Leif Olson on Judge Denise Pratt

The slates have been mailed, the endorsements have been given, and early voting has begun. That means that Harris County Republicans have a choice to make in the race for the 311th District Court: incumbent judge Denise Pratt, or someone else? The correct choice is “someone else” (preferably Anthony Magdaleno, for whom David has already made the case).

This is long, and I apologize for the length. But the family district courts don’t just deal with some of the most sensitive subjects in our lives. Aside from the occasional traffic ticket or call to jury duty, they are the only interaction that most people will have with the justice system. Our family courts deserve the best possible judges for the litigants’ benefit and so conservative judicial philosophy is presented in the best possible light when those litigants pass through the court system. Pratt’s defenders are still clouding the race with chaff. I hope that two points—one about the only objective evaluation of Pratt we have; the other about Pratt’s attempts to defend herself—will clear that away so that you will have a clear reading of the candidates to replace her.

Evaluations of Pratt’s performance.

Those who practice before Pratt find her unsuitability to serve as a judge to be almost historic. The best evidence of this is the Houston Bar Association’s bi-annual judicial-evaluation poll.

The HBA’s polls aren’t gospel. Democrat lawyers may deliberately vote down Republican judges and candidates, for instance. Participants are supposed to vote only on judges with whom they have personal experience, but there is no way to police that. And the desire to stretch “personal experience” is sometimes too strong. For example, from 2001 through 2005, former Texas Supreme Court Justice Priscilla Owen’s ratings slumped while the number of people rating her ballooned. This wasn’t because of a swelling of Texas Supreme Court practitioners in Houston; it coincided with attacks mounted by left-wing agitators after President Bush nominated Owen for a federal appellate bench. (The HBA has removed those poll results from its website; the site currently shows only results back to 2007.)

HBA members’ evaluations of Pratt.

Those caveats aside, the HBA poll is still the closest thing we have to an objective review of a judge’s performance. Here are Pratt’s “poor” numbers:

• Follows the law? 76{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}
• Rules timely and decisively? 80{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}
• Courteous and attentive? 59{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}
• Impartial? 72{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}
• Uses lawyers’ time efficiently? 83{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}
• Works hard and is prepared? 79{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}

Those numbers are bad. They are amazingly bad. Even more damning is the assessment of her overall performance. 22{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} think she’s below average. Another 57{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} rate her as “needs improvement,” the euphemism the HBA chose to replace “bad.”

These numbers are essentially unprecedented. They are worse than any other judge rated in 2013 and worse than any other judges’ ratings, save two, that I can find. Let’s look at those two judges, plus one more, for comparison.

Pratt vs. “Sharon Killer.”

A few years ago, defense lawyers were trying to file an after-hours appeal to prevent their rapist-murderer client from being executed. (They weren’t claiming he was innocent; they were only claiming that the drugs used to execute him might hurt too much. The U.S. Supreme Court later rejected that argument.) Presiding Judge Sharon Keller of the Texas Court of Criminal Appeals instructed the court’s clerk to tell the lawyers that the clerk’s office closed at 5:00 p.m. The lawyers didn’t file their paperwork, and the criminal was executed.

Keller is thus popularly believed (particularly among the Left) to have abused her authority in order to kill a man. As you might expect—witness the nickname “Sharon Killer”—this makes Keller unpopular with many lawyers. Her combined below average/needs improvement number is a notch under 58{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}. Pratt tops that by more than 20 points. Even in the poll released shortly after the rapist-murderer was executed, Keller’s overall “poor” rating was 81{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}. Another way of putting it: Many lawyers think that Keller deliberately killed a man—and even just after the killing, that made her only two percentage points worse than Pratt.

Pratt vs. a drunk-with-power Democrat.

Jim Sharp is a Democrat and an appellate judge. In 2012, the daughter of one of his friends was arrested in Brazoria County for shoplifting. Sharp called several county officials to try to get her released. At one point, he offered to use his role as an appellate judge to grant special favors if his friend’s daughter received special treatment—and threatened retribution if she didn’t. One Brazoria County official rebuffed him; Sharp responded that he “picked the wrong little girl that has friends in high places to mess with.” When one officer refused him, Sharp left a voice message for a Brazoria County judge that “if I had been there in person and had a baseball bat, that sonofabitch would have been cracked upside the head. I mean, f[—] that little cocksucker.”

Sharp’s abuse of his judicial authority led his colleagues on the First Court of Appeals to take the unprecedented step of barring him from hearing criminal cases from Brazoria County. The Commission on Judicial Conduct sanctioned Sharp for his “willful and persistent violations of” the Code of Judicial Conduct. Sharp appealed the sanction as too severe a punishment for his abuse of authority, arguing that his behavior should be excused at least in part because he suffered from attention-deficit disorder. A Court of Special Review appointed to look at Sharp’s appeal, swatted that excuse aside, additionally commented on Sharp’s berating of court security personnel and disrupting court operations by calling the sheriff to look for a desk he claimed had been stolen, and affirmed the sanction.

