Unknown Campaign Contributions NOT an Ex Parte Communication?
If we as judges do not honor and respect the office and the public trust, we can hardly expect lawyers and litigants to do so. Nor can we expect the recurrent attacks on the judiciary to subside.
Justice Ann Crawford McClure: IN RE HONORABLE NATHAN HECHT, TEXAS SUPREME COURT JUSTICE No. A-2006-1 SPECIAL COURT OF REVIEW APPOINTED BY THE SUPREME COURT OF TEXAS, 213 S.W.3d 547; 2006 Tex. App. LEXIS 9087 October 20, 2006, Opinion Issued
Like turtles sunning themselves on the banks of the Colorado River, the hand picked Supreme Court Committee on ex parte communications languished in the safety of their ‘turtle island’ accomplishing nothing, quick to scurry back into the murky waters at the first sounds of impeding danger. Judicial rot begins with a judiciary that cannot and will not police themselves in a meaningful way.
If money is protected speech, then it is speech. In Citizens United v. Federal Election Commission, on Jan, 2010, the US Supreme Court ruled that corporations and unions cannot constitutionally be prohibited from promoting the election of one candidate over another candidate. The worm in this apple for the Texas Supreme Court sub-committee on “ex parte” communications is that campaign contributions, made close in time to a pivotal hearing by an attorney appearing before a judge in a contested matter, are NOT being considered as an ex parte communication/contribution along side the sub-committee’s “review” of email and social media.
Of course, Justice Hecht recognizes this fact. He argued this fact in his appeal from the ruling of the State Commission on Judicial Conduct occasioned by complaint. Justice McClure referenced this argument in her 2006 Opinion. “What’s good for Justice Hecht should be good for all of us.” If ex parte communications are words, then ex parte communications are money as well. This argument was Hecht’s. Its power should be applied to all individuals, all litigants, all attorneys, not reserved for a unique situation involving Justice Hecht.
What’s Good for Hecht Should Be Good for ALL Litigants
In his brief, Justice Hecht points to several members of the Commission who have routinely contributed to political campaigns, and he bitingly reveals [*595] that one member contributed to Hillary Clinton’s campaign only a month before he [Justice Hecht] was sanctioned:
One wonders how it can be reconciled that a political candidate can be supported by a judge with money, but not words. What’s good for Hillary should be good for Harriet.
“His remark is right on the money — it cannot be reconciled.”
One would think. Petitioner’s Brief at 6. His remark is right on the money — it cannot be reconciled. From this, I conclude that Canon 5(2) is underinclusive, and “woefully” so. Because it cannot survive strict scrutiny, it is unconstitutional, both facially and as applied. If the purpose of the endorsement clause is to preserve and protect judicial independence, integrity, and impartiality, it must protect these values from attacks on all fronts.
From the standpoint of public perception, one thousand dollars is every bit as compromising as one thousand words. If the concern is that a judge’s endorsement or support of a candidate for public office will damage that judge’s impartiality apparently because she is seen as aligning herself with the candidate’s view or ideology, that is no less so when a judge contributes to a candidate’s political campaign, which is not prohibited. Petitioner’s Brief at 34. I agree. Canon 2B (The Promote Clause)
Finally, Justice Hecht challenges the constitutionality of Canon 2B as applied. Quoting White I, he begins by defining terminology. The canon prohibits a judge from lending the prestige of his office to advance the private interests of another. He defines “prestige” as: 1. the power to impress or influence, as because of success, wealth, etc. 2. reputation based on brilliance of achievement, character, etc. Webster’s New World Dictionary of the American Language, Second College Edition (1980)…
In upholding the Commission sanction, I wrote for the majority: Does the Code of Judicial Conduct intrude into a judge’s private life? Most definitely. But that is a path chosen when the decision to seek office is made. A judge must observe the high standards promulgated by the Code of Judicial Conduct both on and off the bench in order to maintain the integrity of the judiciary. In re Lowery, 999 S.W.2d 639, 657 (Tex.Rev.Trib. 1998, pet. denied).
Though today I strike down the enforcement of portions of the Code, the aspirations live on. Judicial accountability arises in part from a justifiable concern for the relationship between judicial conduct and public perception. Lowery, 999 S.W.2d at 647. “While the legal profession has historically been considered a noble one, modern-day portrayals paint a picture of scorn and ridicule. In the courtroom called the media, in the trial by public perception, the image of the judicial system is at an all-time low.” Id.
I offer two caveats before I close. First, the Commission is charged with enforcing the provisions of the Code of Judicial Conduct as promulgated by the Texas Supreme Court. I believe it has endeavored to do so in good faith while awaiting action by the Supreme Court on the remainder of the Task Force’s recommendations.
Second, the robe means something to me. Every time I slip it on, I remember my oath — a vow “to preserve, protect and defend the constitution and laws of the United States and of this state.” If ever I look in the mirror and see a judge who has ruled on the basis of politics, expediency, or personal gain rather than the rule of law, it is time to remove the robe and leave the bench. The citizens of this state deserve nothing less.
As for the 3700 judges who want to know what to do, it is my fervent hope that each one will pause to consider this: Our ability to speak does not mean that we should speak. I haven’t, and I won’t.
ANN CRAWFORD McCLURE, Justice
An impartial judiciary protects the due process rights of litigants as well as public confidence in their decisions. Judicial integrity suffers when judges act with bias toward donors, encouraging and soliciting donations every few months with categories denoted as “friends” and “partners.”
|Not only is money speech, but MONEY TALKS in TEXAS. A judge’s decision is often more valuable than a politician’s vote. Judges are Politicians with a capital “P” and our judges are asking for money and taking money from one party’s attorney routinely without opposing counsel knowing for up to six months.|
Consider Exhibit “A” – D’Metria Benson. D’Metria clocks in with incredibly low Dallas Bar Association Judicial Review Poll ratings addressing her knowledge of the law and impartiality, showing virtually no improvement during her nine year tenure in CCL One. If you are a member of the “global warming is just a myth crowd” and “judges are not politicians” explainers, you might conclude the mandama, appeals and interlocutory appeals from D’Metria’s court involving high dollar donors to her campaign are just a coincidence. Or perhaps her difficulties with rulings stem from her lack of knowledge of the law — and you might fertively claim campaign contributions have no impact on D’Metria, but that position does not square with her Bar Poll rankings on “partiality.” This situation, whether D’Metria is influenced by campaign contributions, each litigant or attorney will have to determine on their own but these facts raise legitimate questions about whether or not those who fund D’Metria might be impacting the decisions this court is making.
|The irreverence of these words pale when compared to the injustice that occurs when judicial donations sway the administration of justice. Everything possible should be done to protect litigants. Protecting the judiciary from themselves and the toxic fumes of campaign donations does not serve justice. Immoral and unscrupulous judges are NOT an endangered species nor are unscrupulous attorneys.|
Ex Parte Communications? Texas Judicial Cannon of Ethics 3B:
A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party.
Ground rules, defined by the Texas Supreme Court for ex parte evaluation by its appointed sub-committee, exclude scrutiny of cash donations. What about all those donation party invitations (five in D’Metria’s case) to attorneys with active litigation in the judge’s court requesting cash donations for a 23 out of 48 month time frame? How is it possible that giving a judge thousands of campaign dollars close in time to a pivotal hearing in a case or at the time of filing a large case NOT be considered “ex parte communications?” And let’s be real here, the judge initiates that request with an “invitation” in D’Metria’s case the recipient was invited to be a “friend” or “partner” depending on the level of contribution. Can’t attend? Too busy? Not interested in a little face-to-face time with the judge who will be hearing your request next week, next month, SEND CASH!!!
The wolf is at the door with a wad of cash and this group is enticing it closer, ‘nice doggie, nice doggie.’
A donation given in conjunction with a hearing and a legal case represents the ULTIMATE ex parte communication. The Supreme Court’s sub-committee responds to the “ex parte” communication assignment with a Miss America answer, like beauty queens, prattling on about nuclear war or abortion, generating cliches that make them sound like grandma and grandpa who never figured out their iPhone. The cloned pomposity of this subcommittee echoes the pointlessness of its existence.
The judges on this committee have, no doubt, accepted contributions from one party, unknown to opposing counsel as they both stood before the judge. Mums the word!!! The little “money made me your friend/partner’ secret will exist between donor and judge until the campaign finance filings are published. How creepy. This is standard operating procedure for the Texas Judiciary, and is not worth the Supreme Court Committee scrutiny along side FaceBook postings.
|Giving a judge money before or after a crucial hearing is not considered scandalous in the State of Texas. It’s just business as usual and considered to be “good business.”|
The rest of us are expected to salute this Emperor with no clothes and operate under the fiction that giving thousand of dollars to a judge at the time of a hearing is not meant to and will have no influential impact on decisions in litigation in that judge’s court, based upon what? Our faith in the morality of the judge. Innocence lost? No, reality denied. No one believes judges are inherently moral, but this subcommittee sounds dangerously close like they do. Is immorality a basis for recusal or a bar to election or re-election? Can acting big and being small have any impact at all? Does losing a significant hearing motivate attorneys and a law firm to ante up?
