Justice for All?

In Texas we take pride in the fact that we elect our judges and they are accountable to the people, but it’s difficult to know for whom to vote. In fact, that is one of the very few things on which the Texas Republican and Democratic Parties agree. It is not uncommon for Texans to speak with disdain about federal judges who enjoy lifetime appointments and often make rulings that seem to have no connection to reality.

This does not mean that we don’t have problems related to our judges. Some years ago the Texas Supreme Court was the focus of a national news story called “Justice for Sale.” That story focused attention on the problems with that court and elections eventually replaced those judges.

In this year’s Republican Primary, there is no race more important to the defense of parental rights than the race between Judge Al Scoggins and his incumbent opponent. There is no better illustration of this fact than the actions of both candidates in the case of In re B.R.S., in which embattled parents were forced to defend their parental rights against the intrusion of non-parents.

The case originated in Judge Scoggins’s Court, where he protected the parents’ rights in properly ruling the applicable statute facially unconstitutional (meaning the statute could not be in any way construed so as to be deemed constitutional). By contrast, when the case was appealed, Judge Felipe Reyna refused to even conduct a legal analysis of the statute – and reversed Judge Al Scoggins’s ruling. That’s not my opinion. It’s the opinion of the Waco Court’s Chief Justice, who strongly admonished Reyna in his written dessent.

As we focus on parental rights, it has become more and more clear that our problem is not limited to statewide and appellate judges. We have local judges who hear CPS cases and routinely allow CPS to violate the requirements of the law. Some judges will even allow ex parte hearings in which the family is not notified or represented at the hearing and the judge then issues an order that impacts that family.

Two years ago we began to get involved in some of these races, not just the statewide races but local judicial races. We endorsed a challenger to a local judge who by many accounts was arrogant and unfair in his courtroom – especially in regard to parental rights issues. Some home schoolers went to church with the incumbent judge and called to assure us that he was “home school friendly.” He may have articulated that position, but his record was decidedly different. His challenger defeated the incumbent decisively. This judge was later called The Worst Judge in Collin County.

I am working with local leaders who spend time vetting these local judicial candidates and looking at their records, not just at what they say. THSC PAC will not endorse in many of these races; but in those where we find a candidate who has the qualifications and understanding of the law and a commitment to interpret the law justly and respect parental rights, we will endorse. Just as we hold legislators accountable for their actions, so too must we require judges to give an account.

Comments

  1. Stoneman14 says

    This account of In re B.R.S. and Justice Felipe Reyna is inaccurate:

    1. Justice Bill Vance authored the majority opinion in In re B.R.S. Justice Felipe Reyna joined the opinion. This post misleadingly implies that Justice Reyna authored the decision, which deals with the grandparent-visitation law that authorizes grandparents to petition for visitation rights under very limited circumstances.

    2. Justice Vance's decision was not appealed to the Texas Supreme Court. If that decision were as awful as this post suggests, why was it not appealed?

    3. To date, no other appeals court has criticized Justice Vance's opinion in In re B.R.S. And no other appeals court has adopted the dissenting opinion of Chief Justice Tom Gray, who was later publicly admonished by the Commission on Judicial Conduct. And every other appeals court that has addressed the grandparent-visitation law has found it to be constitutional, and the Texas Supreme Court has at least twice denied review of cases holding the law to be constitutional, which strongly indicates that the Supreme Court believes it to be constitutional.

    4. The principal trait of an activist judge is his willingness to substitute his opinion for the Legislature, i.e., the people, by striking down a law as unconstitutional. When someone refers to "legislating from the bench," that is what they mean. It is Judge Al Scoggins who was the activist judge and found this law to be unconstitutional. It was Judge Scoggins who "legislated from the bench," and it was Justice Vance’s decision, joined by Justice Reyna, that put a stop to Judge Scoggins’s “legislating from the bench.” Conservatives—at least consistent conservatives—ought to applaud Justice Reyna, and Mr. Lambert owes Justice Reyna an apology.

    A Conservative Homeschooler and Lawyer

  2. Anonymous says

    Stoneman –

    Your comment seems like that of an attorney trying to make a point by splitting hairs. Very simply, Felipe Reyna didn’t have the character to conduct a legal analysis of the statute at-issue in the B.R.S. case. In the alternative, he lacks the legal acumen to recognize a properly preserved point of error when raised on appeal. Either way, he lacks the qualities I look for in a judge. And, sadly, these traits have been a hallmark of his tenure on the Tenth Court of Appeals.

    By contrast, Judge Scoggins considered the arguments made in his courtroom, and rightly concluded the statute to be facially unconstitutional. That’s not judicial activism. It’s the admirable character of an independent, conservative jurist, who understands the limits of judicial authority, and legislative power. By contrast, Reyna joined Bill Vance in chickening out of doing his job. Yes, Vance wrote the opinion, but Reyna did not have to endorse it; and Chief Justice Gray illustrates this fact through his strong dissent. When voters elect an eagle, but the eagle flies straight into the chicken coop and stays there, the voters will notice. So, while Reyna has an admirable personal story, what he’s done on the bench is anything but admirable. And, any judge too weak to protect parental rights needs to go. It’s just that simple.

    Mr. Lambert doesn’t owe anybody an apology. And, to prove it, he posted your comment differing with him, even though he could easily ding it. If that’s not fair minded, I don’t know what is.

