Susan Criss's Latest Constitutional Violation

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Judge Susan Criss has a history of disrespecting the Bill of Rights.

Her latest violation of the US Constitution involves a serious breach of the First Amendment.

Deservedly, Criss has received a boatload of bad press over this most recent violation of the US Constitution.

As the Houston Chronicle explained the situation, Criss "told the panel and four female alternates that they could speak to her and the lawyers involved in the cases that settled, but not to media and others, such as plaintiffs' lawyers with separate pending lawsuits against BP."

The Daily News of Galveston was more candid:

Freedom to speak has court appeal, by Heber Taylor

Texas’ First Court of Appeals recently overturned a gag order prohibiting jurors from speaking to the press.... The order was issued by State District Judge Susan Criss in a case involving the explosions at BP’s Texas City plant in March 2005. About 4,000 people filed suit....

The Daily News, through its attorney, Charles Daughtry, contested the order on principle.... The Daily News ... was not interested in talking to every juror in every case before the court. However, we think all citizens — not just newspaper reporters — have that right.

The appellate court agreed.

The Constitution says that, while people can be held responsible for what they say and write, they can’t be prevented from speaking and writing. The government cannot, in other words, exercise prior restraint.... Jurors do not have to talk to reporters or to ordinary citizens. But they have the right to do so, if they wish. And ordinary citizens, including reporters, have the right to try to talk to them.

That’s the way it should be — even in cases as extraordinary as those filed in the Texas City tragedy.

The Southeast Texas Record had the most biting criticism of Criss's violation of the US Constitution:

Judge Criss, meet the First Amendment

The people have a right to know what happens in their courts.

That's, in essence, what the Texas First Court of Appeals said in slapping down Galveston District Judge Susan Criss, who in September tried to silence-until-further-notice jurors who served in her courtroom.

They made up a rare panel that heard arguments in the only civil trial thus far over the 2005 explosion at BP's Texas City refinery.... What did they think of the plaintiff claims? Was BP's defense credible? Was Judge Criss fair? ... In ordering the dismissed jurors not to talk with friends, family or media about what they had experienced, Criss wasn't about to give our reporters or anyone else the opportunity to ask.

In short, she wasn't about to give the public a chance to judge our justice system's performance for itself. That's until further notice, or when Judge Criss personally decided the world was safe to hear the jurors' unvarnished reflections.

Thankfully, lawyers from the Hearst-owned Houston Chronicle took Criss to task for her abuse of power and a higher court agreed, ordering her gag order lifted....

To the contrary, our justice system works best when it's out in the open for all to see. Only lawyers-- and power-hungry judges-- benefit when it's cloaked in darkness.

Linda Yanez Is Too Progressive To Win Statewide

As I discussed below, Linda Yanez would represent a change from the current law because she believes that a liquor store ought to be responsible for the damage caused by a drunk driver who bought beer from the store.

As a further example of what I mean when I say that Justice Yanez is too progressive to win a statewide race in Texas, listen to this interview. Here are some key excerpts:

Dr. Gutiérrez: Surely there has got to be one case that stands out as, as either being problematic or wonderful or.

Judge Yanez: Oh yeah. There is, there are several cases. Well, there is a case that just got argued before the Supreme Court involving whether or not a hospital has a duty to notify. In, in our case it was a spouse, that the spouse had AIDS. And I found that there is. And I doubt that the Supreme Court is going to agree with me.

Dr. Gutiérrez: Duty to inform?

Judge Yanez: To inform. And that's a troubling, you know, a troubling issue. I had a case in which the Supreme Court reversed me in which, and in these medical liability cases in which I found that the child of a man who died of, of… He had cancer in the urinary tract and he had been given a, a medication that was known to cause that kind of, of cancer. Filed a survivors action and because of the way the Medical Liability Act had been written to insulate doctors, you know, they can't be sued. They have to be sued within two years of the last time that they, I, I'm paraphrasing, but they have to sued within two years of the last time that they treated someone, right? And there's no more, no longer a discovery rule in these cases because it doesn't exist in the Medical Liability Act and I think that's a travesty of justice. You know, because like in this case the man couldn't have known his injury, meaning what was going to happen to him from this toxin until he got the cancer, you know. It, it was just common sense to me. And, and the, there was a provision, a statutory provision that a child has until the age of, I'm going to say fourteen, to file an action under, under, under any of these, you know, any of, under any of these, of these medical statutes.

