CCA Presiding Judge Sharon Keller seeks Supreme Court mandamus to vacate public warning, dismiss all charges against her

In a petition for writ of mandamus filed July 29, Texas Court of Criminal Appeals Presiding Judge Sharon Keller asks the state Supreme Court to vacate the public warning the State Commission on Judicial Conduct (SCJC) issued to her on July 16. Keller also asks the Supreme Court to dismiss all charges against her. According to the petition, Keller seeks mandamus relief because SCJC executive director Seana Willing, who serves as the examiner in cases involving alleged judicial misconduct, “has publicly admitted” that the commission’s public warning order “does not comport with the Texas Constitution.” [See “Bad Law?” Texas Lawyer, July 26, 2010, page 1.] Keller further alleges that the commission lacked authority to issue the public warning and that its warning is “void on its face because it was rendered contrary to limiting constitutional authority.” As alleged in the petition, “[T]he SCJC had no more authority to render a public warning against Keller than it would to order her home to be forfeited.” Keller alleges that the SCJC based its public warning on Rule 10(m) of the Rules for the Removal or Retirement of Judges, which purports to allow the commission to issue a public warning. But Keller alleges that under the state constitution, after the commission initiates formal proceedings against a judge, it has authority to impose only three remedies: dismissal of the charges, public censure, or a recommendation for removal or retirement of the judge. Keller further alleges that the commission failed to defer to findings of the special master, 37th District Judge David Berchelmann Jr. Berchelmann heard evidence in Keller’s case during an August 2009 trial and, according to his January report to the commission, found that her conduct does not warrant punishment. Willing says she cannot comment on the contents of Keller’s petition. However, Willing says the commission’s position will be that Keller has an adequate appellate remedy through a three-judge panel that, at Keller’s request, the Supreme Court would appoint to review her case. Willing also says she is not aware of anything in Chapter 33 of the Texas Government Code or Article 5, §1a(8) of the Texas Constitution that gives the state Supreme Court mandamus authority over the commission. On July 29, Keller also filed an emergency motion asking the Supreme Court to stay the time limitations within which she must request the appointment of a three-judge special court of review for her case. The statutory 30-day period in which Keller must make the request for the panel to conduct the review began running when the commission issued the July 16 public warning. Keller further asks that the stay remain in effect for 10 days after the Supreme Court rules on her mandamus petition. Keller asserts in her emergency motion that she should not be compelled to seek appellate review before the Supreme Court rules on her petition for a writ of mandamus. The commission issued its public warning to Keller for her conduct on Sept. 25, 2007, the day the state executed convicted murderer Michael Richard. The commission found that Keller failed to accord Richard the right to be heard when she twice said “no” when asked if the CCA clerk’s office would remain open past 5 p.m. on the day of Richard’s execution. Charles “Chip” Babcock, a Jackson Walker partner in Dallas and Houston who represents Keller, and John J. "Mike" McKetta, a shareholder in Austin's Graves Dougherty Hearon & Moody who was the special counsel who prosecuted Keller, could not be reached for immediate comment.
-- Mary Alice Robbins

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