  3. Jim says

    Even after "Gates vs. Texas" CPS is notorious for violating peoples 4th amendment rights. Often in the case of multiple children where not all of them are listed on the case. These children are not listed in the family plan so they are not given services or visitation thereby stripping them of their known family. Neither the parent or the caregiver knows what to do about that child so that child is under SIEGE. How can a family plan exist that does not include the WHOLE family. TDFPS needs to gain control over their child (CPS) before allowing their child takes control of ours.

  4. Ron Hinds says

    Unlike "Anonymous" I will use my real name and stand by my comments.

    I have known and respected Tim Lambert for 16 years.

    Unfortunately, that respect is greatly diminshed by Tim's statements and actions in this matter.

    "Stoneman14"'s comments are absolutely correct. Justice Reyna did not write that opinion but even so the opinion was consistent with the rulings of every other appellate court in Texas and simply followed the law as written.

    Over the years, Tim has blasted judges for "legislating from the bench" and yet here he is blasting Justice Reyna for NOT "legislating from the bench".

    Having done pro bono legal work for home school parents clear back in the '80s, it pains me to have to say it but Tim is being very hypocritical.

    It is equally disturbing that of all the judges who have ruled consistently with Justice Vance and the other appellate courts, the ONLY one Tim has taken to task happens to be Hispanic.

    I have personally known Felipe Reyna for 35 of my 40+ years of conservative Republican activism (there are few in this state who can claim deeper conservative roots than mine) and I can say without equivocation that he is a man of unquestioned integrity and conservatism.

    I am proud to call Felipe my friend and fellow conservative Republican.

  5. Anonymous says

    To Stoneman’s comment, specifically his number “4”, consider the following:

    The Texas Supreme Court long ago fully understood the interrelationship between “lawmaking” and “law applying” by stating: “There are two major limitations upon legislative power: (1) the relevant constitutions and (2) the power of a court to construe what the law means or what it actually prohibits, allows or requires to be done. …” Ex Parte Abraham Mayer, 27 Tex. 573, 576 (1864). Even though the issue as to the meaning of a statute is a question of law, and the appellate courts may exercise de novo review and substitute judgment for that of the lower courts, the issue of statutory construction is not what (1) the law should be, (2) what is the better rule of law, or (3) what is the best result as a matter of justice and/or equity. The judiciary’s job is to ascertain and give effect to the Legislature’s intent in enacting a statute. See, In re Canales, 52 S.W.3d 698, 702 (Tex. 2001); Meritor Automotive, Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 89 (Tex. 2001); Cash America, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000).

    “[I]t is a basic provision of American jurisprudence that a statutory provision never be allowed to trump a Constitutional right. ‘The Constitution is the mother law. …Statutes must conform to the Constitution, not vice versa.’” See, State v. Karlen, 589 N.W.2d 594, 602-03 (S.D. 1999) (quoting Beals v. Pickerel Lake Sanitary Dist., 578 N.W.2d 134, 142 (S.D. 1998) (Sabers, J., dissenting and alternatively concurring in result)). Constitutionally protected fundamental rights, such as the presumption that fit parents act in the best interest of their children, cannot be subordinated to state statutes governing statutory presumptions. “It is axiomatic that a statute is trumped by a constitutional right.” Ferrara v. United States, 384 F.Supp.2d 384, 425 (D. Mass. 2005) (citing Marbury v. Madison, 5 U.S. 137, 138, (1803); INS v. Chadha, 462 U.S. 919, 944 (1983)).

    Given the fundamental rights at issue, interference in a parent’s decision to limit non-parental visitation must be based on some compelling state interest. “No Texas court that has considered the Grandparent Access Statute has articulated the compelling government interest served by the statute.” In re Pensom, 126 S.W.3d 251 (Tex. App.—San Antonio 2003, no pet.). Typically, a party challenging the statute bears the “heavy burden” of showing the statute’s unconstitutionality (Nootsie Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 663 (Tex. 1996); Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 623 (Tex. 1996); Texas Pub. Bldg. Auth. v. Mattox, 686 S.W.2d 924, 927 (Tex. 1985)); and all doubts are to be resolved in favor of the statute’s constitutionality. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 (Tex. 1990) (orig. proceeding). However, unlike statutes in general, a statute impinging upon a fundamental right – such as in the instant matter – is presumed to be unconstitutional. Harris v. McRae, 448 U.S. 297, 312 (1980). To overcome that presumption, the state must prove a compelling interest in its infringement of the protected right. Regents v. Bakke, 438 U.S. 265, 357 (1978) (Brennan, White, Marshall &Blackmun, JJ.); San Antonio v. Rodriguez, 411 U.S. 1, 16-17, 34, n.33 (1973); Carey v. Population Services Int’l, 431 U.S. 678, 685 n.15(1977). “When a [court] attempts to interfere with the fundamental right of a parent to direct the upbringing of his or her child, it must, in order to do so, satisfy the constitutional standard of ‘compelling state interest.’” OP. TEX. ATT’Y GEN. NO. JC-0226.

    In short, your faith in the omnipotence of the Texas legislature is nearly as frightening as the careless manner with which it infringes on parental rights.

  6. timthsc says

    Ron,

    I was happy to endorse Felipe Reyna in 2004 as did other conservative Republican leaders who thought him to be a conservative. Many have been disappointed. As others who endorsed him before, I have chosen not to support him now as a result of his record as a judge not his ethnicity.

  7. Dave Cary says

    Stoneman:

    Politely, I disagree (as does the Constitution).

