Judge Keller chal­leng­ing com­mis­sion’s pub­lic re­buke

State Supreme Court asked to void or­der as un­con­sti­tu­tional

Austin American-Statesman - - METRO&STATE - By Chuck Lindell

Claim­ing that she was im­prop­erly rep­ri­manded for her role in a botched ex­e­cu­tion-day ap­peal in 2007, Judge Sharon Keller asked the Texas Supreme Court on Thurs­day to throw out the re­buke and or­der all charges against her dis­missed.

The State Com­mis­sion on Ju­di­cial Con­duct is­sued a “pub­lic warn­ing” to Keller on July 16, say­ing she failed to prop­erly per­form her du­ties when she closed the Court of Crim­i­nal Ap­peals clerk’s of­fice at 5 p.m. de­spite know­ing that de­fense lawyers wanted to file an ap­peal in a pend­ing ex­e­cu­tion.

But in Thurs­day’s Supreme Court pe­ti­tion, Keller ar­gued that the com­mis­sion acted in a “law­less” man­ner be­cause the Texas Con­sti­tu­tion for­bids it from is­su­ing such a warn­ing.

“The or­der vi­o­lates the con­sti­tu­tion and is void. At the very least, it is a gross abuse of dis­cre­tion,” wrote Keller lawyer Chip Bab­cock.

Bab­cock asked the court for a writ of man­damus or­der­ing the com­mis­sion to ex­punge

Con­tin­ued from B1 the warn­ing from all records and to drop its charges against Keller, say­ing the agency “should not be given rein to wreak ad­di­tional mis­chief.”

The pe­ti­tion also said the com­mis­sion ap­peared to be il­le­gally con­sti­tuted, with one of the 13 com­mis­sion­ers serv­ing be­yond his six-year term, and two oth­ers serv­ing de­spite liv­ing in the same ap­peals court district, con­trary to con­sti­tu­tional re­stric­tions.

“We’re op­pos­ing the mo­tion,” said Seana Will­ing, the com­mis­sion’s ex­ec­u­tive di­rec­tor, who acted as a co-pros­e­cu­tor of Keller. “We think there is an ad­e­quate ap­pel­late process … to ad­dress his con­cerns.”

Will­ing also said the Texas Con­sti­tu­tion has a “holdover pro­vi­sion” for com­mis­sion­ers who serve be­yond their terms and that an in­for­mal opin­ion from the at­tor­ney gen­eral’s of­fice al­lows com­mis­sion­ers to serve de­spite re­sid­ing in the same court district.

The com­mis­sion, an in­de­pen­dent state agency that in­ves­ti­gates ac­cu­sa­tions of mis­con­duct against judges, re­buked Keller for uni­lat­er­ally deny­ing a request to keep the court clerk’s of­fice open past 5 p.m. on Sept. 25, 2007, to ac­cept a late ap­peal from death row in­mate Michael Richard.

Her de­ci­sion vi­o­lated court pro­ce­dures and meant that Richard, con­victed of rape and murder, was ex­e­cuted later that night with­out his fi­nal ap­peal be­ing heard in court, the com­mis­sion ruled.

The warn­ing came at the end of a spe­cial process known as “for­mal pro­ceed­ings.”

But ac­cord­ing to Bab­cock, the state con­sti­tu­tion gives com­mis­sion­ers only three pos­si­ble choices at the end of for­mal pro­ceed­ings: dis­miss the charges, is­sue a cen­sure or rec­om­mend that the judge be re­moved from of­fice.

Un­der state law and the con­sti­tu­tion, a pub­lic warn­ing is dif­fer­ent from a cen­sure, he ar­gued.

Keller has un­til Aug. 16 to ap­peal the warn­ing to a spe­cially cre­ated panel of three state ap­peals court judges.

Bab­cock also asked the Supreme Court to post­pone that time limit while it con­sid­ers Keller’s request to void the warn­ing.

Sharon Keller says warn­ing was ‘law­less.’

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