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October 11th, 2022:

Judicial Q&A: Judge James Horwitz

(Note: As I have done in past elections, I am running a series of Q&As for Democratic judicial candidates. This is intended to help introduce the candidates and their experiences to my readers. This year it’s mostly incumbents running for re-election, so it’s an opportunity to hear that talk about what they have accomplished. I am running these responses in the order that I receive them from the candidates. For more information about these and other Democratic candidates, including links to interviews and Q&As from the primary and runoff, see the Erik Manning spreadsheet.)

Judge James Horwitz

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

James Horwitz, Presiding Judge for Harris County Probate Court No. 4

2. What kind of cases does this court hear?

Harris County Probate Court No. 4 has jurisdiction to hear cases involving all aspects of:

(A) DECEDENTS’ ESTATES
(1) the probate of the estate of a decedent which contains issues involving the existence or non existence of valid Wills and whether the executor/administrator has complied with the legal obligations of such role; and
(2) the heirship determination of a decedent’s estate who does not have a valid Will with the possible appointment thereafter of a representative of such an estate as well as whether that representative has complied with the obligation of that role; and
(3) the wrongful death litigation of a decedent whose estate has been filed with this Court (concurrent jurisdiction with Civil District Court but the superior right to bring that type of case into the Probate Court); and

(B) GUARDIANSHIP ESTATES
(1) the determination of incapacity of an individual that might require a guardianship (through age, illness, and/or accident) with the appointment thereafter of a guardian (of the person or estate or both) of the incapacitated person with determination of whether such guardian has complied with the legal obligations of such role; and
(2) personal injury suits involving individuals who have guardianship estates in this Court (concurrent jurisdiction with Civil District Court but the superior right to bring that type of case into the Probate Court) ; and

(3) TRUSTS
(1) matters involving the interpretation and modification of trusts including whether the trustee has complied with the legal obligations of such role

(D) MENTAL HEALTH COMMITMENTS
(1) Harris County Probate Court # 4 (along with Probate Court # 3) has an additional jurisdiction to conduct hearings regarding whether a person requires commitment at a psychiatric hospital because of mental illness and furthermore whether such person who has been committed requires medication

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

Probate Courts have regular ongoing dockets involving the above cases that occur weekly that cannot be postponed. People continue to die and become incapacitated (a fact of life) and the pandemic required immediate adjustments to allow for the uninterrupted judicial determination of such matters. As the administrative judge for the four Harris County Probate Courts during the height of the pandemic (2020), it was incumbent on me to help develop policies that streamlined the process. I’m proud to say that our court along with the other Harris Probate Courts became the state leader in developing methods including zoom hearings to allow for the delivery of such justice to the community. Our caseload and completion rate has actually increased and continues to increase during this term. Because of my work especially as administrative judge. the four Probate Courts work well together to make as much as possible identical procedures so that attorneys do not (has had been the way in the past) have to learn four separate ways to handle their cases loads depending on which Probate Court they find themselves in. Education of attorneys has been a priority, and I am a co-founder of the Texas Probate American Inn of Court that is accomplishing the goal of educating and mentoring young lawyers regarding probate law.

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

Our court has installed more sophisticated technology to help the public have their cases heard remotely and/or in person or a combination of both in a more efficient manner. The use of that technology will speed up the completion rate of our court case load. Continued education of attorneys is essential to that process and more legal seminars will continue to be held on various probate subject matters led by our court.

5. Why is this race important?

Everybody comes to Probate Court eventually, one way or another, as a decedent, an incapacitated person, an heir, contestant, and/ or a witness. This Court’s mission statement is to help families in crisis to resolve issues. A judge handling these types of jurisdiction must possess a heightened sense of empathy as well as the required judicial knowledge and wisdom to accomplish the court’s mission. This race is important because of the leadership required to continue guide the Court effectively.

6. Why should people vote for you in November?

I have 45 years of legal experience. My career has included the practice, of course of estate planning and probate, but also civil, criminal, family, juvenile, corporate, and business law. It is essential to know and be competent in various aspects of different types of the law because of the complex nature of probate. I have demonstrated my competency as a probate judge during the almost 4 years on the bench. Probate Court, unique among all other courts, has 4 times as many staff as other types of court because of the multitude of jurisdictions it must handle day to day. It takes a manager as well as a jurist to effectively administer the workload of this court. I have molded the staff into an effective and efficient task force to handle its case load and will continue this job.