    The role of a judge is to rule in accordance with the law, unless that law is unconstitutional. Every nonlawyer knows that, but then the Constitution was written by citizens, not lawyers. The U.S. Constitution is the supreme law of the land and every last one of our judges is supposed to determine whether a law is unconstitutional. That is not being an activist judge; that is being a real judge. Often times that is a politically difficult thing to do but we are fortunate that Judge Scoggins had the ethics to do the right thing. Unfortunately, Judge Reyna had the same opportunity and he choked. Whether Judge Reyna wrote the opinion or merely signed onto it is meaningless to me. The fact is, he supported it and that is all I need to know.

    The fact that other judges, including appellate judges, found the grandparent vistation law to be constitutional actually underscores Mr. Lambert's position. That just shows how far lost the judicial system has gotten.

    It is unquestionably true that it is a fundamental constitutional right to parent our children as we see fit, free of unwarranted governmental or other nonparent interference. No one loves a child as much as that child's parents do. We are not perfect people but our hearts are in the right place and on the whole, do what is best for our children as God gives us the means to understand.

    One final point: I have known Mr. Lambert for some time now and take umbrage at anyone who would doubt his ethics or his heart.

    Dave Cary

  8. Steve Spencer says

    Mr. Hinds -

    I didn't use my name previously, only because I was feeling technically challenged early this morning, and being "anonymous" was easier than trying to figure out how to post my name. Post-caffeine, I am much more lucent. I am certain Felipe Reyna is a nice enough fellow, but your assertion about his opinion in the B.R.S. case is simply wrong. The majority opinion in B.R.S. relied on the Third Court's opinion in Lilley v. Lilley; which is widely acknowledged as a patently flawed opinion. In Lilley, the Court absurdly placed the burden of proof squarely on the mother to demonstrate that visitation with grandparents was not in the best interests of her children. It did not accord her the constitutional presumption of parental fitness. It found the statute at-issue to be facially constitutional only after "engrafting" language into the statute that did not exist. In short, although there were plenty of other opinions from other appellate courts, Reyna and Vance looked to the worst possible case to avoid conducting a facial analysis of the statute. And, the case they were examining in B.R.S. was distinguishable from any other case on the subject matter. There was no evidence taken by the trial court; and thus, the sole issue of challenging the statute's facial constitutionality was properly preserved for appellate review. As you are no doubt aware, a court should avoid addressing a constitutional challenge if other grounds exist on which the case may be decided. City of San Antonio v. Schautteet, 706 S.W.2d 103, 104 (Tex. 1986). See also, In Re Derzapf, __ S.W.3d ___ (“Because the trial court abused its discretion in ordering access pursuant to section 153.433(2) of the Family Code, we do not reach [the father’s] constitutional concerns nor whether the trial court abused its discretion in granting the [grandparents] possession of, as opposed to access to, the children.”). It's basic appellate procedure, and Reyna simply got it wrong. I personally believe he knew exactly what he was doing when he refused to conduct a proper analysis, specifically because it was such a basic principle of appellate law. Clearly, Stoneman and you disagree, and I respect that. But, personal snipes at Tim do nothing to change the basic facts of Felipe Reyna's performance – or lack thereof – while on the bench. I would respectfully urge you to consider that a difference of opinion, especially when Tim's position is supported by facts (as I have demonstrated in my comments, even though you may not agree with them), does not justify besmirching anyone. And, it certainly does nothing to defend your position. Tim's opinion is clearly rooted in conservative principles. I can disagree with your opinion, but still respect it; which I do – on both counts.

  9. WatchDog says

    In his post, Mr. Lambert also criticizes CPS and local judges who allow CPS to trample upon parental rights in violation of the law.

    It should be noted that Justice Felipe Reyna has consistently insisted that CPS strictly follow the applicable law in cases where parental rights are at stake.

    An excellent example is his recent opinion in In the Interest of C.L. (http://www.10thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=9728)
    Here, CPS changed its claimed basis for termination of parental rights in the middle of trial, completely abandoning the claims asserted in the petition which had been on file for months. And then, the Department failed to offer evidence to prove this newly discovered claim. Quoting a previous opinion authored by Chief Justice Tom Gray, Justice Reyna carefully explained how CPS failed to prove its case and by unanimous opinion reversed the judgment.

    On rehearing however, Chief Justice Gray reneged on his vote to reverse the judgment. (http://www.10thcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=9766) He concluded that CPS had adequately proved this newly-alleged claim but that the trial court had only erred by failing to tell the parties that it had reviewed all its files (during trial) for evidence to support this new claim and had taken judicial notice of such evidence. However, the record was completely devoid of any indication that the trial court had done so.

    Even a casual review of 10th Court of Appeals’ decisions since 2004 will demonstrate that Justice Felipe Reyna has consistently insisted that CPS follow the procedural and substantive laws which govern that agency’s actions in cases where parental rights are at stake.

  10. Dave Cary says

    I read Mr. Stoneman and Mr. Hinds and understand they advocate the use of the blunt force of government to interfere with the parent/ child relationship without the establishment of parental unfitness subject to a clear and convincing standard of evidence. I also understand they don't see the legal value of the Constitution. Perhaps they feel it is quaint.

    Those are their opinions and I respect them. However, for them to go on and claim the mantle of conservatism beggers the imagination. That is conservatism that President Obama can believe in.

    Mr. Watchdog:

    Thank you for digging up that one case. I noticed it regarded a change in charges. Has Judge Reyna consistantly thrown these cases out based on the fact that the presumption of parental fitness was ignored from the beginning? He did not do that here. That would be a judge who supports Parental Rights.