Dr. Gutiérrez: What happened to seventeen plus two or something?

Judge Yanez: Well, it's fourteen, I believe, under these. They have until they are fourteen. And this kid was twelve, so my position was he still had time to file that survivor's action, you know, on behalf of, of, of the father because he was a minor. Anyway, I think the Supreme Court came up with a very tortured opinion in that case. And I think they do that in a lot of cases. I believe that our Supreme Court is so political now that it is, you know, it's tragic for the state that, I mean, that they are so political. To me, it's so clear in the opinions that they write that they have a political agenda. They are supposed to be impartial arbiters of these questions.

Susan Criss Lacks Judgment

In order to avoid a primary which she may not be able to win, Susan Criss is now telling other judges what judicial races they should run in, which shows what poor judgment Criss has because such tactics are fruitless.

Justice Phil Johnson, who Criss is running against, is a good and fair judge and, from a Democrat's perspective, one of the only unobjectionable judges on the Texas Supreme Court now.

For Democrats, Criss would be a step in the wrong direction if she were to get the nomination (which seems unlikely).

Before any Democrats automatically reject the idea that Criss would be a worse judge on the Texas Supreme Court than Justice Johnson, please look into Criss's prior judicial decisions.

Criss's prior decisions show that she lacks both judicial temperament and the appropriate respect for the rights set out in the Constitution.

There is a substantive discussion of Criss's most recent bad decision at the Houston Chronicle blog.

The discussion at the Houston Chronicle begins with a report about how the appellate court recently reversed Criss for violating the First Amendment freedom of speech and freedom of the press with an illegal gag order.

Here is an excerpt from the recent opinion which reversed Judge Criss' violation of the First Amendment:

The Texas Constitution affirmatively grants the rights to freedom of speech and of the press: "Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege ...." ... The First Amendment provides, "Congress shall make no law ... abridging the freedom of speech, or of the press ...." ... Government-imposed secrecy denies the free flow of information and ideas not only to the press but also to the public.... The judiciary, like the legislative and judicial branches, is an agency of democratic government. The public has no less a right under the first amendment to receive information about the operation of the nation's courts than it has to know how other governmental agencies work and to receive other ideas and information.... We conclude that the gag order in this case is unconstitutional under article I, section 8 of the Texas Constitution.

In addition to violating the First Amendment, Criss has grossly and intentionally violated the Eighth Amendment in the past, too.

In addition to these Constitutional violations, Criss has been reversed for failing to follow the rules on judicial disqualification for bias, she been reversed failing to follow city ordinances, and in at least two different cases she has been reversed for illegally going far beyond her jurisdiction in a case.

I have different reservations about Judge Yanez who is too progressive to win a statewide judicial race, as I wrote on another blog:

On the left, you have Linda Yanez.

Yanez would represent a change from the current law because she believes that a liquor store ought to be responsible for the damage caused by a drunk driver who bought beer from the store.

Also, Linda Yanez has a different view from the current law because she believes that out-of-state insurance companies ought to have to come to Texas and appear in court when the dispute involves insurance policies sold to Texans.

Between Justice Yanez, Judge Criss, and Justice Johnson, you get one who's too progressive (Yanez), one who constantly shows poor judgment and disrespect for Constitutional rights (Criss), and a decent moderate Republican.

I recommend Justice Johnson.

Justice Phil Johnson - A True Moderate Conservative

There are many Texas Supreme Court cases where Justice Phil Johnson has proven to be a true moderate who Democrats should support.

Here are a few examples:

1. In re Pirelli Tire, L.L.C., 51 Tex. Sup. Ct. J. 90 (Tex. Nov. 2, 2007).

In this case, a man was killed when the Pirelli tire on a truck purchased in Texas failed, and the truck rolled over as a result. The Texas Supreme Court ruled that the Texas trial court had to dismiss the case so it could be tried in a different country that was more convenient to Pirelli.

