Rogers v. Bradley, 94-0861

• Decision Date: 01 August 1995
• Docket Number: No. 94-0861,94-0861
• Parties: 38 Tex. Sup. Ct. J. 1168 Patricia Kay ROGERS, Donnie Ray Harvey, Jr., Gary Alan Harvey, Albert Voytek, Elizabeth Voytek, and Mark Layne Howell, Individually & as Heir of the Estate of Patricia Ann Howell, Deceased, and on Behalf of the Estate of Patricia Ann Howell, Deceased, Petitioners, v. Brian Bernard BRADLEY, M.D., Respondent.
• Court: Texas Supreme Court

Page 872

909 S.W.2d 872

38 Tex. Sup. Ct. J. 1168

Patricia Kay ROGERS, Donnie Ray Harvey, Jr., Gary Alan

Harvey, Albert Voytek, Elizabeth Voytek, and Mark Layne

Howell, Individually & as Heir of the Estate of Patricia Ann

Howell, Deceased, and on Behalf of the Estate of Patricia

Ann Howell, Deceased, Petitioners, v. Brian Bernard BRADLEY, M.D., Respondent.

No. 94-0861.

Supreme Court of Texas.

Aug. 1, 1995.

Rehearing Overruled Aug. 30, 1995.

GAMMAGE, Justice.

The rule's language is clear, simple and unequivocal: Texas Rule of Appellate Procedure 15a provides that an appellate judge "shall disqualify or recuse himself in any proceeding in which judges must disqualify themselves under Texas Rule of Civil Procedure 18b...." Rule 18b provides in relevant part that a judge "shall recuse himself in any proceeding in which ... his impartiality might reasonably be questioned." Tex.R.Civ.P. 18b(2)(a).

The language is imperative and mandatory, not permissive or discretionary; the standard is objective, not subjective.

The problem is the perception created by a nineteen-minute video produced by TEX-PAC, the political action committee of the Texas Medical Association. A parody of Star Wars entitled Court Wars III, the video was intended to garner support for TEX-PAC's favored candidates for the Texas Supreme Court in the 1992 general election. By analogizing the Texas Trial Lawyers' Association to Darth Vader's evil empire and a "bipartisan coalition of medicine, business, agriculture and industry" to the champions of "fairness, impartiality and reform," the video sought to persuade viewers that the election of certain candidates to the Texas Supreme Court was important in their professional and personal lives. The video urged physicians not only to contribute money, but also to "conduct grass roots efforts ... from ... slate cards to office displays, voter information materials and handouts, to sample letters to communicate with your patients, colleagues and friends, to signature-styled newspaper ads...."

In the 1992 general election, TEX-PAC supported incumbent Justice Jack Hightower's re-election bid, Fifth Court of Appeals Chief Justice Craig T. Enoch's challenge to incumbent Justice Oscar Mauzy, and incumbent Justice Eugene A. Cook's re-election campaign against 131st District Court Judge Rose Spector. While the names of the three endorsed candidates were shown several times on a red-and-white "slate card," all five of the named candidates appeared in the video. Four of the candidates were taped at the Houston Bar Association Litigation Section candidate's forum in early 1992. Footage of then-Justice Mauzy, who did not participate in the forum, was taken from a 1987 CBS 60 Minutes broadcast entitled "Justice for Sale," in which he appeared to defend the then current system of financing Texas judicial campaigns. None of the candidates were filmed expressly or exclusively for the video project, and none of them gave TEX-PAC permission to use their image for the video.

The TEX-PAC video also contained brief comments by two incumbent justices not on the ballot in 1992, Justice Cornyn and Justice Hecht, regarding the importance of involvement in Texas Supreme Court elections. In full, Justice Cornyn states:

Well, unfortunately, it's never the type of job when you can say, "Well, we've fixed it, and we can move on to other things." Unfortunately, the political process is a dynamic process. There is always an ebb and flow. And if you think that you've fixed it and ignore it, then it will fall back into a state of disrepair once again, back to the problems that started the reform movement in the first place.... Working in a campaign headquarters, licking stamps and envelopes, working in a phone bank, putting on fund-raisers in your home, things like that have a--really a disproportionate impact for good in judicial elections.

Justice Hecht's complete comments are as follows:

The job is not done; the job is never done. Freedom requires diligence, and we must pursue every time the issue is raised.