What benefit did Baron & Budd expect in their hearing with Haynes & Boone for Caris Life Science by donating $1,000 from each attorney, and amping up the firm’s donation, very close to a pivotal hearing? NOTHING? Matching the Haynes & Boone donation, they covered their bases with both an interlocutory appeal designed to showcase an exploitation of both the legal system and the randomly drawn County Court at Law Judge, D’Metria Benson. Baron & Bud covered their bases, while filing a killer brief with exhibits simultaneously enhancing donations to D’Metria on top of previous donations from the firm, with fresh funds from attorneys appearing before D’Metria. Coincidentally, these combined Baron & Bud donations worked to almost match donations from opposing counsel, Haynes & Boone PAC. (No donations to the challenger.)
Social Media Postings Intended to Influence a Justice or Outrage a Large Donor?
Who is to say shining public light on judicial contributions or any matter before a judge represents and effort to influence that judge. Again, we must engage in the fiction that ELECTED judges, are not concerned about voters and public opinion. The indisputable reality (for those in touch with reality) is that social media campaigns and email campaigns work to influence voters, indirectly potentially influencing elected and campaigning officials, i.e. judges and justices.
The logic gets a little murky if your focus is your own survival, but judges ARE expected to swim in those gray waters between black and white. For the appointed sub-committee, black and white is simple, cash contributions equal GOOD communication, no gray there. Social media, whoa, slow down, if we try to subject this “ex parte communication” to a black and white categorization resulting obligations and duties AND full transparency could have judges facing “dire consequences” of judicial discipline if the rule were in the judicial canons.” And who wants that? Not this committee.
Are social media postings not inherently postings to communicate matters under-reported to a potential audience? And judicial donations are in the donor’s theory and the judiciary’s theory married in delusion, designed and purposed to re-elect a qualified judge that the judiciary and the bar believe should remain on the bench? D’Metria Benson’s challenger in the 2014 election when combined with her DBA poll ratings make the argument delusionally absurd.
D’Metria Benson is Exhibit “A” in the purpose of Campaign Donations
New Poll: Vast Majority of Voters Fear Campaign Cash Skews Judges’ Decisions
October 29, 2013
WASHINGTON, D.C. – A new poll commissioned by the Brennan Center for Justice and Justice at Stake finds that an overwhelming number of voters believe campaign donations and other special interest spending on judicial elections have an influence on a judge’s decision on the bench. The findings were released today at a National Press Club event highlighting a new report by the groups, The New Politics of Judicial Elections 2011-12: How New Waves of Special Interest Spending Raised the Stakes for Fair Courts.
Judges for Justice OR Judges for Self-Preservation. You Decide.
The sub-committee of former Yuppies meeting the millennial generation technology head-on resulted in a stalemate. The Texas Supreme Court Advisory Committee and sub-committee review of Judicial Canon of Ethics 3B and the impact on a judge/justice of email campaigns and social media in terms of an ex parte communication generated little more than an insight of a committee with a loss of purpose. I mean, we are literally talking the Pat Boone generation here.
|While the world changes, enlightened parents are teaching their children ON LINE from MIT Open Courseware, this group is chasing their tales, out of touch with social media acting like hyperventilating Border Collies penned up too long, jumping up and down just not sure why.
Is there a person on the planet that believes Justice Ann McClure’s personal judicial code is that of D’Metria?
Second, the robe means something to me. Every time I slip it on, I remember my oath — a vow “to preserve, protect and defend the constitution and laws of the United States and of this state.” If ever I look in the mirror and see a judge who has ruled on the basis of politics, expediency, or personal gain rather than the rule of law, it is time to remove the robe and leave the bench. The citizens of this state deserve nothing less.
Is that not what we deserve from CCL One?
This group is having difficulty grasping the world does not exist in the same way it did five or ten years ago. This group disbanded scratching their collective heads, ignoring cash contributions. Why is there an inference that social media postings were/are made for the purpose of direct judicial influence? The threat to the judiciary is indirect, and clearly they feel it, and clearly it is making the judiciary very uncomfortable. The attitude of the electorate matters to elected judges devoted to keeping their jobs. It is naive to believe this group of judicial politicians are not fully aware of media reflecting opinions of their conduct, whether it is traditional media or social media. The threat of social media is the voter influence of social media and its ability to create a voter cohesiveness that threatens this tight knit convocation of seers while challenging the exclusive domain and impact of judicial donors.
Of course, we want judges to make hard calls based on the law and not be influenced by social media but we want that same indifference to campaign contributions, that same level of scrutiny by this committee, and by design we are not getting it. WHY? Every policy evaluated should be evaluated by a standard applicable to both moral judges, the best judges and the WORST judges. D’Metria Benson has long been known as DALLAS WORST JUDGE. View these important issues from the position of litigants in HER court room and from the reality that attorneys are terrified to speak up.
The Etta Mullin situation represents a perfect example of abused, frustrated attorneys not willing to file a complaint while experiencing valid conduct for judicial complaint directly impacting the freedom of their clients. Was this conduct constitutional? While Etta Mullin was on the bench only three attorneys would speak out, that number rose to ten once she left office. Everyone understands the fundamental reality that the Judicial Sanctions are ineffective and rare, attorneys who will resort to the process even rarer. Those sanctions are not a realistic option for these issues and this Court … if they were, the hundreds and hundreds of attorneys who complain about D’Metria would have taken that road.
|As Facebook is set to become the largest form of political outreach, challenging and surpassing traditional media, the threat of social media to this judiciary is the voter influence of social media and its ability to create a voter cohesiveness that threatens this tight knit convocation of seers while challenging the exclusive domain and impact of judicial donors.
Matt Bevin was easily elected the next governor of Kentucky besting Attorney General Jack Conway (D) 54 to 44.
Bevin CUT OFF traditional media, opting for social media, ignoring the two largest Kentucky newspapers, declaring them to be out-of-touch and irrelevant. The media polls were significantly off missing his impending landslide.
This committee has been convened to address the resulting judicial and donor angst.
A Twelve Step Program for the Judiciary
To place the motivation for scrutiny where it belongs means the first step is to admit that judges are pols. Step two is to admit that raising cash is near and dear to their hearts. Step three, acknowledge the way cash is raised by the judiciary victor leaves the public to cringe. Step four, admit the way cash is spent on travel, office furnishing, wine, parties, dining and gifts is self aggrandizing and not legitimately meant to support a campaign and most likely the public would not approve. Step five, admit the technology is cheap and available to make judicial donations internet searchable, readable and available every seven days. If you can take the money, you can accept the responsibility of transparency. This group looks to be in need of a serious Twelve Step Program – weening them off campaign contributions. Best, to keep the fact that judges are pols out of the equation, out of this artificial dimension of Texas Supreme Court sub-committee reality. Being a pol, winning elections, collecting cash contributions from lawyers and law firms with active cases before judges only confuses the self defined and imposed reasoning and limitations here.
This judicial angst is generated by the reality that social media has the potential to impact voters and indirectly impact judges.
Large and early campaign contributions and the very limited few who can make them, have the ability to turn elections and directly impact society. Why would large campaign donors want to share their realm of influence with little social media opinioned folks? Big money plaintiffs’ firms use TV advertising — has a committee been convened to have a judge disclose seeing those ads? Of course not, the notion is ridiculous.
We get to the real heart of this issue and the genuine source of this judicial angst. The undisputed fact is that FaceBook is about to surpass traditional media in reaching voters, reaching precisely the kinds of voters that do not much care for these law firm donations to judges, the kinds of voters that think this smells to high heaven and the kinds of voters that tell their friends and family, take a look at this stinking mess. And it’s free. This website costs less than $25 a year, domain included. These costs pale when compared to law firm contributions or even the amount spent by D’Metria on her static website and eight year old picture of herself.
“Ready for your close-up, D’Metria?”
Yep, that’s the impetus here: shifting realities and a group of judges that are not comfortable with timely, internet accessible transparency when it comes to campaign finance donations. There is no credible reason why judicial donations should not be easily searchable seven days after being made. The twice annually reported documents of reviewability should not be hidden in scanned and unreadable hand written postings.
Judicial Angst and Email Ex Parte Communications
Direct emails, could legitimately fall into category of “ex parte” communications, but why are social media postings a focus of this sub-committee, that’s a voter influencing category. Certainly, those folks that unlawfully invaded/hacked this website two weeks before the election to manipulate it to being blocked by Google, would agree. The theory of social media as a direct judicial influence in a case borders on complete irrelevance, particularly in light of freedom of speech issues well defined in terms of social media postings? No one is suggesting hacking websites, that activity is best left to the attackers of this website.