    Dave Cary

  11. WatchDog says

    Mr. Cary,

    You raise an excellent question. Unfortunately, appellate court judges like Justice Reyna are strictly prohibited from reversing a judgment on a ground not presented in the appealing party's brief (commonly referred to as "unassigned error"). See e.g. Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) ("It is axiomatic that an appellate court cannot reverse a trial court's judgment absent properly assigned error."), Fletcher v. Department of Family & Protective Services, 277 S.W.3d 58, 64-65 (Tex. App.—Houston [1st Dist.] 2009, no pet.) ("courts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error").

    My reading of Justice Reyna's opinions over a period of 6 years indicates that he fully addresses the issues raised by the parties in almost every instance. (In fact, he is often subject to criticism by Chief Justice Gray for discussing the issues in a way which allows the parties to understand the basis for the decision. See e.g. In the Interest of A.B.K., 2007 Tex. App. LEXIS 8918 (Tex. App.—Waco 2007, no pet.) (CJ Gray concurring with note), Kelly v. State, 151 S.W.3d 683 (Tex. App.—Waco 2004, no pet.) (CJ Gray concurring)).

    If the issue of a trial judge ignoring the presumption of parental fitness had been raised in an appellate brief, it is my firm belief that Justice Reyna would have addressed the issue.

  12. Stoneman14 says

    1. I applaud Tim for posting my comment and the other comments. I am glad to see that someone who dishes out criticism can also take it. Robust political debate is good as long as it is honest, and the distortions of Justice Reyna’s record (and now more in these comments) that I have seen warrant rebuttal. It appears that probably some activist snookered Tim about Justice Reyna's judicial record and about the B.R.S. case. He ought to re-evaluate.
    2. “Anonymous,” the law often requires splitting hairs. So do distortions, especially when they include half-truths, which only make distortions more believable. So spare us the drama. And have you read the briefs in B.R.S.? The appellate record? Do you know how the case was argued and presented? To say that Justice Reyna lacks “character” and “legal acumen” and “chickened out” is simply obnoxious, especially if you have not personally examined his entire judicial record or the appellate record. Most lawyers and fair people realize there are two sides to the story and look at both sides. Just going by what one cockeyed political activist (I am not referring to Tim) with an axe to grind has falsely said about Justice Reyna’s record is simply reckless. Further, I do not have faith in the “Legislature,” nor do I consider it omnipotent. I have zero faith in politics and politicians, and that’s why it is so important that we have judges like Justice Reyna and Clarence Thomas who are not politicians in black robes.
    3. Dave, you are begging the question; your ipse dixit statement that the law is unconstitutional does not make it so. Yet again, sincerity is not the test. And your claim that Scoggins did what he did out of “ethics” misses the mark. Also, for the record, I have not advocated, nor do I “advocate the use of the blunt force of government to interfere with the parent/child relationship without the establishment of parental unfitness subject to a clear and convincing standard of evidence.” (In case no one ever told you, it is offensive to tell another person what they think.) And having just read the grandparent visitation statute, I have no problem with it having a clear and convincing burden of proof.
    4. Steve, I have not seen any “facts” that support Tim’s position. Could you please disclose them? Moreover, please quit referring to the B.R.S. opinion as if Justice Reyna wrote it (e.g., “his opinion”; “Reyna simply got it wrong”; “he knew exactly what he was doing”). Since you appear to know a little about appellate law, you ought to know better, and these references are disingenuous.

  13. timthsc says

    I am not alone in endorsing Judge Al Scoggins. Among those endorsing him is former Texas Supreme Court Justice Scott Brister, a home school dad himself. Who said, "Judge Scoggins has the experience and demeanor that an appellate judge needs. He will bring additional stability and focus to the important work of the Tenth Court of Appeals. I am glad to endorse his candidacy."

    Some of those who endorse Judge Scoggins endorsed Judge Reyna in his last race.

    Texans for Lawsuit Reform said, "Judge Scoggins is known as an impartial and conservative judge who applies the law as it is written."

    http://www.scogginsforjustice.com/endorsements.html

  14. Dave Cary says

    "snookered"
    "So spare us the drama."
    "cockeyed political activist"
    "axe to grind"
    "has falsely said"

    Mr. Stoneman:

    I can tell you have chosen to be irriated. I am sorry as that was not my intent and I hope I may rectify it in some way in the future. By the way, are you free to provide your real name?

    Troxell vs. Granville makes it clear (as if we needed that clarity), that Parental Rights are fundamental Constitutional rights. Most people feel that fundamental rights are derived from our Creator. There is no "ipse dixit statement" here. It is not something the average layman is willing to split hairs on, see two sides to, etc. We don't feel we need attorneys or case law to instruct us in this area. Years ago I led a squad of Infantry. Their average education was at the 4th grade level, yet everyone understood this concept and every one risked his life to defend it.

    If the judiciary decisions do not reflect this, this just indicates the judiciary has grown complacent and insular and probably caters to special interests.

    All we are asking is for the judiciary to quit making our families vulnerable by accepting unconstitutional law which makes it easy to attack them. We wish to be free to raise, educate, and religiously instruct our children as we see fit, as long as we are not inflicting a criminal act on them. We do this with all humbleness and respect and ask for the same.

