X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
NO. 03-0497 IN THE SUPREME COURT OF TEXAS DOLORES ROMERO, ET AL., Petitioners, v. KPH CONSOLIDATED, INC. d/b/a COLUMBIA KINGWOOD MEDICAL CENTER, Respondent On Petition for Review from the Fourteenth Court of Appeals at Houston, Texas MOTION TO RECUSE JUSTICE STEVEN WAYNE SMITH MITHOFF & JACKS, L.L.P. Richard Mithoff State Bar No. 14228500 Penthouse, One Allen Center 500 Dallas, Suite 3450 Houston, Texas 77002 Tommy Jacks State Bar No. 1045200 111 Congress Ave., Suite 1010 Austin, Texas 78701 HOGAN & HOGAN, L.L.P Richard P. Hogan, Jr. State Bar No. 09802010 Jennifer Bruch Hogan State Bar No. 03239100 4200 Bank of America Center 700 Louisiana Street Houston, Texas 77002 William Powers, Jr. Steven Goode 727 East Dean Keeton Street Austin, Texas 78705 ATTORNEYS FOR PETITIONERS TO THE HONORABLE SUPREME COURT OF TEXAS: In accordance with rule 16 of the Texas Rules of Appellate Procedure, the petitioners, Dolores Romero, Individually, Dolores Romero on behalf of Incapacitated Plaintiff, Ricardo Romero, Dolores Romero as next friend of Ricardo Romero, Jr., a minor, Jennifer Romero, and Joanna Romero, file this motion to recuse Justice Steven Wayne Smith in cause number 03-0497, Dolores Romero, et al. v. KPH Consolidation, Inc. d/b/a Columbia Kingwood Medical Center, presently pending in the supreme court. I. Facts Supporting Recusal The Romero petitioners are represented in this Court-as they were represented in the trial and lower appellate courts-by Richard Mithoff. The Romeros filed their petition for review on July 11, 2003. This Court ordered the parties to file briefs on the merits on October 29,2003. The petitioners filed their opening merits brief on January 2,2004; the respondent filed its response brief on the merits on February 6, 2004; and the petitioners filed their reply brief on the merits on March 9, 2004. The case is presently pending before the Court and is ripe for a vote on whether to grant the petition for review. On March 8, 2004, as a part of Justice Smith’s campaign for re-election to this Court-and while this case was pending-Justice Smith sent a “final message” by email to potential supporters in his race against Justice Paul Green. In this email, Justice Smith castigated his opponent for holding” a fundraiser at the mansion of a liberal plaintiffs’ lawyer who pocketed $10 million in legal fees in the Dan Morales Texas tobacco litigation, gave money to Hillary Clinton, and lists the Democratic Party as one of his clients.” See Exhibit A, Justice Smith made certain to specifically identify this “liberal plaintiffs’ lawyer” as Richard Mithoff, the Romeros’ attorney in this case. Id. Further, Justice Smith electronically linked his email letter to a web page that continued the attack on Richard Mithoff as having � � taken “in $10 Million in Legal Fees in the Infamous Dan Morales Texas Tobacco Litigation,” and � given “Thousands to Hillary Clinton’s PAC, Planned Parenthood PAC, Emily’s List PAC (Pro-Abortion Democrats), Sheila Jackson Lee, Ron Kirk, and Other Liberal Democrats.” See Exhibit B. Readers were additionally told to “click here for a full list of Richard and Ginni Mithoff’s donations to liberal Democrats.” Id. The following web pages selectively identified certain of Richard Mithoff s and his wife Ginni Mithoff s political contributions, See Exhibit B. II. Argument Supporting Recusal “A judge shall recuse himself in any proceeding in which his impartiality might reasonably be questioned.” TEX. R. CIV. P. 18b(2)(a); see TEX. R. App. P. 16.2 (“The grounds for recusal of an appellate court justice or judge are the same as those provided in the Rules of Civil Procedure. “) As Justice Enoch has noted, this “provision erects an objective standard of conduct and was enacted to help promote public confidence in the integrity of the judicial process. ” Rogers v. Bradley, 909 S.W.2d 872, 880 (Tex 1995) (responding to declaration of recusal). In determining whether recusal is required, the inquiry should be “ whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge’s conduct, would have a reasonable doubt that the judge is actually impartial.” Id. at 881; Sears v. Olivarez, 28 S.W.3d 611, 615 (Tex. App.-Corpus Christi 2000, no pet.). The courts of this State have recognized the “facts of life” that surround an elected judiciary and “the rough and tumble of the democratic process” in “a ‘no holds barred’ partisan election.” See Rogers v. Bradley, 909 S.W.2d at 882; Williams v. Viswanathan, 65 S.W.3d 685, 687-88 (Tex. App.-Amarillo 2001, no pet.); Aguilar v. Anderson, 855 S.W.2d 799, 805 (Tex. App.-EI Paso 1993, writ denied) (Osborn, C.J., concurring). Consequently, the courts have found no basis for recusal “merely because others ha[ve] engaged in normal, even vigorous, campaign activities,” Rogers v. Bradley, 909 S.W.2d at 882, nor based on the “mere fact” that a lawyer opposed the sitting judge in a contested election Williams v. Viswanathan, 65 S.W.3d at 688-89. This case, however, is far different. Here, the campaign conduct at issue is that of the judge himself, not of some third party. Justice Smith singled out Mr. Mithoff, by name, in his campaign materials, and he labeled him in pejorative terms as “a liberal plaintiffs’ lawyer who pocketed $10 million in legal fees in the Dan Morales Texas tobacco litigation, gave money to Hillary Clinton, and lists the Democratic party as one of his clients.” See Exhibit A. Justice Smith’s words were intended to convey-and they do convey-his personal animosity towards Mr. Mithoff and his