The indirect influence of social media impacting re-election is a theory of merit. The committee’s suggestion that a judge address social media on a litigated issue as an ex parte communication represents an absurd notion and a judiciary out of touch or at least a little cagey in their attempt to quell this thorny issue for judicial politicians. Who specifically sought to monitor and address issues social media in terms of ex parte communications and what was their vested interest?
|With the survival instincts of a snake, the Committee chose to ignore cash contributions as “ex parte communications.”
Obviously, large donor law firms do not engage in email campaigns (generally) and many of these campaigns are contrary to their positions. They do, however, engage in donations to judges. The judiciary is much more interested in receiving campaign donations than emails. Who on the appointed committee would have a self interest in examining cash contributions to judges as an ex parte communication?
The Hecht Issue Is BEHIND ALL of Us – Let’s Leave It There
Do NOT translate the over zealousness regarding Justice Hecht to the common person. If you do, they win. Examine this problem from the lowest level, not the highest. From the litigants and attorneys with no voice where ‘got cha’ is being played out daily by a woman routinely considered far and wide “Dallas Worst Judge” for good reason, and known as “Dallas Biggest Bully.”
Chip Babcock worries the judiciary could face “dire consequences” of judicial discipline if the social media rule were in the judicial canons — unlike Judge Bland who notes the judicial canons are ‘only aspirational’. Babcock believes this internet focused limitation should be in some other set of procedural rules. He said will talk to Hecht to see if this direction should continue. Babcock fresh off dealing with Hecht’s ethics problems could be overly sensitive to ethical claims – not to worry, in real life, with the little people such rarified ethical situations do not exist; it is quite the contrary down here. Etta Mullin is Exhibit “A”.
Certainly, the investigation should continue, not only continue but be expanded to include the REAL PROBLEM, cash contributions, something Babcock understands from his work with Hecht and the State Commission on Judicial Conduct. Surely, he can face the reality that what goes on between the Ethics Commission and the Chief Justice of the Supreme Court cannot be applied and should not be interpreted as relevant to the rest of the legal world. An accountable, responsible judiciary, the judiciary that deals with the common folk, in county court, is the goal here NOT protecting judges. Clearly, this is not a committee that carries a crushing sense of responsibility when it comes to justice. Their loyalties are to the judiciary from the highest level but those judges on lowest level impact the commonest of citizens. We need protection, too.
Justice Hecht benefitted from the 2006 McClure Opinion that called for greater specificity. Now Babcock longs for sustaining a vague notion of “ex parte.”
We recognize at the outset a considerable hurdle must be overcome: the Texas Code is decidedly deficient in a pivotal area important in this case, that is, providing definitive meanings to words in the political arena, words such as “authorized,” “endorsing,” and “private interests.” We are all familiar with certain axioms in particular disciplines, some of which capsulize the core of the undertaking. For example, in real estate, the appropriate axiom is “location, location, location.” In music, “practice.” In law, “definitions.” The relevant provisions of the Texas Code, Canons 5(2) and 2B, quite candidly, lack definitive meaning.
Link Here: IN RE HONORABLE NATHAN HECHT, TEXAS SUPREME COURT JUSTICE No. A-2006-1 SPECIAL COURT OF REVIEW APPOINTED BY THE SUPREME COURT OF TEXAS, 213 S.W.3d 547; 2006 Tex. App. LEXIS 9087 October 20, 2006, Opinion Issued
|Donating to a campaign cannot be proven to be related to a matter in litigation before the judge. The donation is the attorney’s decision and choice, particularly to respond to one of five donation party invitations to be a ‘friend’ or ‘partner’ with the judge — for a designated fee. Right. Got it.|
Judicial Fund Raising 23 out of 48 Months Reported Twice a Year
Why should a party in a litigated matter have no option, none, than to wait until the next filing by the judge of campaign finance donations to learn of a donation from opposing counsel? The judge and opposing counsel have traded cash for ‘friendship’ or a ‘partnership’. Isn’t that what hookers do? Provide secret friendship for cash? Don’t we all feign suprise and amusement when judges get caught with hookers? Well, the shoes on the other foot in this transaction.
Campaign finance reports are filed only twice a year. Social media is TRANSPARENT! Anyone willing to search can locate those campaigns and opinions. Donations are absolutely secret, until campaign finance filings are posted twice a year.
Surprise!!! Opposing counsel gave D’Metria’s Campaign $2,000 just before that hearing or just after that hearing and you never knew! What’s wrong with that sequence of events? Everything. If giving campaign contributions speech then giving money to D’Metria with her LOW IMPARTIALITY RATINGS is speech. How many realities must be suspended to believe that giving money at the time of a pivotal hearing is NOT related to the case before the judge? What citizen would not believe that opposing counsel ought to be informed of such donation at the time it is made.
|We all know the sad playground story, where the weaker kid is asked to pay bullies to protect them from being bullied. Kid doesn’t pay, and suprise, surprise the bullies show up the next week and take the kid’s lunch money. Appalling and a tale as old as time. This happens in court rooms as well.|
How difficult would it be to send a letter to all parties involved that a donation had been made. Secondly, why are judicial donations not reported online and within seven days of a donation? This is not 1950. Too much work? No, not if these were online postings. Gives political insight to the challenger? Wait, judges are above the mere politics of an election, they are a world alone, in the State of Texas, right with nothing but the aspiration guidelines of the Judicial Cannons of Ethics and we would not want that to be come onerous for them.
|Law Firms check for conflicts before accepting a new case. Should judges not check their docket and report donation to opposing counsel?|
Why Is there No Committee Appointed for Cash as an Ex Parte Communication
Why is the judiciary not clamoring to change Texas Judicial Campaign Finance rules to notify any opposing counsel of donation made by one party to opposing counsel? The judiciary is quick to claim they are not influenced by campaign donations. Why do they not create immediate transparency for donations? Why must opposing counsel wait six months to discover a donation was made?
Is this system of “donation” disclosure made but twice a year by judicial candidates a procedure that works for citizens or is this a system that works for sitting judges? Most attorney donors (who are most donors) will “donate” to an incumbent but will not “donate” to a challenger UNLESS they win the election. The Texas Judicial Campaign Finance Rules allow four months after an election to continue donations. Donors fear antagonizing an incumbent judge by donating to a challenger. Should the challenger win, it is not uncommon to see a donor who gave to an incumbent’s campaign subsequently give to a challenger’s campaign. It’s ALL about SELF INTEREST.
A Sham – In Some Professions Solicitation Is a Crime
Who benefits from this system? No one is saying return to a world run by white male WASPs. No one cares if your choice is Kwanza or Cotillion. Just put justice before politics and campaign contributions. Why is the judiciary not working to modify this delay in reporting of campaign contributions. Is the good this reporting has the potential to do, in exposing the possibility of judicial influence associated with a contribution, not a worthy goal? Online reporting makes any administration complaint irrelevant. Haynes & Boone could forego judicial campaign contributions for a year or two in order to finance such a system, easily. Everyone knows that H&B contribution will be forthcoming. They already have the ultimate transparency! Let’s let them finance transparency for everyone else on the Dallas County level.
|Who can dispute that donating to a judge during contested litigation – and not communicating that fact to opposing counsel does not have the appearance of impropriety?|
Who indeed? The Fifth District Court of Appeals has made it very clear in a Motion to Recuse Judge Cortez, the former 44th District Court judge accused of sex with a child, cocaine use and choking a prostitute, that campaign contributions by lead counsel made which were characterized as “large and curiously timed contributions” to Judge Cortez’s re-election campaign would NOT serve to support a Recusal Order.
The Fifth District Court of Appeals did not find contributions made by Jeffrey Tillotson, a partner at Lynn Tillotson Pinker & Cox, who donated $5,000 to Cortez’s campaign a week before a key hearing in the case in May 2013, together with a $2,500 contribution from Tillotson’s law firm made to Cortez’s re-election campaign the day after Cortez ruled in favor of Tillotson’s clients were a basis for judicial recusal. Tillotson’s personal contribution was made at a public fundraiser hosted by Cortez and properly reported in the campaign finance report filed with the Texas Ethics Commission. Read more: Texas Lawyer Here.
Then there’s the David Cary reverse and acquit from the Fifth Court of Appeals. By all means if you want to give a judge money: G I V E A J U D G E M O N E Y. That’s the law of the land in Texas. Read more here: http://www.scribd.com/doc/260021933/Fifth-Court-of-Appeals-opinion-in-David-Cary-case The Court noted that the $150,000 was not properly reported as campaign contributions and that it helped Wooten win the election so that Cary could get a new judge to hear his child custody case. While Wooten recused herself from the case once elected, Cary’s case was heard by a different judge with rulings in the custody case in his favor.
