Texans for Public Justice

On July 3, the Texas Supreme Court issued a final ruling that fails to bar a Texas judge from trying a case litigated by a lawyer who donated $10,000 worth of legal services to the same judge in an unrelated case, thereby establishing an attorney-client relationship between that lawyer and that judge. This precedent makes it harder to remove state judges from cases in which they have real or potential conflicts of interest.

"The Supreme Court Justices' decision to further lower the bar for ethical standards in Texas courtrooms reflects the justices' own ethically challenged fundraising practices," said Texans for Public Justice Director Craig McDonald. "Justices so deeply mired in campaign-related conflicts of interest are in no position to set high ethical standards for the rest of the judiciary."

Judges as clients
The high court overturned a May 1997 appeals court ruling that Corpus Christi State District Judge Max Bennett should be removed from a case involving an injured worker's suit against Union Pacific Resources Company (Monroe v. Union Pacific Resources et al.). In that case:

• Union Pacific defense attorney Carlos Villareal donated $10,000 worth of legal help to Judge Bennett in a separate case then pending before the Supreme Court, establishing a privileged attorney-client relationship between himself and Judge Bennett; and
• Judge Bennett broke protocol by aggressively contesting another judge's decision to take him off the case¹, thereby aligning himself with the corporate defendants.

"Judge Bennett's opposition to the recusal motion aligned him with the defendants and against the plaintiffs in the underlying case, destroying any reasonable appearances of impartiality," the appeals court ruled.

In a July 3, 1998 opinion by Chief Justice Tom Phillips, the justices reversed the appeals court, returning the case to Judge Bennett. The justices said that the appeals court should have allowed Judge Bennett to try the case, after which the plaintiffs can raise the recusal issue again on appeal.

Under the U.S. Code, federal judges would never be allowed to try a case that is litigated by a lawyer who also serves as the judge's counsel. Similarly, federal judges—who get appointed to the bench—are prohibited from taking money from parties with cases in their courts, a common practice among Texas state judges, who run expensive election campaigns.

Chief Justice's "schizophrenia"
Oral arguments that the Supreme Court held on the Monroe v. Union Pacific Resources case on December 4, 1997 reveal that the justices could not find a way to set high recusal standards in cases like Judge Bennett's without reversing Texas Supreme Court precedents that fail to recuse judges—or justices—who take large campaign contributions from parties to court disputes.

"To be blunt, in light of the way our judges get to be judges and stay there, isn't it a little schizophrenic to say somebody who represents you (when the court has been challenged), and at your request, disqualifies you from sitting in their cases or their firm's [cases] for some period of time?" Chief Justice Phillips asked in oral arguments. "But somebody who gives you up to $5,000—or $30,000 from their firm—and some of that money you spend on a campaign to stay in office and some of it's leftover and you can decorate your chambers with it, that that's okay? And once we say that's not okay and that that, shall we say, doesn't promote public confidence in the ... dignity and integrity [of the judiciary] ... then our judges are out—they don't have anything to do [laughs]." Moments later, Phillips asked, "Don't we have to temper all of our rules—I mean when we look at a federal standard or something—in light of the realities that the Legislature has left us with?" [i.e. costly partisan campaigns]

The new ruling comes at time when the high court justices are under scrutiny for raising millions of campaign dollars from interests with cases before the court. The justices, for example, have taken thousands of dollars from the direct beneficiaries of this opinion. In their most recent election cycles, five participating justices took $14,878 from Union Pacific and $4,300 from lawyers in Hunt, Hermansen, McKibben & English, which is defending the company in the case.²

"While the justices justifiably criticize the Legislature for failing to overhaul Texas' severely flawed judicial-selection system," McDonald said, "these justices continue to raise money from parties with cases in their court and repeatedly drop the ball when they have a chance to shore up the troubled ethics of Texas' civil justice system. Why did the justices flaunt the Attorney General's ruling last year that the Texas Open Records Act requires the justices to release their office phone records? Why did this court rule in January that it is okay for law firms—which are leading funders of the justices—to fire a partner who raises questions about whether or not a client is being over billed?³ And, now, why has the court allowed Judge Bennett to try a case that he should never touch?"

² These justices are Phillips, Hecht, Owen, Baker and Abbott. Justice Raul Gonzalez, who recused himself from this decision, took $7,450 from Union Pacific and Hunt, Hermansen. Justice Gonzalez formerly served on the 13th Court of Appeals, which was involved in the underlying legal dispute with Judge Bennett.

³ Bohatch v. Butler & Binion.

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