clients. Justice Smith sought to disparage his opponent and distinguish himself by casting Mr. Mithoff and his clients in a bad light before the voting public. The accusations, even if entirely true, would cause a reasonable person to question Justice Smith’s ability to be impartial in deciding a plaintiffs’ case brought by Mr. Mithoff. But these accusations, including those attempting to link Mr. Mithoff with Dan Morales, the former attorney general and a convicted felon, were deliberately misleading. First, as the Quorum correctly observed in reporting on the website and email messages, Mr. Mithoff was not retained by Mr. Morales in the tobacco litigation. See Exhibit C. Mr. Mithoff was retained by Harris County to recover a fair apportionment of the settlement in behalf of Harris County, along with all the other counties is the state, a claim by way of intervention in the tobacco litigation which was opposed by Mr. Morales. Second, the attorneys’ fees described by Justice Smith as “pocketed” by Mr. Mithoff were, in fact, awarded by Harris County, in the sole discretion of the Harris County Commissioner’s Court, after Mr. Mithoff had declined a $20,000,000.00 fee-requesting instead that $10,000,000.00 of such a fee be retained by Harris County to create a fund for health-related issues for children in Harris County. See Exhibit D. The $10,000,000.00 retained by Harris County was then transferred to the Harris County Hospital District Foundation, creating the Children’s Health Fund, the single largest contribution ever made to the Hospital Foundation. Id. Finally, contrary to the misleading email and website messages, campaign records will reflect that the fundraiser was attended by prominent lawyers representing both plaintiffs and defendants in all areas of civil litigation and included both Democrats and Republicans supporting Justice Green. The attorneys fees awarded for representing Harris County were determined by the Republican-dominated Commissioner’s Court. These statements by Justice Smith, directed specifically at Mr. Mithoff at a time when the high profile Romero case is presently pending before the Court, constitute conduct requiring recusal. Such statements cause a reasonable person to question the impartiality of Justice Smith in considering a plaintiffs’ case brought by Mr. Mithoff. The petitioners do not dispute Justice Smith’s right to engage in a vigorous partisan political campaign. That right, however, does not trump or supersede the rules of recusal. Justice Smith has initiated a personal attack against Mr. Mithoff and has publicly announced his view of Mr. Mithoff and Mr. Mithoff’s clients in his campaign advertising. Justice Smith has directly made the case for his recusal. A reasonable person might reasonably question Justice Smith’s impartiality in this case based upon his words and conduct in attacking Mr. Mithoff. III. Conclusion and Requested Relief The Romeros ask that Justice Smith recuse himself from participating in this case. Should Justice Smith decline to recuse himself, the Romeros ask that the remainder of the Court consider and grant this motion. Respectfully submitted, Richard Warren Mithoff State Bar No. 14228500 Penthouse, One Allen Center, 500 Dallas, Suite 3450 Houston, Texas 77002 Telephone: 713.654.1122 Facsimile: 713.739.8085 Tommy Jacks State Bar No. 10452000 111 Congress Ave., Suite 1010 Austin, Texas 78701 Telephone: 512.478.4422 Facsimile: 512.478.5015 HOGAN& HOGAN, L.L.P. Jennifer Bruch Hogan State Bar No. 03239100 Richard P. Hogan, Jr. State Bar No. 09802010 4200 Bank of America Center 700 Louisiana Street Houston, Texas 77002-2793 Telephone: 713.222.8800 Facsimile: 713.222.8810 William Powers State Bar No. 16218850 727 East Dean Keeton Street Austin, Texas 78705 Telephone: 512.232.1120 Facsimile: 512.471.6987 Steven Goode State Bar No. 081443000 727 East Dean Keeton Street Austin, Texas 78705 Telephone: 512.232.1331 Facsimile: 512.471.6988 ATTORNEYS FOR PETITIONERS CERTIFICATE OF CONFERENCE Counsel for the Romeros has conferred with counsel for the Respondent, Mr. Mike Hatchell, who stated that he is not in a position to join or oppose this motion because he will need to consult with his clients to establish their position, if any, on this motion. [SIGNED] Richard P. Hogan DATE: March 12, 2004 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing instrument was served in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure. Richard A. Sheehy SHEEHY, SERPE & WARE, P.C. 2500 Two Houston Center 909 Fannin Houston, Texas 77010-1003 Telephone: 713.951.1111 Facsimile: 713.951.1199 Via Certified Mail Return Receipt Russell H. McMains LAW OFFICES OF RUSSELL H. McMAINS P.O. Box 2846 Corpus Christi, Texas 78403 Telephone: 361.887.4455 Facsimile: 361.887.9521 Via Certified Mail Return Receipt Mike Hatchell HATCHELL P.C. 112 East Line Street, Suite 304 Tyler, Texas 75702 Telephone: 903.526.6500 Facsimile: 903.526.6600 Via Certified Mail Return Receipt ATTORNEYS FOR APPELLANTS KPH CONSOLIDATED, INC., D/B/A COLUMBIA KINGWOOD MEDICAL CENTER AND COLUMBIA KINGWOOD MEDICAL CENTER Joel Salazar ATTORNEY AT LAW 1314 Texas Avenue, Suite 608 Houston, Texas 77002 Telephone: 713.652.5800 Facsimile: 713.933.1092 AD LITEM FOR RICARDO ROMERO Via Certified Mail Return Receipt Terri Green ATTORNEY AT LAW 11330 Huffmeister No. 538 Houston, Texas 77065 Telephone: 281.807.7424 Facsimile: 281.807.7425 AD LITEM FOR RICARDO ROMERO, Jr. Via Certified Mail Return Receipt [SIGNED] Richard P. Hogan, Jr. DATE: March 12, 2004

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.