With the Republican dominance of the Dallas County courthouses being threatened by shifting demographics and 41 bench-hungry Democrats, I suppose I shouldn’t be so shocked. With local Republican judges hogtied to a national party that is neck-deep in scandal, economic uncertainty and bad war news, I suppose I shouldn’t be so naive. With judicial elections across the country losing their above-the-fray high-mindedness and sinking into a hellhole of partisanship, I suppose I should have seen it coming.

But in all my years as a voter, which are many, I can’t recall reading a direct mail piece that was so negative or left me feeling so dispirited about the future of judicial elections, as the one I read last week with less than two weeks left in this election cycle. This mailer happened to be a Republican attack piece, but there seems to be little preventing the Democrats from doing the same, if they should some day find themselves running scared and desperate to hold onto power. On its face, the ad says it was paid for by the Republican Party of Texas, but the two Republican judges with whom I spoke said the ad money sprang from the pockets of those GOP judges running for office.

In big bold letters, the top of the mailer frames the question: “What incriminating clues link these UNUSUAL SUSPECTS?” Then in a smaller font, the ad reads, “Local Democrats have lined up the worst group of judicial candidates in Texas history. They hope national politics will help them sweep our local courts.”

To me, this last line sounds a bit hypocritical, since in the 1980s many Republicans challenging the Democratic dominance in the Dallas County courthouses depended on the Reagan Revolution “to help them sweep our local courts.”

Below this line is a photo of what pretends to be a criminal line-up: five white guys in suits, four of whom carry briefcases, all of whom have a black bar covering their eyes, as if insisting upon disguising their identities so they don’t incriminate themselves. Their identities are further obfuscated by copy, which singles out unnamed “Democrat candidates” who have committed an assortment of alleged wrongs, qualification disqualifiers and bad career moves. “Several represent serial rapists and child molesters,” says the ad, as if being a criminal-defense attorney poses an absolute bar to judicial office.

“The Republicans have pretty much accused us of being criminals and thugs,” says Larry Mitchell, a Democrat running for a seat on the 292nd District Court.

Using the partisan jargon of Republican true-believers, the mailer touts the qualifications of Dallas County Republican judges, saying they have 550 years of combined bench experience “protecting our families and property.” Also they are tough on criminals, don’t legislate from the bench and stop frivolous suits.

“That depends on how you define a frivolous lawsuit,” says Darlene Ewing, a Dallas solo and chairwoman of the Dallas County Democratic Party. “The Dallas County Democratic Party was sued seven times by Republican judges trying to throw Democratic candidates off the ballot this election cycle. They lost each one. I call those frivolous lawsuits.”

Retired Texas Supreme Court Justice Craig Enoch, a Republican, says that if citizens persist in selecting judges by partisan election, they can expect negative attack ads in hotly contested judicial races. He vividly recalls being the target of one attack ad in 1992, when he ran against Democratic incumbent Oscar Mauzy for the high court. “Mauzy ran an ad that said to vote for him, because I was going to prison,” says Enoch, who’s now a shareholder in Winstead Sechrest & Minick in Austin.

As misdirected as the ad turned out to be � Enoch went to the Texas Supreme Court � it at least targeted one identifiable candidate rather than painting 41 unnamed candidates with a broad brush of criminality. The recent mailer lumps these unnamed Democrats into 10 categories of judicial unfitness, among them: “Defied Court Orders,” “Fired,” “Now on Trial for Malpractice,” “Represents Adult Book Store Owners” and “Suspended Law License.” These categories seem light on sourcing, using vague references to “Dallas County Court Records” as the basis for many of the claims.

The Dallas County Republican Party says it did most of the drafting and opposition research on the ad, and seems proud of its final product. “This was a thoughtful effort that we have undertaken to let the voters know that there is more at stake here than a race for governor,” says Mike Walz, executive director of the Dallas County Republican Party. “The Democrats have put up a large number of inexperienced and unqualified candidates.”

Then why aren’t they named?

“It is important to get across the message to voters that this is the worst team of judicial candidates in Texas history,” Walz says. “We are the Republican Party. Our effort is to support all Republican judges and to defeat all Democratic judges.”

Walz says the Republican judges did not approve the ad prior to mailing it: “We weren’t coordinating or exchanging PDFs back and forth with them.” The Republican judges did, however, pay for the mailer as part of the $3,000 each gave to the party’s judicial initiative fund, which jointly supports their re-election bids, says Judge Manny D. Alvarez, who is running to retain his Dallas Criminal District Court No. 5 bench.

Alvarez says he didn’t know the contents of the ad before it was mailed and declines to comment on its overall tone and accuracy. He does take issue with the part of the ad that condemns judicial candidates who have represented child molesters and serial rapists. “I did it when I was a defense attorney,” says Alvarez. “I can’t condone that judges need to be from the state side only.”

Truthiness?

Walz encouraged me to test the truthfulness of the mailer, disclosing the names of the Democratic candidates who had remained unidentified in the various categories. He listed 15 Democrats, but the four who were named as representing serial rapists and child molesters were experienced criminal-defense attorneys, and defending those accused of despicable crimes is just what they do. Among the remaining 11 Democratic candidates, three were listed twice. I attempted to contact or investigate the allegations regarding these 11.

Among these, the Republicans list Lori Chrisman Hockett in the category of Democratic candidates “who have filed few if any cases in their entire careers.”

