 Examples of Judges "Protecting" Others
We want judges to help and protect people, especially children. It is usually preferable if considerations of the law and common sense guide how that protection is given. Here are two examples of family court judges "protecting" others in ways most of us should have a hard time understanding.
In Galveston County, in Cause No. 07FD1547, the Ricks were divorced in the 306th District Court in 2008. The 306th then became the court of exclusive continuing jurisdiction because a child's custody, possession and support was addressed in the decree. In January 2010, attorney Suzanne Schwab-Radcliffe filed a petition to modify for the mother. Judge Jan Yarbrough (a Democrat), without motion or hearing, transferred the case to County Court No. 3 because Judge Radcliffe is the 306th's part-time Associate Judge for CPS cases. This is verified by the following docket sheet entry in Judge Yarbrough's handwriting, which says,"Case transferred to CC#3 due to Judge Suzanne Radcliffe's involvement (Court practice in 306th)."
Judge Yarbrough's sua sponte transfer of the case violated the very clear law in Texas on continuing, exclusive jurisdiction. Appellate cases have held that family judges cannot just transfer cases involving children unless the very specific procedures for transfer are followed. In re G.R.M., 45 S.W.3d 764, 766-767 (Tex. App. - Fort Worth 2001, no pet.) clearly holds:
In Kirby v. Chapman, we previously recognized that the legislature intended that the transfer procedures provided by the family code be the only mechanisms for the proper transfer of suits affecting the parent-child relationship. More specifically, we held in Kirby that the exclusive transfer provisions in the family code for suits affecting the parent-child relationship negate the ability to transfer such cases freely between courts in the same county under section 24.303(a) of the government code.
...
Citing the Dallas Court of Appeals' decision in Johnson v. Pettigrew, we held that the legislature intended the transfer procedures provided by the family code to be the only mechanisms for the proper transfer of suits affecting the parent-child relationship and that the exclusive transfer provisions provided in the family code negate the ability to transfer cases freely between courts in the same county under section 24.303(a) of the government code.
(Citations omitted).
This holding is in accord with Johnson v. Pettigrew, 786 S.W.2d 45, 47-48 (Tex. App.--Dallas 1990, no writ) and Alexander v. Russell, 699 S.W.2d 209, 210 (Tex. 1985).
In the above Ricks case, Judge Yarbrough did not transfer the case because either party requested it, because the law required it or because it was necessary to protect the child. In fact, the law prohibited the transfer. A "standing" order signed in 1998 by three family court judges who no longer hold office (which also made the same sweet deal for the then part-time Associate Judge Jan Yarbrough) which says any cases of Radcliffe's in the 306th will be transferred to County Court No. 1 or 2 (but not to Court no. 3) does not change the law or the ethics involved.
As wonderful a judge as Yarbrough otherwise is, I have to conclude she transferred the case in violation of the law to protect her friend's and part time Associate Judge's ability to earn the fees in this case. Yarbrough should have told her friend, "Sorry, I know you need to make a living, but we are judges and we gotta follow the law, not to mention we must avoid doing something that just doesn't look right." The Ricks case is just one of many cases where such transfers in violation of the Texas Family Code were made to accommodate Judge Radcliffe's private practice.
Another example of a judge trying to protect someone (a child I guess) is found in Cause No. 2009-75735 in Harris County in Judge Denise Pratt's court (Pratt is a Republican). There, the parents were divorced in 2010. In April of 2012, a modification suit was filed and the parents quickly reached an agreement to increase the child support, add the over 100 mile visitation language because one parent had moved to Dallas and add the standard State Bar approved language on changes of possession at the airport. Judge Pratt requires a "prove up" hearing on all modification cases, even if custody is not changed. When the petitioner and her attorney appeared in court (and once they waited for Judge Pratt to arrive), Judge Pratt refused to approve the agreed order because it provided that the 8 year old child could fly unaccompanied for visitations (on non-stop flights only, when the parents felt the child could handle it). When pressed, Judge Pratt from the bench said she would never approve unaccompanied flights for any child under age 19. When asked why, Judge Pratt said in open court before the gathered attorneys, "because of human trafficking." An angry Pratt then sent the attorney away and within a day Judge Pratt appointed an Amicus Attorney to represent the child!
Stop and consider what happened. The parents who know and love their child reached an agreement that provides for the possibility of unaccompanied flights for a child on non-stop 50 minute flights to and from Dallas. Thousands of parents and kids do the same thing every month in Texas without incident. Without hearing any evidence, Judge Pratt refused to accept this agreement because of the judge's fear of "human trafficking," which I am sure would be news to Southwest Airlines and the FBI. Then, these parents who had agreed on everything, got stuck with the cost of an Amicus Attorney. What exactly would the amicus even do in this situation? Everyone involved in family law in Harris County is asking,"What is going on in Judge Pratt's court?" Tales of really odd rulings and procedures abound. The above case is just one example of many, many such hard to understand rulings.
