Former judge's censure mitigatedAppeals court partially OKs his speaking out to defend his name
By MICHAEL GRABELL / The Dallas Morning News
Tuesday, July 24, 2007
A public censure against a former Dallas judge was partially overturned Friday by the 5th U.S. Circuit Court of Appeals.
The court said that while Robert Jenevein was wrong to hold a news conference in his robes and in his courtroom, the former judge couldn't be punished for defending his name and speaking out against a lawyer he thought was behaving unethically.
The appeals court's ruling provides strong support for the free speech of judges and could affect future cases by the State Commission on Judicial Conduct, which has the authority to discipline judges in Texas.
"To leave judges speechless, throttled for publically addressing abuse of the judicial process by practicing lawyers, ill serves the laudable goal of promoting judicial efficiency and impartiality," the opinion states. "Texas has persisted in electing its judges, a decision which, for good or ill, casts judges into the political arena."
The decision is similar to a ruling last fall by a state panel of judges that threw out the censure of Texas Supreme Court Justice Nathan Hecht. He had been accused by the commission of misusing his office to publicly support U.S. Supreme Court nominee Harriet Miers.
Seana Willing, executive director for the judicial conduct commission, was on vacation Monday and didn't return calls seeking comment. The attorney general's office, which represented the commission, said it hadn't decided whether to appeal.
Assistant Attorney General Rob Johnson noted that while the court said Mr. Jenevein couldn't be disciplined for what he said, he could be sanctioned for how he said it.
"The censure still stands; we just need to edit it a little bit," he said. The court did uphold how the commission handled "how the judge uses the trappings of his office to amplify his message."
Calls it a victory
Still, Mr. Jenevein, who presided over County Court at Law No. 3 from 1999 to 2002, said the ruling was a victory.
"It has taken an obscene amount of money and seven years to gain some vindication," he said. "I think that I was attacked as a judge and that it was appropriate to react as a judge."
The case against Mr. Jenevein grew out of accusations from a lawyer in July 2000 that another county court at law judge, David Gibson, had solicited bribes from Dallas Mavericks owner Mark Cuban and a lawyer for Yahoo, who both had a case in his court.
The plaintiff's lawyer in the Yahoo case also alleged in court records that Judge Gibson had in other cases exchanged rulings for sexual favors and frequently made attorney appointments ? called ad litem appointments ? to Mr. Jenevein's wife.
After hearing about the accusations, Mr. Jenevein held a news conference in his courtroom in which he appeared in his robes and read a statement after moving from behind the bench.
He told reporters that the allegations were merely an attempt to intimidate the judge, "a tactic we normally reserve for the mob."
"It is disturbing to imagine that a lawyer can remove a judge from a case--whenever he thinks another judge might be more favorable--simply by making baseless and vicious allegations against the judge," he said.
Mr. Gibson announced his resignation in 2001 after the commission informed him that it planned to pursue administrative charges against him ranging from bribery to refusing to accept a subpoena.
The case was made weirder because for a time Mr. Gibson's conversations were taped by a friend at the behest of the FBI. But no charges were ever filed.
Mr. Jenevein was publicly censured for the news conference in January 2003.
"All Jenevein was accused of from the start was defending the honor of his wife, and I'm delighted to see that Texas still lets you do that even if you're an elected official," said Randy Johnston, an attorney for Mr. Gibson in the case who specializes in legal malpractice cases.
"It was all a litigation ruse that got him out of the case," he said of Mr. Gibson. "They had absolutely nothing on him related to the accusations of bribery or the accusations of selling ad litem appointments for sex."
Mr. Johnston said that if courts continue to raise constitutional questions, the commission will probably have to revisit how they apply the judicial canon that says judges shouldn't lend the prestige of their office to advance private interests.
'Take it outside'
In Justice Hecht's case, the state appeals court justices said the canon was meant to prohibit extortion, retaliation and preferential treatment ? not political speech. But a commission lawyer said the canons, written by the Texas Supreme Court, were meant to protect judges from being pressured to endorse political candidates.
On Friday, the federal circuit court said the commission should accept that judges are political actors but insist that they "take it outside."
"If Judge Jenevein had held the press conference a block away at the Adolphus Hotel, without his robe, it would have withheld censure," the court said.
An official with Texans for Public Justice, which has criticized the state's judicial election system, said he sympathized with the judges and called the rulings "extremely extraterrestrial."
"If our judges routinely get elected by taking campaign money from people who have cases in their courts, who cares if Judge Jenevein wore his robes to a courtroom press conference?" research director Andrew Wheat asked in an e-mail.
"Even if Judge Jenevein disrobed before the cameras, I doubt it would be as obscene as what our state judges do every election season."