Texas Supreme Court Advisory Committee Considers Ex Parte Communications
Chief Justice Nathan L. Hecht convened an Advisory Committee to review Canon 3B and “ex parte” communications which issued an inconclusive report mid-October 2015. The sub-committee’s focus was on email or social media campaigns as “ex parte” communications which target a Judge in an apparent attempt to influence a case. The committee did not consider donations made to a judge during a hotly litigated matter as an ex parte communication in an attempt to influence a case. The inference is that giving money to a judge during the judicial campaign contribution window which includes 23 out of a 48 month judicial tenure, does not influence a judge and is not an ex parte communication/contribution. Texas is one of nine states in which a judge may directly solicit contributions from attorneys.
D’Metria’s Five Campaign Fund Raisers and Extravagant Expenses
Schmoozing with D’Metria: not required! Just send money.
Most judicial campaigns sport a list of attorneys who endorse that judge. Not D’Metria. At one sad event she created a life sized canvas of “donor names” and “sponsors” for the anemic little wine party, one of many at Times Ten Cellers. No matter if it is/was sparsely attended, the purpose of the parties was to raise money, and D’Metria found a campaign manager willing do dun attorneys again, and again, and again, and again, and again. It’s hard to call whatever it is that D’Metria’s up to a “public service” and most recognize that fact. It would be interesting to hear her take on her inability to apply law to fact.
D’Metria held five campaign contribution ‘parties’ raising $227,000 from parties’ attorneys and a few donors that fell outside that category. Her extravagant expenditures at five star hotels for continuing legal education, gifts and office furnishings and $27 K worth of parties (sparsely attended) were sanctioned judicial ‘campaign’ expenditures. D’Metria has spent more on continuing legal education than most spend on a law school education, and yet continues in the 80 percent range of ‘needing an improved knowledge of the law’ based on four Dallas Bar Judicial Evaluation Polls covering an eight year time frame. Poor D’Metria, not showing improvement yet not being ‘held-back’. No law firm associate could retain their job with those ratings, right Haynes & Boone?
Committee Members Protect Own Interests – Is there a Conflict?
This subcommittee’s chairwoman is a Haynes & Boone partner, the same firm engaged in routine massive judicial contributions made early in the contribution time frame window. The Judicial Administration Sub-Committee Members: Ms. Nina Cortell of Haynes & Boone – Chair The Honorable David Peeples, The Honorable Tom Gray, Professor Lonny Hoffman, The Honorable Bill Boyce, Mr. Michael A. Hatchell. Cortell said the subcommittee proposed expanding the judicial code’s definition of ex parte communication. The proposed rule would have prohibited a judge from initiating, permitting or considering any communication outside the presence of the parties. Apparently, “considering any communication out side the presence of the parties” did not include thousands of dollars donated to a judge’s campaign from attorneys involved in litigation before that judge.
The subcommittee proposed a new rule that laid out actions a judge should take when he/she receives communications such as email or social media. This could not exactly be characterized as an “all out” effort – perhaps because the motivations for this examination were a bit murky. Considering a Facebook posting by a Judge (transparent and viewable by anyone with an internet connection) means the Judge is contemplating RE-ELECTION, as Facebook outpaces traditional media as a venue for political campaigning.
The “holy cow” of cash money as a communication was not considered, not withstanding the Citizens United case defining contributions as “speech.” To this group cash donations are SACRED SPEECH or HALLOWED SANCTIFIED LANGUAGE and protected, not even of equal importance for review along side social media and email! These donations are viewable by anyone with an internet connection as posted twice a year and not easy to find for most and certainly not easy to analyze in their online format.
The committee’s social media concern indicates their early warning self-preservation radar is intact. Donor’s ingenuity when it comes to economic developments and the judiciary will catch up. Law firms will manage this game, ultimately. For now they are behind the curve. This fire of criticism will burn itself out, this subcommittee generated no more than a little scrub fire, easily subdued by the volunteer fire department of appointed judges and donors. Like a snake, shedding its skin, this group will ultimately figure it out … or be replaced on the bench with those who use Kik, SnapChat and WeChat and listen to Twerps and Eskimeaux. And in the end, wasn’t the threat of social media on the campaign horizon, coming at them like a Texas storm on the plains, no where to run, no where to hide, the ultimate boogey man, lurking in that approaching sandstorm, waiting to ambush the appointed tag-team of judges and donors, that motivated the social media concern?
One committee suggestion was emails and social media be saved and sent to all parties in the lawsuit. That member needs to be sent to social media school, immediately and has no place on this committee. This group, unable to legitimately define the problem, did not honestly come to terms with the motivations for this sub-committee’s existence, and certainly did not get experts together to study the problem. Instead, they disbanded running into the Texas sunset back to Justice Hecht, “What to do, what to do?” The man behind the curtain has yet to speak.
Now how in the world would a judge “save” social media? A judge would be required to set a Google Alert notification of all mentions of their name and court (which we all know they do not do, right?) and link to the mention to review the comment or post at their discretion. Do judges ‘click’ on expensive Google Adwords, those costing hundreds of dollars a click, like “Dallas Car Wreck” or “18 Wheeler Crash”? Who knows. Who cares. Should a judge disclose that conduct, too? Donations on the other hand are immediately noticed by a judge and recognized by a judge (who knows, the donation may be in the category that may have to be returned, – right? How frequently does that happen?).
|A new rule proposal was made by the subcommittee that laid out actions a judge should take when he/she receives communications. “Save it and forward it to all parties in the lawsuit with an explanation why the communication was prohibited and how to properly file arguments in an amicus brief, among other things.”
Social Media: No
Perhaps this instruction to the sender/poster should suggest a campaign contribution with a link to that particular judge’s publicly filed donations also known as “campaign contributions” demonstrating how ‘knowledgeable’ parties are able to directly communicate with the judiciary involved in their own active clients’ litigation WITHOUT the scrutiny associated with an ‘ex parte’ COMMUNICATION!!!
|While everyone is so busy pouring over Justice Hecht’s campaign issues has anyone reviewed D’Metria’s campaign finance reports? Made a statement of cash flow (or at least tried to create one). The numbers do not add up. Her statements do not balance. The cash flow is significantly off. She does not include mandatory information for all donors. Does anyone care?
Put one percent of the energy into this issue that impacts so many attorneys and litigants in CCL One as went into the Nathan Hecht issue (which impacted how many litigants? Who really cares? Who really even remember Harriet Miers and 2005? That kind of attention here might have produced a resolution that benefits hundreds if not thousands).
Audit D’Metria’s campaign finance reports. Start here and make YOUR OWN calculation. This does not add up, literally. http://www.dmetriabenson.org/dmetria-benson-campaign-finance-report-totals/
Do Judges and Campaigns Monitor Social Media and their Names?
Of course, setting a Google Alert notification of a judge’s name or court negates the notion that judges review or care about social media references. While the judge may not always do this themselves (in theory), typically someone associated with their campaign, friend or staffer reviews Google Alert mentions in light of re-election strategies and issues as do law firms. One committed committee member suggestion was the judge should explain to the sender why the communication was prohibited and how to properly file arguments in an amicus brief, among other things. No suggestion that a judge should notify opposing counsel of a CASH donation was considered, obviously, because cash donations as an ex parte communication were not considered.
Emails are a concern to THIS committee – thousands of dollars in contributions to judges – not a concern! First Court of Appeals Justice Jane Bland said that the judicial canons are supposed to contain aspirational standards to regulate a judge’s own moral conduct, rather than a third party’s conduct. There appears to be no moral dilemma associated with judges accepting cash donations at the time of pivotal hearings! Good for Texas judges and Good for judicial donors!!
Committee of Texas Judges and Texas Judicial Donors
And who do we find on this committee? Texas judges and Texas judicial donors. Good job of ignoring the 800 pound gorilla in this guerilla warfare that pits judges and big donors against the little guys, it’s not even on their radar. What can the ‘little guy’ do? Engage in an email campaign and social media, so let’s consider how to limit that influence while ignoring the issue of giving money to judges by law firms engaged in big ticket litigation. Yeah, that makes sense/cents and is relevant to the Court, the Sub-Committee members and judicial donors.
You do NOT see these donors contributing to the campaign challenger – the one with the highest DBA judical poll results. Nope, their money is on the incumbent, the judge hearing their cases. Note the dates of donations and the dates of the hearing. Also note the Haynes & Boone limitation of the damage claim to $71 K and the number of senior partners signing pleadings and arguing this case before D’Metria. There is a real possibility attorney’s fees exceeded the demand by the time this case settled.
D’Metria succumbed to the Haynes & Boone argument that “AT LEAST FOR NOW,” as their attorney couched their response to the Motion to Dismiss, their breach of contract claim against the federal court whistle blower plaintiff should NOT be dismissed. Whatever leverage Haynes & Boone sought to gain and the four attorneys, signatory to the pleadings, was in tact as those in the legal community wondered how speaking with your attorney about whistle blowing issues was a breach of contract! Haynes & Boone had significant donations in the Fifth District Appellate Court… and where donations had not yet been made there was the very real anticipation of donations to come!
