By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Eric Nicholson
Like many complicated cases, this litigation wound up splitting off into all sorts of subplots and side actions, scattered in several courts and proceeding at the same time. But because the law and the courts were so solidly stacked in their favor, Finlan, Venable, and Hinds seemed to be winning all the marbles for several years as these cases wound their way through state and federal courts: DISD tossed out here, DISD's lawyers sanctioned for lying there, DISD's appeal denied here.
That all began to change in the mid-1990s, when a Texas Supreme Court ruling in favor of Finlan and Venable sent some of the cases back to Dallas for reconsideration. Last year, 5th District State Appeals Court Justice Annette Stewart, an old-line stalwart of the Dallas County Democratic Party of which Sandy Kress was once chairman, wrote an opinion slamming Finlan and Hinds and proposing a whole new view of the government's right to retaliate against citizen critics. In her opinion, Stewart rejected all of the traditional argument and philosophy, from Brandeis forward.
Stewart wrote in her opinion that in 1995, when DISD sued Finlan and Venable for requesting campaign reports, "there was no clearly established law that the filing of a civil suit in retaliation violated an individual's free speech rights."
In her opinion, Stewart contends that the government has every right to sue you to shut you up, and "there is no clearly established right to claim a First Amendment violation from the filing of a civil lawsuit, even one alleged to be malicious prosecution, in retaliation for the exercise of free speech rights."
If you don't like it, sue the government back. If you can't afford to sue back, shut up and do as you're told.
As soon as Stewart's opinion hit the legal presses, other politically wired judges in Dallas began grabbing control over different pieces of the Finlan-Venable litigation and eagerly applying the "Stewart doctrine" to them. In particular, U.S. District Judge Sam Lindsay, a former Dallas city attorney, seems to have appropriated whole passages of Stewart's state court opinion into some of his own recent writings in civil rights cases that Finlan has before him.
All of this business, as you can imagine, is in some stage of appeal. Venable, for personal reasons, has retired from the field, but neither Hinds nor Finlan shows any sign of giving up.
I attended a hearing before Judge Lindsay last week in which Hinds described the way local judges have been using Justice Stewart's weird opinion as the legal equivalent of a "Danny Faulkner land flip"--a reference to the days in Dallas when crooked real estate speculators traded property back and forth on paper to kite up its value.
Later on the telephone, Hinds explained, "The judges all keep referring to this same opinion, and each time they do, it somehow adds value to the original opinion."
But this is a purely local stink. This is a Dallas deal. This is an overly political, finger-in-the-wind Dallas bench cranking out opinions that ought to shock and anger any true conservative. Just picture it with different shoes on different feet: Let's go back to when Hillary Clinton was doing health-care reform for her husband's administration. Let's say a Dallas citizen had made a Freedom of Information Act demand for certain related documents. And let's say the Clinton Justice Department had hired a top Washington law firm to file multiple civil racketeering suits against the citizen, after Hillary and Bill had been taped in the Oval Office saying, "Anybody that has any money, any clout in that deal, you bet, let them defend themselves for a while."
This isn't that hard to get. This stinks.
Finlan said last week, "They have a huge asset over there [at the school district], and it's money. They get their money free from the taxpayers."
He calls using tax dollars to file endless lawsuits against critics of government "rule by the coercive use of government power."
I start to think it's ironic that a conservative town would become a center of pro-government case law, and then I think: Nobody here is really conservative. They all just stick up for their buddies. It's not a philosophy. It's a tribe.
Finlan said to me: "They didn't like me. Next, they may not like you."