Questions are being raised about the State Commission on Judicial Conduct’s July 16 public warning of Court of Criminal Appeals Presiding Judge Sharon Keller. The order concerned her conduct on the day the state executed Michael Richard.

Seana Willing, the commission’s examiner, contends in an e-mail that the order is based on a rule that does not comport with the Texas Constitution. As examiner in judicial misconduct cases, Willing acts as a prosecutor does in a criminal case, gathering and presenting evidence, often assisted by a private attorney.

Willing says, “I’m not criticizing the commission for what they did, but I don’t understand why they did what they did.” But Willing is concerned that the commission’s public warning in Keller could result in “bad law” and cost taxpayers more money.

She argues the commission should have based its order on the constitution, which allows the commission only three options after it begins formal proceedings against a judge and after a special master issues a report: issue a censure, recommend removal or retirement, or dismiss the charges.

But John J. “Mike” McKetta, the special counsel who prosecuted Keller, thinks the constitution allows the commission to take the action it did.

Bob Warneke, the commission’s counsel in Keller , says the commission’s position is that the order “speaks for itself.” He declines further comment.

In its Order of Public Warning in Inquiry Concerning Honorable Sharon Keller, the commission found that Keller’s conduct on Sept. 25, 2007, failed to accord Richard “access to open courts or the right to be heard according to law.”

The commission made the following findings of fact in its order: Keller twice said “no” when asked whether the CCA clerk’s office would remain open past 5 p.m. that day. Keller knew at the time she was asked about keeping the clerk’s office open that representatives of the person scheduled for execution that evening were not ready to file by 5 p.m. Texas Defender Service attorneys representing Richard were trying to file a stay of execution and writ of prohibition with the CCA in connection with the U.S. Supreme Court’s decision earlier that day to consider a lethal injection case from Kentucky. Richard’s attorneys did not get the documents filed at the CCA, a prerequisite to seeking a stay from the nation’s high court, and the state executed Richard later that day.

The judicial conduct commission initiated formal proceedings against Keller in February 2009 and brought five charges against her, alleging, among other things, that Keller committed misconduct when she failed to follow the CCA’s execution-day protocol and that her conduct casts discredit on the judiciary. Judge David Berchelmann Jr. of the 37th District Court, the special master in Keller , presided over the August 2009 hearing in the case.

In his Januaryreport to the commission,Berchelmann foundthat Keller did not break any law, rule or canon of judicial conduct. Berchelmann also found that Keller’s conduct “does not warrant removal from office, or even further reprimand beyond the public humiliation she has surely suffered.”

But the commission did not follow Berchelmann’s recommendation, instead issuing Keller a public warning.

Willing, who also is the commission’s executive director, argues the commission based its order on a rule that provides a larger range of possible sanctions than the constitution does. As proof that the rule does not comport with constitutional requirements, she points to a disparity between it and a constitutional provision regarding the number of commission votes needed to form a majority. She also notes that the rule is inconsistent with the Texas Government Code.

Understanding the controversy requires reading the language of the rule on which the commission based its order and of the constitutional provision.

In the Relevant Standards section of its July 16 order, the commission cited Texas Constitution Article 5, §1-a(6), which provides, in part, that any justice or judge of the courts established by the Constitution or created by the Legislature “may be disciplined or censured, in lieu of removal from office, as provided by this section. . . .”

The order cited Article 5, §1-a(8) for the commission’s authority “to take appropriate action upon a finding of judicial misconduct.”

Not quoted in the order is the language in Article 5, §1-a(8), which provides that after the commission institutes formal proceedings against a judge and after a special master hears evidence and issues a report, the commission, if it finds good cause, “shall issue an order of public censure or it shall recommend to a review panel the removal or retirement” of the judge.

The order also cited Rule 10(m) of the Procedural Rules for the Removal or Retirement of Judges, which governs the commission’s vote in formal proceedings. That rule reads in part:

“If, after hearing, upon considering the record and report of the special master, the Commission finds good cause therefore, by affirmative vote of six of its members, it shall recommend to the Review Tribunal the removal, or retirement, as the case may be; or in the alternative, the commission may dismiss the case or publicly order a censure, reprimand, warning, or admonition.”

The rule, which was promulgated by the Texas Supreme Court, gives the commission more options for sanctions than Willing believes the constitution allows.

The rule allows removal, retirement, censure and dismissal but also reprimand, warning or admonition. A censure is the highest sanction that the commission can issue, short of recommending a judge’s removal or retirement; a public reprimand is a higher sanction than a public warning; a public warning is a midlevel sanction; and an admonition is the lowest public sanction.

