooks Landgraf, a Republican lawyer from Lubbock. Two days later, on the Legislature’s filing deadline, Landgraf proposed a constitutional amendment that would have overhauled the system, centralizing much of the power to pick judges in the governor’s office.

The Landgraf pitch — which ultimately stalled out for a lack of bipartisan support — would have scrapped the partisan judicial election system, replacing it with a multi-step process: gubernatorial appointment, qualifications evaluation by a non-partisan commission, Texas Senate confirmation and retention elections. Since judges tend to win retention elections, barring scandal, the proposal would effectively have allowed Abbott to appoint judges likely to serve for three four-year terms — giving Republican-appointed judges a dozen years in power even as Texas creaks toward the political center.

Landgraf’s proposal carved out small, rural — conservative — counties, where voters would still have had the opportunity to elect judges on partisan ballots, unless they voted to opt into the appointment system.

Landgraf’s pitch, blessed by Abbott, didn’t sit well with Democrats, who demanded to know why the urban centers they and their colleagues represent would be treated differently from Republican strongholds. They feared overhauling the system would mean losing the new class of Democratic judges elected in last year’s sweep — a class that brought unprecedented diversity to the bench. And they questioned whether centralizing that power in Abbott’s office might effectively give the Republicans control over the judiciary for longer than the party can hold the other two branches of government.

In April, a House committee hosted a spirited debate on the bill, then left the pitch pending. Landgraf said he wouldn’t push to advance it without bipartisan support; Democrats cheered its defeat.

First of all, no way is it acceptable to put this power in the hands of the Governor. Putting aside who the governor is now, how does that take the politics out of the process? All it does is incentivize anyone who wants to be a judge to suck up to the Governor. Sure, you could redesign things so that no one person or one party has control over the process, but any way you slice it you are granting this power to a small, unelected, unrepresentative group of people. But if this does get traction, then no way do “small rural counties” get exempted from it. If this is a good system for Harris and Dallas, it’s a good system for Loving and Deaf Smith.

But the bottom line remains that this is only ever an issue when Democrats have a good year at the ballot box. The first time Republicans started talking about changing the partisan election system was in 2008. It then got mostly dropped (except for its most ardent supporters, and I will admit that the likes of Wallace Jefferson and Nathan Hecht continued to bang this drum at every opportunity) in the 2010 to 2014 period, only to be revived in 2016. First they ended straight ticket voting (though not in time for 2018, poor things), and now this. The goal is to install Republican judges, hopefully before Democrats can elect a majority to either of the statewide courts. Come back with a proposal that isn’t primarily about that, and then maybe we can talk. Until then, there’s no reason for any Democratic legislator to support this.

How many contested judicial primaries should we expect?

We already know that we’re going to get primary challenges to at least one Democratic countywide officeholder, as County Attorney Vince Ryan has two challengers lining up against him, and DA Kim Ogg has at least one person who has announced interest in challenging her. Most of the county offices available are judicial, though, and now that the local judiciary (other than a few JPs) is entirely Democratic, the path to gaining a bench for yourself is limited if one doesn’t want to take on a Democratic incumbent. I had a conversation about this with some folks recently, and we were debating how many such challenges we may see this year. I thought the number would be relatively small, and I based that on the belief that there weren’t that many primary challenges to Republican judges in recent years. That was my intuition, but I didn’t know the actual numbers at the time. I’ve now had a chance to look through recent primary history, and this is what I found:


Republican judicial primary challenges

2002 - 5
2004 - 0
2006 - 4
2008 - 1
2010 - 1
2014 - 3
2018 - 1

That’s less than I had thought. A couple of notes here. I only looked at the years in which all the incumbents were Republican (so no 2012 or 2016), and I limited myself to district and county courts (so no statewide, appeals courts, or JPs). There were some contested races in years where a jurist had been appointed to complete the term of someone who had stepped down or gotten a promotion – in 2008, there were two such races, in in 2012 there were four, for example – but I put those in a separate category. Basically, from what I found, there were actually very few challenges to sitting judges who had served full term. Make of that what you will.

