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Robert Schaffer

Coronavirus and the courts

More things that will be shut down for the time being.

Courts in the Houston region are announcing measures to reduce or suspend some operations in response to the new coronavirus outbreak and local declarations of emergency.

Harris County’s court system announced Thursday that jury service will be suspended from Friday through March 20, another move by local authorities as they grapple with the spread of the new coronavirus.

Local Administrative Judge Robert Schaffer said that the Board of District Court Judges met and decided to suspend service. “Jurors who have received a summons for these dates do not need to appear and do not need to schedule,” he said in the order released Thursday.

In addition Harris County Civil Administrative Judge Michael Gomez said earlier that civil trials will be canceled through the end of the month, and individual judges would determine how to handle bench warrants.

Brazoria County also announced suspension of jury duty because of the coronavirus outbreak for the week of March 16 and the week of March 23. “Residents that have received a jury summons for the week of March 16th or the week of March 23rd will not need to report for jury duty,” the county said in a release.

The federal courts have also announced some adjustments to civil matters in the wake of the public health pandemic, although federal courthouses across in the massive Southern District of Texas – which stretches from near the Louisiana border to the Mexico border — will remain open. Civil jury trials in Houston and Galveston have been postponed until April 1 or thereafter. Judges have the discretion to postpone bench trials.

The federal clerk’s offices will become a virtual operation, with aides available to the public by phone and responding to snail mail. The intake desks will process electronic court filings.

On the criminal side, juries are still being called. In addition, all hearings before a district, bankruptcy or magistrate judge will remain as scheduled unless the presiding judge in the case makes a change.

There’s more, involving civil, criminal, and family court, so read the rest, and check in with your court or your attorney if you have any legal proceedings in the near future. Texas Lawyer has a more comprehensive roundup of court actions around the state. As Alex Bunin, the head of the Public Defender’s office says in the piece, once there’s a confirmed case involving someone in a courtroom, whatever their role may be, it’s going to snowball from there.

Let’s also not forget the prisons and jails, which could be a major vector for the spread of the disease. The Harris County jail is doing screenings and can do quarantines, but maybe the short term answer is to arrest fewer people and let asylum-seekers and others out of detention. There’s lots of ways to do social distancing.

Look out! Here come the lady judges!

Everybody scream!

In Democratic judicial primaries last Tuesday, Dayna beat David, Jane trounced Jim, and Colleen got more support than John, David and Brennen combined. Is that all there was to it?

Men have dominated Texas courts for decades. Now, in Democratic-controlled areas of the state, they seem headed for extinction.

The corrective for years of gender inequity on the bench has proven rather simple: voters.

Women have disappeared from the high-octane Democratic presidential primary. But in down-ballot, low-information races, Texas Democrats are increasingly, consistently backing women over men. In last week’s Democratic primary, women won more votes than men in all of the roughly 30 gender-split contests for high court, court of appeals and district court, according to results from the Texas Secretary of State. Rarely was it even close.

In urban areas, Democrats typically beat Republicans in the general election. So if Democratic men can’t beat Democratic women in judicial primaries, the bench in Texas cities is likely to become a lot more female. Democratic men won primary races for high court, courts of appeals or district courts only when they were uncontested or facing a male opponent.

Some voters may have chosen women candidates because of their superior qualifications or experience. But experts say it’s likely that many of them just looked at two unfamiliar names and chose the one that sounded like a woman.

“Maybe they knew nothing, maybe they knew that they were both equal, but all things being equal, they went with the woman,” said Elsa Alcala, a former judge on the Texas Court of Criminal Appeals. “People are voting based on some characteristic that’s apparent from the ballot as compared to knowing who these people really are.”

There’s more, but you get the idea. This issue was important enough that the Chron and Texas Lawyer also devoted feature stories to it.

Look, I get it, judicial elections can be quite random, most people don’t know much about the candidates they’re voting for, yadda yadda yadda. There really were multiple good judges ousted, and that is a shame. It also is what it is, and as I’ve said before, the same mercurial partisan election system that unceremoniously dumped these good judges also elected them in the first place. This is my reminder that while there have been calls since at least 2008 (the first year since the early 90s that Democrats started winning judicial elections in Harris County, mind you) for some kind of different selection process for judges, no one has yet come up with an actual concrete proposal. There is now a blue-ribbon Judicial Selection Commission that is tasked with proposing such a method; I see no reason to trust it and recommend you do the same. I could be wrong, they could come up with something that minimizes cronyism while rewarding merit and promoting diversity, but I’m not going to hold my breath.

