Motions for Recusal
The politics of electing judges
Had Tuesday gone as planned, criminal defense attorney McKinley Melancon would have spent the afternoon in County Court-at-Law No. 5 arguing with that court's judge, Nancy Hohengarten. Melancon, who has run her own practice for five years, is running against Hohengarten in the March 6 primary election, and over the past six weeks has alleged that their electoral standoff means the judge cannot be fair and impartial to Melancon's clients. In court filings, Melancon has cited her candidacy, outspoken support for fellow defense attorney Adam Reposa during his contempt proceedings (which went down in Hohengarten's court; see "Adam in Repose," Nov. 10, 2017), and the recollection that Hohengarten "loudly criticized" Melancon for her attire one day in court, as reasons for a mass removal. Despite emailed assurances that Hohengarten will "continue to treat you and your clients with the fairness and impartiality to which you and they are entitled," Melancon hoped to somehow move her cases.
This is not something you typically see in judicial races. Debra Hale has worked as the county's criminal court administrator for 15 years and said she "can count on one hand" the number of times a defense attorney has asked for their cases to be moved from a judge's court for this reason. Hale said there's never been any policy stipulating a standard procedure, but that each time it's been requested, the judge has granted the attorney's request. This year, two incumbents besides Hohengarten are being challenged in the March primary: County Court-at-Law No. 3 Judge John Lipscombe agreed to move his opponent Paul Quinzi's pending cases out of his court in August, when Quinzi announced his candidacy for the race; and on Tuesday, 331st District Judge David Crain said he plans to honor a similar request made last week by his challenger Chantal Eldridge. (Hohengarten has a second challenger, attorney Mario Flores, who does not have any cases pending in her court – though his campaign treasurer, fellow attorney Adam Alvarez, does, and has not yet requested that his cases be moved.)
A fourth incumbent, 403rd District Judge Brenda Kennedy, had originally drawn a challenger, but criminal defense attorney Charles Popper suspended his campaign two weeks ago with no public explanation. Rumors have since swirled through multiple channels within the local court community that Popper dropped out because of pending cases in Kennedy's court, though the exact reasoning is unclear. Some say he quit after Kennedy declined to move his cases, and he realized that his candidacy may negatively affect his clients; others say he only filed for office (at a cost of $1,500) to get his cases moved out of Kennedy's court. Popper declined to discuss the issue with us two weeks ago. Kennedy said the two spoke shortly after Popper filed, but dismissed the rumors as "gossip." "We only discussed his possible reasons for wanting to run for office, and the removal of his cases was not a subject that he brought up," she said. Popper "was already contemplating whether or not he wanted to be a candidate" when they spoke, and that he had not made any "final decision about what he wanted to do" upon the meeting's conclusion. "We have been friends over the years," she added. "There was no drama, threats, arguments, nor theatrics, and we did not discuss the subject you are inquiring about."
Yet Popper wouldn't be the first attorney this year to consider running for office to move his cases. In November, while jailed, Reposa threatened to challenge Hohengarten for her seat in an effort to remove his contempt case from her court. He cited a footnote in the Texas Code of Judicial Conduct statute barring judges from engaging in inappropriate political activity as just cause for a removal, to no avail. "There is no reason that an opponent cannot have cases in a particular court," replied Hohengarten. (Reposa never actually filed for candidacy.)
Which was in part the judge's explanation when pressed about the Melancon saga on Tuesday morning. Hohengarten has presided over CCL5 since 2004, and never faced a primary challenger. Though she acknowledged that her colleagues communicated about how to address challengers seeking to move their cases out of an incumbent's court, she said she was unaware of any unofficial standard, and arrived at her decision alone. "You have to separate the professional from the personal," she said. She reiterated that she believes she can be fair and impartial with any attorney, or their clients.
After struggling to find an attorney who would represent her at Tuesday's hearing, Melancon thought she and the county attorney had arrived at a solution to delay some cases past the primary and put a couple of others in the hands of a visiting judge. But on Wednesday afternoon, Hohengarten relayed that the recusal hearing is back on: Wednesday, Jan. 24, at 1pm. Evidently, the state's Third Administrative Region Presiding Judge Billy Ray Stubblefield carries a policy that requires a record be made of such motions.