And despite all this, Sharp’s combined below average/needs improvement figure is only 52{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}—more than 25 points better than Pratt’s.

Pratt vs. a convicted felon.

Justices of the peace don’t have to be lawyers, and Betty Brock Bell wasn’t. She presided over a JP court on the southeast side of Houston. She was notorious for arriving late to court settings. She was also sanctioned for lying about her reasons for jailing a lawyer for contempt. Bell stated that the lawyer acted contemptuously in open court while she was conducting regular court business. The lawyer had actually seen Bell in the hallway coming back late from lunch and complained to her about her lateness delaying court proceedings.

Bell’s poor performance was reflected in her poll ratings. In 1995, the year she was sanctioned for lying, about 79{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} of lawyers rated her “poor.” By 2003, that number had “improved” to 77{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}. By 2005, that number had dipped to 85.5{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986}. That was the last year that Bell appeared in the poll; her “poor” ratings that year may have been influenced by her indictment that March for falsifying a government record when she applied for a handicapped-parking permit in the name of her dead mother. Bell was convicted and removed from the bench, but not before claiming to a grand jury that she had been a part of an undercover sting operation, which resulted in another indictment for perjury.

When Bell was a lazy and incompetent liar, lawyers thought her no worse than Pratt. It wasn’t until she became a lazy and incompetent liar who was under indictment and on her way to a felony conviction that she became worse than Pratt—and then by only six percentage points.

Pratt’s paid defenders.

So most lawyers—most lawyers who vote in the bar poll, at least—hate Pratt. Everyone has some defenders, and Pratt is no different. She recently released a video featuring testimonials from two lawyers and two litigants. Family dissolutions are hard enough without cases being used to make a political point, so let’s remember that even a stopped clock is right twice a day, concede that the litigants’ evaluations of Pratt’s courtroom demeanor are genuine, and otherwise leave them alone.

The lawyers, though, are a different story. They’re repeat players—a board-certified specialist, in one instance—who have chosen to use their personal stock and credibility to boost Pratt’s re-election bid. They’ve thus put that credibility directly at issue. The District Clerk’s website will tell us what they’ve been doing in Pratt’s court since Pratt took the bench. (Note that these numbers probably give the lawyers more credit than they are due. I looked only at cases filed since 2011, even though Pratt was obviously still hearing cases (and making appointments) in cases that were filed before then.)

Rose Cardenas.

Since Pratt took the bench in 2011, Rosaelena Villagomez “Rose” Cardenas, State Bar No. 03788500, has been involved in 51 cases in the 311th District Court. Most of that involvement has been through appointments. She was appointed:

• 29 times as an attorney ad litem or a guardian ad litem.
• 6 times as a mediator.
• 9 times to sit as a special master, apparently in a series of orders all issued on the same day.

86{997ab4c1e65fa660c64e6dfea23d436a73c89d6254ad3ae72f887cf583448986} of the time she was involved in a case in Pratt’s court, Cardenas was getting paid because Pratt ordered someone else to pay her.

Ronnie Harrison.

How about Ronnie Harrison, State Bar No. 09121600? She’s certified as a family-law specialist by the Texas Board of Legal Specialization, so you might not be surprised to hear that she’s been before Pratt in 25 cases. It would be natural for clients to seek out someone who had special competence in family law to help them through such a tempestuous time. But nobody was hiring Harrison to appear before Pratt to help resolve their cases. In all 25 cases, Pratt appointed her as an ad litem.

Wait, what was that about “special masters?”

A special master is a person appointed to hear an issue in a case (more rarely, an entire case) and recommend a ruling to the judge. In the civil courts, masters are generally appointed on discrete issues for one of two reasons. One, the issue might benefit from special expertise, frequently scientific, that the judge simply doesn’t have. Two, handling the issue might make it impossible for a judge to handle the rest of her docket—as when a former boss of mine was appointed as a master to review each of tens of thousands of documents to recommend whether legal privileges allowed a pharmaceutical company to withhold those documents from plaintiffs’ lawyers in a high-stakes drug-liability case.

In civil courts, appointment of a special master is unusual. Maybe, in contrast, it’s a normal thing for a family-court judge to appoint a master to relieve pressure on her docket. Maybe it’s also a normal thing to make that appointment to the same person so often (and in such bulk). Maybe that’s so even though each family-court judge already has what is essentially a full-time special master—the judge’s own handpicked associate judge.

Maybe.

Pratt’s defense: Implausible, self-dealing, and disingenuous.

Well, maybe Pratt appoints these people because she’s having a hard time finding people she can trust to serve in these roles. That’s what happens to mavericks who buck a corrupt system, right? That might be right, but that’s not Pratt, and that’s not what’s happening here.

Pratt’s problem isn’t her conservatism.

Pratt defends herself by claiming a “liberal plot.” Certainly the loudest outcry against Pratt has come from a self-described “liberal Democrat.” But these numbers are simply not possible based only on backlash against a “conservative” jurist. District Judges David Farr, Lisa Millard, Roy Moore, and Judy Warne and Associate Judge Diane Guariglia, conservative Republicans all, had no problem earning outstanding evaluations from HBA members. Neither did Associate Judge Charley Prine, who is reviled by the Left as “homophobic” and “bigoted” but nonetheless boasts ratings far above Pratt’s.