Now, a couple of caveats here. One possible reason for the lack of challenges to four-year incumbents may be because there often were benches vacated in the middle of someone’s tenure, which allowed for a challenge of someone who had been appointed. These judges presumably felt comfortable stepping down mid-term because they knew their replacement would also be a Republican, with district court judges being appointed by the Governor and county court judges being appointed by Commissioners Court. With the exception of Al Bennett, who was named to a federal bench, no Democratic district court judge has stepped down since the first set were elected in 2008. Some have declined to run for re-election, but no others have given Rick Perry or Greg Abbott the opportunity to pick their interim replacement. County court judges won’t have that concern now, but for the foreseeable future I don’t expect any district court judges to abandon their post before it expires if they can at all help it. That points towards more primary challenges than what we had seen in the past.

In addition, while there was no upward trend in primary challenges over time, I think we’re in a different era now, and I think people will be less squeamish about taking that plunge. Honestly, if there ever was a year to try it, it would be this year, because the extreme turnout expected due to the Presidential race ought to make most of these races pure tossups, and by “tossup” I mean the most important factor will be your ballot position, which is determined by random draw. We’re all going to need to be on guard for low-grade opportunists who hope to luck into a bench. I hope I’m overstating this concern.

Anyway. Unlike for executive offices, I don’t expect judicial challengers to announce themselves this early, but it will be filing season before you know it. What do you think will happen?

McLeod wants back on the bench

That’s fine. He’s got ten months to make his case to Democratic primary voters.

Judge William McLeod

The Harris County Civil Court At Law judge who inadvertently resigned his post in March, and unsuccessfully lobbied Commissioners Court to allow him to remain on the bench, said he plans to run for his former seat in 2020.

Judge Bill McLeod also blasted the three Democratic members who decided to replace him, whom he says had already made their decision before McLeod pleaded for a reprieve at the April 9 Commissioners Court meeting.

“The manner in which commissioners handled it was really a disservice to Harris County voters,” McLeod said Sunday. “I want to take my bench back.”

[…]

McLeod’s resignation spurred a special election in March 2020 to fill the remainder of his term, which runs through 2022. McLeod told Commissioners Court he abandoned his plans to run for the state Supreme Court, and instead wishes to regain his old seat.

Briones said she will campaign next year to remain in the post. Her first day on the bench is Monday.

McLeod said he will make a formal announcement May 15, and plans to return to private practice as a civil litigator until the election.

See here and here for the background. I said my piece in those two posts and don’t have anything to add to that. I have no preference at this time for who should sit on that particular bench. Briones and McLeod will make their cases for themselves, but with all due respect there are other races higher on my mind right now.

Commissioners Court replaces Judge McLeod

Unfortunate, but understandable.

Judge William McLeod

A divided Harris County Commissioners Court declined to give County Court At Law Judge Bill McLeod a reprieve Tuesday after he inadvertently resigned last week, opting instead to appoint a replacement.

Harris County Judge Lina Hidalgo said letting McLeod remain as a holdover judge until a special election for the seat in 2020 was too risky, since he almost would certainly have to recuse himself from cases to which the county was a party, as Commissioners Court would have the power to remove him at any time.

Instead, the court voted 3 to 2 to appoint Houston lawyer Lesley Briones to hold the seat through next year, on the recommendation of Precinct 2 Commissioner Adrian Garcia.

“I think voters deserve a judge who can be absolutely independent, as he was elected to be,” Hidalgo said. “This would put us in the untenable position that he would no longer be an unbiased person, because he would be beholden to Commissioners Court.”

Precinct 3 Commissioner Steve Radack and Precinct 4’s Jack Cagle voted against the appointment. Cagle told Briones he could not support her since the nomination was made just minutes earlier and he did not have a chance to review her qualifications.

Briones, a Yale Law School graduate and general counsel to the Laura and John Arnold Foundation until December, accepted the appointment on the spot.

“I have deep respect for the law and I respect that you made a hard decision, and I respect the consternation in this room,” Briones said. “But know that I will work extremely hard for everyone.”

See here and here for the background. There were some good legal arguments in favor of retaining Judge McLeod, while Judge Hidalgo’s point is worth taking seriously as well. In the end, I didn’t have a strong opinion one way or the other; I think either decision was defensible. JUst a couple of thoughts to keep in mind as we go forward:

– McLeod’s point that the state constitution is incredibly long and arcane is unquestionably true. It’s also kind of disingenuous coming from a judge. More to the point, this is why potential candidates should talk to a political professional or two before making any public statements about running for office, because there are various weird rules related to candidacy that are easy to stumble over if you don’t know what you’re doing. I can think of a dozen people off the top of my head who could have pointed this out to McLeod before he filed his designation of treasurer. You gotta do your due diligence.

