Editorial note: This is the twenty-third in our series of electronic interviews with candidates for Statewide and Harris County offices. We have sent questionnaires to every candidate on the ballot, given we could find a working email address. We have printed their answers verbatim as we receive them. If you are or work for such a candidate, and we did not send a questionnaire, please contact us <email@example.com>.
Barbara Gardner, Democratic candidate for the 234th District Court
Texpatriate: What is your name?
BG: Barbara Gardner
T: What office are you seeking?
BG: 234th Civil District Court
T: Please list all the elected or appointed POLITICAL (including all Judicial) offices you have previously held, and for what years you held them.
BG: For three years I was elected President of the Harris County chapter of the Texas Democratic Women (“TDWHarris’). In 2009 I single-handedly revived TDWHarris, which had become defunct, and I am still a member of TDWHarris. The mission of TDW is to encourage more women to take leadership roles in society, to provide education on women’s rights, and to encourage women to become involved in the political process, wherever it best fits their personal circumstances. President of TDWHarris is not necessarily a public office, but it is political and therefore relevant to this question.
T: What is your political party?
T: What is a specific case in which you disagree with actions undertaken by the incumbent?
BG: There are quite a few cases with which I disagree with actions taken by my opponent, based on my review of the Harris County District Clerk’s records. The most blatant mismanagement of his docket is the continually resetting of trials. This wastes both the parties’ and taxpayers’ money. It is exceedingly time-consuming to prepare for trial. Every time that a case is reset, the lawyers go back to their other cases. When the trial setting again draws near, the lawyers must re-learn and “get under their belt” all of the details of the case that was re-set, which is repetitive, wasteful, but necessary work. One striking example is case number 2011-17650, which has eleven trial settings. That is almost unheard of. Case #2009-79721 was filed in 2009 and will not go to trial until February 2015. There are other cases that have been pending for years in the 234th District Court.
Another problem is that too frequently when requests for action by the court are filed (called “motions”), usually pertaining to interim disputes in the case, my opponent orders the lawyers to “go work it out” in the hallway. My opponent often begins by telling the lawyers that “someone is going to have to get out a checkbook,” a veiled threat of sanctions. One lawyer told me about this practice, and so I sent a paralegal to observe a morning of motion hearings. My opponent did just what I described. Lawyers generally attempt to work out their disputes, based on the rules of procedure. When they cannot, they turn to the judge for assistance. It is then the Court’s responsibility to issue a ruling on the dispute to get the case back on track and moving toward a trial date.
T: What is a contentious issue that you belief the Court will face in the near future? Why is it important? How would you solve it?
BG: Based on the Texas Ethics Commission’s (“TEC”) regulations, I am prohibited from answering this question, as it could indicate how I might rule on an issue which could come before me as a judge.
T: Do you believe that the incumbent has specifically failed at her or his job? If so, why?
BG: I do. As indicated above, my opponent resets trials much too frequently, often with no reason. In one case that I reviewed, one lawyer even filed a motion to transfer to another court (which was denied) in an attempt to get his client’s case set for trial.
I was a law clerk (briefing attorney) after law school for US District Judge Carl Bue. I learned from Judge Bue how to manage a heavy trial docket, at the “knee of the master.” I will not reset trials over and over and over. While a party may need a continuance, I will not arbitrarily reset trials just because, after sufficient time for discovery, the lawyers “are not ready” – or for no reason. One or two continuances, maybe three depending on the circumstances, may be reasonable – but not ten! I learned from Judge Bue that issuing docket control orders and scheduling cases for trial with a definite, predictable trial setting causes the lawyers to get their cases ready for trial. When the cases are ready for trial, frequently the parties will settle – saving everyone money and resolving the dispute amicably.
Also as discussed above, my opponent is unable to deal adequately with interim disputes. A trial judge is something like an umpire in baseball: His/her job is to call the balls and strikes fairly. A trial judge’s job is more difficult, however, because the trial judge must study, read, and be prepared to make rulings on disputes. I will make rulings correctly, fairly – and promptly. Additionally, this removes the “gamesmanship” that frequently accompanies repetitive discovery motions. I will study; I will be prepared on the law and the facts; and I will make rulings quickly on all matters that come before me, from interim discovery disputes to motions for summary judgments. I will not impliedly threaten the parties that “someone is going to be getting out a checkbook” and send the lawyers out into the hall to “work it out.” I will issue docket control orders that are meaningful. I will not permit discovery motions to go on and on for years, wasting the parties’ and the taxpayers’ money. I will resolve the disputes and issue rulings promptly by applying the wisdom gained from my many years of trial experience and my knowledge of the rules of procedure and applicable case law.
