Recently, the court has been mired in controversial matters that have nothing to do with docket management: On Jan. 17, Justice David Medina was indicted on a felony charge of tampering/fabricating physical evidence, an indictment a judge dismissed the next day at the request of the Harris County District Attorney's Office. A week later, Texas Watch, a judicial watchdog group, filed ethics complaints against Justices Medina, Paul Green and Nathan Hecht for alleged misuse of campaign funds for travel expenses â" allegations Hecht and Green deny. Terry Yates, one of Medina's attorneys, has said Medina made a mistake and is repaying his campaign account.
To top it off, there's a growing sentiment among some lawyers that the high court has become a lost cause for plaintiffs, because it consistently rules in favor of defense interests. Last September, lawyers at the Dallas Bar Association's Bench Bar Conference even challenged Justices Green and Phil Johnson during a panel discussion that addressed whether the court is bought and paid for by special interests.
On Jan. 31, Texas Lawyer senior reporter John Council sat down with Texas Supreme Court Chief Justice Wallace Jefferson to talk about all of these issues and more. The discussion appears below, edited for length and style.
John Council: It's been a rough start to 2008 at the high court. But let's start off with something that has been lingering at the high court for years â" its backlog. Some cases have been on the court's docket for three years and longer. Do you see any progress with those cases?
Texas Supreme Court Chief Justice Wallace Jefferson: I think those cases are the court's priority right now. And just last week I think you saw one of those cases that had been on our docket for some time was issued.
Council: Which case was that?
Jefferson: Arkoma Basin Exploration Inc., et al. v. FMF Associates 1990-A Ltd., et al. And you'll see in the coming weeks and months several more that have been on the docket a long time. So we're making progress. The court is focused on the older cases. And we have met on them in particular. And I have to say that they are difficult cases. They are very complex cases, and there is a lot of discussion here at the court on them. So it is not as if they have been sitting in a corner somewhere not being reviewed. They've been intensively reviewed. I think it's taking too long, and the court knows my views on that. So yes, there will be progress.
Council: Are you having trouble with full participation? Is that one of the reasons why the court has been slow in issuing some of the decisions?
Jefferson: Not a problem with full participation â" maybe too much. Some people want to take a case to study longer than they should. There comes a point in time, we're all professionals, and you have your period of time to study the case to write if you would like to, and now the decision needs to be made. That's why the parties came to the court â" for a decision on their case.
Council: Do recusals have an impact on how long it takes to decide a case, if one judge is out of the loop? I think Justice Scott Brister will recuse when the case comes from the 1st or the 14th Court of Appeals, obviously Justice Paul Green will recuse when a case comes from the 4th Court of Appeals if he sat on that case, and anything involved with the Texas Attorney General's Office, Justice Don Willett will recuse himself. Do any of those recusals have an impact?
Jefferson: Recusals can cause delay. In those cases where the governor is called upon to make an appointment, he acts pretty quickly, but the new appointed justice comes in and must read the briefs and the record and participate in oral argument and then get used to our manner of conducting business at the court. So that has some delay. I'd point out that I came on the court in April of 2001. And including current members, I've served with 17 justices â" not appointed, 17 regular sitting justices on the court. So there's obviously been a tremendous transition on the court. And any new judge coming on, it takes a while to get familiar with the rhythms of this institution. And when a new judge comes on, it could affect the outcome of the case. They have a perspective that perhaps others haven't considered, and they will write separately and bring members on board. But all of this about the docket, all of what I'm saying is not to say that we couldn't do better. We need to do better. The court knows my views on that. I can't imagine going to the voters and saying, "Once a case is argued it can take up to four years to decide." That's ridiculous, and so we're working diligently to get those cases out.
Council: More recently, a watchdog group [Texas Watch] filed complaints with the Texas Ethics Commission against Justices Green, David Medina and Nathan Hecht in connection with allegations the judges misused their campaign funds for personal travel. Seeing as a third of the court now has complaints pending against it, is there anything you can do as chief justice to rein in associate justices whose conduct may get them in ethics trouble?
