LEXSEE

IN RE HONORABLE NATHAN HECHT, TEXAS SUPREME COURT JUSTICE

No. A-2006-1

SPECIAL COURT OF REVIEW APPOINTED BY THE SUPREME COURT OFTEXAS

213 S.W.3d 547; 2006 Tex. App. LEXIS 9087

October 20, 2006, Opinion Issued

NOTICE: [**1] Publish

PRIOR HISTORY: On Appeal from the StateCommission on Judicial Conduct. CJC Nos. 06-0129-AP& 06-0130-AP.

JUDGES: Before Justices FitzGerald, n1 McClure, n2and Mazzant. n3 Opinion By Justices FitzGerald andMazzant. McClure, J., concurring.

n1 The Honorable Kerry FitzGerald, Justice,Court of Appeals, Fifth District of Texas atDallas: Presiding Justice of the Special Court ofReview, appointed by Chief Justice Wallace B.Jefferson, Texas Supreme Court, by a process ofrandom selection.n2 The Honorable Ann McClure, Justice, Court ofAppeals, Eighth District of Texas at El Paso:Justice of the Special Court of Review, appointedby Chief Justice Wallace B. Jefferson, TexasSupreme Court, by a process of random selection.n3 The Honorable Amos Mazzant, Justice, Courtof Appeals, Fifth District of Texas at Dallas:Justice of the Special Court of Review, appointedby Chief Justice Wallace B. Jefferson, TexasSupreme Court, by a process of random selection.

OPINION BY: KERRY P. FITZGERALD, AMOS L.MAZZANT

OPINION:

[*550] Opinion By Justices FitzGerald and Mazzant

I.

This case focuses on whether the Texas Code ofJudicial Conduct, the judicial "rules of [**2] the road,"so to speak, prohibit a Texas state judge from speakingout favorably in behalf of a close friend nominated to theUnited States Supreme Court. This case hinges on themeaning of words in this Code and what words werespoken by the judge. This case involves a composite oftwo different political systems for the selection of judges.In Texas, we have an elective process, whereas in thefederal system, we have a nomination-confirmationprocess.

We recognize at the outset a considerable hurdlemust be overcome: the Texas Code is decidedly deficientin a pivotal area important in this case, that is, providingdefinitive meanings to words in the political arena, wordssuch as "authorized," "endorsing," and "private interests."We are all familiar with certain axioms in particulardisciplines, some of which capsulize the core of theundertaking. For example, in real estate, the appropriateaxiom is "location, location, location." In music,"practice." In law, "definitions." The relevant provisionsof the Texas Code, Canons 5(2) and 2B, quite candidly,lack definitive meaning.

The political processes offer a unique twist. The statejudge is up for re-election [*551] and is in a political[**3] campaign. The state judge speaks of his friend, thenominee, whose nomination is pending before the SenateJudicial Committee of the United States Congress. In thisfederal process, the public expects a thoroughexamination of the background, qualifications, andexperience of the nominee in public, and most assuredly,

Page 1

at the Senate committee hearings. The Senate committeefully intended to call the state judge as a witness duringthe confirmation hearings, and the state judge fullyintended to testify to the same statements before thecommittee which are at issue here. No one claims suchstatements would have violated the Texas Code ofJudicial Conduct. Had the confirmation proceeded asscheduled and the state judge testified, it is highlydoubtful we would be considering any of these matters,anonymous complaint or not.

We also recognize the commission's approach andthis Court's approach are substantially different. Thecommission, according to the evidence, assumed theCode prohibited endorsing and supporting, terms it usedinterchangeably, and proceeded to devote substantially allof its efforts to determining the penalty to be imposed.This Court performs a de novo review. We [**4]consider the evidence presented before us (which differsmarkedly in some respects from evidence presented to thecommission), we review Canons 5(2) and 2B, with ourstarting point being the determination of the meaning ofpivotal terms, such as "authorized," "endorsing," and"private interests" (rather than assuming certain of theseterms can be used interchangeably), n4 and we decidewhether the judge's public statements violated Canons5(2) and 2B.

n4 If we had determined Petitioner violatedthe Canons, we would have undertaken aconstitutional analysis. The commission assumedthe Canons were constitutional and proceededaccordingly.

II.

The Preamble to the Texas Code ofJudicial Conduct provides:

Our legal system is based on the principlethat an independent, fair and competentjudiciary will interpret and apply the lawsthat govern us. The role of the judiciary iscentral to American concepts of justiceand the rule of law. Intrinsic to all sectionsof this Code of Judicial Conduct are [**5]the precepts that judges, individually andcollectively, must respect and honor thejudicial office as a public trust and strive

to enhance and maintain confidence in ourlegal system. The judge is an arbiter offacts and law for the resolution of disputesand a highly visible symbol of governmentunder the rule of law. . . .

The Code [of Judicial Conduct] isintended . . . to state basic standards whichshould govern the conduct of all judgesand to provide guidance to assist judges inestablishing and maintaining highstandards of judicial and personal conduct.

TEX. CODE JUD. CONDUCT, Preamble, reprinted inTEX. GOV'T CODE ANN., tit. 2, subtit. G app. B(Vernon 2005). The Preamble reminds us of the highideals and noble principles this Court is called upon toapply. This case presents substantial issues of firstimpression. First, we must determine whether publicstatements of a judge supporting a nominee to the UnitedStates Supreme Court violate the Texas Code of JudicialConduct, specifically Canons 2B and 5(2). If so, we mustdetermine whether the Texas Code abridges thePetitioner's freedom of speech guaranteed by the FirstAmendment to the United States Constitution. [**6]However, because we conclude Petitioner did not violatethe Canons, [*552] we do not address the constitutionalquestion. n5

n5 We are mindful of the Supreme Court'sprinciple of avoiding constitutional questionswhere possible. See Ashwander v. Tenn. ValleyAuth., 297 U.S. 288, 346-48, 56 S. Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Twoiterations of this principle apply here: "It is not thehabit of the [C]ourt to decide questions of aconstitutional nature unless absolutely necessaryto a decision of the case" and "The Court will notpass upon a constitutional question althoughproperly presented by the record if there is alsopresent some other ground upon which the casemay be disposed of." Id. at 347. These principlesapply to federal courts. See Secretary of State v.Joseph H. Munson Co., 467 U.S. 947, 972, 104 S.Ct. 2839, 81 L. Ed. 2d 786 (1984) (citingAshwander, 297 U.S. at 346, for constitutionaldecision-avoidance principles, and stating "Wemay require federal courts to follow those rules,but we have no power to impose them on state

Page 2213 S.W.3d 547, *551; 2006 Tex. App. LEXIS 9087, **3

courts."). But our Texas Supreme Court appliesthe same principle of avoiding constitutionalquestions where possible as expressed inAshwander. See, e.g., In re B.L.D., 113 S.W.3d340, 349, 46 Tex. Sup. Ct. J. 978 (Tex. 2003) ("Asa rule, we only decide constitutional questionswhen we cannot resolve issues onnonconstitutional grounds."), Bradley v. State exrel. White, 990 S.W.2d 245, 247, 42 Tex. Sup. Ct.J. 513 (Tex. 1999) (same). The constitutionaldecision-avoidance principle is a "traditionalpolicy" of the courts and "was conceived out ofconsiderations of sound judicial administration."Alma Motor Co. v. Timken-Detroit Axle Co., 329U.S. 129, 142, 67 S. Ct. 231, 91 L. Ed. 128(1946). Thus, in view of our disposition of theissues relative to Canons 5(2) and 2B, we do notanalyze or decide Petitioner's constitutionalarguments based upon content and viewpointrestrictions. See Republican Party v. White, 536U.S. 765, 122 S. Ct. 2528, 153 L. Ed. 2d 694(2002); Rosenberger v. Rector & Visitors of Univ.of Va., 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed.2d 700 (1995).

[**7]

III.

The events leading to the public admonition revolvearound President George W. Bush's nomination ofHarriet Miers to the United States Supreme Court inOctober 2005 and statements of the Honorable NathanHecht, Texas Supreme Court Justice, (hereafter"Petitioner") to the news media concerning hernomination.

On October 14, the commission voted to initiate aninvestigation of Petitioner based on the October 12complaint and, on its own motion, an article published onOctober 6 in The New York Times. On October 17, 2005,the State Commission on Judicial Conduct received aconfidential complaint about Petitioner based on theOctober 10 article in the Texas Lawyer newspaper. Thecommission informed Petitioner of the investigation andrequested that he answer a questionnaire about the newsarticles and his actions preceding and during Miers'nomination. Petitioner cooperated with the commissionand provided detailed responses to the questions.Petitioner voluntarily appeared at a hearing before eight

n6 members of the commission. The commission votedn7 and issued its Public Admonition, containing itsfindings of fact and conclusions of law. n8 Thecommission determined [**8] Petitioner violated [*553]Canons 2B and 5(2) of the Texas Code of JudicialConduct. See TEX. CODE JUD. CONDUCT, Canon 2B("A judge shall not lend the prestige of judicial office toadvance the private interests of the judge or others . . . ."),& Canon 5(2) ("A judge shall not authorize the publicuse of his or her name endorsing another candidate forany public office . . . ."). n9

n6 The Texas Constitution states that thecommission consists of thirteen members. TEX.CONST. art. V, § 1-a(2). Judge Monica Gonzales,the chairman of the commission during theseevents, testified that three of the positions werevacant and two members recused themselves fromthe proceedings.

n7 Judge Gonzales testified she could notremember the vote tally for finding Petitionerviolated the Canons and imposing the admonition.She testified that the commission's deliberationswere concerned with the level of sanction toimpose, not whether Petitioner violated theCanons. "All I remember, if there was anydiscussion at all, it had more to do with what levelof sanction, not whether or not there was aviolation of the canon. I don't remember thatbeing a major discussion at all."

[**9]

n8 The commission's conclusions andfindings were based on The New York Times andthe Texas Lawyer articles only.

n9 The commission's conclusion stated:

The Commission concludes fromthe facts and evidence presentedthat [Petitioner] allowed his nameand title to be used by the pressand the White House in support ofhis close friend, Harriet Miers, anominee for the office of UnitedStates Supreme Court Justice. Suchpublic support by a judicial official

Page 3213 S.W.3d 547, *552; 2006 Tex. App. LEXIS 9087, **6

elected to the highest court inTexas, in the eyes of the public andthe rest of the judiciary, would beconstrued as an endorsement ofMiers' candidacy, as those termsare commonly used andunderstood. Because theCommission views Miers' desirefor a lifetime appointment to theUnited States Supreme Court to bea private interest, the efforts ofPetitioner in promoting his friend'scandidacy by responding to mediainquiries and assisting the WhiteHouse in its efforts to convincepowerful special interest groups tosupport her candidacy, constitutedan improper use of his office andposition to promote Miers' privateinterest.

Citing Republican Party v. White, 536 U.S. 765,122 S. Ct. 2528, 153 L. Ed. 2d 694 (2002), and InRe Raab, 100 N.Y.2d 305, 793 N.E.2d 1287, 1291,763 N.Y.S.2d 213 (N.Y. 2003), the commissionrejected Petitioner's argument that the applicationof Canons 2B and 5(2) infringed his FirstAmendment right to freedom of speech. Thecommission then stated,

Based on the circumstancessurrounding this matter, theCommission concludes that[Petitioner's] actions on behalf ofHarriet Miers constituted persistentand willful violations of Canons2B and 5(2) of the Texas Code ofJudicial Conduct.

[**10]

Petitioner requested de novo review of the publicadmonition rendered by the commission. Texas SupremeCourt Chief Justice Wallace Jefferson appointed, byrandom selection, this panel to the Special Court ofReview to review the commission's decision. See TEX.GOV'T CODE ANN. § 33.034(c) (Vernon 2004). ThisCourt subsequently conducted an evidentiary hearing. Seeid. § 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, andPetitioner requested dismissal of the sanction imposed onhim.

IV.

The parties entered into a written "Parties'Stipulations of Fact" (hereafter "Stipulation"). At thehearing before this Special Court of Review, thecommission called one witness, Petitioner; the remainderof its presentation centered around documentaryevidence, including news stories, public admonishmentsrelative to other judges bearing generally on the twoCanons at issue, several volumes of committee hearingsinvolving the current Task Force on the Code of JudicialConduct and its recommendations, [**11] severalvideos, and the Stipulation. The commission presented noexpert testimony related to whether Petitioner violatedthe Code or whether the Code was constitutional underRepublican Party v. White, 536 U.S. 765, 122 S. Ct.2528, 153 L. Ed. 2d 694 (2002).

Petitioner's testimony will be detailed below. Inaddition, Petitioner presented, without objection by thecommission, the expert testimony of former Chief JusticeTom Phillips through his affidavit; the testimony ofJudge Jim Parsons and Judge Monica Gonzalez; theexpert testimony of Professor Geoffrey Hazard and BlakeTartt by stipulation; Senator Arlen Specter's oraldeposition; official transcripts from numerous Senateconfirmation hearings [*554] of past United StatesSupreme Court Justices; and copies of the Codes ofJudicial Conduct from many states.

The evidence shows Petitioner and Miers becameclose friends beginning in 1976 when they practiced inthe same law firm, Locke Purnell. Petitioner left the firmin 1981 to become a district court judge. He subsequentlyserved on the appellate bench, first on the Fifth DistrictCourt of Appeals at Dallas, and then the Texas SupremeCourt, his current position. It is undisputed that [**12]Petitioner's record is unblemished. n10 The Stipulationrecites that Petitioner "has never been sanctioned by theState Commission on Judicial Conduct."

n10 The Stipulation and Petitioner's TrialExhibit No. 1 reflect Petitioner's service record inmore detail:

Page 4213 S.W.3d 547, *553; 2006 Tex. App. LEXIS 9087, **9

[Petitioner] is the Senior Justice ofthe Supreme Court of Texas,having been elected in 1988 andre-elected in 1994 and 2000. He isthe senior Texas appellate judge inactive service.

Throughout his service on theCourt, [Petitioner] has overseenrevisions to the rules ofadministration, practice, andprocedure in Texas courts. In 2000,he was appointed by the ChiefJustice of the United States to theAdvisory Committee on CivilRules for the Judicial Conferencein the United States.

[Petitioner] began his judicialservice in 1981, when he wasappointed to the 95th DistrictCourt in Dallas County. He waselected to that bench in 1982 andre-elected in 1984. In 1986 he waselected to the Court of Appeals forthe Fifth District of Texas atDallas, where he served until hewas elected to the Supreme Court.Before taking the bench,[Petitioner] was a partner in theDallas law firm of Locke PurnellBoren Laney & Neely (now LockeLiddell & Sapp). He joined thatfirm in 1976 and practiced mainlyin the area of general business andcommercial litigation.

[Petitioner] received a B.A. degreewith honors in philosophy fromYale University in 1971. Heattended Southern MethodistUniversity School of Law as aHatton W. Sumners Scholar, andreceived his J.D. degree cum laudein 1974. He was elected to Orderof the Coif and served as an editorfor the Southwestern Law Journal.Following law school, he served asa law clerk to the Hon. Roger

Robb, Circuit Judge, U.S. Court ofAppeals for the District ofColumbia Circuit. He also servedin the U.S. Naval Reserve JudgeAdvocate General Corps,achieving the rank of Lieutenant.He was honorably discharged frommilitary service in 1979.

[Petitioner] is licensed to practicein Texas and the District ofColumbia. He is a member of theAmerican Bar Association, theDistrict of Columbia BarAssociation, the State Bar ofTexas, the Dallas Bar Association,and the Austin Bar Association. Heis also a member of the AmericanLaw Institute, a fellow in theAmerican Bar Foundation, a lifefellow in the Texas BarFoundation, and a founding fellowof the Dallas Bar Foundation. Hereceived the Outstanding YoungLawyer Award from the DallasAssociation of Young Lawyers in1984, the Southern MethodistUniversity School of LawDistinguished Alumni Award forJudicial Service in 2000, and theHatton W. Sumners FoundationDistguished Public Service Awardin 2004. He has taught as anAdjunct Professor at the Universityof Texas School of Law.

[Petitioner] is a member of theTexas Philosophical Society. Heattends the Cornerstone ChristianChurch of Dallas, where he is apianist, organist, and teacher.

[**13]

Miers became head partner of Locke Purnell, andeventually became White House Counsel to PresidentBush. She also served as president of the State Bar ofTexas and as a member of the Dallas City Council.Petitioner and Miers have remained close friends throughthe succeeding thirty-five years, including regularly

Page 5213 S.W.3d 547, *554; 2006 Tex. App. LEXIS 9087, **12

attending the same church and going to dinners and socialoccasions together.

Besides being a long-time, close friend of Miers,Petitioner was also a friend of White House Deputy Chiefof Staff, Karl Rove. On October 1, 2005, two days beforeMiers' nomination, Rove and Petitioner had a telephoneconversation, and Rove told him Miers might benominated to fill [*555] retiring Justice Sandra DayO'Connor's place on the Supreme Court. Rove askedPetitioner if he would agree to speak with Dr. JamesDobson (the founder of Focus on the Family, aconservative religious organization that emphasizesfamily values) about Miers' faith. Petitioner agreed tospeak to Dr. Dobson, and he told Rove he was willing tospeak to the media about Miers as he considered himselfone of the most knowledgeable people, if not the mostknowledgeable person, about Miers' personal andprofessional beliefs and [**14] accomplishments.

Out of an abundance of caution, Petitioner consultedfirst with former Texas Supreme Court Chief Justice TomPhillips, considered a legal scholar and knowledgeableand experienced with respect to the Code of JudicialConduct. Petitioner also consulted with former TexasSupreme Court Justice Priscilla Owen, n11 a friend withsimilar experience involving the Code of JudicialConduct. Both assured Petitioner that the statements inquestion did not violate the Code.

n11 Justice Owen now sits on the UnitedStates Court of Appeals for the Fifth Circuit.

Between Miers' nomination on October 3 and theannouncement of her withdrawal on October 27,Petitioner responded to more than 120 requests for mediainterviews. Petitioner appeared on television newsprograms, and he was quoted or referenced in manynewspaper and internet news articles. Petitioner'scomments included discussions of his personalrelationship with Miers, her professional background andaccomplishments, her conservative political philosophy,[**15] her attendance and participation at an evangelicalChristian church, and her pro-life and anti-abortionviews. He expressed his opinion in a variety of ways thatshe would be a "great" Justice of the Supreme Court.Some news articles also reported that Petitioner saidPresident Bush had known Miers for many years and thatconservatives had no need to be concerned that she was

an unknown entity. Petitioner was continuously identifiedas a close personal friend of Miers and as a Justice of theTexas Supreme Court.

