You've been warned: Final Keller appeal up today

The special court of review evaluating the State Commission on Judicial Conduct's warning of Texas Court of Criminal Appeals Judge Sharon Keller will be held this afternoon at 1:30 at the Texas Supreme Court here in Austin, I learned from the Texas Moratorium Network. According to the Montgomery County Courier: "Justice Charles Kreger, of the 9th state Court of Appeals, was selected, along with 2nd state Court of Appeals Justice Terrie Livingston and 1st state Court of Appeals Justice Elsa Alcala, to hear Keller’s motion to dismiss a public warning the State Commission on Judicial Conduct gave her July 16."

Here's a link to all the documentation in Judge Keller's case, including the judge's motion to dismiss the charges and the Examiner's response. If I finish a couple of other things on my plate this morning I'll try to get up there to listen to oral arguments. Interestingly, Judge Keller complains that:

Even when conducted flawlessly, judicial disciplinary proceedings skirt the edges of due process: the SCJC acts as police, grand jury, prosecutor, judge, and jury, because it investigates alleged misconduct, brings charges, prosecutes cases, rules on motions, and determines punishments; allegations against judges are made anonymously; discovery is limited; judges may be punished without a hearing; judges have no right to confront their accusers; judges have no right to a jury trial and limited appellate rights; and the SCJC’s deliberations and votes are secret.

In her case, says Keller, "The SCJC has run amok." Ironically, though, if the SCJC erred, she argues, it was in giving her a lighter sentence than a formal "censure," which would have forbade her from sitting as a visiting judge once she leaves office. Judge Keller has been inexplicably harming her own interests by pursuing this: A public warning is hardly even a wrist slap and her case would have been long-forgotten by the press and the public by now if she didn't keep filing these spurious appeals. It's a good thing she's got those millions of dollars worth of assets she failed to report the the Texas Ethics Commission because I'll bet her legal bills will amount to a small fortune.

The examiner retorts that "The essential facts underlying the Commission's order come principally from Judge Keller's own testimony, and are largely ignored in her partial selection of facts." For example, a footnote points out that:

Judge Keller complains that an "oral protocol" cannot be a duty of her office. Her prior testimony, however, admits that the Execution-Day Procedures included the word "shall"; that "the word shall to [her] has always meant a mandatory word"; that the Execution-Day Procedures required "all communications" - whether "administrative, procedural, substantive or otherwise" - concerning that day's scheduled execution "first to be referred to the assigned judge"; and she informally referred to the assigned judge under the Execution-Day Procedures as "the duty judge." (citations omitted)

Mainly Keller is unhappy that, in her words, the Commission was "Unwilling to accept Judge Keller’s victory at trial before Judge David Berchelmann in August 2009." But the examiner replied that "The Commission has the authority to 'adopt,' to 'modify' or to 'reject' findings of the Special Master, either on objection by a party or at the Commission's own initiative."

Deference to findings does not prevent opportunity to review findings. The Examiner's principal objections to the Special Master's findings were these: (i) that he devoted most of his findings to the conduct of others, whose conduct and decisions and choices were not known by Judge Keller at the time she chose to disregard her responsibilities under the Execution-Day Procedures, and therefore cannot be any basis for excusing her choices and her conduct; (ii) that he had not made findings one way or the other as to many factual issues presented by the parties; (iii) that he failed to give adequate effect to Judge Keller's remarkable and emphatic testimony that, presented with the same circumstances, she would do nothing differently today; and (iv) that he exceeded his role by making recommendations as to sanctions, if any.

Keller also says, with somewhat more justification, that the Commission "imposed on Judge Keller a punishment so far outside its authority that the SCJC’s Executive Director and Examiner publicly admitted that 'the order . . . does not comport with the Texas Constitution.'” Jeff Gamso commented that:

She seems to be right about at least one of her procedural claims.  It seems pretty clear that the Commission had no authority to issue the warning she received.  It's choices were to dismiss the charges or impose a more serious sanction. 

However, as I'd pointed out earlier, while the SCJC's Executive Director did make comments to that effect in the media, she flip flopped on the question soon thereafter:

Interestingly, Executive Director Seanna Willing has changed her stance. The agency's position appears to be fluid, perhaps because of disagreements between commissioners and the executive director.Willing had earlier argued that the Commission acted outside its authority to "warn" Keller instead of issuing a formal "censure" that would have barred her from acting as a visiting judge after she leaves the bench. Now she argues - with Examiner Mike McKetta who has consistently maintained the warning was okay - that the Commission could legally give the lesser sanction, while ironically Judge Keller argues that the Commission had no authority to issue a "warning" as punishment. Willing has flip flopped and Keller has adopted her former stance. Weird.

Who knows? The fact is judges are so seldom disciplined in Texas that these musty appellate procedures aren't often used and nobody really seems to have a handle on how to appeal a meaningless "warning," since of course appealing such a sanction-free sanction would never occur to most right-thinking people. What an absurd waste of time and resources.