In re Ginsberg

Decision Date11 June 2018
Docket NumberDocket No. 18–0001
Parties IN RE Inquiry Concerning Honorable Carl GINSBERG
CourtTexas Supreme Court

Mr. Gunnar P. Seaquist, Bickerstaff Health Delgado Acosta LLP, and Mr. Eric Vinson of the State Commission on Judicial Conduct, Austin, TX, for State Commission on Judicial Conduct.

Mr. Charles L. ‘‘Chip‘‘ Babcock and Mr. Jamison M. Joiner, Jackson Walker LLP, Dallas, TX, for Honorable Carl Ginsberg.

Panel consists of Justices Barnard, Christopher, and Bourland (Bourland, J., concurring and dissenting).

Tracy Christopher, Justice

Chapter 37 of the Texas Government Code governs the way in which most trial courts appoint guardians ad litem, attorneys ad litem, and mediators. See TEX. GOV'T CODE ANN. §§ 37.001 –.005 (West Supp. 2017). The day before the law went into effect, the Honorable Carl Ginsberg, presiding judge of the 193rd District Court in Dallas County, Texas, issued a standing order stating that the statute violates the separation-of-powers clause of the Texas Constitution. See TEX. CONST. art. II, § 1. Judge Ginsberg concluded in the order that his oath of office to uphold the Constitution required him not to comply with Chapter 37. Seventeen months later, an anonymous complaint was filed with the State Commission on Judicial Conduct, and after informal proceedings, the Commission concluded that Judge Ginsberg had violated Canon 2A of the Code of Judicial Conduct and publicly admonished him. Judge Ginsberg appealed the ruling by trial de novo before this Special Court of Review selected by lot by Chief Justice Nathan Hecht of the Supreme Court of Texas for that purpose.1

To dispose of this case, we are not required to, and do not, determine whether Chapter 37 violates the separation-of-powers clause as Judge Ginsberg maintains. We instead are called upon to decide whether Judge Ginsberg violated the Code of Judicial Conduct or the Texas Constitution by issuing the standing order. We hold that, under the facts of this case, he did not. We similarly hold that Judge Ginsberg's failure to comply with Chapter 37 also does not rise to the level of sanctionable judicial misconduct. And finally, we must determine whether, as the Commission alleges, "a demonstrable portion of Judge Ginsberg's appointments were neither impartial nor based on merit." We find that the Commission did not prove this charge by a preponderance of the evidence. We accordingly dismiss the charges without sanction.2

I. FACTUAL AND PROCEDURAL BACKGROUND

Although Chapter 37 governs certain appointments of attorneys ad litem, guardians ad litem, and mediators in counties with a population of at least 25,000, the Commission has focused only on the appointment of mediators, as do we. See TEX. GOV'T CODE ANN. § 37.001. The statute requires certain courts to maintain a list of mediators registered with the court and to publish the list of mediators on the court's website. Id. §§ 37.003, 37.005. When the court appoints a mediator, it must appoint the mediator whose name appears first on the list, then move that mediator's name to the bottom of the list. Id. § 37.004. There are several exceptions to this requirement. A court may appoint a mediator agreed upon by the parties, and in a complex case, the court for good cause, as statutorily defined, may appoint a mediator other than one whose name is the first on the list if that person has special training, education, certification, skill, language proficiency, prior involvement with the subject matter or the parties, or is in a relevant geographic area. Id. § 37.004. A mediation conducted by an alternative dispute resolution system established under Chapter 152 of the Texas Civil Practice and Remedies Code is not subject to Chapter 37 at all. Id. § 37.002.

On August 31, 2015, Judge Ginsberg issued a standing order in which he addressed a conflict that he perceived between his obligation to comply with Texas Government Code Chapter 37 and his oath to uphold the Texas Constitution. He concluded that under Davis v. Tarrant County , 565 F.3d 214, 227 (5th Cir. 2009), the appointment of a mediator, attorney ad litem, or guardian ad litem is "an inherently judicial function" and "the Court must be free to exercise discretion in order to match the appropriate individual ... to any given case to ensure the most efficacious handling of the matter." Based on his reading of Davis , Judge Ginsberg reasoned that the Texas legislature "may not invade and usurp this ‘zone of judicial power’ under the guise of establishing administrative rules." He concluded that Chapter 37 "is manifestly unconstitutional" in that it violates the Texas Constitution's separation-of-powers clause. He held that he had "no choice but to honor his oath of office to uphold the Constitution and not comply with Chapter 37 of the Texas Government Code concerning the appointment of Attorneys & Guardians ad Litem and Mediators."

Seventeen months later, a person who wished to remain anonymous3 complained to the State Commission on Judicial Conduct that "[b]y issuing a standing order declining to rotate court appointments as required by Chapter 37, ... a statute intended to safeguard public confidence in the judiciary, Judge Carl Ginsberg ... is in violation of Canons 2(A) and 3 of the Texas Code of Judicial Conduct." After informal proceedings, the Commission concluded that Judge Ginsberg violated Canon 2A of the Texas Code of Judicial Conduct by failing to comply with Chapter 37, and the Commission issued a public admonition. See TEX. GOV'T CODE ANN. § 33.032(c) (West 2004).