Much of the commission's evidence consisted ofmedia reports between October 3 and 27. The TexasLawyer published an article on October 10, 2005 aboutPetitioner's and other present and former Texas SupremeCourt Justices' participation in supporting the Miersnomination. n12 Although [*556] Petitioner was neverinterviewed, n13 The New York Times published anarticle on October 6, 2005. n14 These were the only newsarticles presented at the commission's [*557] hearing.Evidence of additional articles and interviews werepresented before this Court. Rather than selecting"representative statements" from these sources, which areoften redundant, and quoting them verbatim, we choose[**16] a more succinct method, excerpting from thecommission's brief the primary statements it assertsviolate Canons 2B and 5(2):

For the most part, Petitioner providedreporters and interviewers with factualinformation about Miers' background andexperience, including information abouther views on religion and abortion and hisown personal relationship with her.However, beyond the factual information,Petitioner repeatedly expressed his opinionthat the Miers' appointment was "great,""solid," "strong," and that after theAmerican people had been given a chanceto review her record, they were "going toherald this nomination as a good one."When asked about the opposition to Miers'nomination during an interview reportedby the Washington Post, Petitioner repliedthat he believed that Miers' detractorswere "going to be happy as clams" afterthey learned more about her. When askedby another interviewer about the need toprove the President's "case" in favor of theMiers' nomination, Petitioner agreed that a"case has to be made," but went on toclaim that a "case has been made in Texasfor the last 30-plus years. We think of heras a hero down here already." Petitionerwent [**17] on to predict that during theconfirmation process, Senators would be"convinced that this is the right person for

Page 6213 S.W.3d 547, *554; 2006 Tex. App. LEXIS 9087, **13

the job." Tellingly, in one interview withan ABC news reporter, Petitionerexpressly opined that Miers would be a"great justice."

On a more personal note, Petitioneracknowledged publicly that he had a closepersonal relationship with Miers, andfrequently spoke of his "admiration" forMiers, describing her in various interviewsas being "remarkable," "charming,""gracious," "solid," "strong," "sterling,"and "stellar."

n12 The Texas Lawyer article states, in part:

"I'm a PR office for the WhiteHouse," [Petitioner] says jokinglyabout the 120 press interviews heestimates he did the week ofOctober 3 to discuss Miers . . . .

Media outlets reported that[Petitioner] and Miers dated on andoff over the years, but [Petitioner]doesn't like that characterization."Dating to me sounds like whatyou did in high school,"[Petitioner] says. "We saw oneanother and went to dinner. Wewere good, closely connectedfriends then, and we are now."

[Petitioner] says he called WhiteHouse Deputy Chief of Staff KarlRove . . . to see if it was OK forhim to speak with the media.[Petitioner] says his mission isclear: to fill in the gaps aboutMiers' background and to countersome conservatives' skepticismabout her qualifications to be aU.S. Supreme Court justice.

[Petitioner] . . . relays an anecdoteabout Miers and himself from the1980s: One evening, he and Miershad attended a lecture together atthe Valley View Christian Church

in North Dallas, where they weremembers. After that lecture, Miersshared with [Petitioner] her beliefthat life begins at conception andabortion is wrong. By repeatingthat story to reporters nationwide,[Petitioner] . . . says he's not sayingthat he knows how Miers woulddecide any particular case thatmight come before her as a justice.But he says he knows she opposesabortion.

[Petitioner] says conservativesshould rest easy about Miers'nomination and should not drawcomparisons between Bush'snomination of Miers and PresidentGeorge H.W. Bush's 1990nomination of Justice DavidSouter, whose slim record held noindication of his eventual liberalleanings on the court. "I have theutmost respect for President BushNo. 41, but I doubt he could havepicked Justice Souter out of alineup the day before he appointedthe man," [Petitioner] says. "Bycontrast, Harriet and the presidenthave worked together hand andglove for 10 years. He's called herfor legal advice, he's called her forcampaign advice, he's called her tovet judicial appointments. And heknows her as well as you couldknow anybody. And he's stoodthere and watched. You can neverbe totally sure, particularlyconcerning someone who has beengiven a lifetime appointment. Butthe difference between thatsituation and this one is night andday."

[**18]

n13 Petitioner testified he was notinterviewed for the story and that it was writtenwithout any input from him.

Page 7213 S.W.3d 547, *557; 2006 Tex. App. LEXIS 9087, **17

n14 The New York Times article states:

But she [Miers] still felt somethingwas missing in her life, and it wasafter a series of longdiscussions--ramblingconversations about family andreligion and other matters thattypically stretched from earlyevening into the night--with[Petitioner], a junior colleague atthe law firm, that she made adecision that many of the peoplearound her say changed her life.

"She decided that she wanted faithto be a bigger part of her life,"[Petitioner], who now serves on theTexas Supreme Court, said in aninterview. "One evening she calledme to her office and said she wasready to make a commitment" toaccept Jesus Christ as her saviorand be born again, he said. Hewalked down the hallway from hisoffice to hers, and there amid thelegal briefs and court papers, Ms.Miers and Petitioner "prayed andtalked," he said.

To persuade the right to embraceMs. Miers's selection despite herlack of a clear record on socialissues, representatives of the WhiteHouse put [Petitioner] on at leastone conference call with influentialsocial conservative organizers onMonday to talk about her faith andcharacter.

Ms. Miers sometimes attendedMass at St. Jude Chapel indowntown Dallas, but beforeembracing evangelicalProtestantism, her experience withreligion was lukewarm and herattendance sporadic, [Petitioner]said.

A close relationship with

[Petitioner]--also a longtimemember of Valley View--whofrequently appears with Ms. Miersat social functions in Washingtonand in Texas, has been a steadyfeature of her life for nearly 30years. [Petitioner] is known as oneof the most conservative membersof the Republican-dominatedTexas Supreme Court.

Newspapers in Texas havereported that [Petitioner] and Ms.Miers were romantically involved,and when asked in an interviewwhether that was still the case,[Petitioner] responded that theywere close, without going intogreat detail. "She works inWashington, I work in Austin,"[Petitioner] said. "We have dinnerwhen she's here; if she invites meto Washington I happily go. Wetalk on the phone all the time."

[Petitioner] and Ms. Miers spokeon Sunday evening, but she did nottell him about the pendingannouncement that she had beenoffered the nomination, he said."She's a stickler for the rules," hesaid. He never asked Ms. Miershow she would vote on the issue ofabortion if it came before theSupreme Court, he said. "Sheprobably wouldn't answer, shewouldn't view it as appropriate."

"Yes, she goes to a pro-lifechurch," [Petitioner] said, adding,"I know Harriet is, too." The twoattended "two or three"anti-abortion fund-raising dinnersin the early 1990's, he said, butadded that she had not otherwisebeen active in the anti-abortionmovement. "You can be just aspro-life as the day is long and candecide the Constitution requiresRoe" to be upheld, he said.

Page 8213 S.W.3d 547, *557; 2006 Tex. App. LEXIS 9087, **18

Apart from the questions aboutabortion and other issues Ms.Miers will face in confirmationhearings, the strong tie she and[Petitioner] have to their church isundergoing a test. Thecongregation at Valley View is inthe middle of a schism, and Mr.[Petitioner] said he and Ms. Miersare siding with the splinter groupsthat are forming a new churchunder Valley View's longtimepastor, Ron Key.

[**19]

Former Chief Justice Phillips, whose extensivecurriculum vitae was admitted, furnished an affidavit insupport of Petitioner's position. n15

n15 Affidavit of Thomas R. Phillips:

My name is Thomas R.Phillips. I have personalknowledge of the facts stated inthis affidavit.

I served as Chief Justice of theSupreme Court of Texas fromJanuary 4, 1988, until I retired onSeptember 3, 2004. One of theadministrative duties of theSupreme Court is the promulgationof the Code of Judicial Conduct.While I was Chief Justice, theSupreme Court completely revisedthe Texas Code of JudicialConduct on one occasion and madediscrete changes and additionsseveral additional times. In eachinstance, I presided over thatprocess and took a very active rolein the Court's efforts.

Over the years, I believe that Ihave developed an expertise in theCode. I have spoken on judicialspeech under the ABA ModelCode and various state Codes on

many occasions including to theWashington Judicial Conference inTacoma and to the entireConference of Chief Justices. As apart of my efforts to reformjudicial selection and enhancejudicial independence, I frequentlyparticipated in commissions andtask forces that explored, amongother things, the balance between ajudge's right (and occasionallyobligation) to speak on matters ofpublic concern versus the public'sright to a court system which isand is seen as being impartial andunbiased. I explored such issues insome detail in the 2001 NationalSummit on Judicial selection, ofwhich I was one of twoco-convenors, and in my service onthe American Bar Association'sCommission on 21st CenturyJudiciary in 2002-03 and itsJudicial Selection and JudicialCampaign Committee in 2001-03.

Even though I have now returnedto private practice, I remaininterested in and involved in issuesof judicial speech. Mostsignificantly, I am counsel ofrecord for the State of Minnesotaon petition to the United StatesSupreme Court for writ ofcertiorari in Republican Party v.White, 416 F.3d 738 (8th Cir.2005), a case involving theconstitutionality of certainrestrictions on political speech byjudges and judicial candidates. Iam also a lifetime member of theConference of Chief Justices, amember of the National AdvisoryCounsel of the AmericanJudicature Society, and will soonbegin serving on the Lawyers'Committee of the National Centerfor State Courts. Each of thesegroups is particularly interested injudicial speech issues.

Page 9213 S.W.3d 547, *557; 2006 Tex. App. LEXIS 9087, **18

I have read the response of[Petitioner] to the Letter of Inquiryin Nos. 06-0129-AP and06-0130-AP before the TexasCommission on Judicial Conduct.In my opinion, his actions referredto in the Letter of Inquiry anddescribed in the response, taken inconnection with the nomination ofHarriet Miers to be an AssociateJustice of the United StatesSupreme Court, did not violateCanon 2(B) or Canon 5(2) of theTexas Code of Judicial Conduct.This affidavit is based on the Letterof Inquiry and [Petitioner's]response.

Canon 5(2) states in relevant part:"A judge or judicial candidate shallnot authorize the public use of hisor her name endorsing anothercandidate for any public office . . .." In my opinion, Harriet Mierswas not "another candidate for . . .public office" within the meaningof Canon 5(2). By "anothercandidate," the Canon refers to acandidate like "[a] judge or judicialcandidate," that is, a politicalcandidate for elected office. Ms.Miers was President Bush'snominee for a judicial positionsubject only to confirmation by theUnited States Senate. Furthermore,in commenting on Ms. Miers'sbackground and experience,[Petitioner] was not "endorsing"her but was responding tolegitimate press inquiries about herbackground and qualifications,matters of intense national interestand importance.

Canon 2(B) states in relevant part:"A judge shall not lend the prestigeof judicial office to advance theprivate interests of the judge orothers . . ." In my opinion, in

commenting on Harriet Miers'squalifications to sit on the SupremeCourt of the United States,[Petitioner] was not lending theprestige of his office in anyrespect. He was asked to comment,not because he is a judge, butbecause he has a long, close, publicrelationship with Ms. Miers. Thisis demonstrated, I think, by the factthat none of [Petitioner's] currentcolleagues on the Court were askedto make any comments about Ms.Miers during the confirmationprocess. The issue was not whethera judge [Petitioner] thought Ms.Miers was qualified for theposition to which the President hadnominated her, but whether[Petitioner], Harriet's friend, hadunique information that would helpthe American public and,ultimately, the nation's 100Senators decide whether she wasqualified.

In legal parlance, [Petitioner] didnot "thrust himself into the vortex"of this controversy. His extremelyclose relationship with Ms. Mierswas well known in legal circlesthroughout Texas and inWashington, D.C. When reportersbegan searching for photographs ofthe significant milestones in Ms.Miers' professional career,[Petitioner] was invariablyaccompanying her or pictured veryclose by. There is simply no wayhe could have avoided beingdeluged with questions, and noway that his failure to cooperatewith the press and with otherscould have been construed ananything other that a deliberateobstruction of the public's right toknow about the President'sappointee.

Nor was [Petitioner] in any way

Page 10213 S.W.3d 547, *557; 2006 Tex. App. LEXIS 9087, **19

advancing his own privateinterests. His comments wereabout Ms. Miers, not himself. Henever identified himself as acandidate for elected office orotherwise sought to draw attentionto his own credentials and talents,as considerable as those are.

Moreover, because [Petitioner's]unique position, his statementsabout Ms. Miers' background andqualifications were not necessarilymade to advance Ms. Miers'interests. As I have stated, his longand close friendship with Ms.Miers gave him an overridingresponsibility to help the Americanpublic become better acquaintedwith her. What he said in hisvarious interviews was no doubtviewed favorably by some andunfavorably by others; hiscomments worked to help hernomination in some quarters andworked to hinder it in others.

Thus, the circumstances in which[Petitioner] found himself werehighly unusual, perhaps unique inthe history of the Americanjudiciary. After all, [Petitioner] hasnot made a single public statementabout Judge Alito or any priorSupreme Court nominee, nor, Isuspect has he ever been asked todo so. But even if he had not beenso close to Ms. Miers, and even ifshe had not been a nominee forperhaps the most powerfulgovernmental body in the world, Ido not believe that his actions inspeaking frankly and favorablyabout someone he knew wouldviolate the Code of JudicialConduct. Judges are frequentlyasked to introduce speakers or helppresent awards to people. In sodoing, they inevitably must detailthe subject's accomplishments and

extol their virtues. I gave dozens ofsuch speeches during my judicialservice, sometimes in praise ofindividuals who were at the timecandidates for higher office. Forexample, I gave farewell tributes inpublic ceremonies in the House ofRepresentatives Chamber whenJustices Cornyn and Abbottresigned from the Texas SupremeCourt to stand for election asAttorney General. I did not endorseeither person, but my remarks wereintended to be laudatory and mighthave swayed a voter who chancedto be present. [Petitioner], as thesenior justice of the state's highestcourt and as a gifted speaker, isfrequently asked to make publicremarks about a judge, a lawyer, ora community leader. I suspect thatevery judge in Texas has donelikewise at some point or anotherduring their tenure in office. Aslong as the judge does not makesuch remarks with the primarypurpose of political gain forhimself or the honoree, I do notthink such conduct can be taken toviolate the Texas Code of JudicialConduct.

Finally, regardless of how theliteral words of our Code might beinterpreted, there are also largerconstitutional questions at stake. Inmy opinion, [Petitioner's] actionsdescribed in the Letter of Inquiryand his response were protected bythe First Amendment to the UnitedStates Constitution and by articleI, section 8 of the TexasConstitution. His comments weredirected to core issues of publicimportance. As such, his speechwas protected under the rational setforth by the Supreme Court inRepublican Party of Minnesota v.White, 536 U.S. 765, 122 S. Ct.2528, 153 L. Ed. 2d 694 (2002).

Page 11213 S.W.3d 547, *557; 2006 Tex. App. LEXIS 9087, **19

[**20]

[*559] Judge Jim Parsons testified he was a districtjudge in Palestine and a long time Democrat. He did notbelieve Canon 5(2)'s restrictions on endorsements appliedoutside partisan electoral politics, and he viewed thepublic statements about Miers' nomination as "anadministration of justice issue," particularly at the levelinvolving a nominee to the United States Supreme Court,not a matter of partisan politics. n16

n16 Judge Parsons was also aware of theamicus curiae briefs filed by parties which heperceived might normally have competinginterests. We have been assisted by briefs filed bythe following: Texans for Lawsuit Reform; DonnaG. Davidson and Tina J. Benkiser, Chairman ofthe Republican Party of Texas, on behalf of theRepublican Party of Texas; a group of Texaslawyers including Travis E. Vanderpool, WilliamStephen Boyd, Orrin L. Harrison, Robert W.Jordan, Timothy W. Mountz, Joseph D. Jamail,Jr., Charles W. Schwartz, George E. Bowles,Jerry K. Clements, Michael M. Boone, Brian D.Melton, John L. Estes, Robert A. Wooldridge,George W. Bramblett, Jr., S. Michael McColloch,Wayne Fisher, Larry P. Boyd, and R. Jack Ayres;and The ACLU Foundation of Texas.

[**21]

Senator Arlen Specter, the Chairman of the SenateJudiciary Committee of the United States Congress,testified by deposition that the committee would haveconsidered Miers' nomination to the United StatesSupreme Court had it not been withdrawn. If the Miersnomination had gone forward, his chief counsel wouldhave recommended asking Petitioner to testify before thecommittee and the Senator would have honored thisrecommendation. Senator Specter testified thatfrequently, judges appear and testify voluntarily inhearings involving nominees to the United StatesSupreme Court. The Senator saw no difference betweenspeaking at the committee hearing and speakinginformally to the press. He also stated that had Miers'nomination gone forward, his interest in Petitioner'stestimony would have been based on Petitioner's personaland deep knowledge of Miers' background, not hisposition as a Texas Supreme Court Justice.

The parties stipulated that Geoffrey C. Hazard, Jr.,Professor of Law at the University of Pennsylvania LawSchool, would testify Petitioner's speech

[*560] did not violate Canon 2B or 5(2)of the Texas Code of Judicial Conduct,and that [Petitioner] [**22] had a FirstAmendment right to engage in the speechwhich is subject of the censure by theState Commission on Judicial Conduct.

He would further say that judges talk tothe media and public about nominees tothe federal bench, and he is not aware ofany judge who has been sanctioned by astate or federal committee or by a court formaking comments to the press or publicabout a nominee to the federal bench.

The commission further stipulated thatBlake Tartt would testify:

[H]e is a former member of theCommission on Judicial Conduct, and aformer president of the State Bar of Texas,and he has served on numerous ABAcommittees, which have vetted nomineesfor the federal bench, and in performingthose tasks has frequently sought thecomments of judges about the nominees.Many of these judges have made favorablecomments in support of the nominees. . . .

V.

The Texas Constitution and Government Code donot set forth expressly the commission's burden of proof.The parties assert and we agree that the commission hasthe burden of proof and that the standard is by apreponderance of the evidence, as is applicable "to thetrial of civil actions generally." TEX. GOV'T CODE ANN.§ 33.034(f) [**23] (Vernon 2004); In re Davis, 82S.W.3d 140, 142 (Tex. Spec. Ct. Rev. 2002); In re Bell,894 S.W.2d 119, 123 (Tex. Spec. Ct. Rev. 1995); In reJimenez, 841 S.W.2d 572, 579 (Tex. Spec. Ct. Rev. 1992).Thus, the commission must prove each element of acharge by a preponderance of the evidence.

VI.

Page 12213 S.W.3d 547, *557; 2006 Tex. App. LEXIS 9087, **19

The commission's first charge alleges that Petitionerviolated Canon 5(2) when he "authorized the public useof his name and title to endorse his close friend, HarrietMiers, a candidate for public office." The questionpresented is whether the commission proved by apreponderance of the evidence that Petitioner authorizedthe public use of his name endorsing another candidate,Miers, for public office. We hold the commission did not.

Until 1974, there was no Code of Judicial Conduct inTexas. In 1974, the Texas Supreme Court enacted theinitial Code of Judicial Conduct, which contained an"endorsement" prohibition:

A judge or candidate for election tojudicial office should not: . . . (b) makepolitical speeches for a politicalorganization or candidate or publiclyendorse a candidate for public office.

TEX. CODE JUD. CONDUCT, Canon 7A(1)(b) [**24], 37 TEX. B.J. 853 (1974).

In 1976, the Texas Supreme Court removed theendorsement prohibition from the Code. n17 In 1980, theCommittee on Judicial Ethics n18 issued an opinion inanswer to the question: "May a judge endorse a specificcandidate or candidates?" [*561] The opinion stated theCode did not "specifically prohibit a judge fromsupporting a candidate or candidates." After reviewingthe provisions of Canon 2, the opinion concluded:

The Committee is of the opinion thatendorsing a candidate or candidates iswithin the discretion of a judge providedthe nature and type of endorsement doesnot contravene Canon 1, Canon 2A andCanon 2B of the Code of JudicialConduct.

Comm. on Jud. Ethics, State Bar of Tex., Op. 53A(1980).

In 1990, the Texas Supreme Court amended Canon 7(3)as follows:

A judge or judicial candidate shall notauthorize the public use of his or her name

endorsing another candidate for any publicoffice, except that a candidate mayindicate support for a political party.

