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Seana Willing

Maybe we’re not on the hook for Keller’s legal fees after all

Well, at least it’s a small consolation.

Clearing up confusion in its dismissal of an ethics rebuke against Judge Sharon Keller, a special court of review has issued an order that no longer makes taxpayers liable for Keller’s legal costs.

The court’s original Oct. 11 order said Keller could recoup legal costs from the State Commission on Judicial Conduct — estimated by her lawyer to be “in the six figures” but probably less than $1 million.

State law, however, specifies that attorney fees cannot be awarded in judicial conduct proceedings. The new order deletes the reference.

At least that takes a teeny bit of the sting out of this whole debacle. The motion to reconsider is still pending, and that’s the only real hope for some kind of accountability. The Chron calls on the panel to do the right thing:

A possible escape from this absurd conclusion is a motion for rehearing filed with the review panel by the commission’s executive director Seana Willing and special counsel John J. McKetta. They persuasively argue that the commission is empowered by the Texas Constitution to choose from a wide range of options in dealing with judicial misconduct, noting the constitution gives the commission the authority to issue a public warning “after such investigation as it deems necessary.” Also, Rule 10 of the Texas Rules for Removal or Retirement of Judges, used in proceedings such as Keller’s, states that in lieu of removal or retirement, “the commission may dismiss the case or publicly order a censure, reprimand, warning, or admonition.”

If the special court won’t allow the warning, the lawyers argue that the matter should at minimum be remanded to the Judicial Conduct Commission for consideration of one of the alternative rulings. We agree.

I had said before that Keller getting off on a technicality would be the ultimate in bitterly ironic endings. The ultimate in happily ironic endings would be for Keller to wind up suffering a real punishment as a result of appealing the wrist slap she originally received for being too harsh on her. A boy can dream, can’t he? Grits has more.

Maybe Keller hasn’t gotten away with it just yet

Could there possibly be some accountability in this world?

[The state Commission on Judicial Conduct]’s executive director, Seana Willing, asked the panel to reconsider its decision to dismiss the case, which stemmed from Keller’s actions on the day Michael Wayne Richard was executed in 2007.

The three-judge panel had ruled that because the commission had instituted formal proceedings against Keller, it didn’t have the authority to issue a public warning against her.

Instead, the panel said the commission’s only choices were public censure, which is more serious than a warning; a recommendation for her removal from office or her retirement; or dismissal of the case against her.

Because of that, the panel dismissed the case. The panel, called a special court of review, had been appointed by Texas Supreme Court Chief Justice Wallace Jefferson to consider Keller’s appeal.

Willing, in her motion for rehearing, disagreed with the decision about the commission’s authority to issue a warning.

But if that’s the case, she said, the appropriate thing would have been for the panel to send the case back to the commission so it could choose among its more limited options.

“The commission is capable of correcting its error, and on remand can apply the correct range of censure, removal, retirement, or dismissal this Court found is available in formal proceedings,” Willing wrote.

At this point, there’s nothing about this case that isn’t unprecedented, so who the hell knows what the panel may do. Speaking strictly as a non-expert non-lawyer, I don’t generally expect anybody to change their minds in this kind of situation. I do think Willing’s filing has merit, but then I think Keller should have been booted off the bench, so take that with a gigantic grain of salt. I figure this is just a setup to dash my hopes again, so I’ll save a step and not get them up in the first place. Go ahead and tell me if you think I’m being excessively cynical. Grits has more.

What is this “warning” of which you speak?

I’m glad to see that someone is asking questions about the warning that the State Commission on Judicial Conduct handed down to Sharon Keller.

Seana Willing, the commission’s examiner, contends in an e-mail that the order is based on a rule that does not comport with the Texas Constitution. As examiner in judicial misconduct cases, Willing acts as a prosecutor does in a criminal case, gathering and presenting evidence, often assisted by a private attorney.

Willing says, “I’m not criticizing the commission for what they did, but I don’t understand why they did what they did.” But Willing is concerned that the commission’s public warning in Keller could result in “bad law” and cost taxpayers more money.

She argues the commission should have based its order on the constitution, which allows the commission only three options after it begins formal proceedings against a judge and after a special master issues a report: issue a censure, recommend removal or retirement, or dismiss the charges.

But John J. “Mike” McKetta, the special counsel who prosecuted Keller, thinks the constitution allows the commission to take the action it did.

Bob Warneke, the commission’s counsel in Keller, says the commission’s position is that the order “speaks for itself.” He declines further comment.

The question is somewhat complicated, and turns on what the Texas Constitution outlines and what the rules for the SCJC specify. It’s a bit of a mess, actually. The Statesman has a good story on this as well, which includes the fact that Keller is the 96th judge to be examined by the Commission, and the first to receive this particular sanction. One thing I hope we all can agree on:

While [Keller defense attorney Chip] Babcock is discussing an appeal, how such an appeal would proceed is unclear. That’s because there are different procedures for appeals after formal and informal proceedings. A public warning typically follows informal proceedings, but in Keller’s case, the commission issued a public warning after formal proceedings.

When the commission issues a public warning to a judge in informal proceedings, that judge has the right to ask the state Supreme Court to appoint three appellate justices to a special court of review to hear the appeal. Willing says in an interview that in such appeals, the three-justice panel reviews the evidence de novo, amounting to a new trial.

But because the commission initiated formal proceedings against Keller, Keller already has had a trial — before the special master. Willing says a new trial would be a waste of resources. She is concerned about Keller getting what amounts to a second trial on the taxpayer’s dime.

“This is taxpayers’ resources being expended for a second trial,” Willing says. “I have a problem with that.”

Willing says that even though the commission does not pay Graves Dougherty legal fees for McKetta’s work as special counsel, it had to pay for the firm’s expenses in Keller, which totaled about $20,000 so far. “Are we going to have to do that again?” Willing asks.

I would hope the answer to that is No. At this point, it appears the only way for that to be ensured is for Keller to take her medicine and let it go already. I’m not going to hold my breath waiting for that to happen. Thanks to Grits for the Texas Lawyer link.