According to Willing’s e-mail, Rule 10(m) is inconsistent with Texas Constitution Article 5, §1-a(8). In Willing’s view, the constitution controls.

McKetta, the special counsel in Keller , believes the constitution’s language permits the sanction the commission issued. He says Article 5, §1-a(8) also includes language authorizing the commission to issue a public admonition, warning, reprimand or requirement that the judge obtain additional training or education after it investigates a judge.

But the commission’s issuance of the public warning in Keller occurred after it opened formal proceedings, not after the investigation.

McKetta, a shareholder in Austin’s Graves Dougherty Hearon & Moody, says it doesn’t make sense that the commission would have fewer potential options after formal proceedings than it does otherwise.

“It would be unfortunate if they had only the options of removal or censure after formal proceedings,” McKetta says.

But the question remains whether the initiation of formal proceedings is a key distinction in determining what options the commission has.

Willing contends in her e-mail that the fact that the commission has never issued a sanction other than a censure following a formal proceeding, even by agreement, “indicates that Rule 10(m) is not good authority for anything.”

Fair Notice

Another issue is fair notice to a judge of what sanctions he or she could face. Houston solo Lillian Hardwick, a judicial conduct expert, says the commission’s annual reports before and after the adoption of Rule 10(m) — including the 2009 report posted on the commission’s website — feature charts showing that the options after the commission opens formal proceedings are to dismiss the charges, issue an order of public censure, or recommend the removal or retirement of the judge.

“I don’t see how it’s giving notice to judges of anything other than that, including a public warning,” Hardwick says.

As further proof that the commission should not have based its order on the rule, Willing argues the rule is not up to date with the constitution’s requirements.

State Supreme Court Justice Nathan Hecht says the court adopted Rule 10(m) in 1992. Hecht is the only current member of the Supreme Court who also was on the court when the rule was adopted.

The rule was not updated to reflect changes after a 2005 constitutional amendment increased the number of commission members from 11 to 13.

Twice in its July 16 order of public warning, the commission quotes the Rule 10(m) requirement that there be six affirmative votes for a sanction or recommendation to remove a judge. The 2005 amendment increased the number of votes from six to seven for such action.

However, the commission did not disclose the vote split in Keller’s case.

In addition to being out of sync with the constitution, Willing argues the rule is inconsistent withTexas Government Code Chapter 33, the statute that governs the judicial conduct commission. Government Code §33.001 defines “formal proceedings” to mean “the proceedings ordered by the commission concerning the public censure, removal, or retirement of a judge.”

Willing believes the commission’s public warning in Keller could result in bad law. She says judges have resigned in lieu of discipline after the commission began formal proceedings against them. But now, judges might not agree to accept resignation if they are facing a lesser sanction.

What’s Next?

Charles “Chip” Babcock, Keller’s attorney and a Jackson Walker partner in Dallas and Houston, isn’t weighing in on Willing’s critiques, but he says, “We are definitely going to challenge the order of the commission.”

Babcock says, “This has never happened where the commission has initiated a formal proceeding, the trial judge has recommended no sanction and the commission has issued a public warning.”

While Babcock is discussing an appeal, how such an appeal would proceed is unclear. That’s because there are different procedures for appeals after formal and informal proceedings. A public warning typically follows informal proceedings, but in Keller’s case, the commission issued a public warning after formal proceedings.

When the commission issues a public warning to a judge in informal proceedings, that judge has the right to ask the state Supreme Court to appoint three appellate justices to a special court of review to hear the appeal. Willing says in an interview that in such appeals, the three-justice panel reviews the evidence de novo, amounting to a new trial.

But because the commission initiated formal proceedings against Keller, Keller already has had a trial — before the special master. Willing says a new trial would be a waste of resources. She is concerned about Keller getting what amounts to a second trial on the taxpayer’s dime.

“This is taxpayers’ resources being expended for a second trial,” Willing says. “I have a problem with that.”

Willing says that even though the commission does not pay Graves Dougherty legal fees for McKetta’s work as special counsel, it had to pay for the firm’s expenses in Keller ,which totaled about $20,000 so far. “Are we going to have to do that again?” Willing asks.

Regardless of what happens in the courts, one member of the Texas House of Representatives is considering seeking Keller’s impeachment. State Rep. Lon Burnam, D-Fort Worth, says, “If she’s still on the bench in January, it’s likely an impeachment resolution will be filed again.”