Jefferson: Well it depends on what you mean by "rein in." You know, we are all independently elected state officials. And we have our own responsibilities in respect to the Ethics Commission, with respect to the docket of the court and how we conduct ourselves throughout the state. You mention there have been three ethics complaints filed. You have to remember, I think, that this is a political year. There have been changes in certain counties throughout the state. And it's possible that political races will become more competitive over time. When you have a situation, there are some groups that believe it is to their advantage to scandalize the court as much as possible. Yes, there are three complaints now. There might be nine by November of 2008, whether or not they have merit, just because it has an impact on those who are running for office. With respect to the individual complaints, there is a process to determine if they are valid or not. I would point out, and I can't remember exactly when, but a couple of years ago the statute had changed with regard to reporting travel expenses so that if any state official is traveling out of the state of Texas, that official must report not only the travel expenses but the purpose of the travel, what organization or person was at the point of travel, and great detail for the reasons for the out-of-state trip. There is no similar provision for in-state travel â" there just isn't. So if a judge reports a travel expense, there is nothing that requires more specificity. That having been said, the court has been, I think, in the lead in terms of transparency. I see no reason to not call for judges to explain their trips in greater detail. For example, there were many trips to San Antonio that I asked Justice Green to attend on the court's behalf. I asked him to go meet with the Bexar County judicial delegation to see how they are implementing technology in their courts. He and I went and attended Judge [John] Specia's courtroom, who is now retired, to see the video technology they had in the courtroom, the ability to have video-conferencing. And Justice Green and I said, "Why couldn't we have something like that at the court?" And the result of that one trip, we now have a more transparent court. We have oral arguments that are on the Web with a joint venture with St. Mary's School of Law and the Office of Court Administration. I can talk about countless other trips like that that have made a difference in terms of the administration of justice. We're not just giving speeches and traveling for travel's sake, but we have a constitutional duty to administer across Texas. . . .
Council: When you see something like these ethics complaints on the horizon . . . is it your job to get the associate [justices] together and say, "Look, let's make sure we are unassailable â" that we can't be attacked by a watchdog group "? Is that something you should do?
Jefferson: Yes, it is something I should do, and I actually discuss with my colleagues. But again, I go back to the fact that in a state where you elect judges in partisan elections, you can be as pristine as you possibly can and there will still be complaints filed. It's not the first time complaints were filed in an election season, and it won't be the last. The watchdog group will say, "Why couldn't we have conducted that meeting with Judge Specia over the phone?" or "Why do you give a speech to bar association groups that are asking for speakers? Why don't you stay at home and do your job?" But one of the reasons that we elect judges in Texas, I think, is the people want to see and interact with the judiciary so that they can evaluate them and decide whether or not to retain them in office.
Council: Justice Hecht has also had a very public fight with the State Commission on Judicial Conduct. While Justice Hecht ultimately prevailed, it seemed like the conflict could have been avoided by simply calling the Judicial Conduct Commission to inquire about whether his public speech in support of then-[U.S.] Supreme Court nominee Harriet Miers constituted a violation of judicial canons. The same goes for the campaign spending and the Ethics Commission. Are Supreme Court justices above calling these agencies to get advice?
Jefferson: I served on the Judicial Conduct Commission myself for about a year, and I can tell you that the conduct commission does not give official advisory opinions. You can call them, and they can give advice, and complaints can be filed against you, and it could be upheld. I think what the judge has to do is read the laws and the regulations himself or herself and do their best to conduct their affairs accordingly.
Council: But actually, you can call the executive director and she'll tell you this may get you in trouble and may not?
Jefferson: That's right. And does she have a vote on the conduct commission?
Council: She brings the complaint.
Jefferson: She brings the complaint, but the commission can overrule her opinions. There are many times when the advice given to the candidate did not represent a safe harbor against complaints. Yes, you can call, but whether or not the advice that is given remains the law, for lack of a better word, of the conduct commission is uncertain and unclear. Yes, you can do that. But I think more importantly you read the law itself. But again, I think there does need to be reform in the ethics code itself that would provide for more specificity, and I see no reason not to urge that. And I will probably be addressing this issue with the Judicial Council, the policymaking body of the judiciary, and see if I can recommend changes that will bring greater transparency.