    Mr. Watchdog:

    I appreciate your latest contribution as it is thought provoking and pertinant. Thank you for clarifying for me the role of an appellate justice and I accept your comments. If Justice Reyna is as you say he is, you should be able to find numerous cases he presided over in a previous role in which he demonstrated his eagerness to throw out cases which do not begin with a presumption of parental fitness. I would appreciate your assistence here since I am not able to find any. I thank you for your efforts.

  15. Stoneman14 says

    The pabulum in these canned endorsements is just that: pabulum. Brister says “Judge Scoggins has the experience and demeanor that an appellate judge needs.” But in a Feb. 8 article in online The Texas Tribune, Brister admits he does not know Scoggins ("I don't know either of the candidates personally"). And when he was on the Texas Supreme Court, why didn’t Brister address this apparently controversial grandparent visitation law? He could have written an opinion dissenting to the denial of a petition for review and expressed his views on its constitutionality. Or did he "chicken out" too?

    TLR says Scoggins “applies the law as it is written." But he sure didn’t in the B.R.S. case, did he?

    Tim, I think you have been snookered by political opportunists, and I think you have harmed THSC.

  16. Mike says

    I was amazed at your patronizing and rude behavior during our phone call this afternoon. Frankly, I expected that sort of behavior from you since it reflects the lack of integrity shown in your venomous attack letter against Justice Reyna.

    I can't believe my wife actually paid $100 for such a politically bigoted organization as the Texas Home School Coalition PAC. You're suppose to protect and support the parental rights of home school parents; not write political hit pieces on Justices that you have personal vendettas against; (not to mention your relationship to a known democratic supporter and Justice Reyna antagonist – Dr. John Coppedge of Votesmarttexas.com). I don't expect a change of heart from you, but I do hope one day there will be a change of attitude. A Chairman of such an organization should display better character than that.

  17. timthsc says

    Mike,

    I had trouble getting a word in and you wouldn't let me respond without arguing and it became apparent to me that you were not interested in discussing and only wanted me to retract my position on Judge Reyna.

    Your point that Reyna did not author the opinion in question is irrelevant since he could have dissented or offered a different opinion but chose to agree with Vance's opinion and is therefore, in my opinion just as responsible for the decision.

    I also explained to you that you got the letter because you were a member of our Association. I disagree with your description of the letter as venomous and THSC as a bigoted organization.

    As I mentioned on the phone we have a difference of opinion but I have taken my position based on issues not personalities in spite of what you and others are saying.

    I do not have a relationship with Dr. John Coppedge I simply quoted his opinion about the candidates in this race. Former Texas Supreme Chief Justice Tom Phillips and former Supreme Court Justice Scott Brister, a home school dad, have also endorsed Scoggins. Are they too lacking in character or integrity?

    Stoneman points out that Brister does not know either candidate personally and neither do I. This is not personal as you and others are attempting to make it and I certainly have no "personal vendetta" against Judge Reyna.

    As to attitude, you called my office at 1:09PM and left a message and sent an e-mail at 1:37PM asking for a response and later sent an angry post to this website demanding an explanation. I returned your call as soon as I could at 3:55PM. When we connected your attitude was hostile and combative and you were unwilling to listen to my explanations. Some would consider that a sign of poor character.

  18. Steve Spencer says

    I could take the time to address each and every point raised, but I think the best thing to do is just to acknowledge that I disagree with some of you who have posted; and vice versa.

    I will observe that those of you who disagree with Mr. Lambert have, at some point, resorted to attacking his character, which is misguided. Regardless of whether you agree or disagree with him, it can never be fairly stated that Tim Lambert ever leaves you guessing about his position on issues or candidates. It seems more the shrill cry of sore losers. And, since you have all noted your profession as a lawyer, it hardly reflects well on the legal profession.

    Stoneman, I did read all of the briefing in the B.R.S. case…and the entire trial court record…and spoke to all of the lawyers involved in the case…and believe I have a strong knowledge of the facts in the case. I even spoke to 2 of the 3 justices on the appellate panel. And, when I described Felipe Reyna as lacking character, or chickening out, I absolutely meant it. When I wrote about his legal acumen, it was to observe that either he chickened out, or lacked the legal acumen to properly dispose of a clearly and properly preserved appellate issue. I personally believe he chickened out, and that demonstrates a lack of character to me. And, I believe this largely because I believe Felipe Reyna has the legal acumen to know he was taking the low road, not the correct one.

    Mike, I have personally been witness to many political arguments in which Tim has stood his ground, but never been rude or patronizing to anyone. He is, however, direct. And, it is abundantly clear you're offended because he disagrees with you, and probably was willing to simply tell you that he disagrees with you. Your remarks will ring hollow to anyone who knows Tim. As evidence of this FACT, I will again note that Tim hasn't filtered or censored the posting of your comments, even though he easily could. You know that, and I know that. Your personal attacks are out of line, and do not speak well of your own character.

    I find in Tim Lambert, THSC, and THSC PAC like-minded people who understand and have a passion for protecting parental rights. I readily acknowledge that where parental rights are implicated in an election, I am a single issue voter. And, I firmly believe Al Scoggins is a better candidate in this regard than Felipe Reyna.

    Is it possible we can oppose a candidate, but support another candidate; and have good reasons for doing so? It appears that's exactly what those of you with a differing perspective have done; and I think there's been a ready expression of respect for your position from those who disagree with you. Have we all been "snookered" by an activist? Maybe. And, apparently, my activist is whoopin' your activist.

