District Judge, 410th Judicial District (May 2016 runoff)

Kristin Bays
Jennifer James Robin ✔

TPP recommends Jennifer James Robin

 

District Judge, 410th Judicial District

Jennifer Robin, Kristin Bays

TPP recommends Jennifer Robin

 

This race is to elect a judge to replace retiring Republican Judge K. Michael Mayes.  We chose not make a recommendation in this race in the primary election because there were good arguments to be made for supporting each of the candidates.  All three appeared to be conservative, affirmed their belief in strict construction and judicial restraint, and had plans that if executed could provide a reasonable path to victory. 

After reviewing this position in light of the runoff election, we continue to view both remaining candidates as outstanding attorneys with reasonable paths to victory.  Montgomery County is blessed to have such well qualified candidates vying for this position. However, clarification of certain misconceptions with respect to Judge Robin and an improved understanding of how the county’s courts are administered have convinced us to change our position on this race from neutral to recommending Jennifer Robin in the runoff election.

Judge Robin has arguably always had an advantage in this race because for the last 5 years she has served as the Associate Judge in Montgomery Country’s 418th District Court.  Accordingly, her judicial temperament, comportment, philosophy and performance are known.  By all accounts, Judge Robin is doing a creditable job as associate judge and she has never been reversed on appeal. 

In addition, Judge Robin is the only candidate in this race that has received a board certification- in her case in Family Law. Board certification is considered a mark of excellence and a distinguishing accomplishment for a Texas attorney. It means an attorney has substantial, relevant experience in a select field of law as well as demonstrated, and tested, special competence in that area of law. Only 8% (7,200 out of 90,000) of the lawyers in Texas are board certified.

Prior to accepting her present position, Judge Robin was in private practice where she primarily handled family law cases, with a limited exposure to some civil law cases as well.  However, we agree with Judge Robin’s observation that many family law cases have components of civil and/or criminal law integral to the cases, so her exposure to civil and criminal law is likely greater than the family law specialization of her current position implies. Furthermore, the Rules of Civil Procedure which govern the proceedings in civil trials in Texas, apply to both family and civil law cases.  So Judge Robin has been successfully applying the same rules in her current position as are used in family and civil law cases in the 410th District Court.  While Judge Robin does not have experience with the Rules of Criminal Procedure which govern the proceedings in criminal trials in Texas, her opponent, Kristin Bays, also has limited criminal experience.  We further believe it is likely that the criminal docket of the 410th District will be removed and the court will be specialized to cover family and civil law cases.  Accordingly, based on the foregoing, we are aware of no professional or judicial reason not to support Judge Robin’s election to the 210th District Court.

Our primary election decision to take no position in this race was based in part on four assumptions which we now believe were incorrect. We clarify these assumptions as follows:

1.      The 410th District Court is the only general jurisdiction district court in Montgomery County.  This assumption is false.  All district courts in Texas are created by the legislature as courts of general jurisdiction and they retain that general jurisdiction irrespective of whether they are specialized.  As a result, every district court judge in Texas has the jurisdiction to hear family, civil and felony criminal cases. What is true is that the 410th is the only court in the county that is not specialized.

2.      The kinds of cases (family, civil and criminal felony) heard in any district court is determined by the judge of that court who has discretion to limit, or not limit, the kinds of cases the court hears. This assumption is mostly false. But it is important to this race as the two candidates are telling voters that following their swearing in, they would organize the court differently- Judge Robin saying that the 410th District Court would likely hear family and civil cases and Mrs. Bays saying the court will remain as is, hearing a combination of family, civil and criminal felony cases.  Who is right? 

 

The Texas Supreme Court has constitutional responsibility for the efficient administration of the state’s judicial system.  In addition, to assist with the administration, the legislature has divided the state into 9 Administrative Judicial Regions (Montgomery County is in the second) and created a Governor appointed Presiding Judge position to head each region. Staffing and administrative support for each Administrative Judicial Region is provided by the Office of Court Administration, a state agency that reports to the Supreme Court.  The OCA also provides technical assistance, training, and research on court administration, court interpreters, and funding and standards for indigent defense to Texas trial courts.

 

The Supreme Court has promulgated Rules of Judicial Administration (last updated on September 1, 2014) which establish, among other things:

a.       A Council of Presiding Judges, comprised of the Chief Justice of the Supreme Court and each of the 9 region Presiding Judges, which meets annually and, among other tasks, reviews the condition of the dockets of the courts of the state, ensures administrative uniformity across the state to the extent possible and “promotes more effective administration of justice.”

b.      Time standards for trial or final disposition of all categories of cases in the state, as far as reasonably possible. For example, the time standard for final disposition civil nonjury cases is “within 12 months from appearance date.”