June 6, 2013
October 2, 2013
May 1, 2014
September 23, 2014
March 2, 2015
Next anticipated fund raiser: May or June 2017
Haynes & Boone
Haynes & Boone PAC May 28, 2013: $5,000
David Taubenfeld: $200 June 6, 2013
George Bramblett $1,000 – June 6, 2013
Nina Cortell $100, June 6, 2013
Pleadings signed as follows:
Baron & Budd
Baron & Budd PAC $2000: June 6, 2013
Denyse Clancy Esq. $1000 donation September 23, 2014
John Langdoc: $1,000 donation September 18, 2014
Baron & Budd $2,000 donation October 30, 2014
Pleadings signed as follows:
MARSHA FONTANIVE, Appellant,
CDX HOLDINGS, INC. Appellee.
Court of Appeals Fifth Judicial District Texas: 05-14-01391-CV: Case Number: 05-14-01391-CV
Marsha Fontanive vs CDx Holdings, Inc.
CCL One Time Line with EMERGENCY:
|04/11/2014 ORIGINAL PETITION|
|06/13/2014 MOTION – DISMISS*|
|07/02/2014 ORIGINAL ANSWER|
|08/12/2014 EMERGENCY MOTION TO COMPEL|
|SUPPLMENTAL MOTION TO COMPEL|
|09/23/2014 SUPPLEMENTAL – RESPONSE|
|6/4/15 CDx Response due in Federal Court to Third Amended Complaint and Matter Settled|
|4/28/15 Joint Motion to Abate in Court of Appeals|
In March of 2015 we see some contributions to the Appellate Justice Ada Brown assigned to the case from Haynes & Boone, including Jeremy Kernodle, whose name you find on the pleadings below!
Are these donations a mere preview of the standard $5,000 Haynes and Boone donations yet to arrive to the appointed Ada Brown? Her appointment indicates she does not have a track record of donors, but she will!
Time will tell!!! We must wait until January 1, 2016, for the next filings! Brilliant timing. Were these attorneys telegraphing bigger things to come for the newly appointed Ada Brown?
You cannot blame Baron & Budd for trying. Historically, their luck with D’Metria as been better. Oh, happy day! D’Metria Benson reversed Judge Roden’s Order for a new trial!!! D’Metria’s ruling resulted in awarding appellees $6,784,135.32 in compensatory damages and $4,831,128.00 in punitive damages. Georgia-Pacific appealed and won.
Who had been D’Metria’s large donors that campaign election cycle:
Baron & Budd $5,000
Frank Branson $5,000
Haynes & Boone $5,000
Ben F. Abbott $5,000
Vinson & Elkins $2,000
Buchannan & Bellan $2,000
Bostic v. Georgia-Pacific Corporation
Supreme Court Texas No. 10-0775
The Dallas Court of Appeals reversed the trial court and rendered judgment for Georgia-Pacific, finding that there was legally insufficient evidence of specific causation. Georgia-Pacific Corp. v. Bostic, 320 S.W.3d 588 (Tex. App.—Dallas, 2010)
Atty: Denyse Ronan Clancy of Baron & Budd
Baron & Budd and Baron & Budd Attorney Contributions 2013 to 2014 Campaign: $6,250
In 2005, Judge Sally Montgomery presided over the trial of this lawsuit in Dallas County Court at Law No. 3. After the jury verdict awarding appellees actual and punitive damages, Judge Montgomery ordered appellees to either elect a new trial on all issues or agree to remit a misallocated award of future lost wages and the award of punitive damages. Appellees elected a new trial. The lawsuit was tried for the second time before a jury in 2006. The jury returned a verdict in favor of appellees, finding Georgia-Pacific seventy-five percent liable and Knox Glass, Inc., a non-party former employer of Timothy, twenty-five percent liable for Timothy’s death. The jury awarded $7,554,907 in compensatory damages and $6,038,910 in punitive damages.
Georgia-Pacific filed a motion to recuse Judge Montgomery. Judge M. Kent Sims granted the motion to recuse, and the lawsuit was transferred to Judge Russell H. Roden, Dallas County Court at Law No. 1. In December 2006, the trial court granted Georgia-Pacific’s motion for mistrial and ordered a new trial.
In January 2007, Judge D’Metria Benson became the presiding judge of Dallas County Court at Law No. 1. In February 2008, appellees filed a motion to vacate Judge Roden’s order granting a new trial and for entry of judgment.
In July 2008, Judge Benson granted appellees’ motion to vacate the order for new trial and signed a judgment based on the jury’s June 2006 verdict. In October 2008, Judge Benson signed the amended final judgment awarding appellees $6,784,135.32 in compensatory damages and $4,831,128.00 in punitive damages. Georgia-Pacific appealed.
Are Judicial Campaign Contributions More or Less Impactful than an Email Campaign
The Texas Supreme Court is concerned with email campaigns but indifferent to campaign donations made in conjunction with hotly litigated matters before a judge, some donations made the week of the hearing. Haynes & Boone casts a long shadow over the judiciary and is known for their steadfast contributions to judicial campaigns. The Haynes & Boone program of judicial contributions which includes not only trial court judges but the appellate court as well, does not have to wrestle with alligators, their specific donation timing, early in a campaign minimizes claims of attempt to influence a specific case while enhances issues of judicial influence.
Haynes & Boone spreads their consistent and unwaivering judicial contributions far and wide at a prescribed time early in the campaign. Check out the number of incumbents supported compared to the challenger – until the challenger wins, suddenly donors have a change of heart, no longer are they fence sitters as these shy donors suddenly trip over themselves donating to the successful challenger! Hallelujia! We knew you could do it. Welcome to the club! We sincerely and suddenly appreciate your intelligence, conviction, thoughtfulness and leadership. An answer to our prayers, yes indeedy!
Some judges have stated they rely and depend on the ongoing Haynes & Boone financial assistance and certainly appreciate it. In fact, one judge said he counted on it, and it always ‘came through.’ Haynes & Boone’s early campaign donations allegedly protect the firm from claims that donations are associated with a specific matter before a Court. Very few firms can afford this widespread donation regimen, resorting instead to donations made in conjunction with cases filed. And while this timed pattern of Haynes & Boone contributions cannot be tied to a single matter, judges across the board recognize that Haynes & Boone has historically made consistent donations, even in years when the firm’s revenue did not support an increase in associate’s salaries.
Do Members of this Committee Engage in Email Campaigns or Judicial Donations?
D’Metria Benson County Court at Law Number One Interlocutory Appeal to Fifth District of Texas. See above in menu.
This Haynes & Boone donation environment creates a predicament for other law firms having to shore up their contributions during a litigated matter to match Haynes & Boone, such as recently occurred in the Caris Life Sciences claim of Haynes & Boone. The same parties were concurrently litigating a whistle-blowing case in federal court at the time Haynes & Boone filed their breach of contract claim based upon the whistle blowing incident in CCL One. Haynes & Boone limited their demand to the $60K level in CLL One, while multiple Haynes & Boone attorneys signed pleadings and appeared before Judge Benson many of whom charge significantly over $10 and hour! with the court room battle cry: “Not our first rodeo!” “We want you to be belt and suspenders comfortable.” No, indeed. Haynes & Boone has contributed to every campaign of D’Metria and to most of the campaigns of the Fifth District Court of Appeals, where this case ultimately landed.
Opposing counsel’s firm had previously contributed to D’Metria but attorneys of record leveled their firms donations to match the donor footprint of Haynes & Boone at a time around (at least for the ONE election cycle) a pivotal hearing, won by Haynes & Boone. Opposing counsel filed an interlocutory appeal including roughly 1,000 pages of exhibits supporting their brief. The Caris Life Science whistle blowing matter settled shortly thereafter in BOTH courts, federal and County Court at Law Number One, D’Metria Benson presiding! Who, by the way, ruled for her steadfast donor, Haynes & Boone. Read more about that claim in the drop down menu above. Pleadings are included for review and analysis in one location.
We have no way of knowing which campaign contributions have been made since June 1, 2015, and will not know until January 2016.
Why would Haynes & Boone want to upset this apple cart?
