An Unconstitutional Wrist-slap?

In the follow-up to the Sharon Keller wrist-slap story (on the back-room dealings at the Judicial Conduct Commission), I quoted some of what Scott ("Grits") Henson had to say about the back-room discussion, but I didn't jump on the question he asked as an aside.

As an aside, I don't understand how the "warning" option jibes with earlier reports that the only options available were removal, censure, or exoneration.

Turns out there's a real story in that, as Scott points out this morning, directing us to this article by Mary Alice Robbins in Texas Lawyer.

Seana Willing, the commission’s examiner, contends in an e-mail that the order is based on a rule that does not comport with the Texas Constitution. As examiner in judicial misconduct cases, Willing acts as a prosecutor does in a criminal case, gathering and presenting evidence, often assisted by a private attorney.

Willing says, “I’m not criticizing the commission for what they did, but I don’t understand why they did what they did.” But Willing is concerned that the commission’s public warning in Keller could result in “bad law” and cost taxpayers more money.

She argues the commission should have based its order on the constitution, which allows the commission only three options after it begins formal proceedings against a judge and after a special master issues a report: issue a censure, recommend removal or retirement, or dismiss the charges.

Well, maybe.  It turns out that warnings can follow "informal" procedures like investigations, but this was a formal procedure.  So maybe the warning was unconstitutional?
Keller's lawyer is intending to appeal.  But that may not be so easy.

While Babcock is discussing an appeal, how such an appeal would proceed is unclear. That’s because there are different procedures for appeals after formal and informal proceedings. A public warning typically follows informal proceedings, but in Keller’s case, the commission issued a public warning after formal proceedings.

When the commission issues a public warning to a judge in informal proceedings, that judge has the right to ask the state Supreme Court to appoint three appellate justices to a special court of review to hear the appeal. Willing says in an interview that in such appeals, the three-justice panel reviews the evidence de novo, amounting to a new trial.

But because the commission initiated formal proceedings against Keller, Keller already has had a trial — before the special master. Willing says a new trial would be a waste of resources. She is concerned about Keller getting what amounts to a second trial on the taxpayer’s dime.

The good news, of course, is that Keller has learned her lesson and become a compassionate and understanding . . . .  

Oh, wait, that's not her.  It's Clarence Thomas.

Ooops.  Not him, either.