To thank them for that leniency, Keller's lawyer filed a petition with the Texas Supreme Court yesterday, reports the Statesman's Chuck Lindell, alleging "that the commission acted in a 'lawless' manner" by applying the lesser sanction. (See the full petition.) “The order violates the constitution and is void. At the very least, it is a gross abuse of discretion,” wrote Keller's attorney Chip Babcock. Chuck Lindell reported last Sunday:
"I don't think (public warning) is an option they have under the Texas Constitution," said Keller's lawyer, Chip Babcock. "The question is: How do you raise that (challenge), and who do you raise that with? It has got us scratching our heads."Keller might well be right that the SCJC abused its discretion by not doling out a harsher punishment: Even the director of the agency agrees they acted outside its purview. But I doubt seriously the Supreme Court will "issue a writ of mandamus ordering the commission to expunge the warning from all records and to drop its charges against Keller," as she's requesting. At most, I suspect they might order the SCJC to reconsider its punishment in light of the more limited range of options afforded them by the Constitution, but I'd be surprised (and rather scandalized) if they ordered dismissal in response to this writ. Time will tell.
Even the commission's director, Seana Willing, was caught off guard.
"In my opinion, the constitution requires that they do either a censure or a recommendation for removal, and they didn't do that," said Willing, who did not advise commissioners or sit in on their deliberations because she was, by law, a co-prosecutor in the Keller case.
First warning in 96 judges' proceedings
The unexpected action has left Keller and her prosecutors scrambling to adjust to a new playing field.
Had Keller been censured, her appeal would have been handled by a special three-judge panel that would base its decision on a review of the record, including testimony during last year's four-day hearing, transcripts of depositions and the many documents and motions generated by both sides. Like other appellate courts, the panel would hear oral arguments and issue an opinion at a future date.
But state law defines a public warning as a "sanction" — and sanction appeals are reviewed "de novo," Latin for "anew." A similar three-judge panel would disregard all earlier proceedings, and both sides would have to present their cases all over again — a process that took more than 30 hours at last year's hearing.
Neither side welcomes the prospect of plowing the same ground.
"If the appeal is de novo, it will of course wipe out what the commission has done, but it will also put Judge Keller through the unnecessary expense of a second trial," Babcock said.
Willing, presiding over a small agency with a limited budget for travel and other trial-related expenses, would have preferred censure as well. "It makes sense. We've already tried the case; we just need a record review," she said.
MORE: From Kuff, the Texas Lawyer Blog, and the Supreme Court of Texas Blog.