Trial judges must spend their days at the courthouse; that is their job. District judges have no one monitoring their whereabouts, no one to account to for their time, no one to question long or frequent vacations. I will be at my desk working diligently, and I will serve the voters who elect me by holding hearings and trials as needed, ruling on motions to move the cases along, doing legal research to remain current on the law, and writing the orders and opinions needed to dispose of issues that come before me. The goal is that each party, even though he or she may lose on an issue, feels that justice has been done.
T: Why you, as opposed to your opponent?
BG: My opponent first applied for appointment to the bench in 2003. He was only a five-year lawyer. For the next ten years, my opponent continued to plead for appointment until he finally obtained Perry’s favor in 2013. This is so even though my opponent had tried very few jury trials as first chair attorney. (I have my opponent’s entire file from the Governor’s office.) As the Houston Chronicle has noted, “[Governor Perry] has grown too accustomed to getting his way when it comes to making sure that virtually every key position in state government is occupied by a Perry loyalist.”
Governor Perry has “staunchly pro-defendant and anti-consumer” ideals. Texas Supreme Court Justice Don Willett explained that “[Governor Perry] has chosen judges who reflect his judicial philosophy, which Willett described as ‘unabashedly conservative.’ And he said that Perry understands the importance of judicial appointments. “
My opponent has the solid conservative credentials that Governor Perry requires for his judicial appointments. My opponent was a member of and chaired the membership committee for Houston’s “R Club.” The R Club is a political action committee whose members are committed to “taking individual and collective responsibility for promoting a conservative agenda in Houston and the State of Texas.” He was a member of the Maverick PAC, which also “promotes conservative principles.” In 2012 he was a “surrogate speaker” for Governor Perry in Iowa when Perry attempted to run for president. Then – finally my opponent was named judge in November 2012.
Everything I have, I have earned through my own hard work, while my opponent became a Perry loyalist to receive his judicial appointment in return. Governor Perry continues to ignore the constitutional requirement that state judges be elected, thus stacking the bench with Republicans. As a result, our citizens do not have the balanced courts that ensure fairness. We need fair and even-handed judges to achieve justice in Harris County.
Among my opponent’s contributors are the Conservative Republicans of Texas PAC and Texas Conservative View PAC. Support by these conservative PACs further underscores the conservative bent by my opponent – in keeping with Governor Perry’s appointment requirements.
Writers say that this trend of money spent by PACs is being bolstered dramatically by the United States Supreme Court’s decision in Citizens United. “The real takeaway here is that we’ve turned the word bribery into the more respectable word, contribution.”  A study in Time magazine reported:
“Much is said abouthow much influence big-money interests have with the White House and Congress. But people are not talking about how big money is also increasingly getting its way with the courts, which is too bad. It’s a scandal that needs more attention. A blistering new report details how big business and corporate lobbyists are pouring money into state judicial elections across the country and packing the courts with judges who put special interests ahead of the public interest.”
Cohen, “Judges Are For Sale – and Special Interests Are Buying,” Time Magazine, October 31, 2011.
All of this further emphasizes the problem with Governor Perry’s system of appointing judges who then become the “incumbents.” Lawyers and law firms tend to support an incumbent, no matter his/her qualifications. Lawyers in Harris County have told me outright that it is their firm’s policy always to support the incumbent. This makes a challenge by an outsider – again, no matter the qualifications – extremely difficult.
Harris County citizens should vote for me because, one, I am considerably more qualified and experienced for the position of civil district judge than my appointed opponent; two, I am more organized and experienced in trial matters and can better manage the caseload than my appointed opponent. (I know this because I have studied my opponent’s docket of cases online in the Harris County District Clerk’s records.) And, three, I have the patience and judicial temperament that it takes to be a good trial judge.
T: What role do you think a Civil District Judge should have individually? What role do you think the Civil District Courts should have as a whole?
BG: As stated above in more detail, the job of a district judge is to preside over the interim disputes while the parties are preparing for trial. This disputes generally involve disagreements between the lawyers as to how the rules of procedure should be applied. Also, the district judge rules on dispositive motions, such as motions for summary judgment, which would prevent the case from going to trial. Those are critical rulings because granting a dispositive motion is inherently denying a party his/her 7th Amendment right to a trial by jury. Those motions should be granted only in exceptional situations.