I think you know the root cause of the problem, John

I was fascinated by this Texas Monthly feature on Secretary of State John Scott, who is being pushed to reckon with the insane and dangerous levels of election denial and anti-democratic activism. I’m pretty sure he gets it, he just doesn’t want to say it or to suggest answers for it.

Take pity on John Scott. In October 2021, Governor Greg Abbott appointed the Fort Worth attorney as Secretary of State, Texas’s top elections official. He immediately found himself in the hot seat, targeted by voting rights activists aggrieved by what they saw as Republican-led voter suppression and by conspiracy theorists inflamed by former president Donald Trump’s claims of a stolen election. Scott, who had previously served under Abbott as deputy attorney general for civil litigation and COO of the Texas Health and Human Services Commission, told Texas Monthly at the time that his top priority was “bringing the temperature down.” This proved harder than he anticipated.

Scott’s first major task was to conduct a “full forensic audit” of the 2020 general election in the two largest Democrat-led counties, Dallas and Harris, and the two largest Republican-led counties, Collin and Tarrant. The audit was demanded by Trump—even though he won Texas by more than five percentage points—and had been agreed to, less than nine hours after Trump issued his demand, by the Secretary of State office (the top post was then vacant). The effort immediately drew scorn from both liberals, who denounced it as a capitulation to election deniers, and Trump himself, who complained that limiting the audit to four counties was “weak.”

Phase one of the audit examined voting-machine accuracy, cybersecurity, and potentially ineligible voters. Quietly released last New Year’s Eve, it found nothing unusual about the election. The results of the second phase, a more detailed review of all available records from the four counties, are scheduled to be released later this year.

The inability to please either liberals or conservatives has been the hallmark of Scott’s tenure. He drew bipartisan criticism for the high rejection rate for mail-in ballots (12 percent) during this year’s primary election—an all-too-predictable result of the confusing new vote-by-mail rules imposed by Senate Bill 1, which the Republican-controlled Legislature passed last year over vehement Democratic opposition. Scott’s attempt to fulfill SB 1’s strict voter list–maintenance requirements led his office to challenge the citizenship status of nearly 12,000 registered voters, at least some of whom turned out to be on the list by mistake. His office was sued by a coalition of voting rights groups, including the Mexican American Legal Defense and Educational Fund, which has called the list “a surgical strike against voters of color.” (The U.S. Court of Appeals for the Fifth Circuit recently ruled that Scott did not have to divulge the list; the plaintiffs are deciding whether to appeal.)

[…]

With early voting for the November general election just weeks away, Texas Monthly decided to check in with the embattled Secretary of State. This interview has been edited for length and clarity.

Texas Monthly: The voting-machine test you attended in Hays County got pretty rowdy. What was that like?

John Scott: The local elections administrator in Hays County invited us down to film a public service announcement. It kind of devolved into a little bit of a question-and-answer session [with the activists]. I felt bad that it became disruptive to the process we were all there for. Part of my job is answering questions. But a lot of the people who have questions, it’s the misinformed and the uninformed.

The misinformed people seem like they really don’t care. They know something, and they’re going to stick to it no matter what you tell them. You can talk until you’re blue in the face. With the uninformed, we have to reach out and tell them the truth. Otherwise there will only be bad information circling around. The shouting eventually ended and they did calm down. I think there were several protesters who accepted a lot of what I was saying.

TM: Why do you think so many people are angry about these issues?

JS: I don’t know why. If I did, we would address it immediately. There’s a lack of information, and then there’s people out there filling that lack of information with stories that are simply not true. I have yet to hear about or meet any elections administrator in the state who is not trying to do a perfect job. We’re all humans, and so we’re all prone to error. It seems like, a lot of times, people latch on to those errors and ascribe motives. I don’t know how we stop that other than to continually address it. It’s like Whac-A-Mole.

