That's the title of Chuck Lindell's article in the Sunday edition of the Austin American-Statesman. It's subtitled, "Lawyer says commission's public warning may be in violation of state constitution." Here are two extended excerpts:
Given three options for dealing with charges against Judge Sharon Keller exoneration, censure or removal from office the State Commission on Judicial Conduct threw proceedings into disarray July 16 by choosing a fourth path.
For the first time in its 45-year history, commissioners with the investigative agency voted to issue a "public warning," which might sound like a censure but is not.
Censures are meant to denounce a judge's "offending conduct." Warnings, a lighter punishment, are considered to be a remedial step to deter similar misconduct from judges, according to Supreme Court rules.
The difference goes far beyond definitions, however, raising questions about how Keller's expected appeal will be conducted and prompting her lawyer to explore other legal avenues, including challenges alleging that the agency exceeded its authority or violated the Texas Constitution.
So despite the long-awaited decision from the 13-member commission, Keller's legal saga appears far from over — 17 months after she was charged with improperly closing the Court of Criminal Appeals to an after-hours execution-day appeal and 34 months after that inmate, Michael Richard, was put to death for rape and murder without his final appeal being heard in court.
"I don't think (public warning) is an option they have under the Texas Constitution," said Keller's lawyer, Chip Babcock. "The question is: How do you raise that (challenge), and who do you raise that with? It has got us scratching our heads."
Even the commission's director, Seana Willing, was caught off guard.
"In my opinion, the constitution requires that they do either a censure or a recommendation for removal, and they didn't do that," said Willing, who did not advise commissioners or sit in on their deliberations because she was, by law, a co-prosecutor in the Keller case.
And:
Public rebukes — known as admonitions, warnings or reprimands, in order of rising severity — are published on the agency's website with the judge's name and details of the offense.
But the commission can take a third route, as it did with Keller, by initiating "formal proceedings" with very specific rules that call for charges to be filed, a trial and oral arguments before commissioners.
Keller is the 96th Texas judge to undergo formal proceedings since the commission was created in 1965. None of the other judges received a warning, Willing said.
Also:
The judge has 30 days to appeal the warning by asking the chief justice of the Texas Supreme Court, Wallace Jefferson, to create a three-judge review panel from 13 of the state's 14 Courts of Appeal (the Austin court is exempt because Keller lives and works in the district).
That gives Keller's lawyer until mid-August to explore options for challenging the commission's action as a potential constitutional violation.
Keller's attorney reiterates in the article that an appeal will be filed.
This issue was also written about by Mary Alice Robbins for Texas Lawyer, noted here; that's also where earlier coverage begins. The Commission's Findings, Conclusions and Order of Public Warning is here.
Other key documents in the case include:
- Examiner's Objections and Responses filed by attorney John McKetta
- Objections filed by attorney Chip Babcock
- Findings.by Special Master David Berchelmann
- Charges brought by the Commission on Judicial Conduct
- More on the CCA's Refusal to Consider Richard Stay Request
- Editorial Outrage at CCA Closed Door
- More on the CCA Closed Door
- Ethics Complaint Filed Against CCA Presiding Judge
- More on the Ethics Complaint Against Judge Keller
- Continued Criticism of Presiding Judge Sharon Keller
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