By the way, there were seven male Democratic judges who did not draw a primary opponent this cycle: Kyle Carter, RK Sandill, Michael Gomez, Mike Engelhart, Robert Schaffer, Robert Johnson, and Darrell Jordan. If Democrats maintain their recent dominance in Harris County, then we will see those seven men along with 20 women elected to district and county court benches this year. Back in 2004, the last time in a Presidential year that Republicans swept the judicial races, there were also 27 such elections. That year, 20 men and seven women were elected. I admit my memory isn’t what it once was, but I’m pretty sure there weren’t multiple articles written about how hard it was to get elected judge as a woman in Harris County back then.

My point is, let’s all take a deep breath and calm down. There were still 30 male judges elected in 2018, out of 59 total, 29 of whom are still on the bench (Bill McLeod of accidental resignation fame was the 30th). If after the 2024 election there are zero men on the district or county court benches in Harris County, then maybe there’s a problem. And I’m sure in another hundred years or so, society will evolve to the point where it can be remedied. History shows that you can’t rush these things, after all.

(And yes, the irony of these stories running within days of Elizabeth Warren suspending her Presidential campaign is…something.)

Judicial Q&A: Judge Robert Schaffer

(Note: I ran a series of judicial Q&As for Democratic candidates in contested primaries earlier this year. I am now doing the same for the candidates who were unopposed in March, which includes most of the sitting incumbent judges. As always, this is to help you the voter know a little bit more about the candidates on your ballot. I will be publishing these in the order I receive them. You can see the Q&As and interviews I did for the primaries on my 2016 Election page.)

Judge Robert Schaffer

Judge Robert Schaffer

1. Who are you and in which court do you preside?

Robert Schaffer, Judge of the 152nd District Court, Harris County, Texas

2. What kind of cases does this court hear?

There are 60 district courts in Harris County. They are divided into 4 divisions:

(1) Civil Trial Division with 24 courts
(2) Criminal Trial Division with 23 courts
(3) Family Trial Division with 10 courts
(4) Juvenile Trial Division with 3 courts.

The 152nd District Court is a court of general jurisdiction that is in the Civil Trial Division.

If a lawsuit can be filed for damages or a judicial declaration of your rights, the case would be filed in the civil district courts. This would include cases involving contracts, leases, product liability, medical or other professional negligence, motor vehicle collisions, slip and falls or other injuries that occur on someone’s property, job terminations because of some form of illegal discrimination, foreclosures on homes or other property or violating some statute that causes damages or other economic loss.

3. What have been your main accomplishments during your time on this bench?

During my time on the bench, I have served the citizens of Harris County in many capacities. In October of 2013, I was elected by the Harris County District Court judges to complete my predecessor’s term as Local Administrative Judge for all of the Harris County District Courts. I was subsequently elected to a full two year term (2014-2015) and re-elected to a second two year term (2016-2017). Prior to my election as Local Administrative Judge, I served as the Administrative Judge for the Civil Trial division from 2012 to 2013. In 2010 I served as a Justice on the 14th Court of Appeals by special assignment. The State Multidistrict Litigation Panel selected me to serve as the pretrial judge for the Toyota Unintended Acceleration Multidistrict Litigation in 2010 and for the GM Ignition Switch Multidistrict Litigation for the state of Texas in 2015. I also serve as a member of the Harris County Criminal Justice Coordinating Committee. In 2014 I was selected as the Trial Judge of the Year by the Texas Association of Civil Trial and Appellate Specialists and Distinguished Alum for the South Texas College of Law Alumni Association.

4. What do you hope to accomplish in your courtroom going forward?

Continue overseeing the cases that are filed in the 152nd District Court to see that they are moved through the system efficiently so that the litigants are assured of having reasonable access to the courts.

5. Why is this race important?

It is important that the person elected to preside over this court is qualified based on background, experience and temperament.

6. Why should people vote for you in November?

People should vote for me because I am the most qualified person to serve on this bench. I have been a lawyer for 32 years and during that time I have tried cases as a lawyer and presided over cases as a judge. The lawyers who practice in this court have overwhelming stated in bar polls that I do an excellent job and am the most qualified to serve.

Endorsement watch: Civil incumbents, part 2

The Chron continues a theme.

