Lawyers are putting their money on challenger Woodie Jones in his bid to unseat 3rd Court of Appeals Chief Justice Ken Law, making their race one to watch among all those playing out at Texas’ 14 intermediate appellate courts.
Of the $70,281 that Jones, the Democratic candidate, raised between July 1 and Sept. 25, more than $58,000 came from lawyers, firms, law professors and judges, according to Jones’ Oct. 6 campaign finance report to the Texas Ethics Commission.
In comparison, only about $3,700 of the $23,752 in contributions that Law received during the same period came from lawyers or firms, according to his Oct. 6 report to the ethics commission.
The district for the six-justice 3rd Court covers 24 counties, extending from Central Texas west to Tom Green and Irion counties.
Law, 60, a former clerk of the 3rd Court, won election as the court’s chief justice in 2002 by defeating then-3rd Court Justice Lee Yeakel, now a judge on the U.S. District Court for the Western District of Texas in Austin, in the Republican primary. No Democrat ran for the position that year.
Jones, 59, a partner in Alexander Dubose Jones & Townsend in Austin, is trying to return to the 3rd Court, where he served 12 years before losing to Justice David Puryear, a Republican, in 2000. He says Law’s name was a key factor in the 2002 race.
“For a judicial candidate, you don’t get a much better name than Law,” Jones says.
Charles “Chuck” Herring, who is active in Democratic politics and supports Jones, says a major factor in the Nov. 4 race for the 3rd Court’s chief justice seat is the expected surge in voter turnout in Travis County to support Democratic presidential candidate Barack Obama.
“There should be a very, very heavy Democratic vote,” says Herring, a partner in Austin’s Herring & Irwin.
In the 2004 presidential election year, when Democratic 3rd Court Justice Jan Patterson defeated Republican challenger Bill Green, Travis County voters cast 333,810 of the 750,968 ballots in that race, according to election results that the Texas Secretary of State’s Office posts online.
Hans Klingler, communications and political director for the Republican Party of Texas, says Law knows that the Democrats are “fired up” this year and is working to make sure voters know who he is.
“Incumbency can play an important role,” Klingler says. Klingler predicts voters will reward Law when he lays out his record.
But Austin solo D. Todd Smith, a contributor to Jones’ campaign, says lawyers who practice in the 3rd Court are concerned about the court’s slow-moving docket. [See "Budget Cuts, Turnover and Campaigning Blamed for 3rd Court of Appeals Backlog," Texas Lawyer, Feb. 18, 2008, page 1.]
Smith, author of the Texas Appellate Law Blog, says that when clients ask how long it will take to get a decision from the 3rd Court, he does not know what to tell them.
“The people who practice in that court want to be able to tell their clients here’s what they can expect,” he says.
Jones says the 3rd Court has the biggest backlog of any court of appeals in the state. “The chief justice has some responsibility to encourage the other justices to keep their dockets current,” he says.
According to statistics compiled by the State Office of Court Administration, 12.8 percent of the 3rd Court’s cases pending as of Aug. 31 had been at the court for more than two years. The intermediate appellate court with the second highest percentage of cases pending that long is the 13th Court of Appeals, which sits in Corpus Christi and Edinburg. The OCA statistics show that 2.9 percent of cases pending at the 13th Court at the end of August had been pending for more than two years.
Law did not return three telephone calls seeking comment before presstime Oct. 23. But Austin solo J. Scott Morris, a Law supporter and tax attorney who monitors the 3rd Court’s opinions, says the appeals in cases against the state contribute to the 3rd Court’s backlog problem. Every case filed against the state or its agencies is filed in Travis County, and the appeals go to the 3rd Court, Morris says. Because the cases often involve governmental immunity, they can take time to decide, he says.
“Ken’s a strict constructionist and he’s a very fair-minded man,” says Morris, who contributed to Law’s campaign.
However, adverse publicity also has plagued Law in his bid for re-election to the 3rd Court.
In September, watchdog organization Texans for Public Justice filed complaints with Travis County Attorney David Escamilla, alleging that Law violated Texas Election Code §253.031(a) by accepting approximately $66,850 in campaign contributions prior to designating a campaign treasurer. The TPJ also alleges in the same complaint that Law violated Election Code §253.032(c) by accepting a $1,000 contribution from an out-of-state political action committee without providing the required information on that PAC. The watchdog group filed a similar complaint with the Texas Ethics Commission.
Michael S. Hull, a partner in Austin’s Hull Henricks & MacRae who represents Law in the matter, says the justice intends to comply with the law.
“He has filed clarifying paperwork with the Ethics Commission and has retained people to help him with his future filings,” Hull says.
Law and Patterson, one of two Democrats on the 3rd Court, also have been at odds recently, prompting Patterson to file a petition for a writ of mandamus at the Texas Supreme Court.
In her petition, filed Oct. 10, Patterson alleges that Law instructed the 3rd Court’s clerk not to file her dissenting opinion to the 3rd Court’s refusal to recuse Justice Alan Waldrop, a Republican, from cases involving two political associates of former U.S. Rep. Tom DeLay. [See "3rd Court Dispute Over Dissent Now at Texas Supreme Court," Texas Lawyer, Oct. 20, 2008, page 4.]
In his Oct. 13 reply to Patterson’s petition, Law alleges that he enforced the 3rd Court’s standard policy requiring all justices to circulate draft opinions to other members of the court before the court releases the opinions.
The Supreme Court had not made a decision on Patterson’s petition before presstime.