[…]

TM: Earlier this year, the Brennan Center for Justice conducted a survey of election workers across the country. It found that one in every six workers has received threats because of their job. In Texas, the top three election administrators in Gillespie County recently resigned because of harassment. Tarrant County election administrator Heider Garcia received death threats after being the subject of a conspiracy theory involving his prior employment by voting-machine manufacturer Smartmatic. How big of a problem is this?

JS: It’s a huge problem. Heider and his deputy both carry guns now. They don’t bring them into polling places, because that’s illegal, but they have to have a gun on them. Which is pathetic—the fact that they’re in that much fear of their life, that it’s gotten that heated. I think it’s obscene. In Gillespie County I visited with the county judge and let him know we were here to help in any way possible, given the situation they had. Everybody over there had glowing comments about the elections administrator. She was somebody you would want as your neighbor, and somebody you’d want as your public servant in charge of elections.

I’ve gotten death threats; my folks in the elections division have gotten death threats. It’s become absurd, and I don’t know what’s caused it.

TM: What steps has your office taken to ensure election workers can safely carry out their duties?

JS: We tell each county that if they get threats of any kind to report it to their local law enforcement agency immediately. That’s what we did with our own death threats. This is insanity—you can’t have people receiving death threats for doing their jobs.

TM: You say you’re not sure why it’s gotten so intense. But surely former president Trump’s repeated claims of a stolen election have something to do with it.

JS: Any time the temperature gets turned up, it’s possible to have nuts making these statements. At least in our office, what I was told is that these threats long preceded the 2020 election. The Infowars guy [Alex Jones] has unleashed hell on our election people. This has been going on for many years. And I don’t want to give a free pass to people who are crazy enough to go out there and say they’re going to kill somebody because they’re doing their job. I don’t want to give them an excuse—”Oh, well, it’s because somebody said something.” No, that behavior is unacceptable under any scenario. Just because somebody said something, or they saw something on TV, that doesn’t excuse it.

“Pity” is not the word that comes to mind. I don’t care for John Scott, but I’ll admit to some sympathy for him. He’s facing the heat out there as well as the front-line county election workers, and that’s a lot more than any of our elected state leaders are doing. I take his point about misinformed versus uninformed voters as well, though it sure would be nice if someone like him were a much louder advocate for good information and putting a sufficient amount of resources into combatting that misinformation.

And look, this guy isn’t dumb. He knows what the problem is and who’s causing it, he just doesn’t want to call out his own team. It’s the opposite of courageous, but it’s human enough that I can at least see why he’s being so timid. But those county election administrators are out there getting pummeled, working insane hours, and generally burning themselves out, without any clear sign that the state has their backs. It’s not sustainable, not to mention inhumane and dangerous. How about loudly pushing for state resources to find, arrest, and prosecute people who are threatening these folks? How about urging the AG to look into curbing or at least slowing down these mountains of public record requests, especially from out of state activists, which are basically a denial of service attack on the counties? How about asking your buddy Greg Abbott to say something? There’s a lot John Scott can do even if he’s just an administrator himself. If I saw him doing more of it, even if “it” is just trying to get those with the real power to do something, I’d have a lot more respect for him.

The True the Vote lawsuit continues to be wild

This is crazy.

Inside a nearly empty federal courtroom Thursday, a fiery argument broke out between a judge and the lawyers representing Texas-based nonprofit True the Vote in a defamation and computer fraud case filed by a Michigan-based election software company.

U.S. District Judge Kenneth Hoyt warned Houston-based attorneys Brock Akers and Mike Brewer that they might be getting “played” by their conservative nonprofit client after the attorneys repeatedly argued against disclosing the source of the information central to the case, about sensitive poll worker data managed by Konnech Inc.

In podcasts and elsewhere, True the Vote has repeatedly claimed that their organization directed “analysts” to hack Konnech’s servers, which the group claims were located in China and thus proof of the company’s work on behalf of the Chinese Communist Party. After Konnech sued True the Vote last month for defamation, Hoyt ordered True the Vote to turn over any Konnech data the organization still had, and disclose the name of the individuals who’d helped them obtain it.