– Not to belabor the point, but there’s a reason why basically nobody had been felled by this problem before. As I said in my first post, nearly every story about then-Sheriff Adrian Garcia’s rumored candidacy for Mayor was accompanied by a discussion of how he couldn’t say anything without triggering the resign-to-run provision. Sheriff isn’t judge, but in this case they’re both county positions. One might well wonder if that provision applied to one job, would it apply to another?

– All that said, let’s not get too high and mighty at Bill McLeod’s expense. Yes, this was a dumb and avoidable mistake, but it’s not like this particular cul-de-sac of our word salad that is the state constitution was a cornerstone of our inviolable values as a state. County court judges have to resign to run for another office, but district court judges and appeals court judges don’t. All five Democrats who ran for statewide judicial positions last year were sitting on a bench while running for something else, and last I checked our state didn’t collapse. The fact that Bill McLeod had to resign is a quirk and not a principle, and it’s at least as dumb as McLeod’s unfortunate action. I’m sorry this happened to him. I’m sure we’ll all take the lesson to check and doublecheck whether “resign to run” applies to whatever office one holds before stating an intention to seek another, but maybe we should also take the lesson that these same rules are arbitrary and ought to be reviewed to see if they still make sense. Campos has more.

More on McLeod

Here’s the Chron story on the bizarre accidental judicial resignation.

Judge William McLeod

The Harris County attorney’s office was notified in March that Judge Bill McLeod, a Democrat presiding over Harris County Court at Law No. 4, had filed a transfer of campaign treasurer appointment with the Texas Ethics Commission stating he was seeking the office of chief justice of the Texas Supreme Court.

Unbeknownst to McLeod, this filing triggered Article 16, Section 65 of the Texas Constitution which considers such an announcement by anyone holding a county judicial post an automatic resignation.

“This is insane,” McLeod said Wednesday. “All of the judges are going, ‘You did what? How? We didn’t even know (the constitutional provision) existed.’”

McLeod, who was elected in November, hopes that a different provision of the constitution will help rectify his mistake. Article 16, Section 17 states that a county Commissioners Court is not required to appoint a successor after a county officer resigns, and “may allow the officeholder who resigned…to remain in office” as a holdover. If this happens, McLeod would have to run again in 2020 even though he was elected to a four-year term.

[…]

McLeod is not the first judicial officer to fall victim to this provision. In 2013, Irene Rios, then a Bexar County (San Antonio) court-at-law judge, told county commissioners she intended to run for chief justice of the 4th Court of Appeals, triggering her automatic resignation. Rios remained in her seat for four weeks after her announcement before tendering her letter of resignation, and she continued to make legal rulings during that time.

A 1999 amendment to the Texas Supreme Court judicial code of conduct further affirms that judges can continue to hold judicial office while being a candidate for another judicial office.

[…]

Rodney Ellis, a Democratic commissioner, was noncommittal on McLeod’s future, stating: “I firmly believe that any action taken by Commissioners Court on this matter must uphold the Texas Constitution above all else and that principle is what will ultimately guide my decision on Tuesday.”

Commissioner Adrian Garcia and a spokeswoman for County Judge Lina Hidalgo, the two other Democrats on the court, did not respond to requests for comment.

Republican Commissioner Steve Radack said he would not be receptive to appointing a holdover for a judicial post.

“If he’s resigned then how can you justify having him as a holdover?” Radack said. “That’s certainly not the spirit of the law.”

See here for the background. As the story notes, the judicial code of conduct doesn’t override the Constitution, it just allows judges that aren’t subject to that Constitutional provision to run for other office while remaining on the bench. If you look at Chapter 16, Section 65, all the offices in question are county offices except for District Attorney. It’s a quirk of the code that’s surely a holdover from an earlier time (note the inclusion of public weighers), and when you think about it there’s no real logic to limiting that restriction to just those offices. But that’s the Constitution we have, so here we are.