TEX. CODE JUD. CONDUCT, Canon 7(3), 53 TEX.B.J. 240-41 (1990) (emphasis added). n19 Today, [**25]this provision (hereafter, "authorization" provision) isfound in Canon 5(2) and provides in pertinent part: "Ajudge or judicial candidate shall not authorize the publicuse of his or her name endorsing another candidate forany public office, except that either may indicate supportfor a political party." TEX. CODE JUD. CONDUCT,Canon 5(2). Petitioner, who was on the Texas SupremeCourt in 1990, testified that the "authorization" provisionwas generated at the request of the judges. In response toquestions by the commission, Petitioner providedsignificant insights about the circumstances leading to thecreation of the "authorization" provision: n20

[*562] The problem, the reason that 5(2)was proposed in the first place, the judgeswere concerned that county officials weremuscling them into endorsements that theydidn't want to make. And they said, look,you've got to endorse me for, let's say adistrict judge, you have to endorse me forCounty Commissioner. The district judgedidn't want to do it, but he didn't have anyway of saying no. If he said no, then hewas afraid of what was going to happen tohim in the budgeting process. So hewanted cover for that. [**26] So that'swhy the judges came to us back in '88 andsaid, we're tired of getting hammered onhere, and we want an excuse that we canhold up and say, we don't have to do thisany more.

n17 40 TEX. B.J. 131 (1977); see Op. Tex.Att'y Gen. No. LO-89-21 (1989).

n18 The Judicial Section of the State Bar ofTexas created the Committee on Judicial Ethics in1974. ROBERT P. SCHUWERK & LILLIAN B.HARDWICK. HANDBOOK OF TEXASLAWYER AND JUDICIAL ETHICS § 21.02(Tex. Practice Series 2005). The committee issuesadvisory opinions. Both the committee and thecommission agree the advisory opinions are not

Page 13213 S.W.3d 547, *560; 2006 Tex. App. LEXIS 9087, **23

binding. Id. The commission rigidly adheres tothe committee's advisory opinions. Id. Thecommittee also does not knowingly makecomments on pending or impending proceedingsbefore the commission. Id.

n19 This provision was relocated twice, firstin 1994 to Canon 5(3) and then in 2002 to Canon5(2). TEX. CODE JUD. CONDUCT, Canon 5(3),57 TEX. B.J. 1080 (1994); 65 TEX. B.J. 798(2002). The language of this provision, however,remains unchanged from 1990.

[**27]

n20 Petitioner was the only witness called totestify about this provision. During his testimony,he responded to the suggestion of thecommission's attorney that Canon 5(2)'s purposewas to eliminate corruption.

Q. In canon 5(2) part of the reasonthat was created, Canon 5(2), youwere talking earlier about beingmuscled or hustled into crossendorsing each other. It sounds tome like that's some sort of an anticorruption statute that goes tocorruption. . . . [I]sn't there a quidpro quo problem that 5(2)addresses, where you do me afavor, and then one day I'll come toyou and I'll ask a favor, and I betterget it paid back. Isn't that part ofwhat 5(2) was trying to addresswhen it was created?

A. . . . [T]hat may have been asmall part of it, the cross, but thiscanon was brought to the Court bythe judges, which is a very unusualthing, because judges don't like thecanons, generally speaking, not formore of them, but for less of them,but they were for this one becausethey wanted--the principal reasonwas they wanted an excuse to givethe mayor of the City Councilperson, mostly the county

commissioners, so that they didn'tget tangled up in politics.

But it wasn't really corruption, itwas just that the commissionerssaid, you know, I expect yourendorsement. If you didn't give it,you were afraid what was going tohappen to you at budget time.You're always fearful of what'sgoing to happen to you at budgettime. So it was not a corruptionthing.

I'm not aware of a corruptionproblem. I'm just not aware.

Q. It's just a question I haveregarding how the--how this wastailored. The question was, theredoes appear to be a fear about quidpro quo stopping this type ofpressure on the judges regardingquid pro quo endorsements.

A. I'm just not aware of the tradingpart. It was more, you give it to meor else I'm not going to give youwhat you want, your telephonebudget, or your pencil budget isnot--it's just what the Court istrying to use to operate. But therewere problems, primarily it was inthe country, although occasionallythere would be problems in themore urban areas.

But that was principallywhat--that's one of the problems.People bring you language, and it'saimed at a particular circumstance,or even class of circumstances, butthen the language can be used incircumstances that you don'timmediately envision in ways thatwere never intended, and that's theproblem you have there.

Petitioner testified further on this subject onexamination by the commission:

Page 14213 S.W.3d 547, *562; 2006 Tex. App. LEXIS 9087, **26

Q. Do you believe that Ms. Mierswas a candidate for public office inthe sense of--that it was intendedby the Texas Supreme Court in thiscanon?

A. No.

Q. And why not?

A. Well, because this canon, againas I said earlier, and Judge Parsonsreiterated, is getting at the kind ofentanglements, I wouldn't call itcorruption, I suppose maybe therecould be a case like that, butmostly it's the entanglements thatyou get into when you're gettinginvolved in other people'selections.

And especially, well, no, notespecially. I was going to sayespecially when they're in anotherbranch. But the whole problemhere was that judges were beingasked to get involved in otherpeople's races, and there was noway that you can get tangled up inendorsing a nominee for theSupreme Court of the UnitedStates. There's no entanglement toget into. There is no question. I'mnot likely to be partial or impartialbecause of that endorsement, orany statement made in connectionwith that nomination. It just doesn'thave any application in thatsituation.

[**28]

In essence, Petitioner explained that the purpose ofinserting the "authorization" language into Canon 5(2)was to provide "cover" for judges to refuse to authorizeendorsements of partisan elected candidates. n21

n21 In effect, in 1990, members of the

judiciary sought relief from a pressing politicalquagmire. On occasions, politically connectedcandidates would flex their "muscle" in order to"persuade" or pressure a judge to let thecandidates show the judge as an endorser in anunrelated political contest. According to theconventional wisdom at the time, who better toshow on a list of prominent endorsements than"the respected local judge." The supreme courtacceded to the request, creating the"authorization" prohibition. The amendmentaddressed the specific problem head on byproviding a safe harbor for the judge. The judgecould now "reluctantly" decline to let a politicallyconnected candidate use his name endorsing thecandidate without fear of reprisal. The judge needonly cite the "authorization" prohibition in theCode to resolve what could otherwise become adelicate and politically sensitive dilemma. Thus,the "authorization" prohibition had absolutelynothing to do with "endorsing," that is, makingsupportive political statements. Rather, itaddressed a different situation: "cover." Theprovision centered on customary "endorsements"so familiar to the voting public, that is, acompilation of well-known and respected personswho consented to the use of their namessupporting a particular candidate.

Petitioner's testimony went unchallenged by thecommission.

[**29]

A Task Force has proposed certain amendments tothe Code of Judicial Conduct. One proposed amendmentto the language at issue in Canon 5(2) provides:

In order for a judge or judicial candidate toboth appear to be and, in fact, beindependent of political influence, a judgeor judicial candidate shall not endorseanother candidate for any public office andshall not authorize his or her name to beused in a manner where it [*563]reasonably appears that the judge hasendorsed another candidate for publicoffice, except that either may indicatesupport for a political party. A judge orjudicial candidate may attend political

Page 15213 S.W.3d 547, *562; 2006 Tex. App. LEXIS 9087, **27

events and express his or her views onpolitical matters in accord with thisCanon, Canon 2 and Canon 3B(10).

Final Report and Recommendations of the SupremeCourt's Task Force on the Code of Judicial Conduct, p.21(Jan. 2005) (emphasis added). However, the Task Force'srecommendation does not contain definitions of"endorse" and "authorize." n22

n22 The Task Force members' statements,while not precedential, are enlightening becausethey addressed--and failed to resolve--the veryissues facing the Court today. They expressedgrave concern that there is no definition for"endorsing" within the Texas canons and caselaw.

[**30]

We recognize it is integral to the commission'sposition that the "authorization" provision of Canon 5(2)be read and interpreted to prohibit a judge from"endorsing" or "supporting" another candidate. Thecommission's first charge contains no factual allegationsPetitioner "authorized" the public use of his nameendorsing Miers' nomination to the United StatesSupreme Court. The commission's evidence focusedexclusively on establishing Petitioner had supportedMiers' nomination. The commission urged this Court tohold that as Petitioner was a sitting Justice on the TexasSupreme Court and made public statements to the newsmedia supporting Miers' nomination, Petitioner wasguilty of endorsing another candidate, in violation of the"authorization" provision of Canon 5(2).

The commission primarily relies upon its own PublicStatement PS-2000-2. n23 This Public Statement firmlyespoused a broad view of the term "authorize." SeePUBLIC STATEMENT, No. PS-2000-2 (Comm'n Jud.Conduct Mar. 24, 2000). The commission essentiallydeclared "personally publishing an endorsement ofanother candidate for public office" was synonymouswith "giving permission to or 'authorizing' the candidate[**31] or a third party to use the judge's name in such apublic endorsement." Id. The commission took theposition that no distinction was to be made "betweenacting on one's own behalf and empowering another toact on one's behalf as [Canon 5(2)] necessarilyencompasses the broadest definition of the term

'authorize.'" Id. The commission cited no legal precedent.

n23 The commission was established by theTexas Constitution, article V, section 1-a(2). Theconstitution empowered the commission, interalia, to discipline or censure any Justice or Judgefor "willful or persistent violation of rulespromulgated by the Supreme Court of Texas,incompetence in performing the duties of theoffice, willful violation of the Code of JudicialConduct, or willful or persistent conduct that isclearly inconsistent with the proper performanceof his duties or casts public discredit upon thejudiciary or administration of justice." TEX.CONST. art. V, § 1-a(6). Clearly, the commissionis the entity charged with enforcement of theCode. In addition, article V, section 1-a(10)provides:

[T]he Commission may issue apublic statement through itsexecutive director or its Chairmanat any time during any of itsproceedings under this Sectionwhen sources other than theCommission cause notorietyconcerning a Judge or theCommission itself and theCommission determines that thebest interests of a Judge or of thepublic will be served by issuing thestatement.

TEX. CONST. art. V, § 1-a(10) (emphasis added).

[**32]

Thus, according to this Public Statement, thecommission concluded that the "authorization" provisionof Canon 5(2) prohibited a judge from "endorsing"another candidate. Before this Court, the commissiontook the additional step [*564] of defining "endorse" as"support." n24 Its pleadings and evidence demonstratethe commission uses these terms interchangeably andtreats them as being synonymous. In effect, thecommission has reinserted the heretofore rejected"endorsement" prohibition into Canon 5(2), therebyrecasting the meaning of the "authorization" provision. Inso doing, the commission has entirely ignored, if not

Page 16213 S.W.3d 547, *563; 2006 Tex. App. LEXIS 9087, **29

dismissed, the importance of the pivotal term"authorized" in its pleadings, its evidence, and itsarguments.

n24 The commission filed a First AmendedCharging Document, stricken by this Court onother grounds, which alleged in part thatPetitioner "authorized the public use of his nameand title to 'support or endorse' his close friend,Harriet Miers, a candidate for public office . . . ."

The issue [**33] before us is the construction of the"authorization" provision of Canon 5(2), includingexamining the meaning of "authorize." In our analysis ofthis issue, this Court recognizes the wisdom and value ofthe cautionary mandate incorporated within Canon 8A:

The Sections are rules of reason, whichshould be applied consistent withconstitutional requirements, statutes, othercourt rules and decisional law and in thecontext of all relevant circumstances.

TEX. CODE OF JUD. CONDUCT, Canon 8A (emphasisadded). This provision also encourages "reasonable andreasoned application of the text." Id. Accordingly, weendeavor to construe Canon 5(2) as written, inaccordance with the rules of reason.

We also recognize our judicial system is based uponthe cornerstones of integrity, impartiality, fairness, andindependence. In discharging judicial responsibilities, thejudge must be governed by the Rule of Law, conduct afair and impartial hearing, and dispense justice as well asequity under the law, according to the particular facts andcircumstances presented in each individual case. n25

n25 The commission, during its closingpresentation, inexplicably injected the concept of"assembly line justice." The commission initiallyargued this Court should find Petitioner violatedthe Code. While skeptical of Petitioner'schallenges of the Code, the commissionacknowledged lurking problems and soughtjudicial assistance in interpreting the Codeprovisions at issue. The commission then argued:"The sad reality of this case is Petitioner, at theday of his hearing, was merely next. The worst

thing you can be in a government proceeding isnext, merely next in a series of others that wereprosecuted for similar violations." Thecommission asked this Court to give it guidance,and, in the event it found the Codeunconstitutional, to strike it down, in order thatthe commission could "get on with the business ofregulating the rest of the conduct of the judges inthe State." Counsel for Petitioner replied thatPetitioner should not be treated as "merely next"as if within an "assembly line." He asserted thatthe commission totally ignored Canon 8 and therules of reason, and that Petitioner was "beingsanctioned for speaking truthful speech on amatter of public importance that is core speech inour democracy . . . ." Assembly line justice is aclose cousin to no justice at all, and is, in reality,an absurd oxymoron. Assembly line justiceshould be foreign to a judge's vocabulary and anextinct concept in our democracy.

[**34]

We therefore undertake to construe and apply thelanguage in dispute in Canon 5(2) consistent with "rulesof reason" to the facts presented. Our analysis shouldfocus upon key language and its relationship to the entireCode.

Statutory construction is a question of law for thecourt. Johnson v. City of Fort Worth, 774 S.W.2d 653,656, 32 Tex. Sup. Ct. J. 504 (Tex. 1989). The primary rulein statutory interpretation is that a court must give effectto legislative intent. Crown Life Ins. Co. v. Casteel, 22S.W.3d 378, 383, 43 Tex. Sup. Ct. J. 348 (Tex. 2000).When determining legislative intent, we look to thelanguage of the [*565] statute, as well as its legislativehistory, the objective sought, and the consequences thatwould flow from alternate constructions. Id. Wheninterpreting a statute, we read words and phrases incontext and construe them according to the rules ofgrammar and common usage. TEX. GOV'T CODE ANN.§ 311.011(a) (Vernon 2005). Words are given theirordinary meaning. Fitzgerald v. Advanced Spine FixationSys., Inc., 996 S.W.2d 864, 866, 42 Tex. Sup. Ct. J. 985(Tex. 1999). Legal or other well-accepted dictionaries area method of determining the ordinary meaning [**35] ofcertain words. See Pratt-Shaw v. Pilgrim's Pride Corp.,122 S.W.3d 825, 833 (Tex. App.-Dallas 2003, pet.denied). In construing a statute, we give effect to all its

Page 17213 S.W.3d 547, *564; 2006 Tex. App. LEXIS 9087, **32

words and, if possible, do not treat any statutory languageas mere surplusage. Cont'l Cas. Ins. Co. v. FunctionalRestoration Assocs., 19 S.W.3d 393, 402, 43 Tex. Sup. Ct.J. 573 (Tex. 2000). This Court must give effect to theword "authorize" to prevent it from being surplusage. SeeMeritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86,89, 44 Tex. Sup. Ct. J. 549 (Tex. 2001). We may notdisregard, discount, or dismiss this language and itsimpact.

If the supreme court had intended by its 1990amendments to reinstate the 1974 "endorsement"prohibition, it would have done so, but it did not. Instead,it used substantially different language by adding the"authorization" provision. We conclude the TexasSupreme Court intended for the 1990 amendmentinserting the "authorization" provision into the Canongoverning political activity to effect a substantial change,not simply a technical refinement, from the"endorsement" prohibition. See Gold v. City of Coll.Station, 40 S.W.3d 637, 649 (Tex. App.-Houston [1stDist.] 2001, pet. granted, judgm't vacated w.r.m. by agr.)[**36] ("Moreover, the fact that the legislature enacts anamendment indicates that it thereby intended to changethe original act by creating a new right or withdrawing anold one."). Such a significant modification in terminology(deleting "endorse" and inserting "authorize") and theconcomitant shift in meaning certainly signals that theTexas Supreme Court intended to confine the restrictionto a prohibition of a judge's authorization of the publicuse of his or her name endorsing a candidate.

In determining what constitutes a judge's authorizingthe public use of his or her name endorsing a candidatefor any public office, we examine a recent incidentinvolving such conduct. A judge's act of giving acandidate express permission to include the judge's nameon a publicly distributed list of persons endorsing thecandidate would violate Canon 5(2). See PublicAdmonition of Justice of the Peace Torres, No.00-0689-JP (Comm'n Jud. Conduct Aug. 16, 2000). Anyother fact scenario must be analogous to this situation toconstitute a violation of Canon 5(2). That is, the factsmust show the judge gave permission for [**37] othersto publicly use the judge's name in endorsements of thecandidate.

Several other states' Code provisions treat the use ofa judge's name separately from endorsing or makingpublic statements. In the Oregon Code of Judicial

Conduct, JR 4-101(1) and (3) of Oregon's Code provide,in part, that:

[a] judge shall not knowingly (1) make apublic statement in support of the electionor defeat of any candidate for anonjudicial public office . . ., or (3) lendthe judge's name in support of an action,by any person or group, to elect or defeatany candidate for a nonjudicial publicoffice . . . . n26

OR. CODE JUD. CONDUCT JR 4-101(1), (3). Oregon'sCode provisions, which apply to [*566] candidates fornonjudicial offices, distinguish between public statementssupporting or opposing a candidate and lending thejudge's name supporting such candidates. The"authorization" provision of the Texas Code and the"lending" provision of the Oregon Code address the sameconduct, albeit in different words.

n26 In its entirety, JR 4-101 provides:

A judge shall not knowingly (1)make a public statement in supportof the election or defeat of anycandidate for a nonjudicial publicoffice or to promote or influencethe passage or defeat of laws orregulations at any level ofgovernment, or (2) contribute orsolicit funds services or property toelect or defeat any candidate for anonjudicial public office or topromote or influence the passageor defeat of laws or regulations atany level of government, or (3)lend the judge's name in support ofan action, by any person or group,to elect or defeat any candidate fora nonjudicial public office or topromote or influence the passageor defeat of laws or regulations atany level of government,

if in doing (1), (2) or (3) above, the judge:

(A) Creates a reasonable doubtabout the judge's impartiality

Page 18213 S.W.3d 547, *565; 2006 Tex. App. LEXIS 9087, **35

toward persons, organizations orfactual issues that would likelycome before the court on which thejudge serves, including, but notlimited to, circumstances thatrequire the judge's disqualificationunder JR2-106.

(B) Supports in the judge's officialcapacity, a cause other than onepertaining to the legal system,legal education, the improvementof the law, the integrity of thejudicial process, the administrationof justice, or court administration,including judicial benefits. Thissubsection does not limit theability of a judge to join, pay duesto, and participate in activities ofany professional association ororganization, which activities mayinclude lobbying for judicialbenefits such as salary andretirement.

(C) Represents that the judgemaking the public statementspeaks on behalf of the judicialbranch of government unless thejudge has been authorized to do so.

OR. CODE JUD. CONDUCT JR 4-101.

