As the legal and ethical complaints against Texas Supreme Court justice Nathan Hecht pile up, the question must be asked whether the court’s intellectual leader will be able to serve out his term, or whether he will be forced to resign–or worse.
Article XV of the Texas Constitution, which deals with impeachment, provides two means of removing a Texas Supreme Court judge from office. One is through impeachment. The other, which I suspect most readers will be as surprised to learn about as I was, when I came across it while researching Speaker Craddick’s claim that he can only be removed by impeachment, allows the Legislature, in effect, to petition the governor to remove a judge by a procedure known as “address”:
Section 8 - REMOVAL OF JUDGES BY GOVERNOR ON ADDRESS OF TWO-THIRDS OF EACH HOUSE OF LEGISLATURE
The Judges of the Supreme Court, Court of Appeals and District Courts, shall be removed by the Governor on the address of two-thirds of each House of the Legislature, for wilful neglect of duty, incompetency, habitual drunkenness, oppression in office, or other reasonable cause which shall not be sufficient ground for impeachment; provided, however, that the cause or causes for which such removal shall be required, shall be stated at length in such address and entered on the journals of each House; and provided further, that the cause or causes shall be notified to the judge so intended to be removed, and he shall be admitted to a hearing in his own defense before any vote for such address shall pass, and in all such cases, the vote shall be taken by yeas and nays and entered on the journals of each House respectively.
Travis County District Attorney Ronnie Earle has confirmed that Hecht’s fundraising activities in order to defend himself against a public admonition by the State Commission on Judicial Conduct have been under review by Earle’s Public Integrity Unit since they received prominent attention in the media, mainly the Fort Worth Star-Telegram. In addition, Texas Watch has filed complaints against Hecht with the Judicial Conduct commission and the Texas Ethics Commission.
I have written previously that I thought that the Commission on Judicial Conduct overreached in admonishing Hecht for endorsing Harriet Miers as a nominee to the U.S. Supreme Court, at the request of the White House. (See “Hecht Maybe,” posted August 22, 2006). I stand by that assessment. The Commission concluded that Hecht had violated two ethical canons, one stating that “a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others,” the other mandating that “a judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office.” Hecht’s advocacy of Ms. Miers did not advance a private interest, not did it endorse a candidate for a public office. A Supreme Court seat (and the qualifications of the nominee to fill it) is not a matter of a private interest, nor is it a public office. Hecht argued that the canons he was alleged to have violated interfered with his right of free speech on a topic of national importance, and a panel comprised of three judges from the state’s intermediate appellate courts agreed.
In appealing his admonition, though, Hecht ran up legal bills of some $450,000, and the trouble began when be began soliciting donations to pay for his legal expenses. He asked the Legislature to bail him out, without mentioning that he had been soliciting contributions from lawyers to help him pay his fees. (See “Hecht No!” posted on March 20, 2007). When his private solicitation activities became public, lawmakers abandoned their efforts on his behalf.
The three complaints filed by Texas Watch allege violations of the state Penal Code, the Election Code, and Code of Judicial Conduct. All grow out of an alleged discount of Hecht’s legal fees by Jackson Walker, the law firm that represented Hecht before the Commission on Judicial Conduct. The Star Telegram had reported about the possible discounting of Hecht’s legal fees in April. A story about the controversy in the July 31 issue of Texas Lawyer says that Hecht’s attorney, Charles “Chip” Babcock, described the discount as pro bono work.
Texas Watch argues that the purported discount may run afoul of Texas law in several ways:
* Public Integrity Unit complaint: “The Texas Penal Code prohibits judges from accepting a gift from a party who the judge knows is likely to appear before him. As Jackson Walker is a prominent law firm with numerous clients with interests that are likely to come before the Texas Supreme Court, the discount the firm gave Justice Hecht was possibly an illegal gift. A violation of this statute is a Class A misdemeanor punishable by up to one year in jail and a fine of $4,000.”
* Commission on Judicial Conduct complaint: “The discount on his legal expenses is a gift that reflects adversely on his impartiality and is a possible exploitation of his position in apparent violation of the Canons of Judicial Ethics.” Canon 4(D)(1) of the Code of Judicial Conduct reads:
A judge shall refrain from financial and business dealings that tend to reflect adversely on the judge’s impartiality, interfere with the proper performance of the judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves. This limitation does not prohibit either a judge or candidate from soliciting funds for appropriate campaign or officeholder expenses as permitted by state law.
* Texas Ethics Commission complaint: “The $100,000 discount that Hecht received on his legal bills is an in-kind contribution in excess of the statutory $30,000 contribution limit that law firms are permitted to donate to judges and judicial candidates. A violation of this statute is punishable by a fine of three times the amount of the illegal contribution.” Texas Watch also says, “Justice Hecht railed to report this in-kind contribution in violation of Elections Code Secs. 254.031 and
The Commission on Judicial Conduct should have ruled on the question of whether law firms can get around the prohibition of discounted legal fees by the artifice of claiming that it is “pro bono” work, and the answer should be no. If Jackson Walker can get away with it, any law firm with a judge for a client will be able to use the loophole to curry favor with the judge. The Ethics Commission will have to deal with Hecht’s failure to disclose the excess contribution. Again, the pro bono claim will be an issue for the Commission to resolve. Hecht’s biggest worry is the Public Integrity Unit, because the one thing in this world that Ronnie Earle hates most is the influence of corporate money in politics. Class A misdemeanors can be serious business, and a conviction would be a fatal stain on Hecht’s record and would likely bring his term on the court to an end. He will also encounter more legal fees, to defend himself on three fronts, and whom can he solicit profitably except lawyers and law firms. The entire cycle could start over again. As for the political repercussions, House Democrats might try to advocate using the constitution’s “address” procedure to remove Hecht. That won’t happen, of course, but it will get plenty of media play. Hecht may serve out the remaining 4 1/2 years of his term, but he won’t enjoy it.