As to what happens, who knows? Either three Commissioners agree with the argument that it doesn’t make sense to kick McLeod off the bench, thus allowing him to hold over till the 2020 election, or they don’t. Note that if McLeod has his sights on the Supreme Court, he would have to step down after 2020 anyway, as he wouldn’t be able to run to fill the remainder of his term. It’s a coin toss either way, and I don’t envy any member of Commissioners Court the decision.

UPDATE: The Washington Post covers the story, reprinted by the Trib.

UPDATE: Here’s a detailed legal argument in favor of retaining Judge McLeod, sent to me by Adam Milasincic. It’s pretty persuasive.

Please delete April Fools Day from your calendar

I just can’t.

Judge William McLeod

An April Fools’ Day resignation prank? One Texas civil court judge wishes it were so.

A newly elected judge in Houston accidentally resigned on Monday, according to local media and a county official, after he shared plans online to run for the state supreme court, apparently unaware that the Texas constitution considers such an announcement an automatic resignation.

The Harris County Civil Court judge, Bill McLeod, did not immediately respond to a request for comment on Tuesday. Local TV station KHOU 11 News on Monday reported that McLeod declined to comment on the move.

Article 16, Section 65, of the state’s constitution says that a judge’s announcement of candidacy for another office “shall constitute an automatic resignation of the office then held.”

The county attorney’s office will present the matter to county commissioners next Tuesday, First Assistant County Attorney Robert Soard said in a phone interview on Tuesday. County commissioners, who can appoint replacements, may decide to keep McLeod in office until there is a special election, KHOU 11 reported.

The judge’s supporters have organized on social media using the hashtag #IStandWithMcLeod. They plan to attend the commissioners’ Tuesday meeting and express their wish that the judge retain his office despite his blunder.

Here’s Judge McLeod’s Facebook page, where I assume this accidental resignation happened. I tried looking for that post, but there were too many posts in support of him to scroll past, so I gave up. Judge McLeod was one of the more energetic campaigners, both in real life and on social media, in 2018 and I’m not at all surprised that people are rallying to his defense. Commissioners Court has the discretion of allowing him to stay in place until the next election, essentially serving as his own appointed interim successor. If he’s lucky, he’ll just have to run again in 2020 – he should have no trouble winning if that happens – and then can run for re-election as usual in 2022. This KHOU story doesn’t mention the April Fool angle, so I’m not really sure if this was a joke that didn’t land or just a foolishly early announcement with unexpected consequences. Either way, it wasn’t the best idea anyone ever had.

(Just so we’re all clear, the Constitutional provision cited in the story applies to the following offices: District Clerks; County Clerks; County Judges; Judges of the County Courts at Law, County Criminal Courts, County Probate Courts and County Domestic Relations Courts; County Treasurers; Criminal District Attorneys; County Surveyors; County Commissioners; Justices of the Peace; Sheriffs; Assessors and Collectors of Taxes; District Attorneys; County Attorneys; Public Weighers; and Constables. That means that among other things, it does not apply to District Court judges or appeals court judges, which is why the Democratic candidates for Supreme Court and the Court of Criminal Appeals in 2018, all of whom were sitting District Court judges in Harris County, did not have to resign. Remember how long there was speculation about Adrian Garcia running for Mayor in 2015 before he ever said anything? That was because he had to resign as soon as he did say it. Let’s all be aware of these things going forward, OK? Thanks.)

UPDATE: Here’s a legal defense of Judge McLeod’s actions. It’s more complicated than it first appears.

Same sex employee benefits lawsuit tossed again

This is great, but as always that’s not the end of it.

The lawsuit dates back to 2013, when pastor Jack Pidgeon and accountant Larry Hicks sued the city to end the policy. In 2015, after the U.S. Supreme Court handed down the landmark Obergefell ruling that opened up marriage rights to same-sex couples in all states, Pidgeon and Hicks continued to pursue the lawsuit, arguing that the decision did not extend to the right to city spousal benefits.

In June 2017, the Texas Supreme Court agreed, ruling unanimously that while same-sex marriage had been made legal, there is still room for state courts to explore the “reach and ramifications” of the landmark Obergefell ruling. The all-Republican high court sent the case back to a Houston trial court for further consideration.

