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Monday, April 27, 2009

Written Testimony of Jim Harrington to be Submitted at Sharon Keller Hearing

Legislative testimony by TCRP board member and
TCRP director regarding the proposed impeachment
of Judge Sharon Keller:

* * *

April 24, 2009

A Letter to the House Committee on Judiciary
& Civil Jurisprudence

The Texas Legislature

Re: HR 480 (impeaching Judge Sharon Keller)

Honorable Chair and Committee Members:

As Director of a statewide civil rights nonprofit
organization, I respectfully urge passage of HR-480
so that the House of Representatives may begin the
process of considering the impeachment of Judge
Sharon Keller for abuse of her office, one of the
most important judicial positions in the state.

IMPEACHMENT INQUIRY NECESSARY AND PROPER

Attached to this testimony are the Notice of
Formal Proceedings (No. 96), Inquiry Concerning
a Judge, before the State Commission on Judicial
Conduct and the Ethics Experts' Declaration, filed
in that same matter. I need not repeat the
allegations and statements in those documents, but
I do accept, ratify, and incorporate them as part
of my testimony.

I agree in all respects with the twenty-four
ethics experts, who recently advised the Commission
of Judicial Conduct that Judge Keller is "guilty
of 'incompetence in performing the duties of office,
willful violation of the Code of Judicial Conduct,
[and] willful [and] persisted conduct that is
clearly inconsistent with the performance of [her]
duties.' In addition, her egregious misconduct
'casts public discredit upon the judiciary [and
upon the] administration of justice.' [footnote
omitted]" The same in my view supports impeachment
of Judge Keller or, more to the point, are more
than sufficient for this committee to recommend
to the House that it appoint an impeachment
committee on this matter.

These charges, if true and I believe them to be
so, are more than enough to support impeachment,
but there is another reason, even stronger than
the others -- Judge Keller essentially deprived
Michael Richard of his life for at least eight
months, that is, she caused his life to be ended
early without due process. The victim of Judge
Keller's action was Doreen Anderson, Mr. Richard's
daughter, who had a close relationship with her
father.

How does one quantify the eight months or more
that Ms. Anderson lost with her father? He may
have been convicted of a crime, but she was not.

APPROPRIATE FOR HOUSE INVESTIGATION -- VOTERS'
SOLE REMEDY

"The power of impeachment shall be vested in the
House of Representatives." Tex. Const. art. XV,
� 1. At the time Texas adopted its constitution
in 1876, impeachment was well-established in
English and American parliamentary law. Ferguson
v. Maddox, 263 S.W. 888, 892 (Tex. 1924).

Impeachment is designed to reach officials in
high places who are guilty of "official
delinquencies or maladministration." The offense
does not need to be a statutory or common law
offense. Impeachment offenses are generally
considered high crimes and misdemeanors, which at
the time the constitution was adopted meant grave
official wrongs. Id..

Because of the nature of impeachment, the
offenses cannot be defined, but it is a general
principle upon which the offenses rest can be
stated. Id. The U.S. Constitution defines
impeachment offenses as "treason, bribery, or
other high crimes and misdemeanors" U.S. Const.
art. 2, � 4.

Many states mirror this language in their own
constitutions, while others add "misdemeanors
in office," "maladministration," "oppression in
office" and other similar offenses. Ferguson,
263 S.W. at 892. The Texas Constitution adopted
the existing and well-known principle of
impeachment, as understood at the time. Id.

Impeachment is the only remedy and
accountability mechanism under the Texas
Constitution. Judicial immunity shields judges
against state and federal litigation. We tried
in the case of Judge Keller, and our federal suit
was dismissed for that reason.

Even though the Commission on Judicial Conduct is
considering an action against Judge Keller, it may
or may not take appropriate action. However, the
only constitutional remedy is impeachment by the
representatives of the people.

The framers of the 1876 Texas Constitution and
the voters who ratified it created a strong
judiciary. The 1876 Constitution deliberately
fashioned a weak legislature and a weak governor
because of past abuses of power. The judiciary was
the one branch of government that kept power, and
very extensive power. The drafters of the
constitution felt that only judges could protect
the people against the government and monied
interests taking away their rights. For that reason,
the populist tradition of electing judges was framed
into our current constitution. The authors of the
constitution and voters wanted to elect their judges
to keep direct control over them so they would not
become beholden again to the big financial interests
of the state and political caprice -- as they had
been in prior times when appointed by the governor.

Impeachment thus is the people's way of undoing
the election of a judge who has betrayed their
trust and acted with "official delinquency," that
is, abused their office to the extent of violating
the mandate to administer fairly and impartially
the constitutions of the nation and of the state.

The charges against Judge Keller are sufficiently
grave that the House of Representatives has to duty
to formally consider them, and then act on them. We
believe the ultimate conclusion of this process
would be impeachment by the House, trial by the
Senate, and removal from office.

Whether Judge Keller is ultimately convicted or
vindicated is for a later date, but the House must
at least be faithful to its obligation to formally
consider and act on the substantial charges brought
against her.

Thank you kindly for your attention.

James C. Harrington
Director
Texas Civil Rights Project

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