Harris County Election Results Harris County went slightly Democratic in the 2012 General Election. In Harris County, 68% of all votes cast were straight ticket votes and each party got roughly the same number of straight ticket votes: Republicans 403,455 and Democrats 406,099. Unlike other recent elections, the Republicans won the early vote but lost the votes cast on election day. In the final total vote tally, Romney and Obama were effectively tied, although the President won by just 585 votes. Romney got 584,866 votes and Obama 585,451. Minor party candidates for President received about 15,000 votes.
In the U.S. Senate Race, Republican Ted Cruz did slightly better than Romney, receiving 581,197 votes to Democrat Paul Sadler's 562,955.
In the races for the two Houston Courts of Appeals, all of the Republicans won. In Harris County, the Republican candidates for Court of Appeals Justice beat their Democratic opponents 50% to 49% except for Democrats Barbara Gardner and Julia Maldonado, who each got 50% to the Republican's 49%. However, Gardner and Maldonado did not win because of the votes cast in the other 10 counties that comprise the First and Fourteenth Courts of Appeal. Maldonado, for example, lost the 11 county district to John Donovan 856,119 (52.7%) to 769,655 (47.3%).
In the 24 District Court races on the ballot in Harris County, Democrats won 14 and Republicans won 10. Republicans won both County Court at Law benches that were on the ballot. In all of the judicial races, the winner got just over 50% and the loser got just under 50%. In all but one of the district court races won by Republicans, less than 7,000 votes out of 1.2 million cast separated the winners and the losers.
Democrats won the race for County Attorney (51.47% to 48.53%) and for Sheriff (52.95% to 45.2%). Sheriff Adrian Garcia was by far the biggest vote getter for Democrats. Republican candidate for District Attorney, Mike Anderson, was the biggest vote getter for local Republicans, as he defeated the controversial Democrat, Lloyd Oliver, 52.35% to 47.65%.
Harris County is now a politically competitive county teetering on the verge of tipping to a solid Democratic county because of demographic changes. Dallas County in 2004, a Bush Presidential year, was in roughly the same position then. In 2004, Republican candidates barely won all of the local judicial races. Then, in 2006, a year when the Governor was on the top of the ballot, Democrats barely won all local judicial races and the Democrats have dominated Dallas County ever since.
In most of the biggest cities in solid Republican states, changing demographics usually cause the central urban county to go Democratic just as the surrounding suburban counties become even more solid Republican. Compare this "Democratic donut hole" phenomenon for the 2012 Presidential election for Dallas and Harris counties and their surrounding counties:
Dallas Obama 57% Romney 41.6%
Denton Romney 65%, Obama 33.3%
Collin Romney 65%, Obama 33.4%
Kaufman Romney 71.7%, Obama 27.3%
Ellis Romney 73%, Obama 25.6%
Tarrant Romney 58%, Obama 42%
Harris Obama 49%, Romney 49%
Brazoria Romney 66.4%, Obama 32.3%
Chambers Romney 80.1%, Obama 18.9%
Fort Bend Romney 52.9%, Obama 46.1%
Montgomery Romney 79.7%, Obama 19%
Galveston Romney 62.8%, Obama 35.9%
The population changes in Harris County are truly astounding. The U.S. Census estimates that in 2011, 41.4% of the population of Harris County was Hispanic and 32.7% was Anglo, 19.3% black and 6.4% Asian. This means that almost seventy percent of the county's population is non-white. Over 50% of the voting age population is non-white. I strongly suggest you look at this eye-opening summary of a recent Rice University study of demographic and attitude changes in Harris County. Click here to see the study findings (look at the maps and bar graphs toward the end especially).
It is only a matter of time before Harris County is as Democratic as Dallas County while the surrounding counties vote overwhelmingly for Republicans (the exception could be Fort Bend county which is unusually racially diverse). The big question for family lawyers and judges is: how soon will Harris County make the switch to only electing Democratic judges?
In two years when all of our family courts will be on the ballot, it will also be a gubernatorial election year. Governor Perry, who was badly damaged by his embarrassing presidential run, apparently plans to seek reelection and he is very likely to be the Republican at the top of the ticket. Yes, Obama will not be on the ballot to motivate minorities to vote in 2014. But, Obama probably encouraged just as many Republicans to vote this year because of their hatred of him. If a dynamic Democrat is running for Governor, such as San Antonio Major Julian Castro, we may see record Hispanic voting in Texas in 2014. If local Democrats copy the amazing get out the vote efforts used by the Obama campaign in competitive states such as Ohio and Florida this year, it could be the end of Republican judges in our county. Given how really good the majority of our nine family court judges are, that would be mostly a shame.
2014 should see an improving economy and surely by then a bipartisan compromise on the federal budget. Obamacare will be kicking in full force and most Americans will become covered by health insurance. Our long war in Afghanistan will be over and the huge political issue of the day will be immigration reform. Either congressional Republicans will continue to oppose rational immigration reform (which will enrage and motivate Hispanics) or finally a grand consensus on immigration reform will be reached and Obama and the Democrats will get the credit for it with Hispanics.
