In re Hecht

• Decision Date: 20 October 2006
• Docket Number: No. A-2006-1.,A-2006-1.
• Citation: 213 S.W.3d 547
• Parties: In re Honorable Nathan HECHT, Texas Supreme Court Justice.
• Court: Texas Special Court of Review

213 S.W.3d 547

In re Honorable Nathan HECHT, Texas Supreme Court Justice.

No. A-2006-1.

Special Court of Review Appointed by the Supreme Court.

October 20, 2006.

Jackson Walker, L.L.P., Charles L. Bab-Cock, Houston, for Petitioner.

Seana Willing, Executive Director, State Com'n on Judicial Conduct of Austin, TX, Mark Greenwald, San Antonio, for The Commission.

Before Justices FITZGERALD,¹ McCLURE,² and MAZZANT³.

OPINION

Opinion by Justices FITZGERALD and MAZZANT.

I.

This case focuses on whether the Texas Code of Judicial Conduct, the judicial "rules of the road," so to speak, prohibit a Texas state judge from speaking out favorably in behalf of a close friend nominated to the United States Supreme Court. This case hinges on the meaning of words in this Code and what words were spoken by the judge. This case involves a composite of two different political systems for the selection of judges. In Texas, we have an elective process, whereas in the federal system, we have a nomination-confirmation process.

We recognize at the outset a considerable hurdle must be overcome: the Texas Code is decidedly deficient in a pivotal area important in this case, that is, providing definitive meanings to words in the political arena, words such as "authorized," "endorsing," and "private interests." We are all familiar with certain axioms in particular disciplines, some of which capsulize the core of the undertaking. For example, in real estate, the appropriate axiom is "location, location, location." In music, "practice." In law, "definitions." The relevant provisions of the Texas Code, Canons 5(2) and 2B, quite candidly, lack definitive meaning.

The political processes offer a unique twist. The state judge is up for re-election and is in a political campaign. The state judge speaks of his friend, the nominee, whose nomination is pending before the Senate Judicial Committee of the United States Congress. In this federal process, the public expects a thorough examination of the background, qualifications, and experience of the nominee in public, and most assuredly, at the Senate committee hearings. The Senate committee fully intended to call the state judge as a witness during the confirmation hearings, and the state judge fully intended to testify to the same statements before the committee which are at issue here. No one claims such statements would have violated the Texas Code of Judicial Conduct. Had the confirmation proceeded as scheduled and the state judge testified, it is highly doubtful we would be considering any of these matters, anonymous complaint or not.

We also recognize the commission's approach and this Court's approach are substantially different. The commission, according to the evidence, assumed the Code prohibited endorsing and supporting, terms it used interchangeably, and proceeded to devote substantially all of its efforts to determining the penalty to be imposed. This Court performs a de novo review. We consider the evidence presented before us (which differs markedly in some respects from evidence presented to the commission), we review Canons 5(2) and 2B, with our starting point being the determination of the meaning of pivotal terms, such as "authorized," "endorsing," and "private interests" (rather than assuming certain of these terms can be used interchangeably),⁴ and we decide whether the judge's public statements violated Canons 5(2) and 2B.

II.

The Preamble to the Texas Code of Judicial Conduct provides:

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code of Judicial Conduct are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law. . . .

The Code [of Judicial Conduct] is intended . . . to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.

TEX.CODE JUD. CONDUCT, Preamble, reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. B (Vernon 2005). The Preamble reminds us of the high ideals and noble principles this Court is called upon to apply. This case presents substantial issues of first impression. First, we must determine whether public statements of a judge supporting a nominee to the United States Supreme Court violate the Texas Code of Judicial Conduct, specifically Canons 2B and 5(2). If so, we must determine whether the Texas Code abridges the Petitioner's freedom of speech guaranteed by the First Amendment to the United States Constitution. However, because we conclude Petitioner did not violate the Canons we do not address the constitutional question.⁵

III.