The contentious tone in the courtroom demonstrated the precarious position the lawsuit has put True the Vote in. The group has spearheaded the spread of voter fraud conspiracy theories in Texas and beyond for years — most recently by producing the debunked voter-fraud documentary “2000 Mules” — and has faced very little accountability for it. Now True the Vote is trying to maintain its conspiratorial claims about Konnech while also denying accusations that it illegally hacked data or misled the public about the company and its CEO.

In their own legal filings, True the Vote said that contrary to their prior public statements, the group had never been in possession of Konnech’s data but had simply been shown it by a source.

Konnech’s lawyers, meanwhile, asked the judge to hold True the Vote’s founder, Catherine Engelbrecht, and a board member, Gregg Phillips, in contempt for failing to follow the judge’s order.

In court Thursday, Akers and Brewer were reluctant to release the source’s name in court, saying they feared for the man’s safety.

Hoyt, a judicial nominee of President Reagan, wasn’t having it.

The judge said he didn’t “have any confidence” in True the Vote’s version of events, in part because he said the group’s leaders haven’t submitted sworn affidavits under penalty of perjury to support them. True the Vote’s lawyers said they didn’t believe their clients needed to appear at the hearing.

“Do errors get made [in elections]? Yeah,” Hoyt said as he continued to question True the Vote’s trustworthiness. “Do people cheat? Perhaps. But all of this hustle and bustle about the integrity of the process? Is the way to fix the process to tear it apart? That’s not integrity.”

He demanded the lawyers release the name of the source.

See here for the previous update. Judge Hoyt eventually got the name, which Votebeat didn’t publish in their story from the weekend because they hadn’t been able to verify anything about that person. I mean, I dunno, it’s probably not a good sign for your side when the judge is telling your lawyers that you can’t be trusted. We’ll have to see how it goes from here.

In the meantime, this is also nuts.

The Los Angeles County district attorney announced on Tuesday the arrest of Eugene Yu, the CEO of a small company that makes software for scheduling poll workers and had a contract with LA County. District Attorney George Gascón said at a news conference that the contract with the county required the company, Konnech, to securely maintain election worker information on servers in the United States.

Gascón said that in the course of a separate investigation, his office “found probable cause to believe that Konnech allegedly violated this contract by storing critical information that the workers provided on servers in China.”

The district attorney did not provide further details of what evidence his investigators had uncovered so far. He said Yu’s arrest was made on “suspicion of theft of personal identifying information.”

Konnech is located in Michigan, and Gascón said his office had cooperated with local law enforcement to make the arrest. Robert Arcos, the chief of the DA’s Bureau of Investigation, said that investigators from the Public Integrity Unit and the Computer Forensics Unit helped serve the arrest warrant on Yu, and also seized hard drives.

“We intend to hold all those responsible for this breach accountable,” said Gascón, who added that his office is seeking the extradition of Yu from Michigan to California.

NPR obtained court documents filed against Yu in Ingham County, Michigan, which indicate that Yu is “charged in Los Angeles County, California with the extraditable crime of Embezzlement of Public Funds.” The documents state Michigan authorities charged Yu with “misdemeanor fugitive from justice,” and he has another court date on Oct. 25. NPR also sought court documents from the LA County D.A.’s office, but a spokesperson said in an email, “Because this is an ongoing investigation we will not be releasing any documents at this time.”

Gascón, a Democrat, said at the news conference that the information allegedly held on servers in China related to poll workers, and “is not — I repeat, it is not — related to election material or voter information.”

In a statement, a spokesperson for Konnech said, “We are continuing to ascertain the details of what we believe to be Mr. Yu’s wrongful detention by L.A. County authorities.”

“Any L.A. County poll worker data that Konnech may have possessed was provided to it by L.A. County, and therefore could not have been ‘stolen’ as suggested,” said the spokesperson, Jon Goldberg.

As they say, you can’t make this stuff up. I didn’t see any more recent stories than the ones reporting the arrest, and those stories were all based on the LA County DA’s press release. Hard to know if we’ll learn anything more until the court date in two weeks. Unfortunately, I doubt that DA Gascón’s emphatic words about the nature of this case will persuade anyone on the True The Vote side. It’s likely to get crazier from here.