“That is so bogus,” says Hockett who is running for the 255th District Court family court bench. She says that she is a five-year veteran of the Dallas County District Attorney’s Office, where she represented Child Protective Services and tried about 50 jury trials. And for the last 17 years she has been a family law attorney, filing hundreds of cases, she says. She certainly had enough experience to become board certified in family law, which occurred around 10 years ago, she says.

Democratic candidate for 282nd District Court Andy Chatham was listed in two categories: One time as the candidate who “earns his living representing owners of adult book stores,” and again as the “candidate who was suspended from practicing law this year.” Although the ad makes the suspension sound as though it resulted from a disciplinary proceeding, it was an administrative suspension due to Chatham failing to pay his Bar dues. A State Bar of Texas spokesman says Chatham handled the matter within 12 days of the Bar mailing him a notice of suspension.

Regarding his adult book store representation, Chatham offers no apologies � only a slight correction. “The ad says I represent owners of adult book stores. I represent the clerks and cashiers who have been charged with Class A misdemeanors for selling X-rated movies.” Of course, the store owners often pay the legal fees for their employees. “If they want to attack me for upholding the First Amendment, fine. I am proud of my record,” he says.

In the ad, Republicans list Dallas County Court-at-Law No. 3 Judge Sally Montgomery in the “Worst Judge in Texas” category, saying that she was “one of only two Democratic incumbents on the Dallas County ballot this year” who was “rated one of the 5 worst judges in Texas by the Texas Observer.” The Texas Observer article was just that � an article, not a rating or a poll by attorneys. True, Montgomery rates poorly in local bar polls, and she is not without her issues as a judge. But I bet this is one of the few times in the history of the Dallas County Republican Party when it quoted the left-leaning Texas Observer as an authoritative source.

Democratic candidate William A. “Bill” Mazur says that contrary to the mailer, he never “admitted that he had not practiced law in 8 years.”

“I never said that,” Mazur says. “I have constantly kept up my MCLE and continue to be active. What I did was slow down my practice about eight years ago and was fortunate enough to not have to make a living off it.” Mazur claims that during the eight-year slowdown, he still performed more than 2,000 hours of pro bono work while pursuing a career in real estate.

Still, some of the ad’s allegations questioning the qualifications of several Democratic judicial candidates ring true. And if the mailer had identified them, these candidates would be fair game. Instead, under the banner of partisanship, all the candidates were tainted by allegations that, if stripped of exaggeration and irrelevance, only apply to a handful.

The Views

So is there anything ethically wrong with judges who pool funds to mount, at the very least, a hyperbolic attack against other judges and judicial candidates? Or is it just politics as usual?

The mailer troubles Chuck Herring, a legal ethics expert who believes the ad may violate Canon 5(1) ii of the Texas Code of Judicial Conduct, which provides that “[a] . . . judicial candidate shall not . . . knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent.”

“In my opinion the ad is improper and intentionally misleading,” says Herring, a partner in Austin’s Herring & Irwin. “The ad typifies guilt-by-association smear tactics. Why use the criminal line-up photo? Why does the ad not specify which Democrat allegedly committed which acts? I can’t think of a good or legitimate reason. I think that any lawyer who participated in drafting the ad, and any Republican judicial candidate who funded the ad, would potentially be subject to a good-faith disciplinary complaint. . . .”

But others seem less certain. If the party rather than the judges made the actual representations, “I’m not sure how we would prove the judges engaged in the conduct,” says Seanna Willing, executive director of the State Commission on Judicial Conduct, which recently lost the appeal of its public admonition against Texas Supreme Justice Nathan Hecht. The commission had sanctioned Hecht, in part, for allegedly violating Canon 5(2), which prohibits judges from endorsing other candidates. Hecht had made public comments supporting White House Counsel Harriet Miers, during her failed confirmation process to the U.S. Supreme Court. Although In Re: Honorable Nathan Hecht, Justice, Supreme Court of Texas, Travis County, Texas was decided on narrower grounds, Hecht attacked the constitutionality Canon 5(2), claiming it violated the U.S. Supreme Court’s 2002 decision in Republican Party of Minnesota v. White by abridging his First Amendment right to engage in political speech.

“[Canon 5(1) ii] has yet to be challenged on First Amendment grounds,” says Willing, though she doesn’t rule out that it someday might. “I think we are going to see a lot more loosening of the rules. We are moving toward a system that has judges campaigning just like any other politician.”

Like it or not, White, which allows judicial candidates to announce their views on the disputed legal or political issues, has changed the way judicial races are run. Four years after White, the results are apparent � one of them likely being the proliferation of highly partisan judicial campaigns that employ scathing attack ads such as the mailer in this instance.

If we continue to put judges in the compromising position of running in partisan elections, these judicial candidates do have a First Amendment right and a need to reach voters to help inform their choices. But a judiciary, so enmeshed with one political party or the other, so willing to go negative for its own survival, seems destined to lose public confidence in its independence and impartiality. Only after that happens, or worse, after some judicial scandal breaks, will the public insist that we scrap the old selection system and come up with a new one.

In the meantime, those running for judge had damn well better pay their Bar dues.

Senior reporter Mark Donald’s column, “Sidebar,” appears bi-monthly in Texas Lawyer.