Nearly two years later, Judge Sonya Heath on Monday threw out the case, ruling for Houston in what the city has touted as a major win.

“This is a victory for equality, the law of our nation and human rights,” Houston Mayor Sylvester Turner said in a statement Thursday evening. “I thank our Legal Department for its diligent work defending common sense and fairness, and I’m glad we get to continue the policy established by the city 6 years ago.”

Still, that win won’t go unchallenged. Jared Woodfill, the lawyer who represents Pidgeon and Hicks, said Thursday night that his clients will appeal the ruling — and that he expects the case to land again before the Texas Supreme Court and that it could eventually be decided by the U.S. Supreme Court.

See here, here, and here for some background. There’s a bunch of blathering by Jared Woodfill in the story about how unfair it was that a Democratic judge, who ousted the Republican judge that originally gave him an injunction that was quickly overridden, got to rule on his case, while also gloating that Republican judges up the line and on SCOTUS will surely be in the bag for him. He failed to mention that the only reason this case is still being litigated is because the State Supreme Court bowed to political pressure after initially giving him the brushoff. I don’t know what will happen in this case once the appeals process starts up again, but I do know two things. One is that Woodfill and his crank case plaintiffs represent a shrinking fringe, and two is that we need to win more elections so we can pass some more robust laws protecting the fundamental rights of all Americans. (Honestly, just ensuring that no more bad legislation gets passed would be a big step forward.) Mayor Turner’s press release has more.

RIP, Cassandra Hollemon

Sad news.

Cassandra Hollemon

Cassandra Hollemon took the bench in a sweep of Black Girl Magic, becoming part of the historic moment when 19 African-American women in Harris County won spots overseeing some of the busiest courtrooms in Texas.

In the weeks since taking over Harris County Criminal Court of Law 12, Hollemon helped make a mark on local justice reform when she joined her colleagues in efforts to settle the landmark lawsuit over the county’s cash bail system. She served on the Community Supervision and Pretrial Services Committee, and offered a keen sense of humor with friends and colleagues.

On Monday, she died after weeks of struggling with “health issues,” according to fellow misdemeanor Judge Darrell Jordan. She was 57.

“We are saddened by the passing of Judge Cassandra Y. Hollemon,” Jordan told the Houston Chronicle. “She was a compassionate judge who treated one in a respectful manner.”

Now, the Harris County Commissioners Court will have to pick a replacement, according to Barbara Armstrong, a managing lawyer at County Attorney Vince Ryan’s office. Given the timing of Hollemon’s death, her replacement would take the bench through 2020, with the option to run then in an election to complete Holleman’s unexpired term ending in 2022.

I did not have the opportunity to meet Judge Hollemon during the campaign last year, so I can’t add to her eulogy. She was clearly well-liked and well-respected, and she leaves behind two children and a grandchild, to whom I send out my deepest sympathies. As she was elected to a County bench, her successor will be named by Commissioners Court; had she been a District Court judge, it would have been Greg Abbott appointing a new judge. Rest in peace, Judge Cassandra Hollemon.

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.)

Bail reform settlement looks to be a go

Excellent news.

Chief U.S. District Court Judge Lee H. Rosenthal on Friday offered initial support for new bail rules proposed by Harris County, signaling the three-year lawsuit challenging the county’s cash bond system soon may reach its conclusion.

The settlement of the case, which Harris County has spent more than $9 million defending, would seal victory for the poor misdemeanor defendants who brought the suit and allow Rosenthal and both legal teams to turn their attention to a similar lawsuit challenging the county’s felony bail system.

“We’ve actively been talking to each other,” said Neal Manne, an attorney representing the poor defendants. “I think we’d be ready in a month to come back to the court with a final, permanent order.”

For the first time in a federal court hearing, all the parties in the misdemeanor suit stood in agreement Friday afternoon about how the case should be settled. In an unusual scene in Rosenthal’s 11th-floor courtroom, the attorneys in the once-contentious case urged Rosenthal to sign off on new bail rules proposed by the newly elected slate of Democratic misdemeanor judges.

[…]

Rosenthal, who in 2017 agreed Harris County’s bail system was unfair to poor defendants, suggested waiting to see how well the new bail rules work in practice before issuing her approval. With the opening of the new joint processing center for inmates, the judge said minor, unforeseen problems may need to be addressed.

