Texpatriate endorses in Probate Courts

Editorial note: James Horwitz, the father of Editorial Board member Noah M. Horwitz, is the Democratic candidate for Probate Court No. 4. While we have sent questions to both candidates and will be publishing a completed questionnaire by James Horwitz, we have decided to not offer an endorsement in or otherwise cover that race between him and incumbent Judge Christine Butts, a Republican.

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One of the candidates for these courts always opens his remarks by noting that the Probate Courts hold a special place for the residents of Harris County. Ideally, one will never have to experience the process of Criminal Courts as a victim, witness or defendant. Likewise, with squabbles over money at Civil Courts or divorce at Family Courts. But every person close to you, and then yourself, will eventually die. The Probate Courts serve as a legal bookend for this inevitability, presiding over the distribution of an individual’s estate. They also deal with guardianship and mental health hearings.

Obviously, compassion and expertise is needed for these benches. Dealing with the elderly and deceased is an obviously sensitive subject that requires restrained jurists, willing to always hold themselves with integrity and respect. This board has found a number of key policy disagreements that we have with the incumbent Republican judges. In the three contest we will make a pick in, we choose the three Democrats.

First and foremost, we have been disturbed to see the cozy relationship — one that hovers around the line of impropriety — that judges take in recruiting and appointing ad litems. These coveted positions should not merely be the product of a spoils system between officeholders and their political friends, but should reflect the best and brightest of the legal system.

Probate Courts are also renowned for having somewhat light dockets. Compared to their absolutely swamped colleagues at the Criminal Court, these courts have comparably few cases. In fact, a compelling point could be made to reduce the number of courts, saving the County and its taxpayers money, if some simple and fiscally prudent actions are taken. First, in disputed probate matters, the Courts should rely more on mandatory mediation before full court proceedings are initialized. The practice is already commonplace in Family Courts, and could have the effect of significantly reducing the case load.

Furthermore, only the Democratic candidates have been vocal about the need to provide education throughout the county on the importance of probate planning. The families of those who die with a valid will can often wrap up their court experience somewhat rapidly. Comparably, the families of those who die intestate (that is, without a will) take up a far bigger portion of the court’s time. Quite literally, the amount of court time saved by implementing such policies could put these candidates out of a job if courts are consolidated. But these candidates aren’t merely looking for a paycheck from Harris County, they’re looking to help the residents of Harris County.

Finally, perhaps most importantly, this board has looked for open-minded candidates for these courts. In the next few years, unique conundrums will likely arise in these courts, such as the question of a common-law married same sex couple. For example, if two men who were legally married in another state (a union, therefore, currently recognized by the Federal Government) were residing in Texas, and one such man died without a will, would the court consider recognizing his husband as his common-law spouse? State ethical rules, of course, prohibit candidates from publicly opining on such issues, but we have tried our best to find candidates who would approach this conundrum ethically and compassionately.

COUNTY PROBATE COURT #1
Judge Loyd Wright, seeking a second term in office, has done a passable job on the bench. A Republican, the Houston Chronicle thought the most impressive action from his first term was getting a staff member to answer the court’s phone during business hours. I guess this is a good thing, but those are some pretty comically low standards. Harris County simply deserves better.

Wright has also made a point of not separating partisanship from the bench. From his official online social media accounts, he often espouses divisive political rhetoric that has little to do with the administration of probate courts. Tropes over the supposed “cultural war” and quotes galore from Rush Limbaugh line the page. Now, unless the infamous shock-jock has made some recent comments we are not aware of pertaining to wills and trusts, this is just inappropriate.

His Democratic opponent, Kim Hosel, is herself a tremendously experienced attorney who would not make the same mistakes. Impartial and compassionate, we have no doubt that Hosel would be a superior judge in all the issues we delineated above: ad litems, mediation, education and open-mindedness.

Accordingly, this board endorses Kim Hoesl for County Probate Judge #1.

COUNTY PROBATE COURT #2
Judge Mike Wood, a six-term incumbent, is a very well versed and qualified jurist. A former President of the National College of Probate Judges, he is uniquely situated to lead the court. Once again, if your number one goal is stability in the court and an efficient docket, we have no choice but to recommend Wood, a Republican, for re-election. He is a good judge who has, and would continue to, serve Harris County well.

But his opponent is also remarkably qualified. Serving both as a Municipal Judge in Houston (on two different occasions), as well as a Civil District Judge, Josefina Rendon, a Democrat, has more than 30 years of experience on the bench. If there is anyone who would have even more experience in the courthouse than Wood, it might just be Rendon.

In addition to her tremendous experience, Rendon also strikes us as the right choice on those same contentious issues. While in office as a Civil District Judge, her courtroom was a model of ethical behavior, among other praises. She has also pledged to seek out mediation with more vigor and work toward educational goals in the community. Both of which are admirable aspirations worthy of our support.

Accordingly, this board endorses Josefina Rendon for County Probate Court #2.