Council: You've expressed support for Justice Medina, who was indicted in Harris County along with his wife â" charges that were quickly dismissed by the [Harris County] DA's office. Has that had any measurable affect on the court and the justices?
Jefferson: I expressed human concern for Justice Medina and for his family. I can't imagine myself going through the sorts of ordeals that they have gone through. And so I extend our support as I would to any colleague who is going through a time of distress. Yes, it has an impact. Any time a judge is distracted from the work it is going to impact that chamber and the court. But any time a judge is engaged in a political campaign it's going to distract from work and the business of the court. So it's not unique to dealing with tragedy. There are times that the court as a whole has to come together and support someone who has been legitimately taken away from the docket to some extent. Justice Medina is participating, he's voting, he's working on opinions, even as all of this is occurring. . . .
Council: How did you find out about the indictment? Did he talk to you about it?
Jefferson: Not in detail. That's something between him and his lawyer. . . . Judge Medina told me what was going to happen. . . .
Council: [L]ast year, several lawyers at the Dallas Bench Bar meeting had some very harsh questions for two of the court's justices during a panel discussion. Even the moderator of the panel discussion â" a former Republican judge â" says the mood of the bar currently is that plaintiffs can't get a fair shake at the high court. Are these lawyers wrong about the court?
Jefferson: You know, the lawyers and the public have to come to their own conclusion. And that's fair game. If people think that the court is issuing wrong opinions, that's for them to decide. But I would say this: In news reports or in editorial comments or even on the blogs, you get people talking about the court as if it's a monolith. Really the court is comprised of nine individuals. And I think a responsible lawyer would dig down and not just talk about the court but talk about cases. Was this case or that case properly decided? Then look at the votes and the writing of the majority and if there's a separate writing, the dissent or a concurrence, and see what the individual justice â" whether the result of that case is backed up by the facts in the case and the law and make an assessment about whether that judge's voting history comports with their views of the law. So a more detailed analysis is in order, and I don't think we've seen that very much.
Council: Just a week ago, several editorials in newspapers across the state were highly critical of the court and the "ethics cloud" hanging over it. It should be pointed out that you have not been implicated in any of these allegations. Is there anything you can do as chief justice to change this perception?
Jefferson: I think I can call for more transparency that when we are traveling, there is some real purpose to it. For example, a task force on emergency preparedness . . . is going to be going around the state getting input and either I or the liaison to that task force, Don Willett, will be attending to hear what people say about how you keep the judiciary functioning when there's a hurricane or a health pandemic or a terrorist event. And I think the result of that travel is that the Texas judiciary will be better prepared. Justice Harriet O'Neill is liaison to a commission that we've just established â" the Permanent Commission on Children, Youth and Families â" which is designed to speed up the foster care system so children don't languish before they are permanently adopted. And that is and has required travel throughout the state. Or, we have access to justice issues, and we try to go around the state and watch what other counties are doing in terms of providing legal services to the poor. These are important activities of the court. They are not the docket, but they improve the administration of justice throughout the state. So I think if we were to detail these and give more specifics on them, the public would be somewhat more supportive. And I am distressed by some of the adjectives used. Some of these groups say there's a scandal or the entire court is corrupt. If there were corruption going on inside this court, I'd be the first one to sound off. If I saw that, it would end. And I think when you use words like "corruption" and "scandal" and "cloud" you are undermining the court as an institution. It's an illegitimate attack unless you have the evidence, because people come to our court for redress of grievances; the public has to have confidence in it. If it is truly corrupted and there are crimes going on, then certainly the public needs to know. But if it's basically political attacks, and they are broadcast in the public arena, it hurts the court as an institution, and that distresses me greatly.
Council: One of Texas' largest counties has recently switched from being dominated by Republicans to being dominated by Democrats. There is some speculation that this may soon happen in Texas' largest county, Harris. Does this bad publicity about the high court make you nervous, seeing as three members of the all-Republican court, including yourself, are running for re-election statewide?