[**38]

In In re Raab, 100 N.Y.2d 305, 793 N.E.2d 1287, 763N.Y.S.2d 213 (2003), n27 several sections of the NewYork Code of Judicial Conduct related to prohibitedpolitical activity were at issue. One prohibited"permitting his or her name to be used in connection withany activity of a political organization"; the otherprohibited "publicly endorsing or publicly opposing(other than by running against) another candidate forpublic office." Id. at 1289 n.2. The New York Codeclearly distinguished between a judge permitting the useof his name and a judge endorsing another candidate. Theplain language of the New York Code provisions showsthat one relates only to the use of the judge's name andthe other to "endorsing." The former provision, however,does not encompass the latter. The New York Code's

prohibition relating to the use of a judge's name is similarto the Texas Code's "authorization" provision.

n27 The conduct in question included "animproper contribution" and "activelycampaign[ing] for a legislative candidate byparticipating in a phone bank and assist[ing]Working Families Party officials at a candidatescreening meeting by questioning other judicialand nonjudicial candidates on behalf of the party."Raab, 793 N.E.2d at 1293. Several of the relevantcanons included: "Prohibited political activityshall include: . . . (c) engaging in any partisanpolitical activity (except as to own campaign); (d)participating in any political campaign for anyoffice or permitting his or her name to be used inconnection with any activity of a politicalorganization; (e) publicly endorsing or publiclyopposing (other than by running against) anothercandidate for public office; (f) making speecheson behalf of a political organization or anothercandidate; and (g) attending political gatherings."Id. at 1289 n.2. Both the conduct and the relevantprovisions of the New York Code are clearlydistinguishable from Petitioner's conduct and theTexas Code. The commission extracted from thiscase an excerpt referring to political corruption.We observe that there is not even a hint ofcorruption in the case before us. In fact, thecommission admitted that it did not contend thestatements at issue were false or deceptive.

[**39]

[*567] In 1989, the Committee on Judicial Ethicsrecommended to the Texas Supreme Court that the Codebe amended to specifically prohibit a judge or a candidatefor election to judicial office from publicly endorsing acandidate for public office. As previously noted, in 1990,the Texas Supreme Court amended the Texas Code toadd the "authorization" provision but did not add aprohibition on "endorsing" per se.

The recommendation of the recent Task Forceproposes amending Canon 5(2) by prohibiting"authorizing" and "endorsing" as separate acts. Therecommendation does not equate "authorize" and"endorse." It does not propose to subsume the meaning of"authorize" into the meaning of "endorse." It does noteliminate the former in favor of the latter. Instead, it

Page 19213 S.W.3d 547, *566; 2006 Tex. App. LEXIS 9087, **37

clearly identifies each as a separate act, and it prohibitseach act. Thus, the recommendation of the recent TaskForce reinforces our interpretation of Canon 5(2).

The Texas Supreme Court defines "authorized" asfollows: "The primary meaning of 'authorize' is toempower, or give a right to act." Caller Times Publ'g Co.v. Chandler, 134 Tex. 1, 7, 130 S.W.2d 853, 856 (1939);see Cox, Inc. v. Humble Oil & Ref. Co., 16 S.W.2d 285,286 (Tex. Comm'n App. 1929, judgm't adopted) [**40](same). Other courts have defined the empowerment ofauthorization as referring to future conduct. For example,in Gray v. Gill, 125 Misc. 70, 210 N.Y.S. 658, 660 (N.Y.Sup. Ct. 1925), "authorize" was defined as "to permit athing to be done in the future." The court contrasted theterm with "approve," which it defined as "to ratify orconfirm a thing already done, or to sanction a thing thatmay be done in the future . . . ." Id. (emphasis added).Thus, as the Gray court observed, "After the act, one maynot authorize it, although he may approve it." Id."Authorize," therefore, has an accepted legal meaning.The term "authorize" is also defined to mean "to givelegal authority; to empower" and "to formally approve, tosanction." BLACK'S LAW DICTIONARY 143 (8th ed.2004). These legal definitions of "authorize" essentiallyrequire that the authorization be express and refer toconduct or actions to be taken in the future. The languageof giving legal authority, empowering, formallyapproving, requiring, and sanctioning all necessitateaffirmative actions on the part of the authorizor. Thus, itis not sufficient [**41] under Canon 5(2) for a judgesimply to speak; the judge must affirmatively "authorizethe use of his name," that is, expressly permitting the useof his name in the future. The commission's interpretationhas deviated from the plain meaning of the"authorization" provision in Canon 5(2). Thecommission's interpretation does not merely take a broadview of "authorize," it eliminates this element entirely.

When the commission called Petitioner as its onlywitness, the commission never asked Petitioner if he"authorize[d] the public use of his . . . name endorsing"Miers' nomination. In addition, the commission failed toquestion Petitioner about this matter at the hearing beforethe commission. The commission's questions to Petitionerrecognized he had no control or authority over what themedia broadcast or printed. n28 In the media interviews,Petitioner could anticipate the use of his [*568] name asthe person being interviewed, if the media chose toidentify him. However, having reviewed Petitioner's

statements, we do not find any evidence that heauthorized the media to use his name publicly endorsingMiers. n29 Any argument that Petitioner impliedlyauthorized the public use of his [**42] name endorsingMiers would be futile and unavailing. n30 We thereforeconclude the commission failed to prove by apreponderance of the evidence that Petitioner authorizedthe public use of his name endorsing Miers.

n28 The commission's attorney askedPetitioner,

Q. Now, when you were givingthese interviews, you knew youcouldn't control what they wouldwrite about?

A. Absolutely.

* * *

Q. . . .When it goes out, it'sout, you cannot control the media,right?

A. Absolutely.

n29 While the commission listed members ofthe news media as potential witnesses, none werecalled. The commission called no witnesses otherthan Petitioner.

n30 We do not suggest the commissionadvanced this position. As previously noted, thecommission cast a blind eye to the "authorized"requirement and never proffered any argument orevidence on this subject.

VII.

While we have rejected the commission's argumentthat Canon 5(2) prohibits "endorsing," we conclude that,even under its construction, [**43] the commissionfailed to prove by a preponderance of evidence thatPetitioner's public statements endorsed Miers.

Again, the first task is to define the key term. We,therefore, focus on a definition of "endorsing." The Codeprovides no definition. The commission concedes there is

Page 20213 S.W.3d 547, *567; 2006 Tex. App. LEXIS 9087, **39

no definition or consensus as to the meaning of "endorse"in Canon 5. The Code of Judicial Conduct in its past andpresent forms, the Task Force Recommendations, n31and the relevant statutes fail to define "endorse." Thecommission's judicial disciplinary proceedings, theadvisory opinions of the Committee on Judicial Ethics,and the few available decisions of the Texas courts alsofail to define "endorse" under Canon 5(2). Absent anydefinition of the term "endorsing," we are presented withthe task of statutory interpretation.

n31 The Task Force hearings on the Codealso reflect some insightful remarks andobservations of distinguished Professor Laycockand Dean Attanasio as to the broad nature of theterm "endorse" and what, if any, distinctions canbe drawn between "support" and "endorse." Theirconcerns, shared by other members of thecommittee, related to interpreting the language inorder to conform to the rules, and to determiningwhether the terminology would passconstitutional muster.

[**44]

The commission's brief n32 essentially contendsPetitioner's public statements provided more than "factualinformation about Miers' background and experience."Specifically, the commission stated: "[Petitioner's] praiseof Miers' 'sterling' character and his opinion that shewould make 'a great justice,' and his repeated publicstatements that her nomination was 'good' and 'solid,'certainly sound like approval and support of thePresident's nomination." In a footnote, the commissionrefers us Merriam-Webster OnLine Dictionary'sdefinition of "endorse": "[T]o approve openly, especially:to express support or approval of publicly and definitely[as in] endors[ing] a mayoral candidate." Thecommission's ultimate argument is that "endorsement" isequivalent to "support," and it is undisputed thatPetitioner supported Miers.

n32 The commission's brief provides thisCourt with approximately one page of analysis onits position.

Petitioner served the commission with aninterrogatory asking the commission to [**45] explain

what constitutes an "endorsement." In its response, thecommission stated the term was not defined in the Codeand should be given its "ordinary and reasonablemeaning" as contained in the American HeritageDictionary of the [*569] English Language, FourthEdition, 2000, "which defines 'endorse' as: "to giveapproval of or support to, especially by public statement;sanction: endorse a political candidate."

With respect to the commission's position equating"support" and "endorse" and its assertion that Canon 5(2)embraces a blanket prohibition of endorsing, we considertwo advisory opinion from the Committee on JudicialEthics. The committee's opinion No. 2 contain thefollowing question and answer:

QUESTION: May a Texas judgeprivately introduce candidates for judicialoffice to his friends and recommend thatsuch friends vote for such candidates?

ANSWER: It is the opinion of theCommittee on Judicial Ethics that a Texasjudge would not violate the Code ofJudicial Conduct by privately introducingcandidates for judicial office to his friendsand recommending that such friends votefor such candidates.

Comm. on Jud. Ethics, State Bar of Tex., Op. 2 (1975).[**46] In its opinion No. 13, the committee stated,

QUESTION: May a district judgeintroduce a candidate for the stateLegislature to his personal friends andrecommend that such friends vote for suchcandidate?

ANSWER: The Committee on JudicialEthics is of the opinion that the questionshould be answered in the affirmative. InOpinion Number 2 this Committee heldthat a Texas judge would not violate theCode of Judicial Conduct by privatelyintroducing candidates for judicial officeto his friends and recommending that suchfriends vote for such candidates. TheCommittee now reaffirms that opinion andextends its scope so that henceforth it willbe applicable to all candidates for public

Page 21213 S.W.3d 547, *568; 2006 Tex. App. LEXIS 9087, **43

office.

Comm. on Jud. Ethics, State Bar of Tex., Op. 13 (1976).

These ethics opinions are noteworthy for severalreasons. These opinions do not conclude that"endorsing," as a matter of principle, is evil, corrupt,ill-advised, undignified, or inherently injudicious. Bothopinions hold "endorsing" is acceptable conduct withincertain boundaries. These holdings are consistent with, ifnot as expansive as, the new draft rules of the AmericanBar Association's joint [**47] commission n33 and asignificant number of state Codes throughout the countrythat expressly permit judges to endorse other candidatesin certain circumstances n34 or [*570] which have noexpress prohibitions. n35

n33 We take notice that "[i]n late January2005, the American Bar Association's jointcommission released new draft rules on politicalactivity by judges and judicial candidates which iscovered in Canon 5 of the existing code. The draftrevisions specifically address the activities ofcandidates seeking judicial office in partisanpublic elections." The new draft rules permitcandidates to "publicly endorse or opposecandidates running for other judgeships in thesame judicial office." N.D. Family Alliance, Inc.v. Bader, 361 F. Supp. 2d 1021, 1041 n.2 (N.D.2005).

n34 The Code of Judicial Conduct in anumber of states permit endorsing. For example,In California, Canon 5A(2) provides:

5A. Judges and candidates forjudicial office shall not . . . (2)make speeches for a politicalorganization or candidate fornonjudicial office or publiclyendorse or publicly oppose acandidate for nonjudicial office;

the comment to Canon 5A states that:

Under this Canon, a judge maypublicly endorse another judicialcandidate. Such endorsements arepermitted because judicial officershave a special obligation to uphold

the integrity and impartiality of thejudiciary and are in a uniqueposition to know the qualificationsnecessary to serve as a competentjudicial officer.

In addition, Canon 5C states:

Candidates for judicial office mayspeak to political gatherings onlyon their own behalf or on behalf ofanother candidate for judicialoffice.

CAL. CODE JUD. CONDUCT, Canons 5A(2) &cmt., 5C.

Idaho's Code of Judicial Conduct states:

(1) A judge or a candidate subjectto public election may, except asprohibited by law:

(a) when a candidate for election . ..

(iv) publicly endorse or publiclyoppose other candidates for thesame judicial office in a publicelection in which the judge orjudicial candidate is running.

IDAHO CODE JUD. CONDUCT, Canon5C(1)(a)(iv).

In Illinois, Canon 7B states:

(1) A judge or candidate may,except as prohibited by law: . . .

(b) when acandidate for publicelection . . .

(iv) publiclyendorse or publiclyoppose othercandidates in a

Page 22213 S.W.3d 547, *569; 2006 Tex. App. LEXIS 9087, **46

public election inwhich the judge orjudicial candidate isrunning.

ILL. CODE OF JUD. CONDUCT, Canon7B(1)(b)(iv).

In Kansas, Canon 5C states:

(1) A judge or a candidate subjectto public election may, except asprohibited by law: . . .

(b) when acandidate forelection . . .

(iv) publiclyendorse or publiclyoppose othercandidates for thesame judicial officein a public electionin which the judgeor judicial candidateis running.

KAN. CODE JUD. CONDUCT, Canon5C(1)(b)(iv).

In Maine, Canon 5(C)(2)(d) states:

A candidate for election orreelection as judge of probate may,while a candidate, publicly endorseor publicly oppose any candidatefor public office.

ME. CODE JUD. CONDUCT, Canon 5(C)(2)(d).

Michigan's Code of Judicial Conduct providesthat:

(2) A judge or candidate forjudicial office may: . . .

(a) attend politicalgatherings;

(b) speak to suchgatherings on thejudge's own behalfor on behalf of otherjudicial candidates .. . .

MICH. CODE OF JUD. CONDUCT, Canon,7A(2)(a), (b).

In North Carolina, a judge or judicial candidatemay:

(2) if [a judge] is a candidate,endorse any individual seekingelection to any office or conduct ajoint campaign with and endorseother individuals seeking electionto judicial office, including thesolicitation of funds for a jointjudicial campaign . . . .

N.C. CODE JUD. CONDUCT, Canon 7B(2).

In North Dakota, the commentary to Canon 5states that the "canons do not prohibit candidatesfrom campaigning on their own behalf or fromendorsing or opposing candidates for a positionon the same court for which they are running."

N.D. CODE OF JUD. CONDUCT, Canon 5A,Commentary, para. 4.

In Pennsylvania, Canon 7A states:

(2) Judges holding an office filledby public election betweencompeting candidates, or acandidate for such office, may,only insofar as permitted by law,attend political gatherings, speakto such gatherings on their ownbehalf when they are a candidatefor election or reelection, or speakon behalf of any judicial candidatefor the same office, identifythemselves as a member of apolitical party, and contribute to apolitical party or organization.

Page 23213 S.W.3d 547, *570; 2006 Tex. App. LEXIS 9087, **47

PA. CODE JUD. CONDUCT, Canon 7A(2)(emphasis added).

In Tennessee,

[a] judge, subject to retentionelection, may, at any time, publiclyendorse or oppose a judge standingfor retention or a candidate forappointment to the court of whichthe judge is a member.

TENN. CODE OF JUD. CONDUCT, Canon 5D.

Vermont has a similar provision which states thata candidate for election or reelection as judge ofprobate or assistant judge may, while a candidate"publicly endorse or publicly oppose anycandidate for the same office." VT. CODE OFJUD. CONDUCT, Canon 5C(2).

[**48]

n35 For example: Alabama and Oregon. TheOregon Code prohibits a judge from makingpublic statements and lending the judge's name inrelation to other candidates who are running fornonjudicial office, but makes no mention of asimilar prohibition with respect to candidates forjudicial office. OR. CODE OF JUD. CONDUCT,JR 4-101 to 4-104.

In addition, these ethics opinions contradict theassertion that the "authorization" provision of Canon 5(2)constitutes a blanket prohibition, banning a judge fromendorsing another candidate. These opinions only limit"endorsing" in scope. In effect, these opinions approvethe practice of "endorsing" by allowing a judge tointroduce a candidate to personal friends [*571] andrecommend to friends that they vote for the candidate.n36

n36 In a less populated area, everyone in thecommunity may qualify as the judge's "friend." Ina larger area, even given that the audience mayinitially be limited to several thousand persons,the post-endorsement wave of activity by thejudge's friends generated by the initial

endorsement may well increase exponentially tovery sizeable numbers.

[**49]

The text of Canon 5(2), the lack of any definition ofthe term "endorse," and the problematic ethical opinionsprovide marginal guidance. A survey of the respectiveCodes of a majority of states shows that they prohibiteither "endorsing" n37 or "endorsing and opposing," n38but for the most part these state Codes fail to define"endorse."

n37 For example, Arizona, Colorado,Connecticut, Georgia, Massachusetts, NewHampshire, New Jersey, New Mexico, NorthCarolina, Pennsylvania, and Utah.

N38 For example, Arkansas, Delaware,Florida, Hawaii, Indiana, Kansas, Kentucky,Louisiana, Minnesota, Nebraska, Nevada, NewYork, Ohio, Rhode Island, South Carolina,Vermont, Virginia, West Virginia, and Wyoming.

Ohio's Canon 7(B)(2)(b) prohibits a judge or judicialcandidate from publicly endorsing or opposing acandidate for another public office. OHIO CODE JUD.CONDUCT, Canon 7(B)(2)(b). The Ohio Board ofCommissioners referred to a dictionary for broaddirection in defining the term "endorsing. [**50] " TheOhio Board ultimately defined "endorsement" as: "to giveapproval of or support to." Ohio Bd. of Comm'rs onGrievances & Discipline, Op. 89-15 (Apr. 10, 1992)(citing WEBSTER'S II NEW RIVERSIDE UNIV.DICTIONARY (1984)).

The definitions provided by two leading dictionaries,however, require more than mere support. Webster'sInternational Dictionary defines "endorse" as "to expressdefinite approval or acceptance of," "support or aidexplicitly by or as if by a signed statement," "vouch for,"and "underwrite." WEBSTER'S THIRD NEW INT'LDICTIONARY 749 (1981). The Oxford EnglishDictionary defines "endorse" as "[t]o write on the back ofsomething," "[t]o confirm, sanction, countenance, orvouch for (statements, opinions, acts, etc.; occasionallypersons) as by an endorsement," and "[t]o declare one'sapproval of." 5 THE OXFORD ENGLISHDICTIONARY 233 (2d ed. 1989). Even the

Page 24213 S.W.3d 547, *570; 2006 Tex. App. LEXIS 9087, **47

commission's proffered definition of "endorse" from theMerriam-Webster's Online Dictionary indicates the terminvolves more than mere support: "to express support orapproval of publicly and definitely<endorse a mayoralcandidate>." MERRIAM-WEBSTER ONLINEDICTIONARY,http://www.m-w.com/dictionary/endorse. [**51]

North Carolina's definition of "endorse"--requiringmore than mere support--is consistent with thesedefinitions. North Carolina's Code of Judicial Conduct,the only Code that we determined actually defined"endorsing," provides that a judge who is a candidatemay endorse a candidate for judicial office. N.C. CODEJUD. CONDUCT, Canon 7B(2). The North CarolinaCode of Judicial Conduct defines "endorse" as follows:

knowingly and expressly request, appealor announce publicly, orally or in writing,whether in person or through the press,radio, television, telephone, Internet,billboard or distribution and circulation ofprinted materials, that other personsshould support a specific individual in hisefforts to be elected to public office.

N.C. CODE JUD. CONDUCT, Canon 7A(3) (emphasisadded). n39 North Carolina has recognized [*572]"endorsing" as a term of art within the political process.

n39 North Carolina's Code of JudicialConduct also defines "candidate," limiting itsmeaning to "a person actively and publiclyseeking election to judicial office." N.C. CODEJUD. CONDUCT, Canon 7A(1). Had the TexasSupreme Court defined "candidate," "endorse,"and other terms in the Texas Code of JudicialConduct, many of the questions before us wouldnot have arisen.