COUNTY PROBATE COURT #3
We do not often go out of our way to speak ill of a public servant. Thus, in most of these contentious judicial races, we will have good things to say even about the candidate we choose not to endorse. Unfortunately, this race is simply not one of them. Judge Rory Olsen, a Republican, seeking his fifth term on the bench, has morphed into the epitome of what is referred to in courtroom politics as “black robe syndrome.” Rude, abrasive and petty with counsel —  especially those he may have a political disagreement therewith — all too often, Olsen has figuratively transformed his courtroom into a personal fiefdom. By losing the respect of those we must practice law with, Olsen has lost much of his legitimacy as a judge.

His Democratic opponent, on the other hand, Jerry Simoneaux, is a true breath of fresh air. A longtime probate attorney, Simoneaux has many years of experience as both an attorney in private practice and as staffing attorney for a Probate Court. With valuable experience on both the inside and the outside oft he process, we have no doubt that Simoneaux would be ready to lead on day one. Further, we have every reason to believe that Simoneaux would otherwise be an ethical, compassionate and intellectual jurist. He’s beyond the shadow of a doubt the right choice.

Accordingly, this board endorses Jerry Simoneaux for County Probate Court #3.

The Texpatriate Editorial Board is comprised of Noah M. Horwitz & Olivia Arena of Austin, George Bailey of Boston, Luis Fayad of College Station and Andrew Scott Romo of New Orleans. Editorials represent a majority of the voting board.

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Texpatriate’s Questions for Kim Hoesl

Editorial note: This is the sixteenth 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 <info@texpate.com>.

Kim Hoesl, Democratic candidate for Harris County Probate Court #1

Texpatriate: What is your name?
KH: My name is Kim Bohannon Hoesl.

T: What office are you seeking?
KH: I am the Democratic candidate for judge of Harris County Probate Court No. One.

T: Please list all the elected or appointed POLITICAL (including all Judicial) offices you have previously held, and for what years you held them.
KH: I have not held elected office before.

T: What is your political party?
KH: Democratic Party.

T: What is a specific case in which you disagree with actions undertaken by the incumbent?
KH: I cannot answer this question for a number of reasons. First, in the probate courts, the actual filings in cases have only become publicly available in the last few weeks. Prior to that, it was simply not possible to readily access all the written pleadings and orders in a case, even if they were all publicly available. Second, as a judicial candidate, I cannot prejudge situations. Until the facts are presented to me in accordance with the law, I cannot state what my decision would be in any given situation, other than to say I would follow the law. Similarly, I cannot state whether I would rule differently in a given situation.

T: What is a contentious issue that you believe the Court will face in the near future? Why is it important? How would you solve it?
KH: I see a significant issue on the horizon with the subject of ad litem appointments. In our probate bar, there is a definite impression of what some may call “cronyism.” In other words, the small probate bench and the small probate bar are very familiar with each other.

Harris County probate courts employ an appointment system for the appointment of ad litem attorneys in certain cases. The informal nature of the system and the familiarity of the bench and bar do not promote much confidence in the impartiality or fairness of the system. Instead, this situation invites the perception that the judges and the attorneys are too cozy, often using the appointments as rewards. When a litigant sees the attorneys in their dispute in cozy conversation with the bench, or learns that the opposing attorney handles many appointments from the court, it is not surprising that the litigant may believe the deck is already stacked against them.

Regardless of whether actual favoritism exists, it is the appearance of favoritism that is a problem. I bring independence to the bench because my background is from outside the probate bar. I stand apart from those attorneys and from the alliances among them. I intend to fulfill the role of the impartial justice, beholden to no lawyer or firm, relying solely upon the law and the facts. For appointments, I will endeavor to develop a selection system based on the needs of the litigant and the qualifications of the attorney, and nothing else. I believe that is the only way that justice can be served.

When I worked in the Administrative Office of the District Courts in the 1990s, one of my job functions was to implement and run a system to qualify attorneys for criminal appointments. At that time, the District Courts were concerned with having qualified attorneys available for indigent defendants and with eliminating the perceived, and perhaps real, bias in using appointments to reward judicial supporters.

This is a very real problem in the family courts even today, and the probate courts are not immune to these same concerns. I intend to develop a database-system, hopefully in conjunction with the other probate Courts, where information on attorneys seeking ad litem appointments can be maintained in a way that the Court can access randomly-selected, qualified attorneys for any particular case.

T: Do you believe that the incumbent has specifically failed at her or his job? If so, why?
KH: I am running for judge of Probate Court No. One because I have the experience, skills, independence, and knowledge needed to bring fairness and justice to the probate bench. I am not running against the incumbent; I simply believe I am the better candidate for the job.

T: Why you, as opposed to your opponents?
KH: I have practiced civil and commercial litigation, including in the probate context, for over ten years. My practice involves a diverse range of cases including fiduciary litigation (for example, suits against corporate officers and directors, suits by and against executors and trustees), contract disputes, intellectual property disputes (trade secrets, copyright infringement), business divorce, personal injury, and, of course, probate and trust litigation.