c.       Nine Councils of Judges, one for each of the 9 Administrative Judicial Regions, comprised of all judges (including former judges qualified to serve as judicial officers) residing in each respective region.  This Council meets at least once annually:  i) “for consultation and counseling on the state of the dockets … in the … courts of the administrative region”; ii) to adopt rules for the management of the business and affairs of the courts; for docket management systems to provide the most efficient use of available court resources; for reporting on docket status; for achieving the time standards for disposition of cases; and for judicial budget matters.

d.       The duties of the Presiding Judge which are to: i) oversee general docket management and prompt disposition of cases in the region; ii) ensure adoption of uniform local rules by the courts in each county; iii) “discover and encourage the implementation of systems to reduce delay in local dockets; iv) ensure adherence to the Time Standards; v) “consult with each trial judge of the administrative region to implement more efficient methods of docket management”; and vi) ensure reporting is completed by each court in the region.

e.       The administrative responsibilities of every district and county court at law judge in Texas which “shall” be “diligently discharged.”

f.       The duties of local Administrative Judges (one for the county’s district courts and another for the statutory county court) who are to ensure that their respective court of judges adopt rules to provide for the orderly administration of the affairs of the county’s courts.

g.      The establishment of Local Rules for each county which “shall conform to all provisions of state and administrative region rules”, provide for the fair distribution of caseload among judges, and be approved by the Supreme Court.

 

Pursuant to the Supreme Court’s Rules of Judicial Administration, the Second Administrative Judicial Region issued Amended Rules of Administration (approved by the Supreme Court on October 30, 2007 and the Montgomery County District Court Board of Judges issued the Local Rules of the District Courts of Montgomery County.  In addition, Montgomery County instituted the Office of Court Administration, the director of which serves as a management expert to the courts by helping them gain greater efficiencies in caseflow management, management of financial and human resources, and leading the courts in strategic planning. The  Office of Court Administration has prepared the Montgomery County District and County Courts of Law Strategic Plan as a guide for the District and County Court at Law Judges in planning and creating policy for future courts, caseload allocations, specialty dockets, and other resources, including the Office of Court Administration and Office of Indigent Defense.

 

We have gone into more depth about the state’s judicial administration system than we normally would because the question about what kind of court the 410th  District Court will be following the runoff election has been a central question in this race.  Voters may have the impression that the winning candidate will dictate the kinds of cases the court will hear.  We believe the system we have described above supports the conclusion that efficiency, not the desires of the new judge, will drive the answer to what kind of court the 410th will be following this election.  This belief is strengthened by the fact that we are reliably informed that the only reason the 410th is not already specialized is that the current judge refuses to cooperate with the Board of Judges efforts to specialize the court. As a consequence, the 410th is the only court in Montgomery County that has not been specialized.  The lack of efficiency of the 410th can be seen by the disproportionate size of its criminal case backlog to the number of criminal cases it handles, which is the worst in the county.  Accordingly, we believe the Montgomery County Board of Judges, with the concurrence of the Second Administrative Judicial Region’s Presiding Judge, will determine the docket of the 410th after the election. (More on this below.)

 

3.      If elected Judge Robin intends to convert the 410th District Court to a specialized Family Law court similar to the 418th District Court where she currently works. This assumption is patently false.  Starting with the announcement of her candidacy in September, 2015, Judge Robin has consistently said that she believes the 410th District Court will likely be specialized and hear Family and Civil cases after the new judge is sworn in. The Conroe Courier announcement of Judge Robin’s candidacy, dated September 23, 2015, stated:  “Robin said a possible change could be making the 410th a family and civil court, adding that she believes the other four criminal courts – the 9th, 359th, 221st and most recently the 435th – could easily absorb the roughly 14 percent of felony criminal cases the 410th received.”   Her confidence that this will be the future for the 410th is likely based in part upon a recommendation by the Montgomery County Director of Court Administration to the Montgomery County Board of Judges and the Office of Court Administration (OCA) Committee on June 1, 2015, that the 410th specialize in Family and Civil cases.  This recommendation was made in the context of the legislature’s decision to eliminate the 435th District Court’s statewide exclusive jurisdiction over repeat sexual offender cases, which freed up much of the 435th’s docket to absorb additional criminal felony cases.  The recommendation further suggested that the 410th also transfer its outstanding felony cases to the 435th.  [It may be important to some voters to note that this recommendation was made almost 4 months before Judge Robin’s announcement of her candidacy for the 410th so was not in any way driven by her candidacy.]

It appears the claim that Judge Robin was planning to convert the 410th into a mirror image of the 418th may have been started by opponents to her candidacy.  Certainly we heard it from Mrs. Bays when she was vetted by the PAC.  But no matter where it originated or how it was used, it is not true. We do note that at least recently Mrs. Bays has been correctly stating Judge Robin’s position on this matter,

4.      Not retaining the 410th District Court as a general jurisdiction court hearing family, civil and criminal felony cases would be detrimental to the efficiency of the Montgomery County court system.  We believe this assumption is false. 