  19. Stoneman14 says

    Dave, am I irritated? To quote one of my favorites (Sarah Palin), "you betcha." The personal and professional reputation of Felipe Reyna, a fine man who I know well, has been sullied by political opportunists who are using distortion and half-truths to defeat him.

    And judges do retaliate against lawyers, so lawyers typically need to use a pseudonym to protect themselves and their clients from such retaliation.

    Tim, you missed my point. Brister admits he does not know Scoggins at all on the one hand, and on the other hand says he "has the experience and demeanor that an appellate judge needs.” In my view that is mealy-mouthed double-speak. I don't care if Brister is a homeschool dad (so what? so am I!). Brister is full of himself (many, many lawyers think so; he went to Harvard Law School, and if you didn't know, he'll tell you), acted liked a politician in a black robe on the supreme court, would do away with the constitutional right to a jury trial as much as possible if he had the chance, and has badmouthed a good man. In any event, thank you for posting all these comments. I sent one in that wasn't posted; I will re-send it and hope you will post it.

  20. Stoneman14 says

    A. Conservatives cannot complain about liberal judicial activism and then condone it when it is done by conservatives, even if it is an issue near and dear to us. We must be consistent to maintain our credibility and our principles; we cannot risk being labeled as hypocrites. Good parents eschew “do as I say, not as I do.” Good conservatives ought to as well.

    B. Conservatives who don’t like the grandparent-visitation law ought to push the Legislature to change the law; we don’t want judges acting like legislators who change with the political winds. Justice Reyna does not legislate from the bench, and he is a strong conservative who is fair and impartial and deserves the vote of conservatives and homeschoolers. And he always requires CPS to follow the law in cases where parental rights are at stake; that is beyond doubt, as WatchDog explained. That is what we want from our judges. We do not want politicians in black robes—that is decidedly not conservative. What about the liberal Dallas district judge who recently ruled that the Texas marriage law prohibiting same-sex marriage is unconstitutional? Was she “brave” and had “ethics” because she sincerely believes that Texas law violates the fundamental rights of homosexuals and did not “chicken out” in her ruling? She surely was sincere, but sincerity is not the test (Osama bin Laden is sincere too in his beliefs, but I repeat, sincerity is not the test for good government or good judging.). So how many of you support her ruling? Change the issue and the judge, and that is exactly what Scoggins did. At least in the state court system, it is almost an unwritten rule that trial court judges defer to the appellate courts to strike down laws as facially unconstitutional. As a matter of sound policy and common sense, if a state law is found to facially unconstitutional, the court that so finds ought to have statewide jurisdiction.

    C. I am a very strong supporter and believer of parental rights and their fundamental constitutional nature. As for the Texas grandparent visitation law, I have not done my own constitutional analysis (yet). But, our conservative attorney general (does he “need to go” too?) has found the law to be constitutional, and neither Governor Bush nor Governor Perry vetoed it. Then there are all the dozens of conservative district judges, courts of appeals justices, and probably at least six justices on the Texas Supreme Court (it takes four votes to grant review of a case) who have determined that the law is constitutional. Are they “too weak to protect parental rights” and do they “need to go” as well? Please, quit the grandstanding on Felipe Reyna on an opinion that he did not even author, or at least reveal your true agenda. And if this law is so obviously unconstitutional, why won’t someone try to get it before the U.S. Supreme Court? And once again, why didn’t Brister do something about it? He had at least two chances.

  21. Dave Cary says

    Mr. Mike:

    I have worked with Mr. Lambert and I have worked against him. Regardless of any difference we may have had, I have never found him to be rude or bigoted or any of those things and I can promise you that if he had those characteristics, I certainly gave him every opportunity to display them. That is just not in his nature. Mr. Lambert just has a passion for protecting our families from unwarranted government encroachment and deserves our gratitude.

    I am left with the impression that you must define "arrogance" or "bigotry" as "not agreeing with you" or "not doing what you order him to do". That is not my definition. You may wish to consider that how you come across reflects on Justice Reyna. I will send the Texas Home School Coalition another $100 to replace your wife's, who by the way, is probably a fine person. I know I have nothing but praise for my wife.

    I also would consider it a favor if you would post your complete real name. Would you please consider identifying yourself?

    Thank you

  22. Stoneman14 says

    Steve, way to go. You say it's misguided to attack Tim's characer (which I have not done), then you accuse Justice Reyna of lacking character. That would be an attack on his character, right? That would be misguided, right? Are your personal attacks out of line, or just the ones of others you disagree with? What other conservative or Republican judges have taken the low road on this statute?

  23. Steve Spencer says

    Well, Stoneman, you leave me feeling like Al Pacino…Just when I thought I was out, you pulled me back in. In fact, I was on such a role, that I now have to post this comment in two parts to comply with some goofy rule about limiting the length of my response. So, stay tuned!

    I was unequivocal in my previous comment. I believe his action in the B.R.S. case demonstrated a lack of character. I'm not gonna change my position, no matter how much you try to twist it. But, you're doing a good job, and Mr. Reyna should appreciate your fine work on his behalf. In contrast, Tim has been accused of everything but the Kennedy assassination today. I mean, a racist? Really?!?! That should be particularly heart-warming to his daughter-in-law and her family.

    In the interest of full disclosure, I have found a fair number of both Republican and Democrat judges who all-too-eagerly trespass on parental rights. And, as for legislative efforts, I'm sure this will chock you, but there has been a steady contingent of family law attorneys and paid lobbyists making all manner of underhanded deals at the Capitol to make certain they are able to continue to bilk family's resources via these invasive lawsuits. Don't believe me? Do a Google search for "grandparent visitation, attorney, waco (or Houston, Dallas, Austin – or anywhere else), and let me know if you see a single ad seeking to defend parents in these suits.