HarrisCounty

151st Civil District Court: Mike Engelhart

If you commute along the Southwest Freeway, then you probably know Judge Mike Engelhart from his big red billboard at Greenbriar Drive, which informs drivers that the two-term Democratic incumbent was voted trial judge of the year by the Texas Association of Civil Trial and Appellate Specialists. But billboards cost money, and in their meeting with the editorial board, Engelhart’s Republican opponent Jeff Hastings bopped the sitting judge for his prolific fundraising – even from lawyers who practice in his court.

Engelhart’s response? “I fundraise for this position because I want to win this election.”

And he should win. Engelhart has developed a reputation as a terrific judge with an impressive work ethic.

152nd Civil District Court: Robert K. Schaffer

Over his two terms on the bench, Judge Robert Schaffer has been elected by his colleagues to important leadership positions such as local administrative judge, and voters should follow their lead by electing Schaffer to another term.

164th Civil District Court: Alexandra Smoots-Hogan

Many judicial challengers pick their races just to ensure that their preferred party has a candidate on the ballot. Republican Bruce Bain picked this court specifically to remedy the perceived inefficiencies and failings of Democratic incumbent Alexandra Smoots-Hogan.

In a meeting with the editorial board, Smoots-Hogan admitted that she could be more perceptive to lawyers’ hurt feelings, but wasn’t sure whether that actually impacted the real work of her court.

165th Civil District Court: Debra Ibarra Mayfield

Debra Ibarra Mayfield came up through the ranks of the judiciary, proudly proclaiming that she served as the first Latina judge in the Harris County civil courts at law before being appointed to this post by Gov. Greg Abbott last year. The Houston College of Law graduate began her legal career as a briefing attorney for the Fourteenth Court of Appeals. Mayfield, the first in her family to attend college, brings a refreshing openness to the bench. She’s also an adjunct professor at University of Houston College of Law.

215th Civil District Court: Fred Shuchart

We’ve said it before and we’ll say it again: Judge Elaine Palmer needs to be removed from her seat.

333rd Civil District Court: Joseph “Tad” Halbach

Republican Joseph “Tad” Halbach, 60, who took the bench more than two decades ago, says he still has a “fire in his belly” for the judiciary and should continue to serve. Board certified in civil trial law, Halbach is currently an adjunct professor at the University of Houston Law Center and consistently gets high ratings from his peers on Houston Bar Association polls.

334th Civil District Court: Grant Dorfman

In this race between two highly qualified and experienced candidates, we urge voters to keep incumbent Judge Grant Dorfman on the bench in the 334th civil district court.

So all incumbents except for one, with the one exception being what I predicted last time. The only close call was Judge Smoots-Hogan, who is apparently on notice. We’ll see how the Criminal Court judges do.

A deeper dive into the Pratt files

The Chron takes a closer look at some of the people affected by the tenure of now-former Judge Denise Pratt.

Denise Pratt

Kevin Bates’ sojourn through Pratt’s court began in 2012, via a visitation dispute with his ex-wife over their 16-year-old daughter.

A court order in the couple’s divorce said the private pilot was supposed to pick up his three daughters on weekends. While the two younger sisters came to stay with Bates on weekends, his teenage daughter stayed at home with her mother. Bates, 43, let it slide for awhile, but after his oldest daughter missed a family gathering at his mother’s house, he hit a breaking point. In March 2012, he filed suit and landed back in the 311th District Court where the couple had settled their divorce a few years earlier and Pratt since had taken the bench.

Then, he waited.

For a year, he did not see his daughter while he waited for a ruling from Pratt, who missed several scheduled hearings. So much time passed that Bates eventually let his lawyer file a “writ of mandamus,” in effect, asking an appeals court to force Pratt to rule. A three-judge panel in the 14th Court of Appeals, in a ruling that came less than three weeks later, said the wait had been “unreasonable” and ordered Pratt to make a ruling within 15 days.

Bates soon learned he was not alone.

[…]

Bates eventually got a ruling in his favor, but he said that no longer is the point.

“She took something away from me I’ll never be able to get back,” he said. He no longer sees his daughter, who since has turned 18. He blames the estrangement on the year he lost to Pratt’s inaction.

In its May 14, 2013, opinion, the appeals court panel wrote that Pratt had “abused her discretion” in Bates’ case.