 

In a very real sense, this election appears to be increasingly a referendum on the question of whether specializing our courts improves efficiency.  Judge Robin is a strong advocate for specialization.  Mrs. Bays is arguing against specialization.  A brief primer on court specialization is in order.

In rural Texas counties, where there are few (and sometimes no) district courts (some rural counties share a district court), the courts obviously have to hear all cases that fall under the general jurisdiction of the district court.  However, as county populations grow, more courts are assigned to them and eventually the volume of all three major types of cases (family, civil and criminal felony) reaches a point where court administrators in the most populous counties across the state have found specializing courts to specific types of cases improves quality and efficiency.  Montgomery County’s courts began specializing around 2009 and, as mentioned above, are now all specialized except for the 410th. 

Confronting this well established trend, Mrs. Bays is challenging the specialization of the 410th and arguing that it should continue to hear all three major types of cases.  She uses this argument in part to challenge the competence of Judge Robin to hear civil and criminal felony cases, since Judge Robin has little civil and no criminal law experience other than civil and criminal situations which may be connected to family law cases she was involved with.  But based on a caseload review of Montgomery County work by Mrs. Bays from 1997 to 2015, Mrs. Bays also has very limited criminal law experience, being currently with a firm that advertises itself as “devoted to civil litigation and appeals” and previously being with firms that specialized in probate and civil law.  While the Rules of Criminal Procedure which govern criminal trials are different from the Rules of Civil Procedure which govern family and civil trials, we do not consider the lack of criminal law experience of either candidate an insurmountable problem.  But we do find Mrs. Bays’ challenge to specialization of the 410th District Court curious for the following reasons:

a.       One clear efficiency that would result from the 410th specialization to family and civil cases would be elimination of the requirement that the District Attorney have a team assigned to the court.  This efficiency should be ignored if a case can be made for keeping the 410th criminal felony docket.

b.      Mrs. Bays’ campaign website has a presentation which makes the claim that the only way to solve the backlog of criminal cases in the 410th is to try the cases in the 410th.  This claim ignores the reality that the 435th District Court has significant capacity for incremental criminal cases as the result of its loss of exclusive jurisdiction over repeat sex offender cases in Texas.  It is hard to understand why the best way to resolve the 410th’s criminal case backlog is not transferring the cases to the 435th, which specializes in criminal felony cases.

c.       In 2009, Mrs. Bays was a candidate for judge of County Court at Law 2.  The question of the merits of court specialization was a big issue in that election as well since one of the other candidates wanted to add a criminal docket to the court which had previously been specialized to probate, civil cases and appeals from Justice of the Peace courts .  At that time, Mrs. Bays took the opposite position of that taken in the current race and strongly supported specialization. 

 i.      The Conroe Currier August 25, 2009 report on her announcement as a candidate in the race quoted Mrs. Bays saying:  “That’s something that should not be done,’ she said of a criminal docket addition.  ‘County Court at Law 2 operates very efficiently.  He (Winfree [the retiring judge]) really has a system in place to move cases through.  The docket works because it is specialized.  You slow things down when you use breadth and not depth.’” 

 ii.      In a January 21, 2010 Conroe Courier report on a candidate forum, Mrs. Bays was quoted as follows on the same subject:  “’The county court-at-law judges voted 5–0 in favor of having the court (CCL2) this way,’ she said.  “Specialization streamlines the cases.’”

iii.      In part of her answer to the Conservative Coalition of Montgomery County’s vetting question “Describe your goals for your court, especially with regard to caseload and budget.”, Mrs. Bays wrote:  “This Court has a great track record with spending and results.  That is a product of the specialization of the Court in hearing only probate cases and civil litigation cases…”.

d.      Mrs. Bays argues the “multi-jurisdictional nature” of the 410th District Court “permits even distribution of cases, which itself increases productivity… permits sharing cases to ensure quicker disposition of cases and …permits prioritizing cases based on the needs of the community”.  We disagree that the first two benefits (equal distribution and sharing) cannot be achieved in a specialized court system.  The last benefit (prioritization of cases based on the needs of the community) would be needed only if there were deficiencies in a specialized court’s case disposition rate and might be better and more equably addressed by other means, such as accessing outside resources through the Office of Court Administration or the Second Administrative Judicial Region, instead of denying classes of cases timely access to the courts.

e.       Finally, the current judge’s blocking specialization was one of the reasons Judge Robin decided to run for this position. Judge Robin felt strongly enough about the inefficient way the 410th was being run, as demonstrated by its case backlog, that she declared her candidacy before the current judge announced his retirement.  Mrs. Bays’ view, as stated in her vetting form, is that the 410th is effectively fulfilling its role “but it could do better in terms of resolving cases more quickly.” This view contrasts dramatically with Judge Robin who was willing to take on a sitting judge because she felt his performance was so unsatisfactory.