After the discovery of facts has been accomplished, the case is set for trial. During the trial the judge rules on what evidence is relevant for the jury to hear and what is not. Incorrect rulings on evidence sometimes will prevent the jury from ever hearing true facts of what occurred. Judges can sway the outcome of the case in these rulings. The trial judge also rules on motions by the parties to take certain actions, such as to dismiss the case without the jury ever getting a chance to deliberate. I have seen many incumbent judges dismiss cases in the middle of the trial. At the conclusion of the trial, the judge summarizes the law for the jury to follow in its deliberations in a document called the “Court’s Charge to the Jury.” This is another very critical point at which the judge can sway the jury’s decision by how he/she words the explanation of the law, or even omits important points of law that the jury should know.
Rulings by the Judge of the 234th District Court and other district courts affect all Harris County residents, even those who are never involved in a lawsuit. Decisions by these courts are the beginning of binding precedents that other Texas courts must follow. If a district court case is appealed, the appellate court can affirm or reverse the ruling. The appellate court’s written opinion, which started in the district court, then becomes binding law throughout the State of Texas. An appellate court often can be influenced by how the decision was written by the district judge. So, the decisions of our district courts form the crucial starting point of the civil justice system for Texas citizens.
Only when a judge applies the law correctly, fairly and equally will the parties receive justice. After 30 years of trying cases, I can say that justice is sorely lacking in our Harris County courts. We need a change. I promise that when I am elected, I will apply the law correctly, fairly, and equally to everyone because – justice matters.
T: What are your thoughts on the partisan election of Judges?
BG: Since our State Constitution requires election of state judges by our citizens (which is one reason why I oppose Governor Perry’s established appointment system), the election of judges likely will continue for the foreseeable future. It would be possible to convert this into a non-partisan election similar to our municipal elections or, similar to other states, place judges’ names on a separate ballot at election time without a “D” or “R” beside the names. This process would encourage voters to research the qualifications of judicial candidates and elect the most qualified. That would have to come from the Texas Legislature, however. Based on past history, the Republican-dominated Legislature likely will not make any changes.
T: What are the three most important issues to you, and what is at least one thing you have done to address each of them?
BG: As above, I cannot give any indication on how I might rule on any issue, based on the TEC regulations. However, I can comment on improvements that are needed in the 234th Civil District Court.
First, Perry’s appointment system has gone “under the radar.” Voters have no idea that Perry is placing his “loyalists” on the bench, many who are not particularly qualified to be judges but who are very difficult to unseat. This system is well planned and thought-out, and it defeats our State’s mandate to elect the most qualified jurists. To the detriment of consumers and small business, we continue to see “Perry loyalists” who are pro-defendant, anti-consumer, and stalwart conservatives. This must change.
Second, as discussed more fully above, my opponent has demonstrated that he does not have the experience in the courtroom to manage a heavy trial docket. Trials should not be reset over and over, especially for no reason, as my opponent does. Delay benefits the large corporations. I know because I have represented corporations, and their mantra generally is to delay any progress of the case. That is because over time critical witnesses, who may testify against the corporation, forget, become disinterested, move – or worse, die. This has happened to me, and so I know of this process firsthand. Also discussed above, the motion practice should be more organized, with reasonable deadlines for filing any discovery or non-dispositive motion. I learned from Judge Bue that issuing docket control orders and scheduling cases for trial with a definite, predictable trial setting causes the lawyers to get their cases ready for trial. A reasonable docket control order will have deadlines for all critical events in the case, including a deadline for any discovery motions. Lawyers and their clients need to work diligently to prepare their cases for trial, which includes gathering the relevant facts through the discovery process. They also must have reasonable time periods and deadlines for completing the discovery process, deadlines that are enforced by the judge. Then when the cases are ready for trial, frequently the parties will settle – saving everyone money and resolving the dispute amicably.
Third, too many Harris County District Judges grant the defendants’ motions for summary judgment, which is documented in the District Clerk’s records. This is to the distinct disadvantage of the consumer and small business person, and benefits the large corporations. Granting summary judgment should be the absolute exception. Every party has a right to his/her “day in court,” which means a trial decided by a jury of their peers. That is our Constitutional right, and it should be held sacred.