Judge Keller challenging commission’s public rebuke
State Supreme Court asked to void order as unconstitutional
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.’