The Race for the Third

Kurt Kuhn (Photo by Jana Birchum)

There are two things about the 3rd Court of Appeals race on which the candidates for the open Place 4 seat – Democrat Kurt Kuhn and Republican Melissa Goodwin – completely agree. The first is that the court is extremely important – the most important intermediate appellate court in the state. The second is that the great campaign challenge is explaining to voters why that is so. "People don't pay a lot of attention [to judicial races], and this is a large district," says Kuhn, who has logged more than 40,000 miles on his truck since announcing his candidacy in 2008. Goodwin, who has also clocked thousands of miles, agrees: "Explaining to [voters] why they should care about [the court] and getting voters beyond the, 'Well, I kind of care ...'" is the most challenging thing about this race, she said over the phone as she headed down the road to a Blanco campaign event.

The 3rd Court is one of 14 intermediate appellate courts across the state, and while it's based in Austin, it considers cases from a 24-county region – stretching from Sterling and Irion counties in the west to Bell County in the north, Milam County in the east, and Comal and Caldwell counties in the South. The district comprises more than 1.4 million registered voters, yet in a good year, fewer than a third of those will actually cast a vote. There's an inevitable downballot fatigue on judicial races, and when voters see unfamiliar names, those disinclined to vote straight-ticket will simply not vote in those races at all.

That makes both candidates anxious to get the word out, because of the importance of the 3rd Court. Aside from the typical civil and criminal appeals, the 3rd also hears cases brought from state agencies – everything from administrative appeals involving licensing disputes and water and electrical regulation to, importantly, public corruption cases. In short, this court routinely makes decisions that have statewide ramifications. "This is the most important court in the state because of the cases it hears," says Kuhn. "They are cases that affect every single Texan."

Kuhn and Goodwin have markedly different legal qualifications. Kuhn is an appellate lawyer by trade (he currently works in the appellate practice group at Brown McCarroll), is board certified in civil appellate work, and was previously an assistant solicitor general, representing the state on appeal in both criminal and civil matters. He has routinely practiced in front of the state courts of appeals, including the Texas Supreme Court, on up through the federal system, including the U.S. 5th Circuit Court of Appeals. Kuhn says he is uniquely qualified to join the court and assume his share of its large docket. As an appellate judge, "you have to explain how the case fits into the law and how the law fits into the case." It means a lot of time spent "reading and writing," much like his current job.

Goodwin, a former Precinct 3 Travis County justice of the peace, was appointed by Gov. Rick Perry in 2007 to serve as one of the county's felony criminal district judges. (She ran for election to that seat in 2008, but, in stalwartly blue Travis County – and in the deeply navy blue local courthouse – she lost to her Democratic challenger.) Since then she's been working at Potts & Reilly LLP, where she is a partner; her practice includes appellate, administrative, and criminal cases. Goodwin says her broad range of experience – importantly including her time on the district bench hearing criminal cases – makes her the best candidate. A good bit of the 3rd Court's docket is criminal appeals, and she points to her bench criminal experience as unique – while dismissing altogether Kuhn's criminal appeals experience.

For example, at a recorded Aug. 18 appearance at the Reclaim Our Constitution's Vision rally in Warda, Goodwin declared that Kuhn has "no prosecutorial experience, he has no judicial experience, and he has little to no courtroom experience." She also claimed that "he has no criminal experience whatsoever. And to me, that's a problem."

Melissa Goodwin

"Let me get this right," responded a man in the audience. "We're ... potentially hiring somebody into that job that has no experience? Kind of like the president!" The partisan crowd erupted in applause and laughter. "You know, when you find these things out ... go tell 10 friends for me," said Goodwin.

Kuhn says that kind of misleading charge distinguishes Goodwin's campaign from his own, and – in his campaign appearances, at least – he's resisted the impulse to go negative. Judicial races, and particularly 3rd Court races, have become entirely too politically charged, he says. "You have to have faith that when somebody puts on the robe," he adds, "they're going to be fair."

The Partisan Angle

The 3rd Court has traditionally been a focus of much political hand-wringing. Consid­er this fun fact: With the midterm resignation last month of Judge Alan Waldrop, the court is short a judge, and Waldrop's Place 2 will be filled for the next two years by gubernatorial appointment. There remain just five sitting judges – and curiously, each has run a race against a colleague. The court is currently split down the middle with three Demo­crats (Justices Jan Patterson and Diane Henson and Chief Justice Woodie Jones) and three Republicans (Justices Bob Pem­ber­ton and David Puryear and, unless Perry is defeated in November, whomever he chooses to fill Waldrop's spot).