2012 was the year Republicans should have kicked ass given the economy and general feeling we are not better off than four years ago. 2014 is very unlikely to provide such an opportunity for the GOP. The huge anti-incumbent fever that swept the country in 2010 and helped Republicans win everywhere, including judges in Harris County, is also unlikely to be repeated in 2014.
Two or three family court judges are expected to retire in two years, so there will be some open seats.
Family attorneys should discourage any Democrat from running against our five really good, fair Republican judges. We also need to encourage and recruit really good lawyers to run in both parties for at least four of our family court benches in two years.
Based on the district court elections this year, all it takes is a half of a percent swing to elect either a Democrat or Republican judge in Harris County. The four Republican incumbent family court judges who do not already know better might consider this good reason to stop playing favorites and treating amicus appointments like political patronage -- a public perception that our family courts are not fair and need cleaning up might well motivate at least a few thousand voters to want a change in the family courts and thus elect Democrats in a tight race.
Galveston County Shows How Not to Run an Election
Galveston County was swept by Republicans as expected. Romney got 63% of the vote and the straight Republican ticket votes were almost twice the straight ticket votes cast for the Democrats. None of the local judicial races even had a Democratic nominee. The Republican candidates for Sheriff and District Clerk each received roughly 60% of the vote. John Kinard will be sworn as District Clerk as soon as the final vote is canvassed because he won a special election to fill a vacant position.
The only black eye for Republicans in Galveston County was the astoundingly incompetent way the Election Day voting was managed. Unlike almost all other counties, Galveston County allows voters to vote at any voting center on Election Day, not the voters' local home precincts. This requires the electronic voting machines at each voting center to be able to accept votes for every possible combination of local race and local bond issue or referendum. State law requires electronic voting machines to produce a printout on the morning of the election to show that no votes have been cast and everyone is starting with zero votes. Apparently, no one thought about how long that process would take with a voting center system. The voting machines took over an hour to print out the long complicated report showing all possible races. Many election workers started the process too close to 7:00 a.m. So, when the polls were supposed to open, the machines were still printing out reports on special rolled printing paper. Unfortunately, most of the machines ran out of paper and no extra paper rolls had been provided to the voting centers. The County Clerk's staff had to scramble to find and deliver the special printing paper to the voting centers before voting could begin.
Voting at most of the voting centers started well over an hour late and centers some opened over two hours late, resulting in angry, frustrated voters and crazy long lines. Judge Ellisor granted a motion to allow the polls to stay open two hours late. However, all votes cast after 7:00 p.m. were taken as provisional votes, which are not counted on election night. Now, there is a delay counting those provisional votes and some are missing! The county's electronic voting system shows that 1,988 provisional ballots were cast during the election, but election officials hand-counted 1,943 provisional ballots, 45 shy of what the electronic voting system says there should be. But, County Tax Assessor-Collector Cheryl Johnson, whose staff must certify the provisional ballots, says she has 1,935 ballots - 53 less than what the county's voting system said were cast. No one can explain where the missing ballots are. Worse, Ms. Johnson shut her offices on the Friday after the election for staff training and she had to ask for extra time to certify that each provisional ballot was cast by an eligible voter before the County Clerk is allowed to count them.
The provisional ballots and the missing ballots will not change the results of any elections, except for possibly one city council election and one school board race. However, this mess makes our county government look totally inept. Heads should roll and voters deserve an honest explanation of how this mess could possibly have happened and how it will be avoided in the future. County Commissioners should appoint a panel to investigate and write a public report. This panel should be independent of the County Clerk and the Tax Assessor-Collector.
Judge Dupuy, are you kidding me?
The following Facebook post made after Obama's election win would be disgusting coming from anyone, but coming from a judge who is not exactly the paragon of responsibility or moral behavior, it is absolutely amazing. Someone who has filed for bankruptcy twice, had his law license suspended, a house foreclosed and car repossessed, who still faces malpractice lawsuits from before his accidental election as judge and whose judicial misbehavior constantly results in him being recused from cases should not be accusing anyone of being "Anti Christian, Anti American or Anti Personal Responsibility." 
The battle royale between judges Dupuy and Radcliffe continues. Radcliffe has filed a mandamus action with the Court of Appeals properly pointing out that Dupuy issued his orders barring her from practicing family law while she is a part-time associate judge and holding her in contempt without notice or a hearing. While Dupuy is correct that the county should not have a part-time judge who also is allowed to practice family law and get her cases kicked out of the 306th, he went about it the wrong way. True to form, Dupuy also stuck his foot in his mouth while giving an interview to the Galveston Daily News. The article in the News (click here to read the article) says:
Dupuy ended his statement to The Daily News by saying he expected the liberal local media, including the reporter asking Dupuy for comment on the writ, to refuse to fairly report the matter and instead draft misleading articles.
Dupuy just cannot help doing, writing or saying things that make him look bad. He is his own worse enemy and he just keeps giving folks more reason to want him out of office.
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