“A parent’s right to access to his child is a fundamental liberty interest more precious than property rights,” it wrote.

The swift ruling and rebuke were unusual enough, Bates’ lawyer, Marcia Zimmerman, said.

The resulting fax from Pratt’s court was even more so.

The paper ruling, in Pratt’s handwriting, was dated August 2012, nine months earlier. It ordered Bates’ ex-wife to surrender their daughter, pay him $2,500 in lawyer’s fees and serve probation until December 2012 – five months before.

“I looked at the date and the first thing that came to my mind was: There’s no way this judge signed this order on this date,” Zimmerman recalled.

That led to the first complaint filed against Pratt, from which all of my Pratt-related blogging flowed. As we know, she has now resigned from the bench but is still on the ballot in the May 27 runoff. From this story, it sounds like if she does manage to win the runoff she would withdraw from the race in November, but who knows what Denise Pratt will do? She hasn’t exactly been a model of rational behavior so far.

In Part 2 of this series, we get another look at just how badly effed up Pratt’s courtroom was.

Lawyers started dropping by Judge David Farr’s court about a year into Denise Pratt’s tenure, complaining they could not get the freshman jurist to hear or rule on cases and that the rulings – when they came – often were inappropriate.

Farr, the family court administrative judge, said he took the grievances with a grain of salt, reminding lawyers they could appeal or file complaints with the State Commission on Judicial Conduct. Anger and disappointment, after all, are far from uncommon in the high-drama family courts where divorce, child support and custody battles range from amicable to poisonous.

In a dozen years of watching case load numbers, Farr said he had never seen one swell to more than 3,000 as Pratt’s had by last December, but he did not think he had “the power to reach into another court and second guess, move cases around.”

[…]

“We all knew we had a problem when she did not appear in court at all for the first 10 days after she was sworn in,” said Webster family lawyer Greg Enos, who filed three complaints against Pratt with the Harris County District Attorney’s office that sparked investigations. “Usually, judges are sworn in and are very eager to put the robe on and take control of their courtroom.”

In the weeks leading up to Pratt’s departure, Harris County Administrative Judge Robert Schaffer said he was trying to figure out how – and if – he could intervene in her 311th District court.

“There was a time in like February or March when I did start thinking about seeing what there was I could do, if anything, on this,” the civil district court judge said. “As you know, things were not getting done in that court.”

Schaffer had been in regular contact with Farr about Pratt and her court, particularly after the notorious December case purge. Even when it was clear there were serious problems, Schaffer said he was unsure he had the authority to step in.

State law gives county-wide administrative judges general authority to “supervise the expeditious movement of court caseloads.”

Schaffer, though, said the law is not as clear as it could be, and that “traditionally, the local administrative judge has not inserted him or herself into the operations of other courts. I really feel like the Legislature has not given us much guidance on specifically what we can and cannot do.”

That is not the case in other states, said South Texas College of Law Dean Emeritus James Alfini.

Texas, he said, has a culture of giving independently elected judges free reign with little or no oversight or willingness to crack down on rogue actors.

“We have a very loosely administered court system,” he said.

Farr said a national consultant the county hired to study the local court system has been puzzled by his lack of power.

“There are states where the administrative judges can say, ‘You have too many cases. I’m moving 500 of your cases over to this court,’ but not Texas. That’s not how we do things here,” he said.

Asked whether he could have or ever considered intervening in Pratt’s court, Judge Olen Underwood – the regional administrative judge, who oversees courts in more than 30 counties, said “I’m not aware of any authority I have to do that.”

“We have the judicial conduct commission to do those kinds of things,” he said.

Yes, well, as anyone who followed the Sharon Keller affair from a couple of years back knows, the State Commission on Judicial Conduct isn’t exactly a fearsome beast. Bad judges either eventually get voted out, or the screw up big enough to make resigning or retiring look good. This leads the article into yet another discussion of Texas’ partisan election model for choosing judges and another commercial for either non-partisan elections or some kind of appointment-with-retention-elections system. Personally, I think having the Legislature spell out in more detail what the administrative judges can and cannot do, and maybe giving them the authority to reassign cases under certain circumstances would have helped mitigate the worst of Pratt’s offenses. Maybe that issue will have some salience in the 2015 legislative session, now that everyone is aware of the giant mess Denise Pratt is leaving behind for others to clean up. If that happens, then at least one good thing will come out of her three-plus years on the bench.