In recent years, the split has created a constant partisan tug-of-war. Tinkering with the politics of the 3rd Court is among the main reasons that Place 4 Justice Patterson lost her bid in the March Democratic primary for a seat on the Travis County civil district bench. After last year's untimely death of Judge Scott Ozmun, Patterson sought Perry's appointment to that seat. She wasn't successful – and she left many Democratic supporters wondering what she was thinking. Had Perry agreed to appoint her to a district court seat, he would then have been able to appoint another Republican to the 3rd Court. Accordingly, Democrats dealt Patterson an overwhelming defeat in favor of local attorney Amy Clark Meachum.

So party politics loom large in 3rd Court races, where the voting demographic runs from liberal Downtown Austin to the much more conservative edges of West Texas. Kuhn says he has made a decision to run a bipartisan campaign that focuses entirely on his qualifications. (That doesn't mean others won't raise the issue of partisan "balance," as Democratic Rep. Mark Strama did during a rally last week at the Broken Spoke.) Kuhn's done well with contributions – with more than $126,000 on hand at the end of the June reporting period – and scored key endorsements in July from three Republican former jurists from the Texas Supreme Court: former Chief Justice Tom Phillips and Justices Scott Brister and Craig Enoch. "Kurt Kuhn is undoubtedly the best candidate for this very important court," Phillips said. Kuhn said that the three men had always told him that in the final analysis, "it's not about politics but about who is the best candidate. So I called them on it." It's part of his concerted effort to move away from partisan bickering of any kind, says Kuhn. "I am running not to be a Democrat but to be a judge."

Outside 'Goofy Town'

Substitute "Republican" for "Democrat," and Goodwin says the same thing. Indeed, on the district court bench, Goodwin enjoyed some crossover support from the Democratic lawyers who practiced before her – not a small feat for a Republican in Travis County. Entering this election cycle, that could help her. While the greatest concentration of 3rd Court voters is in Travis County and along the I-35 corridor, it is not possible to win without decent support from voters in the rural counties – a challenge for Democrats. Goodwin says that it's been tough for her because running as a Republican from Austin means she gets it from both sides; Travis County voters are wary of her GOP credentials, while voters in more conservative areas question whether she's Republican enough. "I've taken my lumps in this town for being a Republican. I've gotten some battle scars," she says. "That hurt," but, "once I put the robe on, I worry only about the law." Her contributions have lagged considerably behind Kuhn's – she had just more than $8,500 on hand as of June 30 – but she's been able to pick up several notable endorsements, including that of the Austin Police Association PAC.

Goodwin has also gotten flak from the courthouse crowd for her appearances this summer at tea party functions and for on occasion referring to Austin at these events as "Goofy Town." She says that while the criticisms that she's been playing too much to partisan sensibilities hurt, neither does she run from the tea party connection. "I always thought of myself as a very conservative jurist," she said. "People who are from the tea party .... What they consider to be a conservative jurist and what I consider a conservative jurist are the same: taking the law and considering the facts and letting the chips fall where they may." If elected, she says, that's exactly what she'll do – consider only "what the law says or what the facts dictate." She says she repeated the "Goofy Town" phrase she heard on KVET 98.1FM radio but that she meant it in a tongue-in-cheek, if not "self-deprecating," way. "I'm a Republican from Travis County – that makes me a little bit of an oddball. It was not to slam this community," she insists.

Goodwin also carries more substantive baggage as she heads into the final weeks. A complaint filed with the Texas Ethics Com­mis­sion about a $25,000 loan from her in-laws is pending; the law doesn't allow for loans in excess of $5,000 from family members not related by blood. Goodwin says she doesn't believe the loan is improper and that her attorney has drafted a response to the complaint filed by Texans for Public Justice. Nevertheless, she has repaid $20,274.26 to her in-laws (keeping the allowed $5,000). According to Craig McDonald of Texans for Public Justice, Goodwin could still face disciplinary action.

Beyond such campaign details, the political environment has changed dramatically in the 23 months since late 2008, when Kuhn announced his campaign. "There was no tea party when I started this; Obama was popular. But now," he shrugs, the game has changed. Still, he's running hard to the finish, as is Goodwin. "Throughout all of this, the politics don't matter once you get in there," says Goodwin. "I have no question in my mind that personal politics won't come into play. Not for me."