[**52]

Although Eu v. San Francisco County DemocraticCentral Committee, 489 U.S. 214, 109 S. Ct. 1013, 103 L.Ed. 2d 271 (1989), is frequently relied upon in FirstAmendment cases for a number of significant principles,it is important in this case because of the basis for itsdecision, a statutory provision of an election code. Theformer provision of the California Elections Code at issuein Eu v. San Francisco County Democratic Central

Committee, 489 U.S. 214, 109 S. Ct. 1013, 103 L. Ed. 2d271 (1989), stated in part that the official governingbodies of the political parties "shall not endorse, support,or oppose, any candidate for nomination by that party forpartisan office in the direct primary election." Id. at 217(emphasis added). This election code clearlydistinguished between "endorse" and "support" becausethe use of both terms would be redundant.

The language and legal effect of a statute mayrequire a court to construe it "strictly." To construe astatute strictly means applying a limited, narrow, orinflexible reading and application of the statute. Cain v.State, 882 S.W.2d 515, 519 (Tex. App.-Austin 1994, nowrit). A strict construction [**53] of a statute must beapplied to two classes of statutes: those that authorize apenalty and those that infringe upon private property orliberty interests. Id. A statute that falls within one ofthese categories must be couched in such explicit termsthat the party upon whom the statute is to operate may,with reasonable certainty, ascertain what the statuterequires to be done and when it must be done. Mo., K. &T. Ry. Co. v. State, 100 Tex. 420, 424, 100 S.W. 766, 767(1907). If such explicit terms are not present, there is noopportunity for a person charged with the duty to protecthimself by the performance of it according to the law. Id.When the liberty interest is the right to core politicalspeech, that construction must be quite strict.

The commission alleged that Petitioner violatedCanon 5(2) when he made certain statements in supportof Harriet Miers, a United States Supreme Court nomineeat the time. Debate on the qualifications of candidates forpublic office is at the core of our electoral process and ofFirst Amendment freedoms. Eu v. San Francisco CountyDemocratic Central Committee, 489 U.S. 214 at 223, 103L. Ed. 2d 271. [**54] The Supreme Court has recognizedrepeatedly that debate on the qualifications of candidatesis integral to the operation of the system of governmentestablished by the Constitution. Buckley v. Valeo, 424U.S. 1, 14, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (percuriam). Because the authorization provision of Canon5(2) implicates the liberty interest of free expression, theCanon must be strictly construed in favor of Petitioner.See Mo., K. &T. Ry. Co., 100 Tex. at 424, 100 S.W. at767.

The commission and the Ohio Board define"endorsing" as meaning "support"; other prominentdictionary definitions and the North Carolina Code of

Page 25213 S.W.3d 547, *571; 2006 Tex. App. LEXIS 9087, **50

Judicial Conduct define "endorsing" as meaning morethan just support. This latter definition constitutes a"limited, narrow, and inflexible reading and application"of the term "endorsing" in Canon 5(2) of the Code. Theformer interpretation encompasses Petitioner'sstatements; the latter does not. We do not propose toconstruct our own definition of "endorsing." We do,however, recognize the necessity of first establishing[*573] the meaning of "endorsing" before we canproceed to determine whether Petitioner's statementsconstitute "endorsing. [**55] " This step is fundamental,particularly when the only definition specificallymandated by a state Code, that of North Carolina, whichin turn is based upon the American Bar Association'sModel Code of Judicial Conduct, would not prohibitPetitioner's statements.

Accordingly, we interpret "endorsing" under thecircumstances of this case to mean more than support,that is, more than spoken praise.

Petitioner testified his public statements, whileobviously supportive, principally dealt with factualbackground and did not urge the public to "get behind"the nominee, particularly because the situation involved anomination to the federal bench, not a candidate runningin a contested election.

The federal judicial-selection process focuses onlyon the individual nominated for the judicial position. Theinquiry carefully examines the nominee's character,credentials, qualifications, and experience. The processencourages and invites public comment from prominentmembers of the community, including the judiciary.Public statements made about the nominee are notintended to give an individual an advantage over anotherbecause there is only one nominee. Senator Spectertestified that the [**56] Senate Judiciary Committeewould have requested Petitioner to appear and testify athearings on Miers' nomination. Petitioner testified hewould have repeated the same public statements at issuehere at such a hearing. n40

n40 Our review of a portion of the evidenceshows numerous statements made by prominentjurists before the Senate Judiciary Committeesupporting previous judicial nominees to theUnited States Supreme Court. Utah State JudgeLindberg described her "enthusiastic support" forJudge Roberts nomination as Chief Justice and

went into detail about his "towering intellectualskills and engaging personality." Judge Klein,Presiding Justice of the California Court ofAppeals, spoke in behalf of Judge O'Connor,whom she found "exceptionally well qualified" aswell as "brilliant, fair, pragmatic . . . ." Shedescribed her integrity as being "above reproach,"and emphasized she was moderate and "gracious"and had "every potential for becoming anoutstanding Supreme Court Justice." UnitedStates District Judge Jack Tanner described JudgeThomas as "well qualified to become an AssociateJustice" and "the best man for the job." UnitedStates District Judge "endorse[d] wholeheartedlythe nomination[s]" of Judge Powell and WilliamRehnquist. He praised Mr. Rehnquist for hisacademic achievements and professional skillsand "could find no one that [he] wouldrecommend more highly." United States Court ofAppeals Judge Barry, of the Third Circuit inPennsylvania, said Judge Alito was "a man ofremarkable intellectual gifts" and "impeccablelegal credentials" who would make a "marvelousand distinguished" Associate Justice.

A careful review of the public statements ofjudges who appeared before a Senate JudiciaryCommittee shows each witness' testimony moreoften than not "endorsed," by any definition, thenominee.

According to Professor Hazard, whose testimonywas stipulated to by the commission: "[J]udgestalk to the media and public about nominees to thefederal bench, and he is not aware of any judgewho has been sanctioned by a state or federalcommittee or by a court for making comments tothe press or public about a nominee to the federalbench."

[**57]

Petitioner touched on this aspect again when hetestified that "of course you're endorsing in the sense thatyou're supportive, but that's not what the canon means."He stated his intent was to get the truth out because muchof the information being published about Miers wasnegative and untrue. He declined the commission'sinvitation to describe his support as "go, Harriet, go, sheis my pick," instead emphasizing he predominantly

Page 26213 S.W.3d 547, *572; 2006 Tex. App. LEXIS 9087, **54

conveyed information [*574] about her personal andprofessional background, the type of cases she handled(general business litigation from contracting disputes toantitrust and securities), and the positions she took whena Dallas City Council member or State Bar of TexasPresident. He stressed that he intended to accuratelyrelate her qualifications.

Petitioner further testified he was present during thediscussions that took place when the Canons wereamended in 1990: "[T]here was not the slightest thoughtthat it would ever apply to comments made in respect to anomination to the United States Supreme Court. That wasnot a concern, it never crossed anybody's mind, and ithasn't since until this case." The amendment concernedproviding "cover" for the judges [**58] under totallydifferent circumstances.

The commission highlights statements by Petitionerthat Harriet Miers "would make a good justice," has a"sterling" character," and her nomination was "good" and"solid." These and other statements reflect that Petitionerprovided descriptions of Miers' background, hisperception of her personal views on various subjects, andhis favorable opinions about Miers' nomination to thebench. They do not constitute "endorsing" in that they areno more than support or praise, and they do not constitutea request or appeal for others to support her nomination.

Our conclusion is reinforced by examiningPetitioner's public statements in the context of severalrelevant provisions of the Canons. n41 The Preamble andCanon 2 stress the need for a competent judiciary andmaintaining public confidence. Petitioner made a numberof remarks which asserted Miers' character, experience,and career reflected the type of competence necessary onthe bench. His remarks were designed to instill publicconfidence in the Miers nomination.

n41 The Preamble of the Code stresses theprinciple that "an independent, fair and competentjudiciary will interpret and apply the laws thatgovern us. It also emphasizes judges "mustrespect and honor the judicial office as a "publictrust." TEX. CODE JUD. CONDUCT, Preamble.

Canon 1 states: "A judge should participatein establishing, maintaining, and enforcing highstandards of conduct, and should personallyobserve those standards so that the integrity and

independence of the judiciary is preserved. Theprovisions of this Code are to be construed andapplied to further that objective." TEX. CODEJUD. CONDUCT, Canon 1.

Canon 2 states a judge must "act at all timesin a manner that promotes public confidence inthe integrity and impartiality of the judiciary." Id.Canon 2. Canon 3B(10) states in part that a judgeis not prohibited from "making public statementsin the course of their official duties or fromexplaining for public information the proceduresof the court." TEX. CODE JUD. CONDUCT,Canon 3B(10).

Canon 4B(1) states that a judge may "speak,write, lecture, teach and participate inextra-judicial activities concerning the law, thelegal system, the administration of justice andnon-legal subjects, subject to the requirements ofthis Code . . . ." TEX. CODE JUD. CONDUCT,Canon 4B(1).

Canon 5(1)(ii) states: "A judge . . . shall not: .. . knowingly or recklessly misrepresent theidentity, qualifications, present position, or otherfact concerning the candidate or an opponent . . .." TEX. CODE JUD. CONDUCT, Canon 5(1)(ii).Canon 5(2), in its entirety, states:

A judge or judicial candidate shallnot authorize the public use of hisor her name endorsing anothercandidate for any public office,except that either may indicatesupport for a political party. Ajudge or judicial candidate mayattend political events and expresshis or her views on politicalmatters in accord with this Canonand Canon 3B(10).

TEX. CODE JUD. CONDUCT, Canon 5(2).

[**59]

Canons 3B(10), 4B(1), and 5(2) encourageparticipation by judges in the legal system, theadministration of justice, and the political process.Petitioner's public [*575] statements concerning Miers'nomination detailed her personal life, her positions on

Page 27213 S.W.3d 547, *573; 2006 Tex. App. LEXIS 9087, **57

various sensitive issues, her professional career, hercharacter, and her work ethic. It is undisputed that Canon5(2) permits a judge to speak out "on political matters."Petitioner's statements were within the boundaries ofthese Canons. The commission's interpretation andapplication of the authorization provision minimizesCanon 5(2)'s provision empowering a judge to speak onpolitical matters.

Canon 5(1)(ii) prohibits misrepresentations.Petitioner took the position that he "was uniquely situatedto get the truth out about Harriet [Miers]." He describedthe times as truly "chaotic" and that "the publicity comingout about Harriet Miers [was] negative," "false," and"untrue." He perceived that "more information" needed tobe developed about her background. His publicstatements were "truthful" on matters "of enormousconcern to the American public." Petitioner was also"worried" that if he did not speak up, it could beperceived [**60] that he knew something that would hurther nomination, which was false.

Canon 5(2) should permit a judge to respond to anyuntruthful or inaccurate statements, thereby affording ajudge able and willing to do so an effective and timelyavenue of recourse to correct misrepresentations in apublic forum. Otherwise, this provision provides minimalutility at such a critical juncture. A construction of thisprovision that bars a judge from publicly responding tomisrepresentations absent express permission to do soleaves a judge vulnerable to potentially inaccurate anduntruthful attacks without any effective remedy anddeprives the public of correct and accurate backgroundinformation on judicial candidates and nominees. Areasonable construction of this provision affords animmediate and practical method to counter public attacksand criticisms and protects the public's right to truthfuland important information, particularly as to a nominee tothe United States Supreme Court. In addition, thepurposes of the Code are promoted and enhanced, nothindered and frustrated. This provision should not censoror silence a judge.

The American Bar Association Model Code ofJudicial Conduct [**61] and other state Codes makeample provision enabling a judicial candidate to respondto misrepresentations. The ABA Model Code of JudicialConduct includes a comment addressing "falseinformation" stating, "Where false informationconcerning a judicial candidate is made public, a judge or

another judicial candidate having knowledge of the factsis not prohibited by Section 5A(1) from making the factspublic." ABA MODEL CODE JUD. CONDUCT, Canon5A(1), Commentary (2004). This comment or a variationof this comment has been included in the Codes ofJudicial Conduct of several states including Alaska,Florida, Idaho, Indiana, Kansas, Kentucky, Mississippi,Nebraska, Nevada, North Dakota, South Carolina, SouthDakota, and Tennessee. We conclude Petitioner's publicstatements are consistent with a judge's right, if not hisresponsibility, to respond to misrepresentations.

We conclude the commission's efforts to postulatejudicial misconduct by showing a state appellate judgemade public statements about a pending nominee to theUnited States Supreme Court, in the commission's words,"endorsing," under the particular facts and circumstancesof this case, severely strain a reasonable construction[**62] of the Texas Code and are without merit.

We conclude the commission has failed to prove by apreponderance of the evidence that Petitioner endorsedMiers. We conclude under the particular circumstances[*576] presented that Petitioner complied with the spiritand letter of the Texas Code of Judicial Conduct.Accordingly, we conclude Petitioner is not guilty ofviolating Canon 5(2).

VIII.

The commission's second charge alleges:"[Petitioner] lent the prestige of his judicial office toadvance the private interests of his close friend, HarrietMiers in violation of Canon 2B of the Texas Code ofJudicial Conduct." We conclude Canon 2B isinapplicable to the conduct at issue.

Canon 2 is entitled: "Avoiding Impropriety and theAppearance if Impropriety in All of the Judge'sActivities." TEX. CODE JUD. CONDUCT, Canon 2.Canon 2B of the Code provides, in relevant part: "Ajudge shall not lend the prestige of judicial office toadvance the private interests of the judge or others . . . ."TEX. CODE JUD. CONDUCT, 2B. n42 The secondcharge was limited to the private interests of "others,"namely, Miers.

n42 In its entirety, Canon 2B provides:

Page 28213 S.W.3d 547, *575; 2006 Tex. App. LEXIS 9087, **59

A judge shall not allow anyrelationship to influence judicialconduct or judgment. A judge shallnot lend the prestige of judicialoffice to advance the privateinterests of the judge or others; norshall a judge convey or permitothers to convey the impressionthat they are in a special position toinfluence the judge. A judge shallnot testify voluntarily as acharacter witness.

TEX. CODE JUD. CONDUCT, Canon 2B.

[**63]

We first address whether Canon 2B applies to theconduct at issue in this case. In so doing, our inquiryfocuses again on a definition, this time, of the term"private interests." The Code of Judicial Conduct doesnot contain a definition of "private interests."

In re Jimenez, 841 S.W.2d 572 (Tex. Spec. Ct. Rev.1992), provides some guidance. In that case, thecommission, after finding the judge had a private interestin retaliating against a policeman, privately admonishedthe judge for violating Canon 2B for making statementsaccusing a policeman of perjuring himself and selectivelyprosecuting Hispanic males for DWI. The judge'scommunications followed a telephone conversation inwhich the policeman criticized the judge's dismissal of asuit against an Hispanic male for DWI as a "[expletivedeleted] . . . decision." Id. at 573-74. The Special Courtof Review determined that the judge's actions, includingone of the letters and later "media interviews" stemmingfrom the letters and the judge's testimony in a lawsuit asto the truthfulness of the policeman, were to advance thepublic interest. Id. at 579. The court reasoned that [**64]all these communications dealt with the policeman's"alleged crimes," not with his "private insulting remarks,"and were, therefore, motivated by public interest. Id. at580. The court considered a "matter of public interest" tobe "one that affected his [i.e., the policeman's]performance of duty." Id. at 580. In considering a secondletter in which the judge did not mention possible crimesand public misconduct but instead referred to the judgetaking "particular offense" to the comment, the courtconcluded the letter was not written to retaliate. Id. at581. Instead, the court concluded that, even if the judge

had a "personal motive of retaliation," it was notconvinced by a preponderance of the evidence that hispersonal motive "exceeded the public motive ofdisciplining a police officer reasonably suspected ofmajor crimes and minor bad manners." Id.

Thus, the focus of the Jimenez court was on thepublic interest of the policeman's performance of hisduties as a police officer, not the judge's private interestin retaliating against an ill-mannered individual. [*577]See id. at 580. The Jimenez court also [**65] recognizeda balancing between private and public motivation. Seeid. at 581. Finally, the Jimenez court stressed thecommission never alleged any of the judge's statementswere false in any respect.

A legal dictionary defines "private" in part as"[r]elating to or belonging to an individual, as opposed tothe public or the government. . . . Confidential; secret."BLACK'S LAW DICTIONARY 1233 (8th ed. 2004).n43 While not defining "private interests," the TexasAttorney General has decided that the phrase "does notinclude candidacy." Op. Tex. Att'y Gen. No. LO-89-21(1989). In addition, the Supreme Court of Washington,reviewing the same language, discussed the type ofconduct to which Canon 2B is directed, emphasizing "thejudge's use of his or her office to obtain a financial orother advantage, either for himself or herself personallyor for a third party." In re Sanders, 135 Wn.2d 175, 955P.2d 369, 376 (Wash. 1998). We conclude that a privateinterest pursuant to Canon 2B is a personal or individualadvantage or benefit gained by use of judicial office.

n43 Rather than focusing on a definition of"private interest," the commission argues from theposition that Canon 2B, like Canon 5(2), prohibitsa judge from publicly endorsing other candidates.However, we have already concluded Petitioner'sconduct did not violate the "authorization"provision of Canon 5(2).

[**66]

The commission asserts that a benefit of office, lifetenure, as well as power and prestige, constitute "privateinterests" under Canon 2B. We disagree. Although theposition of Supreme Court Justice comes with life tenureand as well as a guaranteed salary, see U.S. CONST. art.III, § 1, those factors are not necessarily private interests.Rather, they are the perquisites of the public office.

Page 29213 S.W.3d 547, *576; 2006 Tex. App. LEXIS 9087, **62

Lifetime tenure and guaranteed salary safeguard thejudiciary from interference from the other branches ofgovernment and promote judicial independence; thus,they are public, rather than private, interests.

The argument that the benefits of public office areprivate interests presumes that candidates seek office forselfish reasons rather than from a noble sense of duty.The suggestion that a public office is a private interestimplies that all public officers, whether legislative,executive, or judicial, are corrupt. This Court soundlyrejects any such suggestion.

The evidence before us, including numeroustranscriptions of congressional hearings, clearlydemonstrates candidates seeking federal judicial positionsare driven by the desire and passion to engage in publicservice and [**67] promote the rule of law in ameaningful capacity. Furthermore, all of the expertwitness testimony, most of which was stipulated to by thecommission, opined that Petitioner's conduct did notadvance the private interests of Miers. Under the factspresented, we are convinced this level of dedication andcommitment is best described as one of public, notprivate, interest. n44

n44 We are aware the commission, in its briefidentified Miers' "private interests" under Canon2B as:

political ambition, including butnot limited to a candidate's desirefor lifetime tenure, prestige, andpower, which motivates acandidate to seek a life-timeappointment to the federal bench inthe first place and there is noposition more prestigious, morepowerful, or more remarkable andexclusive than justice of the UnitedStates Supreme Court.

The commission must prove, not just allege orargue, Petitioner lent the prestige of his judicialoffice "to advance the private interests" of HarrietMiers. Even if we assumed Canon 2B applied, wewould reject the commission's position. TheUnited States Constitution sets forth the length ofthe term of a Justice of the United States SupremeCourt life tenure. In essence, the commission

singled out part of a constitutional provision and,without any evidentiary support, argues itpolitically motivated Miers to seek thenomination. The commission further argues thepower and prestige of the judicial position droveMiers to seek the nomination. This argument islikewise unsubstantiated by any evidence and isentirely speculative. We conclude it is spurious.The uncontroverted evidence shows Miers neversought, suggested, aspired to, or requested thenomination. She "dreaded" the idea but acceded tothe President's request. Miers was prompted toaccept the nomination in the public interest, ineffect, to further serve. The flaw in thecommission's position is that it assumes but doesnot prove political ambition. The commission hasfailed to even attempt to provide a scintilla ofevidence of Miers' political ambition, and thus,failed to prove Petitioner advanced Miers' "privateinterests."