    Some of your writing seems very reasonable and well-rationed to me, until you discuss the contours of statutory construction in the context of the grandparent visitation statute. I'll expound on my previous comments, but am not providing the case citations, as I am writing this off the top of my head and on the fly remotely.

    Let's begin with your observations about Justice Brister. I believe he served on the Texas Supreme Court from Nov 2003 – Sept 2009. During that time, he participated in three Per Curiam opinions issued by the Court specifically addressing parental rights in the context of grandparent visitation. All three cases, Mays-Hooper in April 2006, Derzapf in March 2007, and Chambless in June 2008, were original proceedings seeking mandamus relief from temporary orders issued by trial courts pursuant to interloping grandparents seeking visitation over the objection of fit parents. In all three cases, there were both "facial" and "as applied" challenges to the grandparent visitation statutory scheme found in Tex. Fam. Code. Sec. 143.432-153.434. In all three cases (Mays-Hooper considered the statute in effect prior to its amendment in 2005), the Court conditionally granted mandamus relief, and diposed of the cases before reaching the constitutional question. So, Justice Brister did do his part, but did not over-reach by examining the constitutionality of the statute when there were other grounds that were dispositive of the case entire. And, as an added bonus, all of the parents had to go right back to the same trial courts that abused their discretion originally, and continue the case to its finality because the mandamus proceedings all attacked temporary orders. And, in all three cases, the Court did make mention of the constitutional question, particularly in Derzapf (see the last footnote of the opinion, which as I recall was a clear signal the statutory scheme is flawed). By the way, in Mays-Hooper, Justice Willett did not participate in the decision, because he was fresh out of the A.G.'s office, where he authored Op. Tex. Atty. Gen. No. GA-0260 (conducting a "facial" analysis of the statute, but doing so by making a fact-driven examination of the published cases available to date – not exactly a facial analysis, y'know?).

  24. Steve Spencer says

    Part Deux:

    Very simply, every case other than B.R.S. considered by Texas appellate courts have all included fact patterns that the courts considered in making any hint of a facial analysis. As I came to this realization – that there has never been a correct, purely facial analysis of this statutory scheme – I was dumbfounded at the weakness of our judiciary in Texas. I have also come to greatly understand just how insular the judiciary has become. I need only point to the outrage of attorneys who seem offended that the common citizen is becoming increasingly more interested in judicial races.

    So, to be explicit about my outrage at Justices Reyna and Vance for their indecision in B.R.S., I will restate my previous point…that case was the first, and to date is the only case wherein the sole issue before the Court was the facial constitutionality of the so-called grandparent visitation statutes; and they punted. I believe Judge Scoggins was correct in his ruling, and there has been no better opportunity – before or since – for a Texas appellate court to address the constitutional question definitively. Attacking The Supremes, or Justice Brister or Chief Justice Gray personally, or Tim Lambert; or even trying to justify their actions by pointing to other weak judges around the state won't change this fact.

    You want the real agenda revealed, and you've been informed very directly that the agenda here is parental rights. If that conflicts with your agenda, which is obviously Reyna's re-election, then let's just acknowledge we are on opposing sides, then watch as I outwork you to make sure my agenda prevails. C'mon, Stoneman, you gotta admit that was kinda funny.

    And, as for activists…

    Just exactly what do you think all those lobbyists who represent the various Bar Organizations are doing when the Legislature is in session; or while touring with judicial candidates on the campaign trail? Do you really think we're naive enough to believe that lawyers who are so fervent in advancing the election of a particular judicial candidate don't have an agenda? As John Wayne said many times in The Sons Of Katie Elder, "Not hardly."

    Oh, and lest I fail to cover your question about the U.S. Supreme Court, let me try to be thorough. This issue was examined by the U.S. Supreme Court in its June 2000 opinion in Troxel v. Granville. It has since been reviewed in a couple of cases, one from Arizona styled Dodge v. Graville. Many state supreme courts have examined their statutes, and several have been found to facially unconstitutional. Interestingly, Texas is the only state that has declared their version of the grandparent visitation statutes to be both "constitutional" and "unconstitutional as applied". The incongruity of these findings is not lost on me. How about you? And, finally, it just so happens there is a Texas case on its way to the U.S. Supreme Court on this very issue.

    Now, I'm sure we can go tit for tat with each other for days, or at least a few more minutes. But, I have to call 100 voters tonight and urge them to vote for Judge Al Scoggins…and it's gettin' late! So, like the Baptist Preacher says, "I ain't done, but I'm gonna stop for now."

  25. Stoneman14 says

    Well, Steve, I appreciate the civil discourse, but I have not had time to study the case law on grandparent visitation, which to me has absolutely nothing to do with homeschooling, but I digress.

    But honestly, I really only want judges who will sit and decide cases fairly and impartially, rather than politically. I have seen too many result-oriented judicial decisions, and that's why the right to a jury is so important. I detest dependence on the government teat, and that includes the judicial branch. I want the government power on this issue in the hands of the people (consent of the governed, and all that jazz), not judicial oligarchs.

    And finally, former Justice Bill Vance wrote a number of opinions siding with parents in questionable CPS cases, and Justice Reyna joined some of those. There's a reason for homeschoolers to vote for Justice Reyna.