My experience includes the full range of litigation activity, beginning with investigation, drafting pleadings, managing discovery, conducting depositions, working with experts, selecting juries, managing trials, and following through with appeals. I have argued legal issues before trial courts and probate courts, before the First Court of Appeals, and before the Texas Supreme Court. Finally, my practice includes transactional matters such as business filings, will drafting, probating wills, and working with executors and trustees.

In my experience, the first thing a client wants is an estimate of their chances of winning in a particular dispute. As their attorney, one of my jobs is to evaluate the facts and the law as they apply to the dispute, and then provide some information on the client’s position so that the client may make an informed decision in their case. In order to do that, however, I have to assume that the judge will listen to the facts, will know the law, and will fairly and justly apply the law to those facts. In practice, this assumption is far too often wrong. I am running to correct that, and to provide a fair forum for litigants to have their cases heard.

T: What role do you think a County Probate Judge should have individually? What role do you think the County Probate Courts should have as a whole?
KH: When a litigant comes to the probate court, they are usually dealing with very intimate and personal family matters that involve loss, grief, and pain. Perhaps a loved one has recently passed away and their estate needs to be settled. Perhaps a beloved parent has reached a point where they can no longer take care of themselves, and a guardianship is needed. These events in our lives are difficult enough, even when there is no dispute involved.

However, if there is a dispute, such as a family member contesting the will or claiming that an executor breached a fiduciary duty, we end up with a very different scenario. Now, the pain of this family loss is drawn out in a legal battle that strains family relationships and drains family budgets. Here is where the kind of judge on the bench can make a huge difference in the justice that the litigants receive. An experienced probate judge can shepherd the dispute effectively, ensuring that the law is upheld and that justice is served in a timely and efficient manner. A judge with little litigation experience, on the other hand, can prolong the already-too long process, increase the family trauma, and essentially deny the litigants any effective resolution.

I also believe the Court should keep open lines of communication with the community. There is a need to ensure that all people know the justice system belongs to everyone, not just a chosen few. It is important that people understand the need to execute wills and other documents to protect their interests. To the extent permitted, I would like the Court to be a resource for information and education in this area.

T: Would role do you think mandatory mediation should have in Probate law?
KH: Because mediation can be a very useful tool, saving litigants both time and money, I would encourage litigants to consider mediation. However, I am not likely to require it in all cases because there are some cases where mediation simply will not be effective.

T: What are your thoughts on the partisan election of Judges?
KH: I am a fan of the election of judges. Our democratic process depends on the involvement of our citizens. Electing judges is one way to get them involved. However, I am also a supporter of term limits for judges. Every practicing attorney has at least one experience with a judge who has been on the bench so long that the judge has decided he or she knows better than the law. Once a judge has turned cynical, he or she is no longer capable of hearing the facts with unbiased ears. When a judge is unwilling to listen to the facts of a case, or is convinced of their own knowledge as to which side should win or lose, there can be no justice.

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?
KH: I presume that the scope of this question is not limited to the bench or even to the practice of law. One issue very important to me is education. Education was my saving grace, giving me opportunities I otherwise would not enjoy. I want all children to have the same opportunities. To that end, I try to be involved in my children’s education, and to share my career with them as much as possible so that they will see the law as a possible future for themselves. For example, I participated as a judge in a debate competition at my daughter’s high school last year. In the past, I have arranged for children to visit the courts, meet the judges, and learn about our justice system. While in law school, I arranged for the international law students to do the same.

In a similar vein, I have great concern for a relatively unknown population of children in need – adolescents in CPS custody who age out without ever having been adopted. These kids generally spend their teen years bouncing among foster homes and youth shelters. They have little in the way of quality family support. Then, on their 18th birthday, they are expected to become productive citizens overnight. The HAY Center (part of CPS) works with these kids to transition them into adulthood. I have been involved with the Houston Bar Association committee that provides assistance to the HAY Center. This year, I am co-chair of that committee.

Finally, I believe very much in the virtue of tolerance—tolerance for differing opinions, tolerance for differing backgrounds. Personally, I strive to remind myself that not everyone has to agree with me on all things, and that we can disagree civilly with each other. This ability is critically lacking in much of society today. To combat that deficiency, my husband and I work on modeling tolerance for our children, something that we had many opportunities to do during the 2012 election season because my husband is a life-long Republican and I am a stalwart Democrat. Yet, we can maintain our respect for each other even when we discuss our differing opinions as we did while helping our daughter understand the substance of the presidential debates for her social studies homework.

There are many other opportunities to practice tolerance as well, such as defending the rights of the LGBT community, combating the still pervasive systemic racism in our society, and protecting the rights of women to make their own health and life choices. In my circle of friends and family, we do not all have the same opinions on these issues. But we learn to respect the right of people to hold whatever opinions they choose, as long as those opinions do not interfere with the rights of others. This is, I believe, the heart of the Democratic Party – we are the Big Tent, welcoming all, even those who disagree with us, because all people are created equal, entitled to hold whatever opinion their conscience dictates, with the understanding that the mere pinion of one person can never justify abrogating the rights of another.