In re Davis

• Citation: 82 S.W.3d 140
• Parties: In re Honorable Rick DAVIS, Judge, 272nd District Court, Brazos County, Texas.
• Decision Date: 02 July 2002
• Court: Special Court of Review

82 S.W.3d 140

In re Honorable Rick DAVIS, Judge, 272nd District Court, Brazos County, Texas.

Special Court of Review.

July 2, 2002.

Bob Warneke, Jr., Seana Willing, Austin, for State Commission on Judicial Conduct.

Lane D. Thibodeaux, Law Office of Lane D. Thibodeaux, Bryan, represents Judge Davis.

Before Chief Justice BOYD, Justices B.A. SMITH and WALKER.

BEA ANN SMITH, Justice.

In April 2001, the Honorable Richard "Rick" Davis, a new district judge in Brazos County, determined that a female prosecutor in his courtroom, Laura Cass, was attempting to undermine his authority. Just before his election to the bench, Judge Davis served for several months as a criminal defense attorney and had several run-ins with the same young prosecutor who was just out of law school. This history may account for the bizarre series of events that led Judge Davis to publicly humiliate Ms. Cass in most caustic terms and to write injudicious letters to the district attorney and the media concerning Ms. Cass's "gross misconduct," all in an attempt to have the prosecutor removed from his courtroom.

In May 2001, Bill Turner, Brazos County District Attorney, reluctantly filed a complaint with the State Commission on Judicial Conduct,¹ saying that Judge Davis's escalating attacks on the district attorney's office caused him to question the judge's ability to be fair to the State. Mr. Turner further alleged that the judge's vicious personal attacks against Ms. Cass, and the judge's campaign to involve the media in his vendetta, had undermined public confidence in the judiciary. The Commission investigated the complaint, received a written response from Judge Davis, and invited him to appear informally to testify.

The Commission found that in his dealings with Ms. Cass, Judge Davis had not been dignified, patient or courteous, in violation of Canon 3B(4) of the Code of Judicial Conduct. See TEX.CODE JUD. CONDUCT, Canon 3B(4), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon Supp. 2002). Indeed, the Commission expressed dismay at the inappropriate language Judge Davis used, calling Ms. Cass "sneaky and surreptitious," "treacherous," and ascribing to her the "compassion of an Auschwitz prison guard." It further found that by involving the media in this conflict, Judge Davis cast public discredit on the judiciary and created reasonable doubt about his capacity to fairly judge criminal cases brought by the district attorney's office, in violation of article five of the Constitution and Canon 4A(1). See TEX. CONST. art. V, § 1-a; TEX.CODE JUD. CONDUCT, Canon 4A(1). On March 1, 2002, the Commission issued Judge Davis a public reprimand.

Judge Davis appealed the Commission's sanction and this special court of review was appointed to conduct a trial de novo.² See TEX. GOV'T CODE ANN. § 33.034 (Vernon Supp.2002). After the Commission issued its formal charging instrument, this special court convened a hearing on June 10 and 11, 2002, at which the Commission had the burden to prove by a preponderance of the evidence that respondent willfully committed one of the charged violations. See id. § 33.001(b); see also In re Bell, 894 S.W.2d 119, 131 (Tex.Spec.Ct.Rev.1995). This special court may dismiss the charges, affirm the Commission's decision, impose a lesser or greater sanction, or recommend that formal proceedings be instituted by the Commission for censure or removal. TEX. GOV'T CODE ANN. § 33.034(i) (Vernon Supp.2002); TEX.R. REM'L/RET JUDG. 9(d) (West 2002). The decision of the special court is not subject to review. TEX. GOV'T CODE ANN. § 33.034(i); TEX.R. REM'L/RET. JUDG. 9(c) (West 2002).

DEFENSE

At the de novo hearing, Judge Davis did not deny committing any of the actions leading to his reprimand. Rather he sought to justify his public rebuke of Ms. Cass by detailing her disrespectful actions in the case of Joe Friday Rodriguez, Jr. against a background of previous behavior that led Judge Davis to discredit her integrity. Additionally, Judge Davis asserts that his First Amendment right to bring attention to this matter of legitimate public concern bars any disciplinary action for his contacting the media about Ms. Cass's misconduct. See U.S. Const. amend. I. Moreover, he insists that he is being sanctioned, in whole or in part, because of his religious beliefs, yet another reason why the First Amendment prevents any disciplinary action against him. Finally, Judge Davis presented testimony from lawyers in the community regarding his reputation for fairness and courtesy, and extolling his efficiency and effectiveness in the courtroom, in an attempt to refute the Commission's charges that the judge's admitted actions involving Ms. Cass and Mr. Turner had cast discredit on the judiciary and created doubts about Judge Davis's impartiality.