The Haynes & Boone
Texas Fifth Court of Appeals $5K Club
Haynes and Boone PAC
- 2011/11/15, $5000.00
- 2009/7/01, $5000.00
- 2003/11/14, 5000.00
Baron & Budd 2003 $5,000
Haynes & Boone PAC 2014\09\29, $5000.00
- Haynes & Boone PAC 2010\04\26, $5000.00
- Cortell, Nina of Haynes & Boone, 2010\05\12, $100.00
Haynes & Boone 2011\11\17, $5000.00
- Haynes & Boone 2007\09\12, $5000.00
- Haynes & Boone, Attorney, Partner: Freytag, Sharon 2007\09\17, $250.00
- Baron & Budd, P.C. 2012\08\30, $1500.00
- Haynes & Boone, lawyer, partner, Cortell,Nina 2012\09\20 $250.00
- Haynes & Boone,lawyer, partner Johnson, Anne 2012\08\23, $100.00
- Haynes & Boone Political Action Committee 2011\07\22, $5000.00
- Baron & Budd, P.C 2011\09\22, $1000.00
- Cortell, Nina Partner Haynes & Boone 2011 $100
- Haynes and Boone LLP 2011/11/17 $5000.00
- Cortell, Nina,Ms 2005/10/8 $100.00 Haynes & Boone, Attorney
- Haynes and Boone 2005/08/30 $5000.00
- Cortell, Nina 2003/11/15, $100.00 Haynes & Boone, Lawyer, Partner
- Haynes and Boone 2003/11/15 $5000.00
Haynes Boone 2012\06\25, $2500.00
- Haynes Boone 11/10/ 14 $1000
- Haynes Boone 11/5/12 Nina Cortell $250
- Breaux,Ronald, 20061107,$150.00 Haynes and Boone LLP
- Baron & Budd P.C. 2005\06\16, $2500.00
- Baron & Budd P.C. 2005\06\27,$ 2500.00
Haynes and Boone Political Action Committee
- 2013\11\26, $1500.00
- 2011\11\15, $1000.00
Texas Judiciary: Hypocrisy Is Thy Name
“First Court of Appeals Justice Jane Bland said that the judicial canons are supposed to contain aspirational standards to regulate a judge’s own moral conduct, rather than a third party’s conduct.” Isn’t that the problem here? Litigants and attorneys are left to the self imposed moral conduct of a judge with little recourse short of further litigation and expense.
The fact that no one can or should legislate a vague and undefined notion of morality is not the issue here. The issue is judicial influence, judicial impropriety and the “appearance of judicial impropriety.” If litigants are left to judicial “MORALITY” which is the ultimate subjective and indefinable term, then litigants are left subject to judicial whim, caprice and actual judicial impropriety. Thank you for your notion of “aspirational standards” related to a “judge’s moral conduct.” What litigants, attorneys and citizens would like to see is a Code of Judicial Conduct that addresses not just ‘perceived issues’ of MORAL conduct and “aspiration standards” but unethical and improper JUDICIAL conduct directly related to campaign contributions and their impact on litigated matters before a judge or justice.
Perhaps the Supreme Court should not be worried as much about emails influencing a judge as about dollars and cent contributions made by attorneys in conjunction with hearings on litigated matters. Make sense/cents? Read the subcommittees proposed modifications here. Read Texas Lawyer article here.
Judges and Justices Reach an End to their Ongoing Campaign Solicitations
Nathan Hecht is reaching the mandatory retirement age in a few years. Why not make a real impact and review actions of the judiciary surrounding judicial campaign contributions. Hecht has taken unpopular populist stances before, why not address this one?
It is not likely Hecht will remain on the bench beyond his statutorily imposed age limitation. Historically, however, justices have made that attempt right here in our own Fifth Court of Appeals! Joseph A. Devany was sanctioned for altering records relating to age, making him appear younger than he was, and farther from the judicial mandatory retirement age in order to remain in office. Joseph A. Devany of the Fifth Court of Appeals falsified records to remain in office presumably for financial reasons while he continued to sit as a visiting judge, collecting judicial donations from attorneys involved in cases before him there as well. That conduct coupled with some interesting campaign finance solicitations from parties associated with classmates from night law school at SMU would make most in the judiciary cringe. Not all judges are moral individuals, there is no inherent morality in the judiciary.
Hmmmm, Justice Hecht, what is the total amount Haynes & Boone has donated to your campaigns through the years? What is the legal specialty of your appointed chair person of this committee? Would that be appellate law? Would her firm be one of your most steadfast donors? What are the chances these issues will be addressed? ZERO to NONE? Step up to the plate, Justice Hecht. Address an issue that matters to citizens and attorneys. Do not leave Texas in the dark ages when it comes to the judiciary and giving money from attorneys with active ongoing litigation before that judge.
Does everything have to be about SELF INTEREST with the judiciary?
River Dance on the Trinity and the Colorado – Draining a Swamp Filled with Checkbook Armed Sharks – not Alligators
Would it not be wonderful if Justice Hecht joined with others facing mandatory retirement and no longer beholding to judicial donor lawyers and law firms, to actually create judicial campaign finance reform. The bell cannot be unrung, historical harm is done and precedent. It’s time for judicial courage built upon the ultimate pinnacle from which to address this issue — an end to a retiring justice’s reliance on donations from law firms and lawyers. But real friendships are forged amongst those that make your way easier, velvet handcuffs in a rough world smooth the way for some while blocking progress for those with limited access and meaningful contributions. Sometimes you dance with them what brung you, even after the music stops. Can’t get that tune out of your head and when all is said and done, it’s the only tune you know.
Look away, look away, and in doing so, you alter lives for the worse as forcefully as when you chose to right a wrong. You, too, become an impediment to fairness, to justice and to integrity, when you look away or when you punish or condone punishing those who dared to speak out against dark donations in the night to judges from former law school classmates, even those you attended SMU night law school so long ago.
A Wizard who participates – tormenting those perceived as weaker,
Lies to mislead — a foul deed, now take heed, eternity shall be bleaker.
Those in power who stood back and let atrocities occur,
Let us judge them now as well, they did nothing to deter.
——— D’Metria the Vedy Vedy Bad Judge
Why not expand the scope of this committee to include donations as a form of ex parte communication and exclude members from the committee with a vested interest in those donations? Yikes, this committee membership would have to be modified almost entirely with that limitation, right? Draining this swamp would reveal legal sharks toothed with check books, not alligators.
Nope, not this committee, not now. Let someone else drain this swamp. Like Narcissus, this committee is too busy admiring their reflection, to look beneath the surface of the waters. They know lions come here to this watering hole to drink and have actually been known to lay in wait beneath the water’s surface to grab an antelope for dinner. But not today, not this time. Another committee, another day ….
Judicial Canon of Ethics Toothless but Good Starting Point
Jane Bland is blandly correct. The Texas Judicial Canon of Ethics has no teeth by its own definition, but is this not THE place to begin this discussion with a definitive opinion renderd on this topic by committee members who are neither justices, judges or large judicial financial donors on this important issue? If a committee is convened to evaluate SOCIAL MEDIA (a dubious task – what were you looking for Justice Hecht?) should it not render an opinion on something so near and dear to all judges = money to spend rather broadly in their re-election campaign and suggest prescribed ethical guidance for judges and justices?
|The Canon of Ethics work better for those without integrity, without morals, without a sense of their duty. SPELL IT OUT for them.|
Should there not be a legitimate discussion of injustice, inequality and the role of MONEY given to JUDGES for re-election by attorneys practicing in their court room, not to mention the broad way those REQUESTED DONATIONS are spent on FIVE STAR hotel stays by the victor? Well, why the hell not? The only idealism here is the judiciaries’. Everyone else sees this situation without blinders, though every attorney is more terrified of speaking up than they are of applying their name and their firm’s name to a list of official “D’Metria Endorsers.”
The refusal to address this issue is not based in naivite. It is based in self-perservation with a wink and a nod that the judiciary ascends a pedestal apart form mortal Politicians. Litigants are not crash dummies, victims of the morality of lack of morality of the judiciary and those who seek to influence decisions with cash donations. These are real lives, real people but looking the other way continues to be your choice and option.
Who would be so arrogant as to oppose notification of contributions during litigated matters to opposing counsel? Puts the committee in a rather tight spot, does it not? A much less tight spot would be experienced with committee members not so involved in benefits associated with judicial donations. Oh, wait, what benefits? That’s the legal fiction we must all buy, right? These donations are not made for purposes of influence and self-interest, right? And so the logic goes, round and round, down and down. And where are those donations to INCUMBENTS? Right, after the sitting judge has lost will we find incumbent donations, which might explain the dearth of donations in the CCL One election to the much better qualified and respected incumbent, a race which pitted one of the highest ranking Judicial Bar Evaluation Poll against D’Metria, the lowest ranking judge in the DBA poll.
D’Metria got the “well educated” judiciary right. Her Continuing Legal Education (CLE) expense is epic! Her claim of the administration of justice in a “fair and impartial manner” is not consistent with her poll results, perhaps she was referencing her opponents DBA poll ranking.
The Code of Judicial Conduct is intended to establish basic standards for ethical conduct of judges. It consists of specific rules set forth in Sections under broad captions called Canons.
The Sections are rules of reason, which should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances. The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.
The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through the State Commission on Judicial Conduct. It is not designed or intended as a basis for civil liability of criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.
It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the test and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.
Clean this Mess Up. It’s time. The little guys need a level playing field, and while that will never be possible, it is possible to work toward that goal.
The best way to deal with a burning fire is to let it burn out, but what if this fire does not burn out? It’s hard to understand how if a judge is sleeping with an attorney practicing before him/her that fact needs to be made public but if the judge is just taking money, that little secret can remain that was for six months.
