You Say Commie, I Say Nazi
Did you know we have commie judges in Dallas? At least I think they're commies. Now look, I could be wrong. They may be Nazis. I'm going to leave that up to you. It looks to me as if either term would be politically accurate.
The point is that Dallas, which is always talking about how conservative it is, has become a kind of national capital of pro-government authority, anti-individual freedoms case law. We've got judges here handing down heel-clicking opinions that sound like something you'd get from Augusto Pinochet. Or Fidel Castro. Take your pick.
This weird brand of local case law, which by now has infected both the state and federal courts in Dallas, says that a government can sue citizens for criticizing it, opposing it in bond elections, even asking for information.
This all goes back to a reprehensible decision by the Dallas school board in 1992 to punish two public citizen critics for embarrassing it with a series of damaging revelations.
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In a secret meeting, a tape of which was later made public, the board vowed to use a flurry of lawsuits to destroy Don Venable, a paralegal, and Richard Finlan, a real estate developer. Then-school board President Sandy Kress, a lawyer with Johnson & Gibbs, the city's most political law firm, thought it would be especially creative to hurt Venable and Finlan by also suing innocent family members who were not truly parties to anything with DISD, such as Venable's brother, who had once allowed him to use a fax machine to send a letter to the school district.
Kress told his fellow board members in the secret meeting: "I think putting them on the defensive, making them use their resources in defense, letting them know we are serious, bringing the brother in, you bet. Anybody that has any money, any clout in that deal, you bet, let them defend themselves for a while."
What was it that the two gadflies were saying that so incensed the school board? Could have been a lot of things. Could have had to do with the bank transaction the pair uncovered in which the district had deliberately refinanced $188 million in old debt at a much higher interest rate at InterFirst Bank--just in time to make InterFirst's books look better for federal auditors. And let me go on record as saying I am sure none of that stuff had anything to do with the fact that InterFirst was owned by local huge-wigs such as Ray Hunt, Trammell Crow, and the illustrious Edwin L. Cox Jr., the latter of whom confessed to bank fraud and was pardoned by George Bush I. (Yeah: Let's remember that the Bushes were handing out pardons, too, on their way out the door.)
Whatever it was that had made the downtown suits so angry with Venable and Finlan, Kress and others on the board thought a smart thing would be to take millions of dollars in tax money that might otherwise have been wasted teaching poor children how to read and spend it instead on hiring a bunch of expensive local lawyers to crush two of their critics. And the outcome of this Nixonian strategy?
Well, that was really the funniest part. The local lawyers screwed up so much that the two gadflies, neither of whom is a lawyer and both of whom represented themselves, won all the rounds for several years. The lesson would seem to be: If you're going to destroy somebody with phony lawsuits, you better hire your lawyers in New York.
The school district filed all kinds of weird racketeering and civil conspiracy suits against Finlan, Venable, and against a lawyer, Ronald D. Hinds, who had made the mistake of agreeing to represent Venable in one case. Eventually, almost all of those suits were either dropped or thrown out of court.
Meanwhile, Finlan and Venable persisted in thinking that as American citizens they had the right to ask DISD certain kinds of questions. On September 1, 1995, they sent a letter to then-school Superintendent Chad Woolery asking for all of the board members' campaign finance reports and backup information.
The genius legal team representing the district sued Finlan and Venable for requesting the information.
Finlan and Venable went to court and pointed out they not only had a constitutional right under the petition clause of the First Amendment to ask government a question, but there also happened to be a specific law on the books in Texas saying it was flat illegal for a government to sue a citizen because the citizen had asked for information.
Oops! The multimillion-dollar legal team must have missed that one. Maybe it was in one of those real thick books.
Normally, American courts have been wary of government lawsuits against citizens in which the government is obviously using trumped-up charges to go after its political critics. In 1927, U.S. Supreme Court Justice Louis Brandeis summed up the underlying philosophy of the courts: "Those who won our independence believed...that public discussion is a political duty...They knew that...it is hazardous to discourage thought, hope, and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law--the argument of force in its worst form."
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.
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."
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