“The devil, in the broader issues, is in the day-to-day,” Rosenthal said. She ordered the parties to return March 8.

Allan Van Fleet, the attorney representing the misdemeanor judges, agreed that the revised bail system will require each part of Harris County’s criminal justice apparatus to cooperate.

“The judges are committed, with the sheriff, the DA, the plaintiffs, that we’re going to work together to get the best system that anybody can come with,” Van Fleet said.

See here for the previous update. We’re headed in the right direction, and we know where we’re going. It’s a new day.

We really are about to do away with the old cash bail system

I have four things to say about this.

The new slate of Democratic judges has approved a drastic revision to Harris County’s bail system that could serve as a model for a settlement in the historic lawsuit in which a federal judge found the county’s judicial rulings unjustly relegated poor people arrested on minor offenses to jail because they couldn’t afford costly bonds.

The 15 new court-at-law judges and new presiding Democrat who was not up for election voted Wednesday on the new bail protocol that will affect thousands. They have spent weeks hammering out a plan with the sheriff, the district attorney and county leadership and will ask the federal court this week to implement it as a foundation for a settlement.

County Court at Law Judge Darrell Jordan, the presiding judge, estimates that 85 percent of people arrested on misdemeanors will now qualify to be released after arrest on no-cash bonds, with a few exceptions for people who must await a hearing – for up to 48 hours – for bond violations, repeat drunken driving offenses and domestic violence charges. At that point, they may also qualify for personal recognizance bonds.

“What it means is that no one will be in jail because they cannot afford to get out,” Jordan said. “The only people who will be detained and have to speak to a judge are a very small subset who will be processed through the Harris County Jail and those carve outs are aligned with best practices from around the country.”

The change was widely celebrated.

“It’s a big day for Harris County,” said attorney Allan Van Fleet, who represents the judges in the federal lawsuit. “It will make Harris County safer and more equal and provide more efficient processing of people accused of misdemeanors.”

1. Elections have consequences. I almost can’t believe this is actually about to happen.

2. Just a reminder, many of the people now in the jail are there awaiting trial. They have not been convicted of anything. Many others like them in the past never were convicted of anything, and many more pled guilty to something so they could get out. This will ensure there are far, far fewer people like them in the future.

3. The question of who was in jail awaiting trial and who was not was always largely about financial wherewithal, not about risk and danger to society. Remember, Robert Durst was granted bail.

4. One hopes that having far fewer inmates, many of whom don’t need to be there, will allow us to do a better job of ensuring the safety of those inmates, and enabling the jail to meet state standards. No more inmate suicides, please. We really need to do better than that.

Appeal of bail injunction dropped

Elections have consequences, and thank goodness for it.

Less than a week after the new jurists were sworn into office, Harris County’s misdemeanor judges on Monday withdrew their appeal in the landmark lawsuit over local bail practices that a federal judge said unfairly targeted poor people accused of crimes.

The historic litigation began in 2016, when attorneys and civil rights groups sued the county on behalf of defendants jailed for days because they couldn’t afford bond on low-level offenses. Though Chief U.S. District Judge Lee H. Rosenthal said the practice was unconstitutional and amounted to wealth-based detention, so far the county has spent more than $9 million in legal fees to fight the case, according to Harris County Precinct 1 Commissioner Rodney Ellis.

But many saw the Democratic wave in November’s elections as a sign of change ahead – and Monday’s court filings look to be one of the first indicators of that shift.

“It’s going to be a new day,” Neal Manne, attorney for the plaintiffs, said in November just after the ballot-box sweep. And now, according to Judge Darrell Jordan – the one misdemeanor judge who did not lose his bench in the last election – the parties have already begun hashing out a settlement they hope to have in place in the next few weeks.

“Our goal is have this accomplished by February 1, 2019,” Jordan told the Houston Chronicle.

One of a series of documents filed in recent days, the two-page motion simply lists the names of the new judges – who automatically replaced their predecessors as defendants in the suit – and asks that the case be dismissed. The court granted the motion and dismissed the appeal by mid-day.

[…]

Mike Fields, the one outgoing judge who supported the lawsuit, lauded the move as a “great first step” toward reform.

