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Judge Fudge

Margaret Keliher uses images of herself in a judge's robe in campaign literature.

For years, Dallas County Judge Lee Jackson told witty jokes about how nobody really knew what a county judge was. Now Margaret Keliher, the Republican candidate to replace Jackson in November, is trying to turn the joke into a campaign strategy.

Keliher is a sitting civil district judge in Dallas County, pulling down a salary of $111,000. If she can hang on to her judge job until November, she will complete four years on the bench and qualify to become a "visiting judge," one of the great honey pots in Texas elective politics. Some visiting judges make as much as $300,000 a year.

The problem is that the Texas "State Code of Judicial Conduct" orders judges to resign their judgeships if they become candidates in "a contested election for a nonjudicial office."

Guess what? County judge in Dallas County is totally nonjudicial. The county judge is really the chairman or president of the county commission. The fact that the office is even called "judge" in Texas or has any vestigial ceremonial judginess about it at all is a quaint hangover from the distant past.

But Keliher is arguing that the office of county judge is still a judicial office, so she should not have to give up her comfortable salary or her shot at a cushy visiting judgeship.

It's not that Keliher couldn't make a good run at it without the robes. If anything, she is blessed with assets. A CPA and former president of the Park Cities Republican Women's Club, Keliher is the daughter of lawyer James Coleman, of whom another Texas lawyer recently said in The New York Times, "In the North Texas area, Jim is a god." By clutching her judgeship in spite of the ethical and legal cloud, Keliher comes across like a kid who won't share her birthday cake.

Raising political money from lawyers is generally believed to be much easier if you happen to be a judge in whose court the lawyer or the lawyer's firm might one day argue a case. According to campaign finance reports filed so far, Keliher has raised $137,250 against only $39,346 raised by her Democratic opponent, state Representative Harryette Ehrhardt.

Exactly half of Keliher's money has been in contributions from lawyers--137 of them--who have kicked in an average of $500 apiece. Keliher's lawyer money alone is 170 percent of Ehrhardt's total fund raising.

It gets stickier. The state ethics rules for judges say that judges running for judicial office "shall not make statements that indicate an opinion on any issue that may be subject to judicial interpretation." At an open candidates forum before the Greater Dallas Association of Realtors, both Keliher and Ehrhardt answered a broad range of questions about county government and county political issues, and both filled out detailed questionnaires giving their positions on specific issues.

According to people who were present, Keliher gave opinions on the county's role in financing Parkland hospital, for example, and on affordable housing initiatives, both of which have been in and out of the local courts on a fairly regular basis over the years.

It didn't do Keliher a lot of good. The Realtors endorsed Ehrhardt. But which is it going to be? Is she running for a judicial post, in which case she can't comment on specific issues? Or is she running for an administrative post, in which case she can talk on issues but must resign from the bench?

Keliher also has plastered Solomonic images of herself all over her own campaign literature wearing her judge robes and holding law books. The state canon of ethics is clear that judges are not to use their judgeships as leverage in nonjudicial politics.

The whole thing is an ethical gumbo. She gives the impression of trying to slip through a lawyer crack when the reality is plain as the side of a barn: The county judge ain't no judge.

Ask Lee Jackson, a Republican and a Keliher supporter. He started out by giving me some interesting technical arguments why someone would argue that the county judge is a judge, including the fact that the county judge has to sign a piece of paper every year telling the state that he has no judicial duties so that he won't have to take refresher courses for judges.

But the point is, every year for the 16 years that Lee Jackson has held the post, he has signed that piece of paper, because, like virtually all county judges in major urban counties in Texas, Jackson had no judging to do.

"I've got too many other things to do, in my opinion," he said. "There is not any dispute about what my workload has been. I've done 100 percent nonjudicial activities. It's a full-time job, and I think that is the best way to use my time."

 

No kidding.

Even if he could, why would the chief executive officer of a county with an annual budget of a third of a billion dollars want to leave his or her office every day, go down into one of the county courts at law or probate courts under his authority and hear drunken driving cases and disputed wills?

He wouldn't...unless he was trying to hold on to his judge card so that when he left office he could pull down 300 large as a visiting judge. And anyway, there is no court available for the Dallas County judge to judge in.

Keliher wouldn't talk to me. I know she knows I called, because she had two different public relations agencies call me back to see what my problem was. Mary Woodlief with the Rob Allyn Agency told me that Keliher had commissioned a lawyer to produce an opinion for her on the legality of remaining on the district court bench while running.

"The legal opinion she got was from an independent attorney," Woodlief said, "and it was basically citing case law, attorney general rulings and then the Texas Constitution.

"She [Keliher] has thoroughly researched this," Woodlief said. "It says in the Texas Constitution that the county judge...is a judicial office. It literally states it in the constitution."

Woodlief said she was certain that Keliher would never violate the canon of ethics where it forbids judges from taking positions on specific issues. "Judge Keliher is really familiar with the canon of ethics," she said, "and she would not do anything to violate that."

Woodlief makes a fair point: The office of county judge is created under the judiciary in the constitution for historical reasons. The office is descended in some ways from the old alcalde position in Spanish colonial law. But times change. In the original state constitution of Texas, corporations were illegal and preachers were not allowed to be members of the Legislature. Give me a break.

In all but a handful of rural counties, all of the vestigial judicial duties of county judge have been stripped away and redistributed to the various courts operating under combined state and county authority. That's why Lee Jackson had to sign the piece of paper every year saying he had no judicial duties: There was no court in Dallas County where he could do any judging.

A number of attorneys who discussed this with me on background (it's amazing how afraid they all are to say anything for attribution about a sitting judge) told me that the judicial nature of the office depends not on where in the constitution the office was created but what the county judge actually does now. Makes sense, eh?

There is nothing judicial for Keliher to do as county judge even if she wanted to. Maybe she could look in the mirror and judge herself; that's about it.

As for attorney general opinions, I found a few, too. From John Hill in 1978 to John Cornyn in 2000, Texas attorneys general have ruled that even if the office of county judge may have some vestigial ceremonial historical link to the judiciary, that doesn't shield the office from laws that pertain to elective administrative posts, which is what it really is. The judicial part is not a king's X on laws or rules directed at the other part. It looks to me as if the section of the judicial canon of ethics that says a judge must resign from office to run for a nonjudicial post would still apply, then, to the nonjudicial part of the office of county judge.

I called Keliher's opponent, Harryette Ehrhardt, to see what she thought about all this. (She was not the source who brought this story to my attention.) She pointed out gamely that she holds elective office as a state rep, which she is not giving up. But she did point out that the law and the constitution specifically say she doesn't have to resign, while the canon of ethics specifically says Keliher does.

Ehrhardt said she was troubled that Keliher seems to be trying to have it both ways, calling it a judicial office so she can keep her judge job but running for it as if it were not a judicial post (taking positions on issues, etc.).

"I do feel very strongly that all of us who serve and those of us who run for office should be above reproach in terms of our ethics," Ehrhardt said. "I think there is a tremendous responsibility for us to do so in order to retain the respect that the public must have, or the whole thing falls apart."

 

She's way more generous than I am. I think Keliher doesn't think she should have to answer for the rules. It's enough to have a PR agency call me and say, "Judge Keliher is really familiar with the canon of ethics, and she would not do anything to violate that."

Hat in hand, in me worn boots and tattered leggins' outside the castle wall, I bows and humbly begs to differ.


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