I’m not really worried, the judiciary and it’s darling donors will ultimately reinvent themselves in this social media world and they will sustain their advantages when it comes to justice. This was just one small mis-step in an unwinnable war for the little guy. There is a future in cloning, and no doubt this resourceful group of donors and recipients will be able to ultimately recreate this symbiotic relationship in the internet world.
|Eugene O’Neill, who knew Ireland well said, ”There is no present or future, only the past happening over and over again.” Maybe he knew Texas, too.|
|Stewardess, this IS FIRST CLASS. I paid for first class. Get these noisey bloggers and FaceBook posters back to coach where they belong and if YOU cannot do that, I will speak with the airline president, he is my client, after all, little lady.|
|You Cannot Raise the Bar until You Raise the Judiciary|
Is D’Metria Impartial?
Judicial Evaluation Poll
|The spectacle of lawyers or potential litigants directly handing over money to judicial candidates should be avoided if the public is to have faith in the impartiality of its judiciary. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates. Justice Roberts.|
|It is a result of this disasterous Supreme Court Citizens United decision our campaign finance system is corrupt and it is undermining American Democracy … unbelievable funds are being poured into campaigns to represent their interest and not the interests of American families. Bernie Sanders|
|Justice Ruth Bader Ginsburg noted both that the public overwhelmingly believes judges are influenced by donations, and that multiple studies strongly suggest that spending in judicial elections affects judicial decisions.
Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 – 2015
|Sue Bell Cobb, the former chief justice of the Supreme Court of Alabama, a state that does not ban direct judicial fund-raising recently wrote in Politico, “It’s about as close as you can get to legalized extortion. ” Of the lawyers she approached for campaign donations, she said, “I’m sorry to say that some of them surely gave because they felt they had no choice.”|
2013 – 2015 Donors Below
“This is our sêma, this is our sign.” The tragedy of the Iliad, the character of the Odyssey’s Circe.
The dilemma of D’Metria is as old as time and found in all literature, Moby Dick with its trinity of conscience: knowing nothing, knowing but not caring, knowing and caring or A Fable by William Faulkner, the young Jewish pilot officer, “This is terrible. I refuse to accept it, even if I must refuse life to do so;” the old French Quartermaster General “This is terrible, but we can weep and must bear it;” and the English battalion runner, “This is terrible, I’m going to do something about it.” Which are you?
“She ain’t dealing with thieves, bootleggers, drug dealers, cattle rustlers, bank robbers, horse thieves, car thieves and wife beaters. Maybe, and I underscore the “maybe” here, she might have a temperment to work over there in criminal court. This stuff, it’s more complex, more personal, more intellectual … and D’Metria Benson just ain’t got it.” A comment from a very experienced attorney. “I mean she ain’t ever going to be a first-rate anything, and isn’t that what we need? First rate folks in the judiciary?”
This poem is fiction – nothing in this poem is true. The notion that D’Metria has a pact with the Grench is purely fictional. While D’Metria may be the inspiration it should be noted, no panel of her peers has been convened. Her campaign financing method is within the bounds of the law and there is no evidence that D’Metria is in any fashion influenced by those who have donated to her campaign. In fact, her high reversal rate may well be attributed to her lack of knowledge of the law, where she scores even lower than the scores on “impartiality” in her Dallas Bar Association Judicial Poll. With Etta Mullin no longer in office and the recipient of the highest judicial sanction (well after she left office) D’Metria can reign supreme at the bottom of the DBA Poll.
D’Metria the Vedy Vedy Bad Judge and the Grench
Original full length with illustrations available for interested parties.
More … See D’Metria the Vedy Vedy Bad Judge
Inspired by D’Metria Benson
Contact for the full illustrated version. Caution: Gore, obscenity and nudity.
What makes all of this so appalling is the genuine harm D’Metria has done during her tenure in CCL One.
Not everyone can afford an appeal. Is it really easier to hold your nose, write her a check and move on?
Obviously, it is.
Questionably Timed Donations
This is not rocket science.
- Go through the list of donors.
- Go to Dallas County Docket.
- Type in the attorney’s name.
- Find the cases filed in CCL One.
- Go to the docket and look at the dates of hearings.
- Compare the date of the donation to the date of the hearing or the initial filing.
Of course, D’Metria does not always place the name of an attorney’s firm on her Campaign Finance forms as required, so you will have to recognize which lawyers are with which firms. For example one named lawyer of a firm may have made a donation while another lawyer in the firm was actually handling the case. This means typing in that lawyer’s name into the CCL One docket will not always bring up the case. You will have to know which lawyer in that particular firm actually has the case filed. This means you will have to know which firm that attorney is with (in those instances where D’Metria did not include the law firm name on the Campaign Finance form filed) and which attorneys in that firm may have their name appearing as counsel in the case. It is important to know a good bit about who’s who in the legal community for this to be an effective search. BUT even without that knowledge multiple cases surface tied to donations made in conjunction with pivotal hearings.
The issue surfaces multiple times, a pivotal hearing is held in close proximity to the date of a donation. Or an attorney or firm that has never donated before is suddenly found making a sizeable donation in conjunction with the filing of a large case.
This all begs the question, on the multiple attorneys, associated with a law firm who have made donations without reference to their law firm, is there a reason behind this decision? Or is this just negligence and indifference on the part of D’Metria.
This is all legal.
Texas Ethics Commission Campaign Finance Guidelines: https://www.ethics.state.tx.us/guides/JCOH_guide.htm#CONTR_LAW_FIRMS
CONTRIBUTIONS FROM LAW FIRMS AND PERSONS AFFILIATED WITH LAW FIRMS
The Judicial Campaign Fairness Act places an additional restriction on contributions from law firms and from persons and entities affiliated with law firms. To understand the restriction, it is useful to think in terms of a law firm’s “restricted contributor class.” A law firm’s restricted contributor class includes the law firm itself. It also includes any general-purpose political committee established and controlled by a law firm or by members of a law firm; any partner, associate, shareholder, or employee of a law firm; any person designated “of counsel” to the firm or “of the firm”; and any spouse or minor child of one of the members of the group.
The restriction applicable to contributions from a law firm’s restricted contributor class is somewhat complicated: In connection with any one election, a judicial candidate or a specific-purpose political committee for supporting or opposing a judicial candidate may not accept a contribution of more than $50 from a member of a law firm’s restricted contributor class if the total of all contributions already accepted from members of the law firm’s restricted contributor class exceeds the following limits (or if the contribution would cause the total to exceed the following limits):
$30,000 for candidates for courts of appeals, district courts, statutory county courts and statutory probate courts if the population of the judicial district is more than one million;
$15,000 for candidates for courts of appeals, district courts, statutory county courts and statutory probate courts if the population of the judicial district is from 250,000 to one million; and
(Contributions from any member of the law firm’s restricted class, including the law firm itself, may not exceed any other applicable restriction. For example, an individual lawyer could contribute no more than $5000 to a supreme court candidate in connection with a primary election.) See “Primary and General are Single Election for Certain Candidates and Related Specific-Purpose Political Committees” in this guide.
Dallas County Population Judicial District: 2, 368, 139
What is so achingly hard to accept is that for every appeal, interlocutory appeal, and mandama filed from CCL One, there are hundreds of other injustices that were not taken to the Appellate Court. For every case filed, there are hundred of other cases not filed in ANY County Court at Law in Dallas County Texas. Knowledgeable attorneys file in District Court to avoid D’Metria Benson. Attorneys are warned in public presentations on topics of legal education that there are issues in Dallas County Courts. No one who has ever practiced before D’Metria does not have sympathy with the attorney that left her courtroom to immediately vomit in the gutter outside the courthouse.
If the Democratic Party cannot muster up primary opposition to D’Metria run an Independent that will appeal to the Democratic segment of voters, peel off her narrow margin and get a competent jurist in office. Having a stalking horse is as old as politics. It is difficult to understand why there has never been a stalking horse for this office. D’Metria has been a terrible judge from day one. For a time there was hope she would improve. That time is long gone. This is enough. How much pain do the citizens of Dallas County have to take. How much more money does the Bar have to fork over to keep an incompetent, questionable judge in office? How much more data is needed than the donations made on the day of a hearing and very close to it, donations made in conjunction with major cases being filed in this Court, and appeals and mandamus that reflect a judge who wholly disregards established precedent in favor of attorneys who have been donors in her campaign. This needs to stop.
What is most revelatory about D’Metria’s latest excessive spending spree is the fact that the discussion associated with her references a dominant belief that she is ‘stupid’ while the reality appears to be that she believes we are ‘stupid.’ This website has been chronicling her excessive expenditures for two years (when it’s not down from a hack) and yet her spending becomes more rampageous. The opinions from the Appellate Court in the mandama and appeals repeatedly reflect a trial court ruling that showcases a judge who completely disregards legal precedent in an astounding number of cases, often to rule in favor of an attorney who has made donations to her campaign. Sending a case back three times and ultimately taking it away from her because she WOULD not adhere to the Appellate Court’s Order indicates she believes she is the smart one, it is the Appellate Court that is wrong.