Justice Johnson disagreed with the majority of the Texas Supreme Court and wrote a separate opinion explaining why the Court should not have interfered with the trial court's jurisdiction:

I do not disagree with the Court's assessment that the evidence and the record reflect a clear, strong balance in favor of dismissing or staying the case on the basis of forum non conveniens. But the "strong balance" or even a "clear and overwhelming" balance of the Gulf Oil factors in favor of dismissing or staying the case does not overcome at least two considerations. First, balancing of the interests involved, including the private interests, is a function of the trial court to which we should defer unless there is no evidence in the record supporting or tending to support the trial court's decision. See Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 378 (Tex. 2001) (recognizing that there is no abuse of discretion if some evidence supports the trial court's decision); Womack v. Berry, 291 S.W.2d 677, 682-83 (Tex. 1956) (orig. proceeding). Second, the Court's determination that a "strong" or "clear and overwhelming" balance of Gulf Oil factors favors dismissing or staying the case does not override the permissive discretion afforded the trial court by section 71.051(a) in light of section 71 .031's specific provision allowing suits such as this to be maintained in Texas. Quite simply, section 71.051(a) permitted, but did not command, the trial court to refuse to exercise its jurisdiction granted by section 71.031 even if the case would more properly be heard in Mexico.... The trial court here simply decided to exercise the jurisdiction vested in it .... In short, we have said that the doctrine of forum non conveniens prevents a court from being compelled to hear a case over which it has jurisdiction. See In re Smith Barney, Inc., 975 S.W.2d 593, 598 (Tex. 1998). The Legislature did just that in section 71.051(a): it prevented the trial court from being compelled to hear a case even if it determined that in the interest of justice another forum would be more proper. The Court now directs the trial court to proceed in the opposite direction: to not hear a case over which the trial court had jurisdiction although the trial court refused to stay or dismiss the case as the Legislature gave it permission to do.... The trial court's decision to exercise jurisdiction specifically provided for by one statute and not withdrawn by another was not arbitrary, was not unreasonable, nor was it without reference to guiding principles. Accordingly, I would hold that its decision was not an abuse of discretion.

This is a very reasonable and fair-minded opinion.

2. Energy Service Co. of Bowie, Inc. v. Superior Snubbing Services, Inc., 50 Tex. Sup. Ct. J. 1045 (Tex. Aug. 24, 2007).

In this case, a seriously injured employee of an oilfield subcontractor settled claims against the oil producer and another subcontractor working on the site, and the producer and second subcontractor then sued the employer-subcontractor for reimbursement of that settlement through indemnity. The Texas Supreme Court ruled that the employer-subcontractor's written agreement to indemnify the producer could be enforced by the second subcontractor who acted negligently even though the agreement was not executed by that negligent subcontractor.

Again, Justice Johnson disagreed with the majority of the Texas Supreme Court and wrote a separate opinion explaining why the Court should not have let the negligent subcontractor piggyback on the producer's indemnity agreement:

In my view, the plain meaning of the words used in section 417.004, "the employer is not liable to the third party for reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability" (emphasis added), is clear and unambiguous. The phrase "the third party" is used twice in the same sentence and clearly refers to the same third party in each instance-the third party seeking indemnity. Because the words "executed ... with the third party" in the statute are clear and unambiguous, we apply the words according to their plain and common meaning .... Further, we presume all the words in the statute were used purposely by the Legislature. ... If the words "with the third party" are omitted when reading the current language of section 417.004, then the section effectively provides the same as did the former statute: in order to be liable for indemnity to a settling third party, the subscribing employer must have executed a written agreement assuming the indemnity obligation before the injury, but the agreement was not required to have been with the third party seeking indemnity. ... In a similar vein, because the words "third-party beneficiaries" do not appear in the statute, we presume they were excluded for a purpose. Cameron, 618 S.W.2d at 540. Only when it is necessary to give effect to clear legislative intent can we insert, by interpretation, additional words or requirements into a statutory provision. Id. And as the Court's opinion demonstrates, even if we look for legislative intent beyond the statutory language itself, we find no clear legislative intent that the words "executed ... a written agreement with the third party" were intended to encompass parties not signatories to an agreement.... First, the statute effectively provides that parties such as Mitchell who require indemnity agreements from subscribing employers may contract only for their own right to indemnity. That concept is not absurd. .... The benefit of a subscribing employer's immunity from claims by an injured employee is diminished whenever the employer is made subject to indemnity claims for common-law damages recovered by the injured employee from third parties. Narrowing the exception to immunity to those parties with whom the employer executed a written agreement is wholly consistent with the overarching theory of workers' compensation: immediate benefits to injured workers in exchange for employer immunity from claims. The former statute did not require the employer to have a pre-injury agreement "executed ... with the third party" before the employer could be called on for indemnity. ... In my view, the Court's construction of section 417.004:(1) does not comport with the literal, plain meaning of the statute; (2) dilutes subscribing employers' immunity from common-law damages claims of the employers' injured employees which is a key concept underlying the workers' compensation statutes; and (3) does not square with one of the main reasons for the 1989 revision of the workers' compensation statutes-reducing costs to subscribing employers. ... I would affirm the judgment of the court of appeals.

