Special treatment for Keller may create "bad law" around judicial misconduct

Reacting to the State Commission on Judicial Conduct's "public warning" regarding Judge Sharon Keller, I said on Wednesday that " I don't understand how the "warning" option jibes with earlier reports that the only options available were removal, censure, or exoneration." Now, Mary Alice Robbins at Texas Lawyer has an extended piece exploring that question ("Judicial Conduct Commission Examiner Questions Basis for Public Warning in Keller Case," June 22). She reports that:

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

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

The Commission's rules haven't been updated to reflect conflicting constitutional changes, Robbins reports, and the Commission has publicized in its own materials that there are just three options if a case goes to a public trial - dismissal, censure, or removal. Thus it's possible that if the commission changed up the verdict, the argument goes, one might not have given:

fair notice to a judge of what sanctions he or she could face. Houston solo Lillian Hardwick, a judicial conduct expert, says the commission’s annual reports before and after the adoption of Rule 10(m) — including the 2009 report posted on the commission’s website — feature charts showing that the options after the commission opens formal proceedings are to dismiss the charges, issue an order of public censure, or recommend the removal or retirement of the judge.

“I don’t see how it’s giving notice to judges of anything other than that, including a public warning,” Hardwick says.

Willing also thinks the ruling will impact the commission's future ability to bargain with judges: "Willing believes the commission’s public warning in Keller could result in bad law. She says judges have resigned in lieu of discipline after the commission began formal proceedings against them. But now, judges might not agree to accept resignation if they are facing a lesser sanction."

Further, the confused outcome may be confusing whether Judge Keller has a right to appeal the commission's ruling as she's said she will do:

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

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

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

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

What a fascinating development. I claim no insight on the merits of the dispute over what punishments should be allowed, but pretty clearly the commission went out of its way to handle Judge Keller with kid gloves. Now the question becomes, was that special treatment just a one-off or will it set more lenient precedents ("bad law," in Willing's terminology) for future judges accused by the Commission of misconduct?