Even if pursuing the nomination at the President'srequest is some evidence Miers' political ambitionto a seat on the Supreme Court, Jimenezrecognizes a balancing between such privatemotivation and the public interest. See Jimenez,841 S.W.2d at 581. The commission offered noargument or evidence that Miers' private interest,that is, her "political ambition," outweighed thepublic interest under Jimenez, and our review ofthe evidence shows no such imbalance.

[**68]

[*578] Moreover, the view that seeking theseperquisites as a private interest, that is, viewingcandidacy for this office as a private interest, contradictsthe Attorney General's decision in LO-89- 21 and wouldequate a judge's promotion of his or her own candidacyas a violation of Canon 2B. This interpretation wouldalso prohibit a judge from appearing on his or her ownbehalf at a political event, conduct expressly permittedunder Canon 5(2). n45 In short, we agree that "privateinterests . . . do not include candidacy." Op. Tex. Att'yGen. No. LO-89-21.

n45 The North Carolina Code recognizes thisinherent problem and permits the judge to endorsehis own candidacy. The North Carolina Code

Page 30213 S.W.3d 547, *577; 2006 Tex. App. LEXIS 9087, **66

specifically excepts the judge "so long as he doesnot expressly endorse a candidate (other thanhimself) for a specific office . . . ." N.C. CODEJUD. CONDUCT, Canon 7B(1) (emphasisadded).

Petitioner testified about the purpose of Canon 2B:

[T]he purpose for 2B is to keep judgesfrom calling [**69] the district attorney,trying to get him to go easy on their kid, orthe neighbor's kid, or trying to get thecounty commissioners to give a contract tosomebody that's more friendly or lessfriendly, or those kinds of things. It'snot--the idea that by speaking in favor ofsomeone who is trying to get confirmed,and has already been nominated to theU.S. Supreme Court, that that somehowadvances a private interest, no one wouldhave ever thought that. If you made alist--this canon is old, so if you made a lista long time ago and said, check off the tenthings this is supposed to stop, and one ofthem was keeping people from promotingnominees to the U.S. Supreme Court,nobody would check that off . . . .

Canon 2B prohibits a judge from using the prestigeof judicial office to pursue "private interests" such asusing the position of judge to extort a financial benefit, toretaliate against another, or to obtain preferentialtreatment for the judge or another person. n46 Suchconduct is [*579] generally perpetrated in secret or in aclandestine manner. The conduct at issue, however, is thepublic dissemination of information about Miers in apolitical context. The record does not even [**70]intimate that Petitioner engaged in any surreptitiousconduct.

n46 See In re Davis, 82 S.W.3d 140, 150(Tex. Spec. Ct. Rev. 2002) (using position of judgeto retaliate against an assistant district attorney);Public Reprimand of Ken Reilly, Municipal CourtJudge, No. 04-0360-MU (Comm'n Jud. ConductNov. 2, 2004) (part-time municipal judge whoserved one-half day per month advertised hispublic-speaking private business, which was hisprimary occupation, with statements like "Bring

'The Judge' to your next meeting as a keynoter");Public Reprimand and Order of AdditionalEducation of Santos Benevides, Justice of thePeace, No. 04-0513-JP (Comm'n Jud. ConductNov. 2, 2004) (judge ordered felon arresteereleased on personal recognizance bond becausearrestee was son of 25-year acquaintance ofjudge); Public Admonition of Alonzo Villarreal,Justice of the Peace, No. 04-0285-JP (Comm'nJud. Conduct June 25, 2004) (judge contactedmunicipal judge about another person's trafficticket; when municipal judge said that wasinappropriate use of judicial office, judge said"we judges help each other"); Public Admonitionof Jose Canales, Justice of the Peace (Comm'nJud. Conduct June 27, 2003) (judged telephonedanother judge to obtain favorable treatment forcounty official's daughter on traffic citationpending in other judge's court); PublicAdmonition of Frederick Edwards, District CourtJudge (Comm'n Jud. Conduct Apr. 12, 2001)(using position as judge in attempt to avoid arrestand prosecution for driving while intoxicated);Public Reprimand of Marvin Mitchell, FormerJustice of the Peace (Comm'n Jud. Conduct Aug.18, 2000) (judge telephoned girls on probation inhis court for truancy and engaged in explicitsexual conversations); Public Admonition of DonJarvis, County Court at Law Judge (Comm'n Jud.Conduct Oct. 22, 1999) (judge becameromantically involved with married woman whohad matters pending in the judge's court); PrivateAdmonition of a County Court at Law Judge,(Comm'n Jud. Conduct Mar. 6, 2006) (state judgeused official court letterhead to write letter tofederal judge requesting leniency in sentencingstate judge's relatives); Private Reprimand of aJustice of the Peace, (Comm'n Jud. Conduct July14, 2004) (judge instigated groundless criminalinvestigation of constable who tried to servepapers on judge's son).

[**71]

We hold Canon 2B was not intended to apply anddoes not apply to the conduct at issue in the politicalenvironment described. n47 Under these circumstances,we can hardly conclude that Petitioner's public statementswould have constituted an advancement of Miers'"private interests." Accordingly, we find Petitioner not

Page 31213 S.W.3d 547, *578; 2006 Tex. App. LEXIS 9087, **68

guilty of the charge of violating Canon 2B by lending theprestige of his judicial office to advance Miers' privateinterests.

n47 We note Canon 5 is entitled: "RefrainingFrom Inappropriate Political Activity" and doesspecifically apply to political statements. SeeTEX. CODE JUD. CONDUCT, Canon 5.

IX.

Analysis of the public statements in relation to theTexas Code of Judicial Conduct has been seriouslyhampered by the complete lack of definitions of criticalterms in the Code. Terms such as "authorized,""endorsing," and "private interests" are pivotal to theprovisions in which they appear, but the Code does notprovide a specific meaning for the terms. This void[**72] fosters ambiguity and confusion in interpretationand application. There is no bright line of demarcationbetween acceptable and prohibited conduct. We declineto come down on the side of condemnation in the face ofwhat we perceive as undeniably obvious: the ambiguity,confusion, and apparent contradictions in the content,interpretation, and application of the Canons. Perhaps anevent such as the case before us will precipitate a freshapproach and renewed efforts to clearly delineate themeaning of such key terms and thereby clearly definewhat conduct is acceptable and what is not.

We have resolved the meaning of "authorized" byreferring to the Webster's International and the OxfordEnglish dictionaries. We conclude Canon 5(2), the"authorization" provision, does not prohibit "endorsing";rather, the words mean what they say: the "authorization"provision prohibits a judge from authorizing the publicuse of his name endorsing another candidate. We cannotconclude a violation of the "authorization" provisionoccurred without any evidence Petitioner "authorized"[*580] the use of his name "endorsing" "anothercandidate for any public office," Harriet Miers.

Although we have not resolved [**73] the meaningof "endorsing," we conclude there are alternative,reasonable definitions of "endorsing" and that, even if weaccepted the commission's interpretation of Canon 5(2)as prohibiting "endorsing," a strict construction of"endorsing" means a narrower construction than justbroad support, and, therefore, does not encompass

Petitioner's public statements. The commission failed toprove Petitioner's public statements "endorsed" Miers.Thus, we cannot conclude Petitioner violated Canon 5(2)by "endorsing."

We also conclude Petitioner's public statements are,under the particular facts presented, permitted by theCanons because they qualify as legitimate responses tomisrepresentations (Canon 5(1)(ii)), expressions of viewson political matters (Canon 5(2)), statements thatpromote public confidence in the competence of thejudiciary, and statements which involve the law, the legalsystem, and the administration of justice (Preamble,Canons 2 & 4).

Finally, we conclude Canon 2B does not apply to thepolitical conduct at issue, and, therefore, no violation canbe found.

Accordingly, we conclude the commission has failedto meet its burden of proving Petitioner violated theCanons, [**74] we dismiss the commission's publicadmonition, and we find him not guilty of the charges.

KERRY P. FITZGERALD

PRESIDING JUSTICE

AMOS L. MAZZANT

JUSTICE

CONCUR BY: ANN CRAWFORD McCLURE

CONCUR:

CONCURRING OPINION

"Thirty-seven hundred judges want to know what todo." With these words, the Examiner for the Commissionhas asked us to clearly draw the lines and articulate theboundaries of the Texas Code of Judicial Conduct. At theoutset, let me dispel any notion that this court of reviewis about politics. Politics may well have initiated thedebate. It plays no role in the resolution. The threemembers of this panel are not affiliated with the samepolitical party. But as judges, we unanimously agree thatwe must preserve the independence, integrity, andimpartiality of the judiciary. I don't believe that JusticeHecht, a well-respected member of the state's highestcivil court, would contend otherwise. How we do that

Page 32213 S.W.3d 547, *579; 2006 Tex. App. LEXIS 9087, **71

within the confines of the canons and the constitution isthe issue. If we as judges do not honor and respect theoffice and the public trust, we can hardly expect lawyersand litigants to do so. Nor can we expect the recurrentattacks on the judiciary to subside. [**75]

The majority perceives no violation of either Canon5(2) or Canon 2B. I disagree. But because I believe thecanons in issue are unconstitutional, I concur in thejudgment.

CHARGE I

THE "ENDORSE" CLAUSE

Charge I alleges that Justice Hecht authorized thepublic use of his name and title to support n1 or endorsehis close friend, Harriet Miers, a candidate for publicoffice, which actions constituted willful and/or persistentviolations of Article V, Section 1-a(6) of the TexasConstitution and Canon 5(2) of the Texas Code ofJudicial Conduct. Canon 5(2) provides:

A judge or judicial candidate shall notauthorize the public use of his or her[*581] name endorsing another candidatefor any public office, except that eithermay indicate support for a political party.A judge or judicial candidate may attendpolitical events and express his or herviews on political matters in accord withthis Canon and Canon 3B(10).

TEX. CODE JUD. CONDUCT, Canon 5(2), reprinted inTEX. GOV'T. CODE ANN., tit. 2, subtit G, app. B(Vernon 2005). We must determine (1) whether Mierswas "a candidate;" (2) whether Justice Hecht "endorsed"her; [**76] and (3) whether he authorized the public useof his name and office in doing so. The answer to allthree of these inquiries is a resounding, "Yes."

n1 Canon 5(2) does not expressly utilize theterm "support" but "endorse" is commonlydefined as meaning "to give support or approvalto; sanction". Webster's New UniversalUnabridged Dictionary 600 (2nd Ed. 1972).

Was Miers a Candidate?

Justice Hecht argues that while Miers was a nomineefor a lifetime appointment to the United States SupremeCourt, she was not a candidate for a public office withinthe meaning of Canon 5(2). He contends that theprohibition relates only to endorsement of a politicalcandidate for an elected office and does not prohibit himfrom expressing his support of a person seeking anappointed judicial position. The Code of Judicial Conductdoes not define the term "candidate" and it does not havea specialized meaning; therefore, it should be given itsordinary meaning. TEX.GOV'T CODE ANN. § 312.002[**77] (Vernon 2005). Webster defines "candidate" as"one that aspires to or is nominated or qualified for anoffice, membership, or award." Webster's Ninth NewCollegiate Dictionary 201 (9th ed. 1987). The Examinerreferences the Merriam-Webster Online Dictionary,which defines "candidate" as "[o]ne that aspires to or isnominated or qualified for an office, membership, oraward." Seehttp://www.merriamwebster.com/dictionary/candidate.Even the current version of the Texas Election Codemakes no distinction between persons who takeaffirmative action for the purpose of gaining nominationto public office and those who take affirmative action forthe purpose of election to public office.TEX.ELEC.CODE ANN. § 251.001 (Vernon Supp. 2006).More a propos to our discussion, however, is thedefinition contained in the American Bar AssociationModel Code of Judicial Conduct. "Candidate" is definedas "a person seeking selection for or retention in judicialoffice by election or appointment." MODEL CODE OFJUDICIAL CONDUCT, Preamble and Canons 5 A. 5B,5C, and 5E. Finally, the record reveals that Justice Hechthimself has referred to nominees [**78] for variousfederal courts, including the United States SupremeCourt, as "candidates," just as he considers a position onthe United States Supreme Court to be "a public office."Did Justice Hecht's Comments Constitute An"Endorsement"?

Justice Hecht contends that just as "candidate" refersto the elective process, so does "endorsing" as used in thesame context. He concedes that although a "judgecommenting favorably on the proposed appointment maybe said to be 'endorsing' the person in the dictionary senseof 'giving support,' the judge is not engaging in theelectoral political process that Canon 5(2) is aimed at."Petitioner's Brief at 18. I must conclude that JusticeHecht "endorsed" for the same reasons I conclude thatMiers was a "candidate." And in his brief, even he

Page 33213 S.W.3d 547, *580; 2006 Tex. App. LEXIS 9087, **74

candidly admits:

The information [Justice Hecht] providedabout Miers' experience and qualificationscertainly supported and thus 'endorsed' hernomination among those who valued thekind of background she had, although theinformation was undoubtedly receivednegatively among those who did not.

Petitioner's Brief at 19.

Justice Hecht gave numerous media interviews inwhich he [**79] was identified as a [*582] justice onthe Texas Supreme Court. He provided factualinformation about Miers' experience and background. Insome of the interviews, he offered his personal opinionthat Miers' nomination would be "good for the country,"that she would make a "good justice," that she would be"a conservative judge" and "a strict constructionist." Healso described her as "pro-life." Reasonable minds coulddiffer as to whether these comments constitute anendorsement. The majority concludes that "endorsing"must mean more than "spoken praise." It suggests thatJustice Hecht's comments did not constitute a request oran appeal to others to support her nomination. Irespectfully disagree.

The Stipulation of Facts reveals that Former WhiteHouse Deputy Chief of Staff Karl Rove spoke withJustice Hecht on Saturday, October 1, 2005, and askedwhether he [Justice Hecht ]would be willing to providefactual information to Dr. James Dobson n2 and "otherswho might ask" about Miers' background in general andher religious views in particular. Justice Hecht agreed todo so. In a later conversation, Justice Hecht agreed torespond to media calls referred to him by the WhiteHouse, and he [**80] agreed to make daily reports toWhite House staff concerning the types of questions hehad been asked.

n2 James C. Dobson, Ph.D., is founder andchairman of Focus on the Family, a non-profitconservative religious organization thatemphasizes family values.

President Bush announced Miers' nomination onMonday morning, October 3. That afternoon, someonefrom Rove's office called Justice Hecht to advise him that

he had been invited to participate in a conference call ofthe Arlington Group. Justice Hecht had not heard of thegroup but learned that it was composed of conservativereligious leaders. He agreed to participate, and called inat the appointed time. Dr. Dobson, who participated inthe call, later told the press that he had been assured byRove that Miers was an evangelical Christian but that hedid not get reassurances about how she would vote onSupreme Court issues. Examiner's Exhibit 17.

Within the first two days following theannouncement, Justice Hecht received nearly 100 mediacalls and within [**81] a week, by his own count, he hadresponded to some 120 requests for interviews. Includedin the record are videotapes, DVDs, and transcripts fromvarious networks, including Supreme Court Watch[C-SPAN], FOX News Sunday [FOX], Hardball withChris Matthews [MSNBC], and The Situation Room[CNN]. The New York Times hailed Justice Hecht asMiers' "Spokesman" in an October 6 article. n3Examiner's Exhibit 2. And he himself joked during aninterview that he was a "PR office for the White House."Examiner's Exhibit 1.

n3 The Times article is captioned, "TexasJustice, With Ties to Bush and His Supreme CourtChoice, Serves as Her Spokesman." It offers thefollowing reason: "For the right audiences, JusticeHecht, 55, is known as one of the mostconservative jurists on the Texas SupremeCourt....He has become so well known in hishome state that this year he was named by TexasMonthly as one of 25 most powerful people inTexas politics."

On October 10, Texas Lawyer reported that Justice[**82] Hecht categorized his "mission" as filling in thegaps about Miers' background and countering "someconservatives' skepticism about her qualifications."Examiner's Exhibit 1. n4 He told [*583] reporters thatconservatives should "rest easy" about Miers' nomination.Id. Examiner's Exhibit 3 is a story from The DallasMorning News. It begins:

Like an author on a radio talk-show blitz,Texas Supreme Court Justice NathanHecht worked the phones Tuesday on amission authorized at the highest levels ofthe White House: lending his conservative

Page 34213 S.W.3d 547, *581; 2006 Tex. App. LEXIS 9087, **78

stamp of approval to Harriet Miers, hislong time friend, churchmate and fellowDallas lawyer.

Justice Hecht never sought a retraction of these or othermedia reports. He voluntarily participated in rallyingpublic support for Miers' nomination and in convincingconservative religious leaders that she was an acceptablecandidate. He spoke about her religious beliefs andconvictions, her faith, and her pursuit of deeper meaningand greater purpose through evangelical Christianteachings. In responding to a media report that he had"embarked on a media blitz," Justice Hecht quipped thathe "embarked, the same way a fishing boat embarks[**83] into a tsunami." Little wonder that hecharacterized his experience as "seismic." Based upon therecord before us, and even applying the interpretation thatthe majority has adopted, I conclude that Justice Hechtendorsed Miers. n5

n4 Exhibit 1 is the Texas Lawyer article thatformed the basis for the complaint received by theCommission. The majority correctly explains thatthe Commission's conclusions and findings werebased on the Texas Lawyer and The New YorkTimes articles only. Since this Special Court ofReview is a de novo proceeding, additional mediareports were introduced into evidence and are partof the record before us.

n5 Justice Hecht also takes issue with the factthat other members of the judiciary spoke publiclyabout Miers without facing judicial sanctions. It istrue that United States Supreme Court JusticeAntonin Scalia, United States District Judge EdKinkeade of the Northern District of Texas,Justice Elizabeth Lang-Miers of the Court ofAppeals for the Fifth District of Texas, and StateDistrict Judge Jim Parsons all publicly supportedMiers and spoke well of her credentials andqualifications. Of course, the Texas Canons ofJudicial Conduct do not apply to federal judges.TEX. CODE JUD. CONDUCT, Canon 6A,reprinted in TEX. GOV'T. CODE ANN., tit. 2,subtit G, app. B (Vernon 2005). And the mere factthat other state judges felt unencumbered by thecanons neither justifies nor condones theirconduct, nor does it lead me to the conclusion thatJustice Hecht did not violate them. Sardino v.

State Commission on Judicial Conduct, 58 N.Y.2d286, 291, 448 N.E.2d 83, 85, 461 N.Y.S.2d 229,231 (N.Y. 1983) (each judge is personallyobligated to act in accordance with the standardsof judicial conduct; if a judge disregards or failsto meet these obligations, the fact that others maybe similarly derelict can provide no defense). Ioffer no opinion on the stipulated fact that theCommission has filed no charges against any ofthese individuals. Nor do I address the apparentlycontested issue of whether the Commission couldsua sponte investigate their conduct in theabsence of a complaint.

[**84]

Did Justice Hecht Authorize the Public Use of HisName and Office?