Once again, this is a very reasonable -- even somewhat pro-worker -- opinion.

3. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569 (Tex. 2007).

In this case, a Utah guided-tour company specifically directed its marketing activity toward Texans, and specifically required paperwork to be filled out in Texas with the intention that this paperwork would give the Utah company the full benefit of Texas law. The Texas Supreme Court held that this Utah company could not be sued in Texas courts for the subsequent death of a Texas citizen who received the company's marketing and filled out its papers in Texas.

One more time, Justice Johnson disagreed with the majority of the Texas Supreme Court and wrote a separate opinion explaining why the Court should not allows this Utah company enjoy the benefits of doing business in Texas but also duck responsibility for its negligence in Texas:

Moki Mac is a Utah company which has conducted guided tours in the Grand Canyon for many years. In addition to general advertising and maintaining a website for potential clients to access, Moki Mac's efforts to attract customers include targeting ... Texas residents. As the Court sets out, some of Moki Mac's efforts which were directed toward Texas residents included regular advertising in Texas, hiring public relations firms to target media groups and tour operators in Texas, soliciting Texas residents through mass and targeted direct-mail campaigns, and utilizing particular customers to become de facto group leaders to plan, organize and promote Moki Mac trips. Moki Mac also has given discounted trip prices to some Texas clients .... Participants on Moki Mac's guided rafting and hiking trips engage in activities and encounter conditions which Moki Mac recognizes pose risks of injury and death. Its brochures ... identify certain risks, warn that enumerated risks and "other unknown or unanticipated risks may cause injury or death," and state that Moki Mac has taken reasonable steps to provide "appropriate equipment and/or skilled guides so you can enjoy an activity for which you may not be skilled." ... The Druggs received Moki Mac's brochures from a Texas acquaintance. After reviewing the brochures and corresponding with Moki Mac from Texas, the Druggs decided to allow thirteen-year-old Andy to go on one of the trips. ... Betsy and Andy signed the agreement in Texas and returned it to Moki Mac. ... Moki Mac considered the VAR agreement to have been effective when and where it was signed by the Druggs-in this case, Texas.... [T]he facts before us do not present a compelling case that Texas' exercise of jurisdiction over Moki Mac would be unreasonable. See Burger King, 471 U.S. at 477. Moki Mac's conduct was particularly designed to and did increase the likelihood that Texas residents would respond favorably. Andy Drugg's death occurred while he was engaged in activities integral to the relationship Moki Mac induced by its efforts specifically directed toward Texas residents. Moki Mac should have reasonably foreseen that an injury to a client such as Andy while the client participated in activities integral to the relationship directly produced through Moki Mac's activities directed toward Texas residents would subject Moki Mac to being sued over the injury in Texas. There was a meaningful link between Moki Mac's actions directed toward Texas residents and the Druggs' suit. Accordingly, I would hold that the substance of the Druggs' suit is related to Moki Mac's activities which were purposefully directed toward Texas residents; ... it is not unreasonable or unfair to Moki Mac for Texas to exercise jurisdiction over Moki Mac as to the Druggs' suit.... I agree with the court of appeals' analysis and determination that the exercise of specific jurisdiction over Moki Mac by Texas would not offend traditional notions of fair play and substantial justice. ... I would affirm the judgment of the court of appeals.

This represents yet another very reasonable opinion that puts the rights of Texans ahead of the selfish interests of out-of-state corporations.

Phil Johnson, Conservative Moderate

Supreme Court Judge Phil Johnson is a Republican, but he is also a conservative moderate. As a conservative Democrat, I recognize that Johnson is one of the most moderate judges on the Texas Supreme Court.

Johnson has two Democrats running against him: Appeals Court Judge Linda Yanez and trial court Judge Susan Criss.

Yanez is very progressive; in fact, she's too progressive to win a statewide Texas Supreme Court race.

Criss lacks the judicial temperment to serve on the Texas Supreme Court.

As a conservative Democrat, I support the re-election campaign of Judge Phil Johnson and I have started this blog to make the case for fellow conservative Democrats to join me.