That was one strange story. Two day before the Fort Worth court of appeals was scheduled to hear oral arguments in Kim Brimer’s lawsuit seeking to have Wendy Davis declared ineligible to run for the state Senate, John Cayce, the chief justice of the Second Court of Appeals in Fort Worth, wrote Wallace Jefferson, Chief Justice of the Texas Supreme Court, asking that the case be transferred to another court of appeals. Cayce further wrote that he had requested that the Dallas Court of Appeals hear the case. Cayce gave a terse explanation that “circumstances have arisen which warrant that the case be transferred to another court.”
Might as well be frank about this: I don’t have much confidence in the political independence of the Texas appellate judiciary these days, and this maneuver in a politically charged case is eye-opening, to say the least. What circumstances could have arisen to necessitate the rare maneuver of transferring the case to another appellate district? Perhaps one or more justices have political ties to Brimer. But in that case, the justice(s) could have simply asked to be recused and Cayce could have named a replacement from the panel. It is also conceivable that something occurred that tainted the process, such as an ex parte communication, in which event Cayce acted properly in requesting that the case be transferred. But Cayce acted improperly in forum-shopping the case to the Dallas Court of Appeals. He should have left the choice of which appellate court should hear the case to the Chief Justice.
If you have a dark and suspicious mind, it might occur to you that the “circumstances” that “warrant that the case be transferred to another court” could be that the Fort Worth judges, who must stand for reelection, were concerned about their own skins and found themselves in a position that, whichever way they ruled, ran the risk of alienating a large bloc of voters – especially if they determined that Davis was ineligible. Why not punt the ball to a Dallas court that can’t be held accountable at the polls for a partisan ruling?