Judge Ginsberg appealed the ruling by trial de novo before this special court of review. The Examiner appointed by the Commission to gather and present evidence4 added additional charges to the charge that the Commission found Judge Ginsberg had committed. See id. § 33.034(d). At trial, the Commission, through its Examiner, bore the burden to prove its charges by a preponderance of the evidence. See id. ; In re Slaughter , 480 S.W.3d 842, 845 (Tex. Spec. Ct. Rev. 2015) (per curiam).

Having considered the evidence, the arguments of counsel, and the pre- and post-trial briefing of the parties, we timely issue our decision disposing of the appeal.

II. CHARGES

In four charges, the Commission alleged that Judge Ginsberg

1. willfully and persistently failed to comply with sections 37.003 and 37.004 of the Texas Government Code, thereby violating Judicial Canon 2A's mandate that "[a] judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary";5
2. violated Judicial Canon 2A by using "an improper legal vehicle"—the standing order—to render an advisory opinion holding a statute unconstitutional;
3. violated article V, section 1–a(6)(A) of the Texas Constitution by engaging in the conduct described in Charge 2, which constitutes "willful or persistent conduct that is clearly inconsistent with the proper performance of his duties";6 and
4. made "a demonstrable portion" of his judicial appointments in a manner that was neither impartial nor based on merit, thereby violating Judicial Canon 3C(4) ("A judge shall exercise the power of appointment impartially and on the basis of merit.").7
III. LEGAL ERROR

The Commission's first three charges are based on alleged legal error, both substantive and procedural. Before we can determine whether Judge Ginsberg's alleged legal errors are sanctionable, we must know whether Judge Ginsberg truly did commit an error of law and whether the legal error rises to the level of judicial misconduct. We begin with the second inquiry: at what point does a legal error cross the line into judicial misconduct?

A. The General Standard

As relevant to this case, the Texas Constitution provides that a judge or justice of a constitutional or statutory court may be disciplined "for willful or persistent violation of rules promulgated by the Supreme Court of Texas" or for "willful or persistent conduct that is clearly inconsistent with the proper performance of his duties." TEX. CONST. art. V, § 1–a (6)(A). The parties do not appear to dispute the meaning of the word "persistent." "Persistent" means "continuing firmly or obstinately in a course of action in spite of difficulty or opposition" or "continuing to exist or endure over a prolonged period." NEW OXFORD AMERICAN DICTIONARY 1307 (Angus Stevenson & Christine Lindberg eds., 3d ed. 2010).8 "Persistent" conduct also has been defined as conduct that "demonstrates a series of associated efforts and determination which is insistently repetitive or continuous." In re Barr , 13 S.W.3d 525, 558–59 (Tex. Spec. Ct. Rev. 1998).

The parties do, however, dispute the meaning of the word "willful." In judicial misconduct cases generally, "willful" means "the improper or wrongful use of the power of his office by a judge acting intentionally, or with gross indifference to his conduct." In re Barr , 13 S.W.3d 525, 534 (Tex. Rev. Trib. 1998). A judge acts intentionally "when the act is done with the conscious objective of causing the result or of acting in the manner defined in the pertinent rule of conduct." Id. " Gross indifference is indifference that is flagrant, shameful and beyond all measure and allowance." Id. If a judge intentionally engaged in the conduct that violated a judicial canon, then the violation was willful. Id. at 534–35.

B. The Legal–Error Standard

The Commission focuses on this last statement, and urges us to hold that if a judge intended to engage in the conduct for which the judge is disciplined, then the judge's conduct was willful. In support of this position, the Commission cites In re Slaughter , 480 S.W.3d at 848, and In re Sharp , 480 S.W.3d 829, 833 (Tex. Spec. Ct. Rev. 2013). But, neither of these cases involved legal error. Judge Slaughter was accused of misconduct for posting certain comments on her Facebook page about an ongoing...

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  • Griswold v. State
    • United States
    • Texas Court of Appeals
    • February 24, 2022
    ...should have known the complainant would regard appellant's conduct as threatening bodily injury to the complainant. See In re Ginsberg , 630 S.W.3d 1, 10 (Tex. 2018) (defining constitutional avoidance as canon of statutory construction requiring courts decide constitutional questions only w......
  • Griswold v. State
    • United States
    • Texas Court of Appeals
    • February 24, 2022
    ... ... indictment: the portion that alleges appellant knew or ... reasonably should have known the complainant would regard ... appellant's conduct as threatening bodily injury to the ... complainant. See In re Ginsberg, 630 S.W.3d 1, 10 ... (Tex. 2018) (defining constitutional avoidance as canon of ... statutory construction requiring courts decide constitutional ... questions only when issue cannot be resolved on ... non-constitutional grounds). If only a portion of a statute ... is ... ...
  • In re Woodworth
    • United States
    • Texas Court of Appeals
    • December 8, 2022
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    • December 8, 2022
    ... ... argument to the trial court. See Tex.R.App.P. 33.1 ; ... Dreyer v. Greene, 871 S.W.2d 697,698 (Tex. 1993); ... see also Karenev v. State, 281 S.W.3d 428,434 (Tex ... Crim. App. 2009); but see In re Ginsberg, 630 S.W.3d ... 1, 11 (Tex. Spec. Ct. Rev. 2018) (stating that courts can ... address constitutionality sua sponte in exceptional cases) ... Regardless, Woodworth does not argue that the wording of ... Chapter 841 as adopted is unconstitutional. The Texas ... ...
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