The events leading to the public admonition revolve around President George W. Bush's nomination of Harriet Miers to the United States Supreme Court in October 2005 and statements of the Honorable Nathan Hecht, Texas Supreme Court Justice, (hereafter "Petitioner") to the news media concerning her nomination.

On October 14, the commission voted to initiate an investigation of Petitioner based on the October 12 complaint and, on its own motion, an article published on October 6 in The New York Times. On October 17, 2005, the State Commission on Judicial Conduct received a confidential complaint about Petitioner based on the October 10 article in the Texas Lawyer newspaper. The commission informed Petitioner of the investigation and requested that he answer a questionnaire about the news articles and his actions preceding and during Miers' nomination. Petitioner cooperated with the commission and provided detailed responses to the questions. Petitioner voluntarily appeared at a hearing before eight⁶ members of the commission. The commission voted⁷ and issued its Public Admonition, containing its findings of fact and conclusions of law.⁸ The commission determined Petitioner violated Canons 2B and 5(2) of the Texas Code of Judicial Conduct. See TEX.CODE JUD. CONDUCT, Canon 2B ("A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others. . . ."), & Canon 5(2) ("A judge shall not authorize the public use of his or her name endorsing another candidate for any public office. . . .").⁹

Petitioner requested de novo review of the public admonition rendered by the commission. Texas Supreme Court Chief Justice Wallace Jefferson appointed, by random selection, this panel to the Special Court of Review to review the commission's decision. See TEX. GOV'T CODE ANN. § 33.034(c) (Vernon 2004). This Court subsequently conducted an evidentiary hearing. See id. § 33.034(e) (review "is by trial de novo as that term is used in the appeal of cases from justice to county court"). Following the presentation of evidence and arguments, the commission sought a public admonition, and Petitioner requested dismissal of the sanction imposed on him.

IV.

The parties entered into a written "Parties' Stipulations of Fact" (hereafter "Stipulation"). At the hearing before this Special Court of Review, the commission called one witness, Petitioner; the remainder of its presentation centered around documentary evidence, including news stories, public admonishments relative to other judges bearing generally on the two Canons at issue, several volumes of committee hearings involving the current Task Force on the Code of Judicial Conduct and its recommendations, several videos, and the Stipulation. The commission presented no expert testimony related to whether Petitioner violated the Code or whether the Code was constitutional under Republican Party v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).

Petitioner's testimony will be detailed below. In addition, Petitioner presented, without objection by the commission, the expert testimony of former Chief Justice Tom Phillips through his affidavit; the testimony of Judge Jim Parsons and Judge Monica Gonzalez; the expert testimony of Professor Geoffrey Hazard and Blake Tartt by stipulation; Senator Arlen Specter's oral deposition; official transcripts from numerous Senate confirmation hearings of past United States Supreme Court Justices; and copies of the Codes of Judicial Conduct from many states.

The evidence shows Petitioner and Miers became close friends beginning in 1976 when they practiced in the same law firm, Locke Purnell. Petitioner left the firm in 1981 to become a district court judge. He subsequently served on the appellate bench, first on the Fifth District Court of Appeals at Dallas, and then the Texas Supreme Court, his current position. It is undisputed that Petitioner's record is unblemished.¹⁰ The Stipulation recites that Petitioner "has never been sanctioned by the State Commission on Judicial Conduct."

Miers became head partner of Locke Purnell, and eventually became White House Counsel to President Bush. She also served as president of the State Bar of Texas and as a member of the Dallas City Council. Petitioner and Miers have remained close friends through the succeeding thirty-five years, including regularly attending the same church and going to dinners and social occasions together.

Besides being a long-time, close friend of Miers, Petitioner was also a friend of White House Deputy Chief of Staff, Karl Rove. On October 1, 2005, two days before Miers' nomination, Rove and Petitioner had a telephone conversation, and Rove told him Miers might be nominated to fill retiring Justice Sandra Day O'Connor's place on the Supreme Court. Rove asked Petitioner if he would agree to speak with Dr. James Dobson ...