I. Justification for Rebuking Ms. Cass

To evaluate Judge Davis's belief that he was justified in rebuking Ms. Cass for her perceived misconduct, we will first give some detailed background regarding the Rodriguez matter, and then review the actions that the judge took to chastise that prosecutor and the district attorney's office. We will also describe a few earlier incidents that Judge Davis claims diminished his opinion of Ms. Cass's integrity.

Joe Friday Rodriguez

On April 18, 2002, Judge Davis conducted a probation revocation hearing in a case styled State v. Joe Friday Rodriguez, Jr. Ms. Cass represented the State and proved up Rodriguez's probation violations, but Judge Davis declined to revoke probation, deciding to leave Rodriguez free to file an income-tax return that might produce a refund to be credited against the probationer's child support obligations. The case was recessed for sixty days. There was an outstanding arrest warrant for Rodriguez in another matter involving delinquent child support. At her supervisor's direction, Ms. Cass telephoned Robert Orozco, the assistant attorney general in charge of that matter, to inform him that Rodriguez's probation had not been revoked and that the outstanding warrant had never been entered in the TCIC, Texas Criminal Information Computer, a statewide reporting system. She mentioned that if the warrant were entered in the TCIC, Rodriguez would be arrested when he next reported to his probation officer. When Judge Davis learned of this phone call, he jumped to the conclusion that Ms. Cass was trying to undermine his decision to continue Rodriguez's probation. He was enraged and immediately contacted the judge who had issued the outstanding warrant to have it dismissed. There was, then, no danger that his order continuing Rodriguez's probation would be countermanded.

Nevertheless, Judge Davis summoned Ms. Cass to his courtroom for a "status hearing" in the Rodriguez matter. He questioned Ms. Cass as to whether she had called Orozco about the outstanding warrant. Ms. Cass admitted making the call at the suggestion of her supervisor, Mr. Clark. Orozco testified and characterized Cass's actions as "pushing" the warrant. Ms. Cass denied pushing the warrant, but said she followed office procedure in notifying another office about an outstanding warrant. Mr. Clark informed the court that he had instructed Ms. Cass to make the call and that this was standard procedure in the district attorney's office. Despite Mr. Clark's explanation and Ms. Cass's denial that she had done anything more than inform Orozco about the outstanding warrant, Judge Davis issued the following reprimand in open court, with various members of the public present:

Ms. Cass, I conclude that you have engaged in conduct that is sneaky, surrepitious, [sic] and was deliberately calculated to undermine this Court's intention with respect to this defendant, Joe Friday Rodriguez, Jr.

You are not welcome in the Court. You are excused. The Court takes judicial notice of the fact Mr. Clark is present. Mr. Clark, I do not know who will take over prosecution of this case but I want whoever it is who takes it over to be fully aware I tend to fully enforce the bond conditions that I imposed on Mr. Rodriguez.

The date of the hearing was April 24, 2001; events quickly escalated. Mr. Turner had earlier offered to remove Ms. Cass from Judge Davis's courtroom because of hostility stemming from their previous encounters before the judge assumed the bench; Judge Davis declined, saying he could be fair and impartial in dealing with Ms. Cass. But this day, the district attorney was out of town. Turner's first assistant, Margaret Lalk, immediately called to inform the judge that Ms. Cass would be returning to his courtroom; she also asked for a transcript of the hearing at which the judge had told Ms. Cass she was not welcome in his court.

Although the judge had virtually banned Ms. Cass from his courtroom at the earlier hearing, he apparently realized upon reflection that he had no such authority and must appeal to the district attorney to remove her. This prompted Judge Davis to write a letter later that afternoon to Bill Turner, whom he knew was out of town, expressing his displeasure with Ms. Cass's "gross misconduct" in the Rodriguez matter, conduct which the judge again characterized as "sneaky, surreptitious and [a] calculated effort to undermine the Court's intended course of action." The letter concluded, "I think that it would be best for all involved if you were to assign a different prosecutor to this Court in Ms. Cass' stead." In light of the judge's public attacks on Ms. Cass, Turner refused to remove her from Judge Davis's court, so as not to give the impression that he agreed with the judge's accusations. By supporting his assistant, the district attorney also incurred the ire of the judge.

That same afternoon, Judge Davis forwarded a copy of his letter to Turner, along with the two transcripts from the still pending Rodriguez case, to various media. The sensational story of the fight between the judge and the district attorney ran on the evening news. Ms....