    I hope that all those people you called got ticked off at your interruption of their evening and will do the opposite. Now that would be poetic justice!

  26. timthsc says

    Stoneman,

    You are mistaken in your belief that the grandparent access statute has nothing to do with home schooling. Some grandparents have so vehemently disagreed with the decision of parents to home school and/or the religious instruction the parents were giving that they have interfered in the family to such a degree that the parents disallowed them contact with the family.

    The grandparents then used the access statute to sue the parents to the point of having to choose to submit to the grandparent's decisions for their children or face bankruptcy. Simply put we believe fit parents have the right to direct the upbringing and education of their children.

    We continue to work to change the statute against the heavy opposition of the family law lobby. We are also working to support judges who rightly interpret the law and that is where we disagree.

  27. Stoneman14 says

    Okay, Tim, I now see; maybe Steve Spencer will do pro bono work for these parents in the future? :)

    Unfortunately, however, in the end, Felipe Reyna will have won re-election and the distortions of Reyna's record and THSC's involvement in this campaign will only have caused a lot of ill will, to THSC's detriment. You should have sat this one out (as I understand you initially said you would). And even if Scoggins wins, in my view, the Texas Supreme Court ultimately will not be finding the grandparent visitation statute unconstitutional (wouldn't they have done so by now?), and you still will have created the ill will.

  28. timthsc says

    Stoneman, The voters will decide who the judge will be on the Tenth Court of Appeals and I have just as much right as do you to state my opinion in this or any other race. I just do it under my real name. I understand now why you use a pseudonym instead of your real name – so you can state your opinions and avoid the ill will for yourself.

    I think Steve has accurately laid out our position on the legal side of this debate and has pointed out why the Texas Supreme Court has not yet ruled on this issue. So I guess we will have to agree to disagree on that issue.

  29. Stoneman14 says

    Tim, everyone is entitled to their own opinions and to state them, but you are not entitled to your own "facts" about Felipe Reyna. The voters will indeed decide, but hopefully not based on disinformation.

    Lawyers must put the interests of their clients first, and some judges do retaliate against lawyers to the detriment of their clients. So no, you don't understand a lawyer's use of a pseudonym in a political forum like this, because it is to protect clients.

  30. Steve Spencer says

    To Stoneman & All Those Who Have Posted a Comment:

    Thanks for the lively debate. At the end of the day, we all are fellow Texans. Our differences as to the best choice of candidate does not have to be divisive, and I hope we can all recognize the value of our election process. I do understand pseudonyms, and the value of anonymity to a practicing lawyer. I am not an attorney, but do believe I have made an informed decision about the candidates in this race. Tim, thanks so much for facilitating this exchange.

  31. WatchDog says

    Tim,

    Let me first repeat what has been said by several who have posted comments. Thank you for allowing an unfettered discussion of the issues.

    In addition, I fully respect and appreciate your personal First Amendment right as well as the Texas Home School Coalition PAC’s First Amendment right to endorse candidates, to decline to endorse a candidate you’ve endorsed in a previous election, and even to withdraw or change an endorsement in the midst of an election season.

    However, I want to respectfully suggest that you are using Justice Reyna’s vote in the case involving the Grandparent Access Statute as a straw man. The Texas Legislature amended the statute at Attorney General Abbott’s suggestion in 2005. 17 of the House candidates whom you have endorsed this year voted in favor of the amendment rather than working to repeal the statute. (Flynn, Hughes, Berman, Brown, Eissler, Anderson, Orr, Miller, King, Solomons, Madden, Laubenberg, Smith, Zedler, Harper-Brown, Davis, and Elkins). At least 1 of the Senate candidates whom you have endorsed did likewise. (Nelson) (the record vote says 31-0, but the journal suggests that Patrick and Hegar were not present). And in 2009, 7 of your endorsed House candidates (Hughes, Orr, King, Solomons, Laubenberg, Smith, and Davis) (Harper-Brown present but not voting) supported an amendment to the statute as did apparently all 3 of your endorsed Senate candidates. (the record vote says 31-0, but the journal does not indicate who was present). And Gov. Perry whom you endorse signed both of these amendments into law rather than vetoing them or at least allowing them to become law without his signature.

    Apparently none of these legislators nor the governor has the fortitude which you contend Justice Reyna is lacking to deal with this purportedly unconstitutional statute. If this is the case, then perhaps you should reconsider your endorsement of them.

  32. timthsc says

    Stoneman, Another fact is that the Tenth Court of Appeals is overturned by the Texas Supreme Court more than any other appeals court in Texas and Felipe Reyna is on the wrong side of those cases more often than not.

    Watchdog, you are mistaken in your notion that we are using this issue as a pretext and have other reasons for supporting Reyna's opponent.

    In the last two legislative sessions we have worked to pass legislation to amend the grandparent access statute and the legislators that we have endorsed this time have either supported that legislation or have given us written commitments to support it in the next session. We have refused to endorse any legislative candidate who would not make that commitment regardless of their previous support of our issues and have endorsed some challengers on this basis. Governor Perry spoke at our rally last April and endorsed our legislation and committed to sign it into law.

    With judicial candidates we must assume that they mean what they say in the decisions they write or sign on to. I will reiterate that I supported Reyna in 2004 and I am not the only Republican leader who did so who has decided to support his challenger this time. In spite of the allegations that my endorsement is is the result of a "personal vendetta" or bigotry or some other reason that Judge Reyna's record, it is based on the issues I outlined in this blog and discussions.

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