Ex Parte Ellis

275 S.W.3d 109

Ex Parte James W. ELLIS

Ex parte John Dominick Colyandro.

No. 03-05-00585-CR.

No. 03-05-00586-CR.

No. 03-05-00587-CR.

No. 03-05-00588-CR.

No. 03-05-00589-CR.

No. 03-05-00590-CR.

No. 03-05-00591-CR.

No. 03-05-00592-CR.

No. 03-05-00593-CR.

No. 03-05-00594-CR.

No. 03-05-00595-CR.

Court of Appeals of Texas, Austin.

December 31, 2008.

Holly Taylor, Assistant District Atty., Ronald Earle, District Atty., Austin, TX, for appellee.

Jonathan D. Pauerstein, Loeffler, Tuggey, Pauerstein & Rosenthal, L.L.P., Mark Stevens, Law Offices of Mark Stevens, San Antonio, TX, for appellant.

Before Chief Justice Law, Justices PATTERSON, PURYEAR, PEMBERTON and HENSON.

OPINION

DAVID PURYEAR, Justice.

Judges serve at the apex of the judicial system and are charged with the difficult task of settling disputes between two or more interested parties. Because these disputes often involve complex legal issues, it is in the State's best interest to fill the judiciary with individuals with extensive legal experience, and the constitution of this State recognizes that interest by requiring judges to have been engaged in the practice of law for several years before they may serve the State in a judicial capacity. This mandate is satisfied through years of practice as a lawyer in either the private or the public sector.

Once lawyers have been chosen to serve in a judicial capacity, their oath of office compels them to dispense justice in an impartial, unbiased, and dispassionate manner and to decide disputes based on the facts presented to them and on the dictates of the relevant law. This includes not letting emotion or personal beliefs serve as substitutes for sound judicial reasoning. Due to the solemnity of the oaths that judges take, they enjoy a presumption of being fair and disinterested. Moreover, once sworn, judges are obligated to preside over cases, even when they might prefer otherwise, unless there is a legitimate basis upon which the judge should step down. That obligation is no doubt imposed, at least in part, to minimize the potential for weakening the judiciary by forcing judges to unnecessarily step down from deciding cases.

Because of the affirmative obligation judges have to decide matters presented to them and because of the presumption of fairness that judges are entitled to, a high threshold must necessarily be met before a judge may be recused from a case. Further, to give proper deference to the ability of sworn judicial officers to set aside personal beliefs and decide cases solely on the facts presented and the relevant law and to prevent the possibility that recusal will be required in cases in which it is unwarranted, a recusal determination must be made in light of all the circumstances and not on isolated facts divorced from the larger context in which they occurred.

When, as here, the basis upon which recusal arguments are made originates from events occurring during a judge's previous legal career, the determination must be made in light of the fact that while engaged in the practice of law, lawyers are required to serve as the legal representatives for their clients and, in that capacity, express the desires, beliefs, and recollections of their clients and vigorously advocate their clients' interests. For this reason, statements made by a lawyer in a representative capacity, without more, can only rarely serve as legitimate reasons for excluding a judge from fulfilling his sworn duties.

Were the rule otherwise, judges would be recused from presiding over all cases that present issues similar to the ones that they confronted in their prior careers as advocates. By having fulfilled their professional responsibility to advocate their clients' interests, judges would face recusal from all cases involving the same areas of law or types of claims regardless of the identity of the parties involved. Moreover, this rule would lead to the paradoxical result that the more expansive a judge's prior practice area and experience, the more limited his judicial role could be. Such a result would not be in the best interests of the citizens of Texas, potential litigants, attorneys, or members of the judiciary.