Pratt’s blaming her detractions on her conservatism is disgusting. First, it devalues the outstanding job that talented conservative Republican judges have done on these difficult benches. Pratt can blame “conservative philosophy” only by ignoring these judges or implying that she remains pure while their esteem shows that they are sellouts. Second, it devalues conservatism in general. Almost 8 in 10 lawyers think Pratt is slow, lazy, inefficient, and lacking knowledge of the law. If those defects are attributable to Pratt’s standing up for “our values,” then conservative philosophy has nothing to offer to improve the lives of those going through their most trying times. Our mission as conservatives—to preserve our values and the society based on them—has failed.

Pratt’s claim to victimhood requires us to believe that the premier intellectual force driving legal thought for the last 40 years—the school of thought nurtured and expanded by Antonin Scalia, Clarence Thomas, William Rehnquist, Richard Epstein, Robert Bork, Michael McConnell, and Robert George, among others—has been an abject failure. The simpler answer is that Pratt is just a bad judge.

Paying someone to say nice things isn’t “vindication.”

Of a piece with her video testimonial, Pratt further claims that an article by Houston Style magazine “vindicates” her. But also of a piece with her video, what she doesn’t point out is that the article is the work of someone who depends on her for money—it was written by her paid staffer Burt Levine. Houston Style appears to have recognized that publishing a glowing “profile” by an author who actually got paid by the subject may be distasteful, to say the least; it has scrubbed the article from its website.

The Courts of Appeals have not only had to correct Pratt when she was wrong; they have had to tell her to do her job.

Pratt is disingenuous, too, when she claims that she has never been overturned by an appellate court. Both of the Houston courts of appeals have in fact held Pratt to be in the wrong. Both of them took the unusual move of intervening mid-case to do so. The First Court of Appeals ordered Pratt to dismiss a case where Pratt had wrongfully asserted the power to determine what happened to a child living in Japan with his mother. The Fourteenth Court of Appeals had to order Pratt to rule on a motion to enforce a visitation order after she sat on the case for almost a year after a hearing. An incorrect ruling is one thing; no one is perfect (and even appellate courts are wrong, too). But a judge’s job is to judge—to render judgments that end disputes. Simply not ruling—letting a motion grow stale on your desk while forcing litigants to simmer for month after month about the terms that govern visitation of their children—is a wholesale abdication of the job.

How, then, can Pratt say that she has never been overturned by an appellate court? Only because of the peculiar terminology and practices of appellate law. Appellate courts usually hear cases only after the trial court has rendered a final judgment. In the two cases here, though, they instead heard the dispute mid-case through petitions for a writ of mandamus—a request that the appellate court order the trial court to do something. But even when the petitioner is entitled to a writ, the appellate courts rarely issue it. If the appellate court finds the trial judge to be wrong, its opinion deciding the case usually gives the trial judge two weeks to fix the ruling herself. Only if she refuses to do so does the appellate court actually issue the writ.

So, no, Pratt has never been “overturned” by a court of appeals. But she can make that claim only because the appellate courts that identified her mistakes told her how to fix her mistakes herself instead of ordering her to fix them.

Conclusion: Replace Denise Pratt with Anthony Magdaleno.

Denise Pratt’s defenders are being paid to defend her. The defense she mounts for herself is a slap in the face to her fellow judges—to our conservative Republican judges—and to us as conservatives. It is the rare judge who must be ordered by the appellate court to do her job; it is the even rarer judge who can claim that she has never been overturned even though anyone with an internet connection can see that an appellate court told her to fix her mistakes before they ordered her to fix them. The only judges found more distasteful and less qualified than Pratt are a judge who many people think deliberately killed someone and a non-lawyer justice of the peace who is now a convicted felon. Even a Democrat who attempts to abuse his office for his friend’s benefit—and who is recorded doing it—is considered better by far than Denise Pratt.

When you get to the 311th District Court on your primary ballot, scroll down to the bottom and vote for Anthony Magdaleno, a talented family-law lawyer who will be a credit to our party and our state on the bench. If you can’t bring yourself to vote for Anthony, two clicks up from him is Alicia Franklin, who has impressed me quite a bit since I first met her with the San Jacinto Republican Women last year. I don’t know why you wouldn’t be satisfied with either Anthony or Alicia, but if you just have something against people with “A” names, board-certified family-law lawyer and indefatigable Republican volunteer Donna Detamore is right there at the top. And I don’t know Philip Placzek, but he’s also on the ballot—and he’s not Denise Pratt.

Harris County practitioners have no faith in Denise Pratt. She faces credible allegations of criminal activity; even if her actions aren’t found to be criminal, they show remarkable underhandedness and incompetence. Repeated invocation that she is an active Republican who “stands up” for “our values” is not enough. There are many active Republicans who stand up for our values. Most of them would not be good family-court judges. Neither is Denise Pratt.

Leif Olson
Houston, TX