“Quite frankly, it’s overdue,” he said. “I remain convinced that fighting against bail reform was a mistake and, I believe, part and parcel of why the citizens of Harris County voted for such a sweeping change in our political landscape. Hopefully, this issue will, finally, be put to bed and taxpayer money better spent going forward.”

[…]

Meanwhile, the Harris County Attorney’s Office issued a statement expressing confidence in the possibility of a settlement.

“The County Attorney’s Office supports the newly-elected judges in their effort to resolve this case on terms they find acceptable,” County Attorney Vince Ryan said in a statement. “This is a case about judicial discretion.”

The next hearing, in Rosenthal’s court, is slated for Feb. 1.

Out-fricking-standing. The new judges are now represented by a pro bono attorney, instead of the high-priced guy that had been arguing the case in court. What this means is that the injunction will remain in place while the settlement is hashed out, with no further briefs or arguments or whatever else before the Fifth Circuit. (The last update I had on this was from August; I don’t think there was any other business on the agenda, but if there was it’s now moot.) Perhaps once we get this settlement in place we can stop outsourcing inmates once and for all. Now we need the city of Houston to get its act together and follow the county’s lead. Bottom line is that this, as much as anything, is what I wanted from the 2018 election. Well done, y’all.

Here come the new judges

They’re going to be fine. Seriously, everyone chill out.

[Frank] Aguilar said some of his Democratic colleagues may not have a lot of judicial experience, but most have had long careers as lawyers and have the experience they need to improve the system.

That sentiment has been a constant among the new Democrat judges. In the days after the election, Dedra Davis, who was elected to civil bench, said the new judges would be using a “wheel” to appoint attorneys at random instead of continuing a system of judges appointing a small roster of attorneys they know.

“A little more fairness, a little more impartiality, and a little more equality is coming, and not everybody’s happy about that,” she said. “Lawyers who made $500,000 a year from their relationship with a judge who always gave them appointments aren’t going to see that anymore.”

In the days after the election, attorneys who had been elevated to the bench were busy winding up their practices while judges who lost were looking at their options.

Josh Hill, a newly elected Democrat criminal court judge, said there is a learning curve in any new job. He expects some “hiccups and speedbumps” around the courts, but said he and the other new judges are fair and will work hard to improve the system.

“I don’t have any reason to think that any of the incoming judges will be incapable of handling the task. I think they’ll do fine,” he said. “Ultimately, you’re going to see a more progressive criminal justice system.”

Hill noted that some of the departing judges came to work late and did not seem to be diligent about getting things done with their dockets. He said practical experience and a strong work ethic are more important than the belief that judges are somehow “better” qualified just because they’ve been on the bench longer.

“Some of them did a great job and some did a terrible job and some were just in-between,” he said. “It just comes down to the individual and what they’re willing to put into it and how hard they’re willing to work.”

[…]

JoAnne Musick , felony division chief at the Harris County District Attorney’s Office, said new judges are elected every other year and they all seem to learn the job.

“It takes them four to six weeks to get their feet wet and then they’re off and running,” she said.

Many criminal defense attorneys agreed.

“I’ve seen so many transitions and everybody figures it out. It’s going to be fine,” said Cheryl Irvin, a longtime criminal defense lawyer who has practiced since 1980. “Nobody’s going home who should be going to prison. Nothing like that is happening and anybody who says anything like that is just immature.”

Yeah, pretty much. I know it’s de rigeur to dump on the system we have of partisan judicial elections, and for sure there are some departing judges who would have been fine to keep on the bench. But let’s be honest, appointment systems will pick some duds, too. Every company that has ever hired an employee has hired people who just didn’t work out for one reason or another. Maybe an appointment system, if properly built and maintained, would do a better job of picking winners than the system we have now. But all those good judges whose loss everyone is now lamenting were chosen by this same partisan election system we have. It’s not like nobody good got elected.

And hey, guess what: The Legislature is about to be in session. Everyone who believes the system we have for electing judges is terrible is welcomed and encouraged to lobby their legislators to design and implement something better. Come up with a plan, get a legislator to sponsor it, and go from there. There’s never been a better time to turn complaints into action. And if six months from now we make it to sine die without such a bill appearing on anyone’s radar, I’ll know how serious the complainers were about their grievances.