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A woman challenging the constitutionality of a state statute in a case pending before Austin’s 3rd Court of Appeals is seeking the recusal of a justice on that court because of statements he made in a campaign fund-raising letter. On Nov. 3, Rosemarie Satterfield filed a motion to recuse Justice David Puryear from Satterfield v. Crown Cork & Seal Co. Inc., an asbestos-related personal-injury case. Satterfield alleges in the motion that, in an Oct. 17 fund-raising letter, Puryear expressed “personal disapproval and opposition” to personal-injury trial lawyers and made statements that might reasonably call into question Puryear’s impartiality in Satterfield’s appeal. One of the people who received Puryear’s letter was Jeffery Mundy, a partner in Mundy & Singley in Austin and one of Satterfield’s attorneys on the appeal. In the letter — paid political advertising by the Friends of David Puryear — the justice wrote: Do you want liberal Austin Democrats and personal injury trial lawyers controlling the Texas Legislature? If not, I need your immediate help to keep this from happening. Liberal Austin special interest groups, with the full support of the Texas Democratic Party, have targeted the Texas Third Court of Appeals for a Democrat take-over. I am the only justice on the Third Court to have gained my seat by defeating an incumbent Democrat in a contested election, and liberal Austin wants me gone. Tort reforms accomplished by groups such as Texans for Lawsuit Reform are at risk if we lose this court. We must not let it happen. Control of the Third Court means control of state government . . . which is why we’ve been targeted. We consider all appeals involving state government, including legislative, regulatory and administrative matters. We review all appeals involving challenges to state law. The legislative process, therefore, cannot be considered complete until this court has acted. Since the Texas Supreme Court hears only about 5 percent of the cases that come through our Court, we are effectively the last word in virtually all appeals involving state government.The letter contains Puryear’s signature. Puryear, a Republican who defeated Democrat Mina Brees on Nov. 7 to win re-election for a second term, declines comment. Mundy, who is board certified in personal-injury trial law by the Texas Board of Legal Specialization, says he was “aghast” at Puryear’s letter. “I was just stunned,” he says. Part of the tort reforms to which Puryear referred in the letter are at issue in Satterfield’s appeal, Mundy says. Satterfield is challenging the constitutionality of Chapter 149 of the Texas Civil Practice & Remedies Code, which limits the liability of a successor corporation for the asbestos-related liability of a corporation with which it has merged. The Legislature enacted the statute as part of the H.B. 4 civil justice reforms of 2003. “We felt it was incumbent on us to ask [Puryear] to take a look at this and recuse himself,” says Elana Einhorn, another of Satterfield’s attorneys and an associate with the Law Offices of Deborah Hankinson in Austin. Satterfield, representative of the estate of Jerrold Braley, succeeded Braley in the suit. Braley, who died of mesothelioma in July 2003, had sued Crown Cork, one of approximately 20 defendants, for personal injuries that he alleged stemmed from his occupational exposure to asbestos-containing products. Mundy says Braley was a laborer and welder’s helper who had been involved in the construction of chemical plants. Mundy says the suit originally was scheduled for trial on June 16, 2003 — five days after Chapter 149 took effect. However, Crown Cork filed a motion for summary judgment. Senior Judge C.W. Duncan of Harker Heights, sitting by assignment, considered Crown Cork’s motion in a hearing and granted the motion, but did not sign an order, Mundy says. In 2004, Senior Judge Pete Lowry of Austin signed the order granting Crown Cork summary judgment in Satterfield, based on the limited-liability provision in Chapter 149. Satterfield appealed to the 3rd Court in August 2004, alleging in her brief that, if Crown Cork met its burden to establish all the elements of its affirmative defense, as provided by the statute, Braley’s claims are completely eliminated and Chapter 149 is an unconstitutional retroactive law. Satterfield further alleges in the brief that Chapter 149 is an unconstitutional special law that is prohibited by Article 3, �56 of the Texas Constitution. Crown Cork argues in its response brief to the 3rd Court that Satterfield has not shown that Chapter 149 impairs a vested right. Crown Cork also argues that the statute passes constitutional muster, even if it deprives Satterfield of a remedy, because there are other defendants named in the suit. Satterfield alleges in the recusal motion that statements in Puryear’s letter to Mundy might reasonably call into question Puryear’s impartiality in her appeal. As noted in the motion, Texans for Lawsuit Reform participated in obtaining passage of H.B. 4. Satterfield alleges that Puryear lists TLR as one of his campaign supporters on his campaign Web site and “states an agenda of attempting to uphold TLR’s �tort reforms’ “ In the motion, Satterfield cites Texas Rule of Civil Procedure 18b(2)(a), which requires judges to recuse themselves if they have “a personal bias or prejudice concerning the subject matter or a party” in a case. The grounds of recusal of appellate court justices are the same as the civil procedure rules, according to the motion. If Puryear does not recuse himself, Satterfield requests in the motion that the full 3rd Court consider the motion. Mundy says Satterfield is not challenging Puryear’s right to make the statements he did in the letter. In a 5-4 decision in 2002′s Republican Party of Minnesota v. White, the U.S. Supreme Court struck Minnesota’s judicial canon that prohibited judicial candidates from announcing their views on disputed legal or political issues. But Mundy says that given that Puryear has stated his view, the issue now is whether a reasonable person can call into question the justice’s impartiality about the issues in Satterfield. Former Texas Supreme Court Chief Justice Tom Phillips, lead attorney for Crown Cork and a partner in Baker Botts in Austin, declines comment about the recusal motion. But in a Nov. 9 letter to the 3rd Court, Crown Cork indicated that it opposes the motion and will file a response stating that there are no legal grounds mandating Puryear’s recusal. “We are in uncharted waters here,” says Craig Enoch, another former justice on the state Supreme Court who now is a shareholder in Winstead Sechrest & Minick in Austin. Enoch says White gives a judge permission to speak out on issues of the day during a campaign. He questions whether a court can recuse a judge, who doesn’t voluntarily step down, for speaking out. “In considering the motion, the [3rd] Court is on the horns of a dilemma,” Enoch says.

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