In this case, the State has argued that documents filed by Justice Waldrop while he was engaged in private practice that advanced the assertions of his former client directed at the plaintiffs in a civil suit that allegedly addressing the same or similar conduct at issue in this case are sufficient to warrant his recusal from further participation in this case. Specifically, the State contends that although the plaintiffs in the civil suit are not parties to the current case, although it has not been shown that the State was a party to the civil suit, and although Justice Waldrop's former client was not a party to either case, Justice Waldrop should be recused from further participation in this case because, when asked to effectuate his client's desire to resist discovery requests submitted to his former client by the plaintiffs to the civil suit, he filed documents containing statements that the State contends disparaged the merits of the plaintiffs' claims. The State also posits that it is possible that Justice Waldrop could have obtained personal knowledge of the facts relevant to the criminal case through his attenuated involvement in the civil suit. However, the real core of the State's complaint is that the documents filed by Justice Waldrop demonstrate his bias and partiality against the State in this criminal case.

As proof of that assertion, the State attached documents signed by Justice Waldrop and filed on behalf of his former client in the civil suit. Those attachments reveal that the documents and statements were filed by Justice Waldrop in his role as an advocate for his client who had not been accused of any wrongdoing. Further, the attachments show that neither Justice Waldrop nor his client had been served with all of the various pleadings filed in the civil suit detailing the basis for the civil suit. In addition, as mentioned previously, the attachments demonstrate that the documents were filed in response to discovery requests served on his non-party client and communicated his client's desire to resist being compelled to disclose the information requested or becoming embroiled in the civil suit. Notably, nothing in the State's motion or attachments reveals that Justice Waldrop's participation in the civil suit extended beyond responding to the discovery requests or that Justice Waldrop, through that limited representation, obtained personal knowledge of any facts pertinent to the issues in the underlying appeal in this case. Similarly, the State does not allege that Justice Waldrop was involved with the parties to the civil suit or with the issues that were the subject of the civil suit.

In light of those attachments, it is important to recognize that we are not confronted with determining whether Justice Waldrop should be recused from further participation in this criminal appeal because, during his prior legal career, he actively participated in a civil suit allegedly addressing the same or similar conduct and issues present in this case; rather, we are confronted with determining whether he should be recused from this case because, while acting as an advocate for his client that was not a party to the civil suit, he filed documents containing his client's assertions that the civil suit was politically motivated. For the reasons that follow, we do not believe recusal is warranted under these circumstances.

DISCUSSION

Recusal is Not Warranted in this Case

On August 22, 2008, this Court issued a majority opinion addressing the merits of the claims raised by the parties in the underlying case, and on September 22, 2008, the State filed a motion for rehearing and a motion for reconsideration en banc. One day later, the State also filed a motion to recuse Justice Waldrop from participating in the resolution of either motion. After the motion to recuse was filed, Justice Waldrop certified the matter to the Court so that the remaining eligible members of the Court could decide the matter. See Tex.R.App. P. 16.3(b). The State's motion to recuse is based entirely on written statements made in connection with a separate civil lawsuit. That suit was filed by four plaintiffs who ran for political office but did not win their respective elections. The plaintiffs in the suit, Paul Clayton, Mike Head, David Lengenfeld and Ann Kitchen, sought damages from Texans for a Republican Majority Political Action Committee ("TRMPAC"), Bill Ceverha individually and as treasurer for TRMPAC, James Ellis, and John Colyandro, for alleged election code violations occurring during the plaintiffs' campaigns. During the civil suit, the plaintiffs sought to compel the disclosure of information from another entity, Texans for Lawsuit Reform ("TLR"). TLR was not a party to the civil suit. The civil suit was filed prior to Justice Waldrop's appointment to the Court, and at the time the suit was filed, TLR was represented by Justice Waldrop. The statements that are the subject of the motion to recuse were filed by Justice Waldrop in his role as an advocate for TLR and were made in response to the discovery requests previously mentioned. While carrying out his client's desire to resist attempts to force it to disclose information or be pulled into a conflict between TRMPAC and the plaintiffs, Justice Waldrop signed various pleadings on behalf of his client, which, among other things, communicated his client's belief that the civil suit filed by the plaintiffs was a "politically motivated lawsuit." The State alleges that the statements prove that Justice Waldrop is biased and compel his recusal from further participation in the case. Having reviewed the State's motion and attachments, we conclude that the tangential statements filed by Justice Waldrop on behalf of his client who was not a party to and...