Here's a Zen koan for you: If a sitting judge doesn't meet the requirements of office laid out in the state constitution, do that judge's orders count?
At least one Houston family law attorney says they don't, and is making that argument in a child custody matter that was heard by former Associate Judge Robert Newey, who was sworn into office after he turned 75, which is the mandatory retirement age for district court judges in Texas.
Filed last week, David Brown's motion explains that Newey was sworn into his position in the 311th Family District Court on January 1, 2011, two months after he turned 75, and claims that "any actions taken by Robert E. Newey...after that date are void."
Brown told The Houston Press that this means there are a bunch of folks out there who think they're divorced but technically aren't.
And lawyer Greg Enos, whose Mongoose newsletter addresses the trials and tribulations of Harris County Family Court, claims in an article that "a growing number of lawyers are sharing the concern that possibly hundreds of orders signed by former Associate Judge Robert Newey may be void and unenforceable."
But Enos also writes that the orders are presumed valid until and unless an appellate court rules otherwise, and he opines that "any appellate court would want to desperately find some way to avoid invalidating the many orders Judge Newey signed."
No one's sure yet how many orders it might be, but the Family Court's administrative judge, David Farr, says the orders at issue would have spanned a four-month period.
As administrative judge, Farr found himself in the eye of the shit-storm Judge Denise Pratt created when she suddenly resigned after a Harris County District Attorney's Office investigation into criminal complaints filed by Enos. She was accused of backdating orders — a violation Pratt's lead clerk took the blame for — and of illegally dismissing more than 600 pending cases in one fell swoop without notifying the parties or their attorneys.
Newey was Pratt's administrative judge, meaning he heard cases independently of Pratt, but since it was believed that associate judges served at the pleasure of district judges, Farr believe that Pratt's resignation automatically meant Newey resigned as well. That left him in the lurch, he says, “looking at a court with 3,000 cases and no judges.”
Now, here's where it gets tricky: According to the state constitution, a judge who turns 75 during his or her term can finish out that term. There was a lot of back-and-forth over whether Newey had to be resworn, and while Farr knew the judge was over 75, he and his staff attorney (and everyone else, apparently) assumed that Newey had not already turned 75 by the time Pratt swore him in.
“I assumed that any reasonable human being who'd become a district court judge would have checked these things before swearing them in as an associate judge," Farr says.
Seems like a fair assumption. And given what we know now of how Pratt ran her courtroom, we're with Farr when he says, "My guess is, Denise Pratt never asked him [his age]." (We're a little more puzzled by Newey not speaking up. We tried reaching him for this story, but were unsuccessful).
Enos spoke with Newey, however, and writes, "Newey says no one asked him when his birthday was and no one ever mentioned that when he turned 75 could be a problem. [He] never hid his birth date and it is all over his employment records with the county. It seems very likely that Denise Pratt did not know about the mandatory retirement age for judges in the Texas Constitution."
Farr checked with his staff attorney, who suggested possible interpretations of the constitution that would carve out exceptions for someone in Newey's predicament.
But Brown's not buying it, saying, “It's kind of like the joke about the old rabbi that loved ham sandwiches, and so every time he got a ham sandwich, he'd say, 'You're pastrami, you're pastrami, you're pastrami.' It doesn't change it to ham, but it'd make him feel better.”
Both Enos and Farr also pointed out that they don't blame Newey, whom they both respect. As Farr told us, “He was an institution before Pratt came around and he was an institution afterwards.”
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While Farr is aware of the potential problem that would come from Newey's orders being declared void, he says, "This is not [an] all-hands-on-deck issue. This is a legal issue for the court of appeals.”
But David Brown and his client are hoping it's something the district judge in their case will decide. He believes it's a more urgent situation than Farr describes, saying that undoing a family court judge's rulings could devastate people's lives.
"The only time a court has more power than those nine people is, I guess, a criminal court that can order someone's life to be taken," Brown says. "Those family law judges, they can take your kids away from you, man. They can take your home away…They can take all your money away.” Bottom line: "They can take away your life as you know it."
The lawyers on the other side, who include Jared Woodfill and David Wukoson, did not return our calls.