I also disagree with the majority as to whetherJustice Hecht authorized the public use of his name andoffice. As I have already mentioned, the White Housesought his help in reassuring Dr. Dobson, the ArlingtonGroup, and other religious conservatives that Miers waspro-life and a strict constructionist. The White Housewanted to refer media calls to him and asked him toreport daily on the types of questions he was asked. Heexpressly agreed. These are facts to which Justice Hechthas stipulated. Examiner's Exhibit 2, The New York Timesarticle, reported that "[t]he Republican NationalCommittee put him on at least one conference call withevangelical pastors and conservative organizers. Progressfor America, a group that promotes President Bush'sagenda, has also been working to make Justice Hechtavailable for interviews." While Justice Hechtcomplained to another reporter that the Times article wasmisleading, he sought no retraction.

[*584] The majority contends that a violation ofCanon 5(2) requires proof that the judge gave permissionfor others to publicly use the judge's name inendorsements [**85] of the candidate. The record showsprecisely that. Justice Hecht appeared on severaltelevision programs to debate conservatives who opposedMiers' nomination, clearly articulating the differencebetween legal issues and personal viewpoints n6 . Thefollowing exchange occurred during an interview withChris Wallace of FOX News Sunday:

Chris Wallace: Does she regard abortion

Page 35213 S.W.3d 547, *583; 2006 Tex. App. LEXIS 9087, **82

as murder?

Justice Hecht: Well, I don't know thatwe've ever talked in exactly those terms.But she is pro-life. I mean, you pressaround it all you can, but she is pro-life,and she has been for 25 years.

Q: If she does believe that, Justice, howcould she possibly vote to uphold Roe v.Wade n7, if she believes that abortion ismurder?

A: Because it's easy. Legal issues andpersonal issues are just two differentthings. Judges do it all the time. In fact, ajudge is going to take an oath that says I'mgoing to judge rightly in cases, whichmeans that you have to set aside yourpersonal views in deciding the case. And ifyou don't do that, you're either a badbeliever in your views, a bad judge orboth. n8

Gary Bauer n9 Look, I'm confused here. Ican't tell whether Judge Hecht [**86] isarguing that [Miers] is going to overturnRoe or she's not going to overturn Roe. Ifhe wants to reassure his fellow pro-lifeconservatives, that's the last argument heshould be making, the argument that hejust made.

Examiner's Exhibit 10. Justice Hecht responded similarlyto Chris Matthews and Pat Buchanan n10 on MSNBC'sHardball with Chris Matthews:

Chris Matthews: Karl Rove gave you theOK to begin giving interviews like this.And we very much appreciate, Justice, youcoming on, because no one else can talkabout her from that Texas perspective, thatlongtime perspective. Are you surprisedKarl Rove has basically unleashed peopleto come out and talk about her, that they'renot more careful about making sure there'sless talked about her than more?

Justice Hecht: You know, I really don't

know the history on that. And I don't knowwhat their usual policies are....But I'mhappy that people are, because I thinkthere is going to be a [*585] pretty solidconsensus of view from people talkingabout her.

* * * * *

Pat Buchanan: The president has asked usto elevate a blank slate to the SupremeCourt to sit opposite people like Robertsand Scalia, [**87] when we haveoutstanding jurists who have taken a stand,been cut and blooded for their beliefs. Andso, I think this is why she has got to sellherself to the country, to the conservativemovement and Republican Party. And ifshe does not, Chris, I would urgeconservatives to recommend a no-vote onthis, if she does not persuade thatcommittee that she is Supreme Courtmaterial.

Examiner's Exhibit 13. The New York Times articlereported that "[w]hen the White House named Harriet E.Miers for a seat on the United States Supreme Court thisweek, Republicans turned to Justice Nathan L. Hecht ofthe Texas Supreme Court to make her case." Examiner'sExhibit 2. Following suit, The Dallas Morning Newswrote:

"If you have somebody like Nathan Hecht,whose anti-choice, right-wing credentialsare so solid, and he says you're going tolike her, she's one of us, that sends a prettyclear signal to that wing of the RepublicanParty," said Sarah Wheat, executivedirector of NARAL Pro-Choice Texas.

Examiner's Exhibit 3. All of this evidence leads me toconclude that Justice Hecht expressly and quiteaffirmatively authorized the public use of his name andoffice [**88] to sell the Miers' nomination.

n6 "[E]very good judge is fully aware of thedistinction between the law and a personal pointof view." Republican Party of Minnesota v.White, 536 U.S. 765, 798 122 S.Ct. 2528, 153

Page 36213 S.W.3d 547, *584; 2006 Tex. App. LEXIS 9087, **85

L.Ed.2d 694 (2002) (Kennedy, J., concurring).

n7 Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705,35 L. Ed. 2d 147 (1973).

n8 In a separate interview with The DallasMorning News, Justice Hecht explained thedistinction further. "The mistake is trying toextrapolate from those personal principles, even ifthey're extremely important to a person, into howyou're going to decide a case." According to thearticle, Justice Hecht "noted that Justice AntoninScalia, one of the Supreme Court's mostconservative justices, wrote an opinion declaringa free-speech right to burn an American Flag.'Can you imaging [sic] Justice Scalia burning aflag? It's not going to happen,' he said. 'But whatdoes the Constitution say, can you do it or not?Yes, the Constitution says you can do it.'"Examiner's Exhibit 3.

n9 Gary Bauer is the president of theAmerican Values Group and is a formerpresidential candidate.

[**89]

n10 Pat Buchanan is an NBC political analystand a former presidential candidate.

CHARGE II

THE " PROMOTE" CLAUSE

Charge II alleges that Justice Hecht lent the prestigeof his judicial office to advance the private interests of hisclose friend, Harriet Miers, which actions constitutedwillful and/or persistent violations of Article V, Section1-a(6) of the Texas Constitution and Canon 2B of theTexas Code of Judicial Conduct. Canon 2B states inpertinent part: "A judge shall not lend the prestige ofjudicial office to advance the private interests of thejudge or others...." TEX. CODE JUD. CONDUCT,Canon 2B, reprinted in TEX. GOV'T. CODE ANN., tit.2, subtit G, app. B (Vernon 2005).

Did Justice Hecht's Conduct Promote a PrivateInterest?

Justice Hecht contends, and the Examiner concedes,

that the nomination of Harriet Miers to the United StatesSupreme Court and the ensuing debate over herqualifications were matters of public concern. But thesanction imposed requires a finding that Justice Hecht'svery public conduct promoted [**90] Miers' very privateinterests. The Examiner counters that there is a real andpersonal private interest at stake -- that of politicalambition -- including a candidate's desire for lifetimetenure, prestige, and power, which motivates a candidateto seek a life-time appointment to the federal bench in thefirst place. Examiner's Brief at 9.

The Commentary to the ABA Model Code indicatesthat a judge may participate in only a limited fashion inthe process of judicial selection. "Judges may participatein the process of judicial selection by cooperating withappointing authorities and screening committees seekingnames for consideration, and by responding to officialinquiries concerning a person being considered for ajudgeship." MODEL CODE OF JUDICIAL CONDUCT,Canon 2B, cmt. Justice Hecht could have answeredinquiries from the White House regarding his knowledgeof Miers, and he could have testified at the Senateconfirmation hearing, [*586] since that proceedingobviously constitutes an official inquiry about the personbeing considered for a judgeship. n11 But his activitieswent beyond the limited participation contemplated bythe canon and its commentary. I do not question JusticeHecht's [**91] loyalty to and friendship with Miers. Heconsidered himself a "central repository of information"about her. That's precisely the point. He spoke because ofhis personal and private relationship with her. He spokebecause the candidate was "Harriet," not former State Barof Texas President Miers, not former Locke Liddell &Sapp managing partner Miers, not former Dallas CityCouncilwoman Miers. If the candidate had been adifferent former bar president or a different firm leader ora different city representative whom he had known inyears past, he may well have spoken privately toindividuals vetting the candidate or agreed to testifyduring Senate confirmation proceedings. But he wouldhave been more circumscribed in his comments. Hewouldn't have jumped on board the "media train" and hewouldn't have joked about running "PR for the WhiteHouse." These events happened because they involved"Harriet."

n11 Justice Hecht was, in fact, contacted bystaff attorneys for the Senate Judiciary

Page 37213 S.W.3d 547, *585; 2006 Tex. App. LEXIS 9087, **88

Committee, who asked him to testify at Miers'confirmation hearing. He was out of the office atthe time of the call, and Miers had withdrawn hernomination before he could return it.

[**92]

Did Justice Hecht Lend the Prestige of His Officeto Promote that Interest?

The evidence supports a finding that Justice Hechtlent the prestige of his judicial office to advance Miers'private interests in violation of Canon 2B. I must rejecthis argument that he was contacted by the media notbecause of his position as a justice on the Texas SupremeCourt but because of his thirty-year relationship withMiers. That may well have been the motivation behindpress inquiries. But every time the media carried thestory, the "source" was clearly identified, captioned, andaddressed as "Justice Hecht."

In a public statement issued in 2000, the Commissioncautioned Texas judges that "it is virtually impossible fora judge, at least in the eyes of the public, to separatehimself or herself from the judicial office; therefore it isimmaterial to the issue of misconduct that a judge doesnot use his judicial title or refer to his judicial position ina public endorsement of a candidate for public office."Public Statement PS-2000-2. The Examiner argues in itsbrief that contrary to his claims, Justice Hecht used, andallowed others to use, his position as a judge, and a Texas[**93] Supreme Court justice in particular, to influence,sway, and convince public opinion and conservativeswho questioned the President's decision to nominateMiers. Examiner's Brief at 14. Because the Examinerproved these facts by a preponderance of the evidence, Iagree.

WERE THE VIOLATIONS WILLFUL?

The Commission must prove by a preponderance ofthe evidence that Justice Hecht willfully committed thecharged violations. In re Davis, 82 S.W.3d 140, 142 (Tex.Spec. Ct. Rev. 2002); see TEX.GOV'T CODE ANN. §33.001(b)(2)(Vernon 2004); see also In re Bell, 894S.W.2d 119, 131 (Tex. Spec. Ct. Rev. 1995). Willfulconduct requires a showing of intentional or grosslyindifferent misuse of judicial office, involving more thanan error of judgment or lack of diligence. Davis, 82S.W.3d at 148; Bell, 894 S.W.2d at 126. A judge need nothave formed the specific intent to violate the Code; as

long as he intended to engage [*587] in the conduct forwhich he is disciplined, he is guilty of a willful violationof the Code. See In re Barr, 13 S.W.3d 525, 539 (Tex.Rev.Trib. 1998, pet. denied). [**94] There is no disputewhatsoever that Justice Hecht intended to engage in theconduct for which he is disciplined. Although he defineswillful as, "you know it's wrong and you do it anyway,"he also testified that "if I had it to do over again, I'd do itagain." In my view, the evidence supports a finding thatJustice Hecht willfully violated the canons.

ARE THE CANONS CONSTITUTIONAL?

I turn now to the broader constitutional concerns.Justice Hecht challenges the constitutionality of Canon5(2) (the endorse clause), both facially and as applied tohim. Similarly, he challenges Canon 2B (the promoteclause) as applied. Both complaints allege the canonsviolate the First Amendment. Citing Republican Party ofMinnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153L.Ed.2d 694 (2002) (White I), he argues that theseprovisions do not withstand strict scrutiny analysis. Thefirst issue is whether strict scrutiny analysis applies.

Does Strict Scrutiny Apply?

In White I, the Supreme Court applied the strictscrutiny analysis because the intermediate court ofappeals had done so and the parties did not dispute theissue. White I, 536 U.S. at 774. [**95] Some legalscholars suggest that the political activity canons shouldnot be subjected to a strict scrutiny analysis. See J.J.Gass, After White: Defending and Amending Canons ofJudicial Ethics, Judicial Independence Series, BrennanCenter for Justice at NYU School of Law at p. 18 (2004).The First Amendment forbids the government to regulatespeech in ways that favor some viewpoints or ideas at theexpense of others. Members of City Council v. Taxpayersfor Vincent, 466 U.S. 789, 804, 104 S.Ct. 2118, 80L.Ed.2d 772 (1984); Texas Department of Transportationv. Barber, 111 S.W.3d 86, 92, 46 Tex. Sup. Ct. J. 916(Tex. 2003). But the Supreme Court also has recognizedthat the First Amendment does not guarantee the right tocommunicate one's views at all times and places or in anymanner. Heffron v. International Society for KrishnaConsciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559,69 L.Ed.2d 298 (1981); Barber, 111 S.W.3d at 92. Bothwritten and oral expression may be subject to reasonabletime, place, and manner restrictions. Clark v. Communityfor Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct.3065, 82 L.Ed.2d 221 (1984); [**96] Barber, 111 S.W.3d

Page 38213 S.W.3d 547, *586; 2006 Tex. App. LEXIS 9087, **91

at 92. When reviewing regulations on speech, we engagein a two-tier analysis. Barber, 111 S.W.3d at 92.

For the higher tier, "regulations that suppress,disadvantage, or impose differential burdens upon speechbecause of its content," the court applies "the mostexacting scrutiny." Barber, 111 S.W.3d at 92, quotingTurner Broadcasting System, Inc. v. FCC, 512 U.S. 622,642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). Suchcontent-based regulations are presumptively invalid,R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct.2538, 120 L.Ed.2d 305 (1992), and they can withstandstrict scrutiny only if precisely drawn to serve acompelling state interest. Consolidated Edison Companyof N.Y., Inc. v. Public Service Commission, 447 U.S. 530,540, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980); Barber, 111S.W.3d at 92-93. For the lower tier, "regulations that areunrelated to the content of speech," the court applies an"intermediate level of scrutiny." Barber, 111 S.W.3d at93, quoting Turner Broadcasting, 512 U.S. at 642. [**97]Content-neutral regulations are valid provided they arenarrowly tailored to [*588] serve a substantialgovernmental interest, and they do not unreasonably limitalternative channels for communicating the information.City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,47, 106 S.Ct. 925, 89 L. Ed. 2d 29 (1986); Clark, 468U.S. at 293; Taxpayers for Vincent, 466 U.S. at 808;Heffron, 452 U.S. at 647-48; Barber, 111 S.W.3d at 93.

Determining which tier applies requires a court todetermine whether a regulation is content-neutral orcontent-based. See Barber, 111 S.W.3d at 93. This isoften not a simple task. Id. A content-neutral regulationgenerally must be both viewpoint neutral andsubject-matter neutral. Id., see Hill v. Colorado, 530 U.S.703, 722-23, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Asthe Supreme Court has stated, "[r]egulation of the subjectmatter of messages, though not as obnoxious asviewpoint-based regulation, is also an objectionable formof content-based regulation." Barber, 111 S.W.3d at 93,quoting Hill, 530 U.S. at 723. [**98]

To be viewpoint neutral, a regulation must not bebased on the ideology of the message. Barber, 111S.W.3d at 93. The prohibitions contained in the canonsare not based on ideology since they restrict all speech bya judge or judicial candidate endorsing another candidate.To be subject-matter neutral, a regulation must not bebased on the topic of the message. While viewpointneutral, the canons are not subject-matter neutral as they

are certainly based on topic.

I thus conclude that the proper test to determine theconstitutionality of the canons is strict scrutiny. Under thestrict scrutiny analysis, any restriction on the right ofpolitical speech requires a three-pronged analysis: (1)were the statements core political speech? (2) is there acompelling state interest to prohibit that speech? and (3)is the canon narrowly tailored to serve that interest?White I, 536 U.S. at 775, Brown v. Hartlage, 456 U.S. 45,54, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982).

What Does White Really Say?

In Republican Party of Minnesota v. White, 536 U.S.765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (White I)[**99] , the United States Supreme Court consideredwhether the Minnesota Code of Judicial Conduct violateda judicial candidate's First Amendment rights byprohibiting him from announcing his views on disputedlegal or political issues. n12 Many states, includingTexas, had canons which are generically referred to as"announce" clauses:

[I]t is clear that the announce clauseprohibits a judicial candidate from statinghis views on any specific nonfanciful legalquestion within the province of the courtfor which he is running, except in thecontext of discussing past decisions -- andin the latter context as well, if he expressesthe view that he is not bound by staredecisis.

White 1, 536 U.S. 765 at 773.

n12 The court emphasized that the"announce" clause is much broader than the"pledges or promises" clause, which separatelyprohibits judicial candidates from making pledgesor promises of conduct other than the faithful andimpartial performance of judicial duties, aprohibition on which it expressed no view. WhiteI, 536 U.S. at 770.

[**100]

The Facts

Page 39213 S.W.3d 547, *587; 2006 Tex. App. LEXIS 9087, **96

Gregory Wersal first ran for the Minnesota SupremeCourt in 1996. He identified himself as a member of theRepublican Party, attended and spoke at party meetings,sought its endorsement, and personally solicitedcampaign contributions. He distributed literaturecriticizing [*589] several decisions of the court onissues such as crime, welfare, and abortion. As a result ofthis literature, a complaint was filed with the MinnesotaLawyers Professional Responsibility Board. The Boardultimately dismissed the complaint, but Wersal withdrewas a candidate because he feared that other complaintsmight jeopardize his law license.

Wersal ran again in 1998. This time, he asked theBoard for an advisory opinion regarding the announceclause. The Board expressed significant doubts about theconstitutionality of the canon, but it did not specificallyanswer his questions because he had not submitted a listof the "announcements" he wished to make. Wersalresponded with a lawsuit against the Board and SuzanneWhite in her capacity as chair, seeking a declaration thatthe announce clause violates the First Amendment. Otherplaintiffs, including the Republican Party of Minnesota,alleged [**101] that the announce clause prevented theirmembership from learning Wersal's views on variouslegal issues. The district court determined that theannounce clause did not violate the First Amendment andthe Eighth Circuit affirmed.

White I

The Supreme Court swiftly determined that acandidate's statements regarding his or her own views onpolitical or legal issues is protected speech. The courtstruggled a bit with an analysis of Minnesota'scompelling state interest. Minnesota purportedly enactedthe announce clause to promote the impartiality of thejudiciary and the appearance of impartiality. The EighthCircuit agreed that these were sufficiently compelling.The same justifications were argued to the SupremeCourt. Although "impartiality" was used throughout theEighth Circuit's opinion, the briefs, the Minnesota Codeof Judicial Conduct and the ABA Model Code, the highcourt pointedly noted that "none of these sources bothersto define it." Id. at 775.

The majority concluded that the goal of"impartiality" could be compelling depending upon thedefinition assigned. While it rejected a definition of"impartiality" as meaning a lack of preconception[**102] regarding legal matters n13, it accepted the

definition of promoting the state's interest in electingjudges who are not biased against or in favor of aparticular party. Because Minnesota had notdemonstrated that the announce clause served thatinterest, the canon was not narrowly tailored to achievethat goal. "[E]ven if the First Amendment allows greaterregulation of judicial election campaigns than legislativeelection campaigns, the announce clause still fails strictscrutiny because it is woefully underinclusive,prohibiting announcements by judges (and would-bejudges) only at certain times and in certain forms." Id. at783 (Emphasis in original). The court left unansweredwhether the definition could include the characteristic ofopen-mindedness n14, but other courts have found thatopen-mindedness can be a [*590] compelling stateinterest. See Kansas Judicial Watch v. Stout, 440 F. Supp.2d 1209, 1230 (D.Kan. 2006), citing North DakotaFamily Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021,1040 (D.N.D. 2005); Family Trust Foundation of Ky, Inc.v. Wolnitzek, 345 F. Supp. 2d 672, 695 (E.D. Ky. 2004);In re Watson, 100 N.Y.2d 290, 794 N.E.2d 1, 763N.Y.S.2d 219 (N.Y. 2003). [**103]

n13 Writing for the majority, Justice Scaliaopined that when a case turns on a legal issue onwhich the judge as a judicial candidate has taken aparticular stand, the party advocating theopposing viewpoint is likely to lose, but notbecause of bias against that party or favoritismtoward the other. "Any party taking that position isjust as likely to lose." White I, 536 U.S. at 776-77(Emphasis in original).

n14 "Open-mindedness" demands that ajudge be willing to consider views that oppose hispreconceptions and remain open to persuasion.This seeks to guarantee each litigant "not an equalchance to win the legal points in the case, but atleast some chance of doing so." White I, 536 U.S.at 778 (Emphasis in original).

