Dallas’ Fifth Court of Appeals has referred a McKinney attorney to the State Bar of Texas for possible disciplinary action after he filed a recusal motion against two justices questioning the timing of campaign contributions they received from two political action committees.
The lawyer, Lin McCraw, represents two sexual assault victims who had their $1 million jury award against an apartment complex reversed by the Fifth Court earlier this year. The appellate court ruled in July’s AVPM Corp. v. Childers that the rapist’s entry into his clients’ apartment, via a faulty window latch, was not foreseeable criminal conduct.
Last month, McCraw filed a motion to recuse Justices Molly Francis and Craig Stoddart, noting they each received a $2,000 donation from the tort reform group Texans for Lawsuit Reform PAC, and a $1,000 donation from the Apartment Association of Greater Dallas PAC, less than a month before they were assigned to hear his clients’ appellate case.
“The evidence further shows that these two justices were the only two that received these coordinated gifts out of the 13 justices,” McCraw wrote in his motion seeking en banc review of the case. “Case assignment within the court of appeals occurs behind a veil of secrecy. While the case assignment process is supposed to be random, the odds of coordinated political donations being given to only two justices and those same justices both being assigned to this case randomly are simply too astronomical to be chance alone.”
In their recent decision, the Fifth Court rejected McCraw’s recusal motion as “substantively frivolous” and denied his request for en banc review.
“Stripped to essentials, McCraw seeks to exploit the very existence of an elected judiciary as a basis for recusal. Whether favored by judges or not, Texas selects its judges by popular election and requires that they finance this process,” wrote Chief Justice Carolyn Wright.
“It has done so for more than a century. Recognizing this reality, Texas courts have spoken definitively and clearly with respect to the effect of campaign contributions on recusal. The mere receipt of campaign funds, in and of itself, without an indication of communication of coordination of the handling of a case, is not a basis for recusal,” Wright wrote.
Wright notes in her decision that the contributions made to Francis and Stoddart were “well in line with amounts received from all other contributors, and constituted only a small percentage of the total amounts received.”
Wright also took issue with McCraw’s supposition that the assignment of his clients’ case to Francis and Stoddart was purposefully not a random event.
“Zealous representation does not, should not, and cannot include degrading the court in the hopes of attaining a perceived advantage,” Wright wrote.
“Because McCraw’s assertions in his motion to recuse Justices Francis and Stoddart are direct attacks on the integrity of the justices of this court and on this court as a whole, we are referring this matter to the Office of General Counsel of the State Bar of Texas,” Wright concluded.
McCraw said he was taken aback by Wright’s order and maintains there was nothing unethical about his motion to recuse.
“This is factually supported stuff and I’m not drawing conclusions. I’m just saying this has the appearance of impropriety,” McCraw said. “This is not sanctionable. Obviously if the disciplinary counsel thinks that this is some type of violation, I will defend it.”
McCraw also denied that his motion attacked the court’s integrity.
“I have a duty to be a zealous advocate and when I develop evidence that my clients been done wrong, I have to bring it to the court’s attention,” McCraw said. “The fact that this has drawn a referral—it hit a nerve.”