Jefferson: This will shock people, I suppose, but I don't care whether a court is a Democratic court or a Republican court. If the judge is good and he or she is doing their job well then that judge merits retention on the bench. But the problem with the way we elect judges though is that's not the question posed. The merit is not what's posed. It's mostly political affiliation. And so, back in the mid-'90's there was an election quite similar to 2006 [in Dallas County] where all of the Democrats were swept out and all Republicans were swept in. And there were some very talented and dedicated public servants who lost their jobs solely because of their political affiliation. In Dallas when all of the Republicans were swept out, lawyers either Democrat or Republican alike will tell you that there are many that were tremendous judges and gave great public service and yet they lost, not because the voters were tuned into the merits, but because of their political affiliation. And this was a policy question that the state has to grapple with. Are we happy with that situation or not? If we're not, then the House [of Representatives] â" it would have to originate from the House â" [would need] to provide the constitutional amendment to change the way we do things, the way we elect judges.
Council: You sound like a man from Bexar County where both Republicans and Democrats share the bench and are elected by merit, not on party affiliation. But that doesn't happen statewide. Do you fear the same thing is going to happen here on the Supreme Court?
Jefferson: Well, inevitably . . . because of demographics and because of politics that are out of the control of the judiciary, there will be more examples of what happened in Dallas County and in Harris County. At one point the court used to be all Democratic. And over time that shifted to the Republicans. You have to look more at what's going to happen in the national elections. In Texas, many people will vote at the time of the presidential year and simply vote straight ticket all the way down. So if more Democrats come out in the next election year, you can bet in many instances more Democratic judges will be elected. . . .
Council: Should you win another six-year term on the court, can you commit to completing the term, seeing as you have a family to raise and your services would be much in demand in high-paying civil law firms?
Jefferson: I decided to run again, because I think that at this point in time in Texas, I'm the best person in the state to lead the court, through clearing its docket, to advancing some of its policy initiatives that the court has taken on. And those efforts will take years to accomplish. So it's my intention to serve as long as I can as long as the voters re-elect me and to accomplish great things, not just for the bar but for the public as a whole, and that's what I intend to do.
Council: So even if Vinson & Elkins offers you a half-million-dollar job, you don't want to go?
Jefferson: It's important for people to realize that, yes, I think I could be successful either on my own in practice or with a law firm. I've made contacts nationally with other chiefs and general counsel and various groups. I think any one of us could leave and certainly do far better financially than we're doing here. So your point of service is because you have this passion and that you can improve the lives of Texans through your service, either through the policy initiatives that I've mentioned or through giving greater predictability and stability to the law for everybody, to those from the poorest to the richest and from corporations to consumers to the state of Texas. That's why we are doing what we're doing. That is worth more to me at this point in my life than the financial remuneration I could receive in the private sector.
Council: Back in the late 80's there was a scandal at the court. And CBS's "60 Minutes" did a report called "Justice for Sale." Are we at the point now where we've got a completely different court where groups say you're too beholden to special interests and you're ruling too much in their favor?
Jefferson: No we're not at that point. As I already said, if I saw votes being bought here by private interest groups, I would be sounding the alarm. What you have is a judicial philosophy. You could go from the source of campaign contributions that we have today where people can contribute to campaigns and then the lawyers can appear before you next week, to tomorrow where you have completely publicly financed judicial elections where nobody can contribute and I can tell you that the votes would remain the same. It's not a matter of contributions, it's a matter of judicial philosophy. And of course, that's something that the voters should take into account when they decide whether to elect judges. If the voters believe that in their mind the judiciary is creating a bad climate in Texas where there's injustice being done, then they can vote accordingly. If they believe that the legal arena is more predictable now and stable and fairer then they can vote accordingly. It's not a matter of campaign contributions. Most judges don't know who's contributing to their campaigns in the kind of detail that the press seems to think they do. But, even without those contributions, you have individuals on the court who vote their conscience, and they think that they are making principled decisions, and they accept the criticism that follows.