White I caught the judiciary off guard. Justice Hechtcaptured the sentiment when he testified, "I would saythat White case was a bombshell when it hit and that Icertainly wasn't expecting it." Few of us were.

White II

The [**104] Supreme Court remanded to the Eighth

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Circuit for consideration of the constitutional viability ofthe "partisan activities" clause and the "solicitation"clause. Republican Party of Minnesota v. White, 416 F.3d738 (8th Cir. 2005) (White II). Pursuant to the MinnesotaCode of Judicial Conduct, a judge or judicial candidatemay not identify himself or herself as a member of apolitical organization; attend political gatherings; or seek,accept, or use endorsements from a political organization.The solicitation clause prohibits a candidate frompersonally soliciting or accepting campaign contributions,although the candidate may establish committees toconduct campaigns, and solicit contributions and publicsupport from attorneys. The committees shall not seek,accept, or use political endorsements or disclose to thecandidate the identity of contributors. Relying heavilyupon White I, the Eighth Circuit held both clauses to beconstitutionally infirm.

The court first addressed the partisan activitiesclause, focusing upon the fact that the canon treatedpolitical parties differently than special interest groups.Id. at 753 n.7. The court viewed [**105] the clause inthe context of the state's interest in ensuring unbiasedjudges. "[T]he underlying rationale for thepartisan-activities clause -- that associating with aparticular group will destroy a judge's impartiality --differs only in form from that which purportedly supportsthe announce clause -- that expressing one's self onparticular issues will destroy a judge's impartiality." Id.at 754 (Emphasis in original). In other words, "theSupreme Court's analysis of the announce clause...issquarely applicable to the partisan-activities clause." Id.While a judicial candidate could not consort with apolitical party, the candidate could align with a specialinterest group, such as the National Rifle Association, theNational Association for Women, the Christian Coalition,the NAACP, or the AFL-CIO.

A judicial candidate's stand, for example,on the importance of the right to keep andbear arms may not be obvious from herchoice of political party. But, there can belittle doubt about her views if she is amember of or endorsed by the NRA. YetCanon 5 is completely devoid of anyrestriction on a judicial candidateattending or speaking to a [**106]gathering of an interest group; identifyingherself as a member of an interest group;

or seeking, accepting, or using anendorsement from an interest group.

White II, 416 F.3d at 760. Consequently, the partisanactivities clause was underinclusive.

The solicitation clause suffered the same fate.Minnesota argued that keeping judicial candidates fromsoliciting campaign funds served its interest in animpartial judiciary by preventing undue influence. But anumber of other scenarios would allow a candidate "tostumble onto the names of contributors" since campaignfinances are reported, publicly available, and widelydisseminated. Id. at 766.

[*591] Bearing in mind the teachings of White, Ilook now to the three prongs of a strict scrutiny analysiswith regard to Justice Hecht's statements.

Were Justice Hecht's Statements Core PoliticalSpeech?

The Examiner contends that the canons do notencroach on Justice Hecht's right to engage in corepolitical speech. It claims that White I extends only to ajudge's comments or opinions in connection with his orher own campaign. Because Justice Hecht was speakingabout Miers' beliefs [**107] and values rather than hisown, the Examiner argues that no political speech wasabridged:

It is not disputed that [Justice Hecht]shared with reporters and interviewerssome of his own personal views on issuessuch as abortion and gay marriage whilediscussing the Miers' nomination.However, [Justice Hecht] has never beensanctioned for making those statements,nor has he been charged in this proceedingwith violating any provision of the TexasCode of Judicial Conduct by tellingreporters those views. To thecontrary...[Justice Hecht] was sanctionedfor assisting Miers and her candidacy bypublicly expressing what he believed wereMiers' views on disputed political andlegal matters.

Examiner's Brief at 18 (Emphasis in original). Applying

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this analytical construct, the Examiner then concludesthat Justice Hecht's oratory "was simply the expression ofa personal opinion for which he was not entitled to anyheightened First Amendment protection." Id., citing Scottv. Flowers, 910 F.2d 201 (5th Cir. 1990).

In Scott, the Fifth Circuit addressed the FirstAmendment in the context of a civil rights action broughtby a Texas justice [**108] of the peace challenging apublic reprimand by the Commission. The reprimandstemmed from an open letter written by Judge Scott tocounty officials attacking the district attorney's office andthe county court at law for dismissing the majority oftraffic ticket appeals. Characterizing the communicationsas "insensitive," the Commission found the judge'sconduct to be inconsistent with the proper performance ofhis duties as a justice of the peace and served to castpublic discredit upon the judiciary. He was warned to bemore restrained and temperate in the future. Judge Scottultimately filed suit against the members of theCommission, both individually and in their officialcapacities, claiming that his letter and comments to thepress were protected speech for which he could notconstitutionally be subjected to discipline. The districtcourt granted summary judgment in favor of theCommission. The Fifth Circuit began by noting thatpublic employees occupy a unique position in FirstAmendment jurisprudence. Scott v. Flowers, 910 F.2d201 at 210. While they do not shed constitutionalprotections when they enter the workplace, their rightsmust be balanced against [**109] the interests of thestate in promoting the efficiency of the public services itperforms through its employees. Id., citing Pickering v.Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734,20 L.Ed.2d 811 (1968). In Pickering, the court adopted atwo-step approach to evaluate claims of First Amendmentviolations by public employees. First, the court mustdetermine in light of the content, form, and context of thespeech in question, whether it addresses a matter oflegitimate public concern. Scott, 910 F.2d at 211, citingPickering, 391 U.S. at 571. If so, the court must then"balance the employee's first amendment rights againstthe governmental employer's countervailing interest inpromoting the efficient performance of its normal [*592]functions." Scott, 910 F.2d at 211. If not, the inquirymust end. The court ultimately determined that Scott'sletters and comments were not simply an expression ofthe judge's personal opinion, but addressed matters oflegitimate public concern. Id.

I first question the continued viability of Scottinasmuch as a judge's ability to offer personal opinions orviewpoints [**110] has since been found to be protectedspeech. Nevertheless, like the Fifth Circuit, I find thecontent, form, and context of Justice Hecht's speech to bea matter of legitimate public concern and accordingly, Imove to the balancing test, which requires that webalance his First Amendment rights against the state'scountervailing interest.

Is There a Compelling State Interest?

Justice Hecht maintains that the Examiner has failedto articulate that compelling interest. He refers todiscovery requests which the Examiner pointedly refusedto answer. Yet I believe that the canons themselvesidentify the compelling state interests:

Preamble

Our legal system is based on the principlethat an independent, fair and competentjudiciary will interpret and apply the lawsthat govern us...

Canon 1. Upholding the Integrity andIndependence of the Judiciary

An independent and honorable judiciary isindispensable to justice in our society. Ajudge should participate in establishing,maintaining and enforcing high standardsof conduct, and shall personally observethose standards so that the integrity andindependence of the judiciary is preserved.

[**111] TEX. CODE JUD. CONDUCT, Preamble andCanon 1, reprinted in TEX. GOV'T. CODE ANN., tit. 2,subtit G, app. B (Vernon 2005).

In the wake of White I, the Texas Supreme Courtcreated the Task Force of the Code of Judicial Conduct to"review [the Texas Code of Judicial Conduct] to ensurethat the integrity and independence of our judiciary ispreserved." Order Creating Task Force on Code ofJudicial Conduct, Misc. Docket No. 03-9148 (August 22,2003). The court asked the Task Force to "makerecommendations to th[e] Court for revisions required bylaw, to make suggestions on improving the effectivenessof existing cannons [sic] and to suggest othermodifications consistent with the Code's broad purpose of

Page 42213 S.W.3d 547, *591; 2006 Tex. App. LEXIS 9087, **107

upholding the integrity, independence and competence ofthe judiciary." Id. The final report and recommendationswere delivered in January 2005. The Task Forcerecommended adding the word "impartial" to both thePreamble and Canon 1 "to underscore the compellingstate interest of judicial impartiality." n15 Thisrecommendation has yet to be adopted, although theTexas "announce clause" was repealed. n16

n15 In both White I and White II, the term"impartiality" was used interchangeably with"independence." See White I, 536 U.S. at 775 n.6;White II, 416 F.3d at 753.

[**112]

n16 As a member of the Supreme Court,Justice Hecht participates in decisions concerningamendments to the Code of Judicial Conduct. Formany years, he served as the court's liaison to theSupreme Court Rules Advisory Committee. AfterWhite I, he concurred in the repeal of the Texasannounce clause. Writing separately, he predictedthe instant debate: "It is less clear whether otherCode provisions relating to judicial speech --Canon 3(B)(10) and the remainder of Canon 5 --are likewise infirm....Therefore I join in the codeamendments approved today although I remain indoubt whether they are sufficient to comply withthe First Amendment." Statement of Justice HechtConcurring in the Amendments to the Texas Codeof Judicial Conduct Approved August 21, 2002,Misc. Docket No. 02-9167.

[*593] Nevertheless, the state has a compellinginterest in preserving the independence and integrity ofthe Texas judiciary and in maintaining public confidencein our court system. White I, 536 U.S. at 793 (Kennedy,J., concurring)(nothing in the court's opinion should beread to cast doubt on [**113] the fact that judicialintegrity is a "state interest of the highest order"); In reRaab, 100 N.Y.2d 305, 793 N.E.2d 1287, 1290, 763N.Y.S.2d 213 (N.Y. 2003) (preserving the impartiality andindependence of the judiciary and maintaining publicconfidence in the courts are compelling state interests).

Are the Canons Narrowly Tailored?

A narrowly tailored restriction is one that actuallyadvances the state's interest (is necessary), does notsweep too broadly (is not overinclusive), does not leavesignificant influences bearing on the interest unregulated(is not underinclusive), and could be replaced by no otherregulation that could advance the interest as well withless infringement of speech (is the least-restrictivealternative). White II, 416 F.3d at 751. "In short, theseriousness with which the regulation of core politicalspeech is viewed under the First Amendment requiressuch regulation to be as precisely tailored as possible." Id.(Emphasis in original).

Canon 5(2)

(The Endorse Clause)

The Examiner argues that White I addressed only theissue of a judicial candidate's right to announce his or herown views on disputed legal [**114] or political issues.The opinion "did not concern itself with whether the FirstAmendment protects a judicial candidate's right toendorse other candidates for public office" andconsequently, does not apply to this case. Examiner'sBrief at 16. Cautioning that the opinion is now four yearsold, the Examiner explains that in the intervening period,no court has held that a canon prohibiting endorsementsviolates the First Amendment. Instead, it continues, theonly court to address the issue concluded that anendorsement prohibition is constitutional. See In re Raab,793 N.E.2d at 1289.

State District Judge Ira Rabb admittedly calledprospective voters urging their support for a legislativecandidate, although he did not give his name or identifyhimself as a judge. His purpose was to garner goodwillwith the Working Families Party in hopes that the partywould endorse him as a judicial candidate in his owncampaign for the Supreme Court later that year. Threemonths later, he attended a party candidate screeningmeeting. He was not scheduled to be interviewed, but hesat with members of the party, participated in theinterviews, and asked candidates for both judicial [**115]and non-judicial offices if they would publicize theparty's endorsement in their campaign literature. JudgeRabb was ultimately nominated by the Democratic Party,endorsed by the Working Families Party, and elected tothe Supreme Court. He was censured by the New YorkJudicial Conduct Commission for engaging in improperpolitical activity in the course of a judicial campaign.

Page 43213 S.W.3d 547, *592; 2006 Tex. App. LEXIS 9087, **111

The New York Code of Judicial Conduct prohibitsjudges and judicial candidates from (1) participating inany political campaign for any office or permitting his orher name to be used in connection with any activity of apolitical organization; (2) publicly endorsing or publiclyopposing (other than by running against) anothercandidate for public office; [*594] (3) making speecheson behalf of a political organization or another candidate;(4) attending political gatherings; and (5) soliciting fundsfor, paying an assessment to, or making a contribution toa political organization or candidate. Rabb, 793 N.E.2d at1290, citing 22 NYCRR 100.5 (A)(1)(c), (d), (e), (f), (g),(h). The Code allows an incumbent or candidate toparticipate in his or her own campaign for electivejudicial office.

Judge [**116] Rabb complained that the rules wereboth underinclusive and overinclusive. The court rejectedhis argument, focusing on the "critical" differencebetween conduct integral to a judicial candidate's owncampaign and activity in support of other candidates orparty objectives. Rabb, 793 N.E.2d at 1292. The courtconcluded that by participating in the phone bank andcandidate screening, Judge Rabb "went beyond what wasnecessary or integral to his own judicial races." Id. at1293.

In response to the Examiner's argument that Rabb iscontrolling, Justice Hecht recounts the differencesbetween the New York and Texas canons. Texas judgescan (1) affiliate with a political party; (2) attend politicalevents; (3) express views on political matters; (4)contribute to political campaigns of other candidates; and(5) criticize a candidate for public office. He points to theability of Texas judges to criticize other candidates andcompares Canon 5(2) with the New York Code ofJudicial Conduct and the ABA Model Code. Both NewYork and the ABA prohibit a judge from either publiclyendorsing or publicly opposing another candidate. TheExaminer responds:

As [**117] a matter of clarification,Examiner would point out that [JusticeHecht] is mistaken in his view that a judgewould not be sanctioned under Canon 5(2)for criticizing another candidate. There issimply no authority to support his beliefthat statements that are critical of anothercandidate for office, aside from the judge'sown opponent, would be treated

differently than statements in favor ofanother candidate for office.

Examiner's Brief at 26. But the canons do not make thatdistinction, and the Examiner offers no support for thecommentary. I suspect the 3700 judges who await thisdecision would be disquieted to learn that one could besanctioned for conduct not delineated in the Code.Nevertheless, the Texas canons differ in other materialrespects.

Members of the Texas judiciary are permitted toprovide factual information or favorable comments,either formally or informally, to screening committees,appointing authorities, and members of the SenateJudiciary Committee. The Examiner concedes this is true.Examiner's Brief at 8, 11. A judge may privatelyintroduce judicial candidates to friends and recommendthat the friends vote for the candidates. [**118] See OP.TEX. ETHICS COMM'N No. 2 (1975). This liberty ofprivate introduction and recommendation has beenextended to all candidates for public office. See OP. TEX.ETHICS COMM'N No. 13 (1976).

Most significant in my view is the fact that, unlike amember of the New York judiciary, a Texas judge mayput his money where his mouth can't go. Simply stated, ajudge may make campaign contributions to othercandidates -- including presidential candidates,congressional candidates, gubernatorial candidates,legislative candidates, county and municipal candidates,and other judicial candidates. In turn, we may acceptcontributions from these same sources as well as specialinterest groups. In his brief, Justice Hecht points toseveral members of the Commission who have routinelycontributed to political campaigns, and he bitingly reveals[*595] that one member contributed to Hillary Clinton'scampaign only a month before he [Justice Hecht] wassanctioned:

One wonders how it can be reconciled thata political candidate can be supported by ajudge with money, but not words. What'sgood for Hillary should be good forHarriet. One would think.

Petitioner's Brief at 6. His remark is right [**119] on themoney -- it cannot be reconciled. From this, I concludethat Canon 5(2) is underinclusive, and "woefully" so.Because it cannot survive strict scrutiny, it is

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unconstitutional, both facially and as applied. If thepurpose of the endorsement clause is to preserve andprotect judicial independence, integrity, and impartiality,it must protect these values from attacks on all fronts.From the standpoint of public perception, one thousanddollars is every bit as compromising as one thousandwords.

If the concern is that a judge'sendorsement or support of a candidate forpublic office will damage that judge'simpartiality apparently because she is seenas aligning herself with the candidate'sview or ideology, that is no less so when ajudge contributes to a candidate's politicalcampaign, which is not prohibited.

Petitioner's Brief at 34. I agree.

Canon 2B

(The Promote Clause)

Finally, Justice Hecht challenges the constitutionalityof Canon 2B as applied. Quoting White I, he begins bydefining terminology. The canon prohibits a judge fromlending the prestige of his office to advance the privateinterests of another. He defines "prestige" as:

1. [**120] the power to impress orinfluence, as because of success, wealth,etc.

2. reputation based on brilliance ofachievement, character, etc.

Webster's New World Dictionary of the AmericanLanguage, Second College Edition (1980). He contendsthat the comments of a Texas Supreme Court jurist wouldhold little sway with the members of the Senate JudiciaryCommittee. Petitioner's Brief at 39. But Justice Hecht'sassistance was not solicited by Karl Rove and the WhiteHouse to influence the committee. His help was neededto shore up the conservative base of the Republican Partyto whom many committee members owed allegiance. Theidea was to have a well-respected, influential andconservative jurist reassure the committee members'constituents as a means to obtain Senate confirmation. Inthis context, the promote clause cannot be said to servethe state's interest in preserving judicial independence,

integrity and impartiality. Whether Justice Hecht'snational interviews persuaded individual senators orswayed public opinion, his independence and impartialitywould be called into question only if the individuals,entities, or affiliates appeared in a case before him. In that[**121] instance, recusal would be the least restrictivealternative. Because Canon 2B is not narrowly tailored toserve the compelling state interests, it is unconstitutionalas applied to Justice Hecht.

CONCLUSION

I have previously served as the presiding justice of aformal review tribunal. In upholding the Commissionsanction, I wrote for the majority:

Does the Code of Judicial Conduct intrudeinto a judge's private life? Most definitely.But that is a path chosen when thedecision to seek office is made. A judgemust observe the high standardspromulgated by the Code of JudicialConduct both on and off the bench inorder to maintain the integrity of thejudiciary.

[*596] In re Lowery, 999 S.W.2d 639, 657(Tex.Rev.Trib. 1998, pet. denied). Though today I strikedown the enforcement of portions of the Code, theaspirations live on. Judicial accountability arises in partfrom a justifiable concern for the relationship betweenjudicial conduct and public perception. Lowery, 999S.W.2d at 647. "While the legal profession hashistorically been considered a noble one, modern-dayportrayals paint a picture of scorn and ridicule. In thecourtroom [**122] called the media, in the trial bypublic perception, the image of the judicial system is atan all-time low." Id.

I offer two caveats before I close. First, theCommission is charged with enforcing the provisions ofthe Code of Judicial Conduct as promulgated by theTexas Supreme Court. I believe it has endeavored to doso in good faith while awaiting action by the SupremeCourt on the remainder of the Task Force'srecommendations. Second, the robe means something tome. Every time I slip it on, I remember my oath -- a vow"to preserve, protect and defend the constitution and lawsof the United States and of this state." If ever I look in themirror and see a judge who has ruled on the basis of

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politics, expediency, or personal gain rather than the ruleof law, it is time to remove the robe and leave the bench.The citizens of this state deserve nothing less. As for the3700 judges who want to know what to do, it is myfervent hope that each one will pause to consider this:Our ability to speak does not mean that we should speak.

I haven't, and I won't.

ANN CRAWFORD McCLURE,

Justice

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