Neither Justice Cornyn nor Justice Hecht made these comments for the video project in particular or even for the 1992 election in general. TEX-PAC recorded Justice Cornyn's remarks in 1991 and Justice Hecht's in 1989, shortly after the close of their respective election campaigns. While both justices Furthermore, the video also briefly pictured TEX-PAC's 1988 and 1990 red-and-white "slate cards," showing TEX-PAC's previously successful support for Chief Justice Phillips and Justices Gonzalez, Hightower, Hecht, Cornyn, and Gammage. In all, therefore, eight of the nine current justices are either pictured or mentioned in the TEX-PAC video, seven favorably.

gave TEX-PAC permission to use their comments, neither exercised any control over the format in which they would be used or over what other material would be included.

In an effort to drive home the importance of the Court races, the video goes beyond general statements to focus on the consequences of one particular medical malpractice case. Pointing to this case, the narrator alleges that "[a]n unjust legal system that punishes the innocent, along with the guilty, still flourishes in Texas, and medicine will always be a prime target." The defendant doctor is described as being "faced with bankruptcy, all for coming to the rescue of a patient in desperate need of his help." This "tragic situation" is called "a classic exercise [example] in Texas justice where no good deed goes unpunished." Although a similar situation could "happen anytime in any place," the doctor is not without hope, as "[he] has a Supreme Court he can appeal to, if we prevail in November. Without that, he would have no chance, and his career would be ruined as a practicing physician." (emphasis added) The doctor himself then appears on the video, stating in part:

And for me personally, it is absolutely vital that I have a fair Supreme Court. The issues that came up in this case pertain to every doctor, and every doctor in the state suffers the same gross, how shall I say, reversal of what would be commonly thought of as justice. And, therefore, it's absolutely vital to me that we need to know who is on the Supreme Court and where they're coming from. (emphasis added)

The doctor whose case is highlighted and who appears on the video is Brian Bernard Bradley, the respondent in the matter before us. Our appellate rules provide that an appellate judge "shall disqualify or recuse himself in any proceeding in which "judges must disqualify themselves under Texas Rule of Civil Procedure 18b...." Tex.R.App. p. 15a. The video makes a direct and express association between support for certain candidates and the probable result in a particular pending case. While the text carefully speaks of TEX-PAC-supported judges as "independent" and "fair," the whole tenor of the video suggests ineluctably that Bradley's fate hangs on the presence of particular justices on the Texas Supreme Court whom TEX-PAC supported.

I believe that (1) where a person or entity has sought to engender support, financial or otherwise, for a judicial candidate or group of candidates, and (2) where that effort is made through a medium which is intended to be widely circulated, and (3) where that effort ties the success of the person's or entity's chosen candidate or candidates to the probable result in a pending or impending case, a judge should recuse from participation in that case under Rule 18b(2)(a). The rule does not require that the judge must have engaged in any biased or prejudicial conduct. It does require the judge to recuse if "his impartiality might reasonably be questioned," regardless of the source or circumstances giving rise to the question of impartiality and even though the source and circumstances may be beyond the judge's volition or control.

Because I believe a reasonable member of the public at large, knowing all the facts in the public domain, would doubt that the justices portrayed favorably in the TEX-PAC video are actually impartial I recuse myself from participation in all matters related to this cause.

Transcript of TEX-PAC commercial entitled Court Wars, the Fight to Defend the Court, is attached as an Appendix and made a part of this declaration of recusal.

APPENDIX

COURT WARS

THE FIGHT TO DEFEND THE COURT

NARRATOR: In the early 1970s, a handful of the richest, most powerful personal injury lawyers in Texas devised a scheme to seize control of the Texas Supreme Court, using big-money politics to rewrite Texas law and tilt Texas justice unfairly in their favor.

By 1976, they had succeeded. The Texas legal system became their hunting ground. Business and health care were forced to run for cover under the threat of an activist Supreme Court with a legislative agenda.

Insurance premiums soared. Hospitals and doctors were forced out of business. Corporations fled Texas. New businesses stayed away. And the people suffered. Even the network's "60 Minutes" asked:

MIKE WALLACE: Is justice for sale in Texas? Some recent headlines might make you wonder. The Wall Street Journal has called the decision of one Texas court a national embarrassment. The New York Times editorialized that the conduct of the Texas courts is reminiscent of what passes for justice in small countries run by colonels in mirrored sunglasses.

NARRATOR: In 1988, a bipartisan coalition of medicine, business, agriculture and industry arose. And the people reclaimed the Supreme Court in the name of fairness, impartiality and reform, ousting five of the trial lawyer's handpicked candidates and restoring balance to the Court. A clean slate for '88.

In 1990, medicine again took the lead and defeated the trial lawyers by electing three more reform candidates. The Court to support in '90.

Now the empire strikes back. The trial lawyers are massing their considerable forces for another assault on the Court. The last of their handpicked Supreme Court...