D’Metria Benson appears to truly believe it is everyone else that is stupid how else could the “Wolf Appeal” have been returned THREE times: “I have no idea. I can tell you what happened, but I couldn’t tell you the motivations,” said Wolf, who represents Victor Enterprises, the corporation that owns the rental home. “I’ve been to the court of appeal four times and have prevailed on three mandamuses and on an appeal of a judgment that was determined to be void…”It’s like me going down the courthouse and finding a file and saying, ‘Let’s enjoin this case.” See Texas Lawyer for more.
And she may just be right. Cocktail chatter, bar room complaints, conference room anecdotes and more reversals for appeals and mandama than a mortal judge could expect in 20 years, have reigned her in not one bit, nor have they improved her dismal DBA judicial evaluation poll ratings. Who is the dummy here?
For a different point of view you may read D’Metria Benson’s own blog where she describes herself as fair and impartial over seven times.
Bankrolling the Bench: The New Politics of Judicial Elections 2013-2014
Williams Yulee v. The Florida Bar
In the Name of “Democracy”
D’Metria Benson and her campaign manager, Democracy Toolbox, have established a new trend in Dallas County judicial politics, the repeated and ongoing solicitation of donations from attorneys and mediators practicing in that judge’s court. By law judicial candidates may solicit funds during a time frame of approximately 23 months out of the 48 month term of the judicial officer.
D’Metria has maximized her direct solicitation from attorneys with multiple solicitations and benefit events for herself. The majority of sitting judicial candidates are able to raise their funding with but one fund raiser.
Democracy Toolbox: Undermining Democracy?
D’Metria’s judicial bar evaluation rankings continue to place her at the lowest level of ratings, her expenditures on five star hotel expense, food, wine, gifts, office decor and air fare continue to place her at the highest level of judicial expenses. D’Metria Benson’s reputation for partiality goes hand in glove with ongoing solicitations for donations from attorneys and mediators who practice in her Court.
While her DBA Judicial Evaluation Poll results continue to place her at the bottom of virtually all categories, including her “knowledge of the law” her participation in expensive and ongoing continuing legal education at Five Star Hotels and expensive resorts places her at the top of expenses. Apparently, her recent stay at a Five Star Hotel did not make her any smarter! DBA poll results indicate 81% of the Bar believe D’Metria needs an improved knowledge of the law. Over the last nine years, her poll results have not improved. Spending virtually as much money on CLE as most spend on a law school education, has not worked for D’Metria.
Integrity Experience and the Temperment to JUDGE?
Has Democracy Toolbox established a new criteria for sitting judges in Dallas County? Can we expect more of this? Watch at DallasJudges.org as close tabs are kept on all judges retaining Democracy Toolbox and those judges with extravagant expenditures and multiple fund raising campaigns.
Destroying Public Confidence while Exploiting Reputation and Bar Poll Results for “Partiality”
Texas is one of only nine states that allows sitting judges and judicial candidates to directly solicit funds from attorneys.
“The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling,” Roberts wrote. “In short, it is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity that prompted the Supreme Court of Florida and most other states to sever the direct link between judicial candidates and campaign contributors. As the Supreme Court of Oregon explained, ‘the spectacle of lawyers or potential litigants directly handing over money to judicial candidates should be avoided if the public is to have faith in the impartiality of its judiciary.’ In re Fadeley, 310 Ore. 548, 565, 802 P. 2d 31, 41 (1990).”
Roberts also addressed claims that the direct solicitation prohibition was essentially meaningless since, “The judicial candidates could easily find out who had contributed and even write thank you notes to contributors.”
“It is always somewhat counter-intuitive to argue that a law violates the First Amendment by abridging too little speech,” Roberts wrote. “ . . . . The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates. The Canon applies evenhandedly to all judges and judicial candidates, regardless of their viewpoint or chosen means of solicitation. And unlike some laws that we have found impermissibly under inclusive, Canon 7C(1) is not riddled with exceptions. . . . Indeed, the Canon contains zero exceptions to its ban on personal solicitation.”
Bob Gammage, a former member of the Texas Supreme Court commented on campaign contributions in “Justice for Sale” for PBS: “If you don’t dance with them that brung you, you may not be there for the next dance.”
Well, D’Metria, notwithstanding the fact that she is Dallas Worst Judge, is back! And her dance card is full, full, full. One attorney noted that after his last case with D’Metria he walked outside and threw up in the gutter. He said rather than ever have a case in her Court again, CCL One, he simply withdraws.
This is a very expensive prom for the attendants and the litigants, no matter which side you are on! In fact, probably for the first time in her life D’Metria is finally PROM QUEEN! Who won PROM KING? Criteria for Prom King candidate is that person or firm whose donation(s) to D’Metria meet Justice Roberts’ standard as:
The conduct most likely to undermine public confidence in the integrity of the judiciary:
personal requests for money by judges and judicial candidate.
This autumn: Just the Facts.
Is there a bias in favor of donors?
Is there a pattern of conduct? You decide.
FUNDS RAISED AFTER THE ELECTION: It is important to review funds raised after the election. The fact that donations can be made AFTER an election creates an environment in which candidates and potential candidates make a calculated and self-benefiting choice to not focus on the donation process and abuses, thereby drawing attention to donors. These candidates, should they be successful, anticipate donation after a successful election from large, consistent donors such as Haynes and Boone. Large donors will not antagonize a sitting judge, even one with ratings as low as D’Metria’s, by donating to an opposing candidate before an election.
This process, of withholding financial support from an opposing candidate in favor of a sitting judge, is one contributing factor to the re-election of D’Metria Benson. Review the appellate court donations and timing, the pattern is clear. Review the large donors and cases set in County Court at Law Number One – there is again, a clear pattern. Do your own research at Dallas County Campaign Finance filings, draw your own conclusions.
Linking Donors to Court Cases DallasJudges.org
It is time to begin publishing each donors name with a link to each case filed in a candidate’s court. It is inequitable that most donors will only support an incumbent prior to an election. Should the incumbent lose the donor will donate to the challenger after the election.
By noting each donor and the cases filed in a specific court, the public can decide whether the donation was motivate by a genuine appreciation for the judicial candidate or draw another conclusion based upon the underlying factual reality of situations.
This may not level the playing field but it will at least shine a little antiseptic sunshine on the situation.
Will the Architect of the FIVE TIME SOLICITATION PLAN for D’Metria be Rewarded with More Business or Will Judicial Candidates with Integrity Find a Different Campaign Manager?
An argument can be made that unpacking this Pandora’s Box of unending campaign solicitations harms the judiciary. Any campaign promoter of this conduct should not be rewarded with further business by other judicial candidates be they Republican or Democrat.
It is a low game that would exploit D’Metria’s ratings and reputation for being partial as reflected by the Dallas Bar Association Judicial Evaluation Poll results.
It is hard to fathom that with D’Metria’s additional Judicial Evaluation Poll results for knowledge of the law equally low that attorneys would rush to her support. A campaign manager might find her perception of partiality worth exploiting but it is shameful for others in the judiciary to join with this same manager if their devotion is to the integrity of the judiciary.
DBA Judicial Poll Evaluation: Is D’Metria Benson Impartial?*
2015: 73% Needs Improvement
2013: 77% Needs Improvement
2011: 74% Needs Improvement
2009: 76% Needs Improvement
The Fifth District Court of Appeals has made it very clear in a Motion to Recuse Judge Cortez, the former 44th District Court judge accused of sex with a child, cocaine use and choking a prostitute, that campaign contributions by lead counsel made which were characterized as “large and curiously timed contributions” to Judge Cortez’s re-election campaign would NOT serve to support a Recusal Order.
The Fifth District Court did not find contributions made by Jeffrey Tillotson, a partner at Lynn Tillotson Pinker & Cox, who donated $5,000 to Cortez’s campaign a week before a key hearing in the case in May 2013, together with a $2,500 contribution from Tillotson’s law firm made to Cortez’s re-election campaign the day after Cortez ruled in favor of Tillotson’s clients were a basis for judicial recusal. Tillotson’s personal contribution was made at a public fundraiser hosted by Cortez and properly reported in the campaign finance report filed with the Texas Ethics Commission. Read more: Texas Lawyer Here.
But as demonstrated in the “Not Our First Rodeo” whistleblowing is a breach of contract case, this firm had not only the trial court covered with campaign contributions, their contributions dominated the sitting, elected appellate court and beckoned all others with their known, demonstrated and historical contributions to judicial campaigns. This case included curiously timed donations as well.
The Five Fund Raiser Campaign Undermines Judicial Appearance of Integrity