Judge Dianne Hensley. Photo courtesy of FirstLiberty.org

Texas judicial experts are questioning Judge Dianne Hensley's legal strategy to sue over her sanction for refusing to officiate same-sex marriages.

A judge can appeal a judicial misconduct sanction to a special court of review, but Hensley, a justice of the peace in McLennan County, instead filed a civil lawsuit alleging that the Texas Commission on Judicial Conduct and all of its officers and commissioners are violating her religious freedom under Texas law.

Hensley's lawsuit, filed in McLennan County District Court, claims her Christian beliefs prevent her from marrying same-sex couples.

One of Hensley's attorneys, Jeremy Dys, said the judge chose to sue the commission because she wants to keep marrying heterosexual couples, but not same-sex couples. Hensley is afraid she will face future sanctions if she does that.

"That would be a continued and growing burden on her free exercise of religion," said Dys, special counsel for litigation and communications at First Liberty Institute, a Plano-based nonprofit firm that focuses on religious freedom.

Chuck Herring Charles 'Chuck' Herring Jr., a partner in Herring & Panzer in Austin. Photo: Joel Salcido

The lawsuit could run into problems since Texas law lays out the appellate remedy that she failed to follow, said Chuck Herring, a partner at Herring & Panzer who practices legal ethics law and writes an annual book on lawyer and judicial ethics.

"She could have raised the same arguments before a special court of review," said Herring, partner in Herring & Panzer in Austin. Instead, Herring said he expects the commission to argue Hensley failed to exhaust her proper appellate remedies before filing her lawsuit.

In Texas, a judge can appeal if they're sanctioned by the commission. The Texas Supreme Court then randomly assigns three intermediate appellate justices to a special court of review.

That court conducts a trial on the commission's allegations, hearing witness testimony and considering evidence. If the special court issues a ruling, it replaces the commission's original sanction. The court can chose to no do anything, to issue the same sanction, or to issue an entirely new sanction.

Hensley has missed the deadline to file that appeal.

Judge's allegations

The dispute arose from a Nov. 12 public warning that said Hensley violated an ethical rule requiring her to conduct extra-judicial activities in a way that does undermine her impartially as a judge.

American Bar Association guidance says that judges in states where they do marriages voluntarily should not do any marriages beyond family and friends if they have any religious objections. That's because judges can't ethically discriminate against same-sex marriages, the ABA said.

Hensley stopped doing all marriages in 2015 and 2016 after same-sex marriage became legal nationwide in the wake of the U.S. Supreme Court's Obergefell v. Hodges ruling. She began marrying heterosexual couples again because her community needed a source of low-cost weddings, and she referred same-sex couples to other officiants.

Hensley is suing for damages, costs and attorney fees under the Texas Religious Freedom Restoration Act, and seeks declaratory judgment and injunctive relief. Hensley also claims the officers and commissioners acted outside of their authority when they sanctioned her and seeks to certify a class of all justices of the peace in Texas.

"There is no compelling governmental interest in preventing judges or justices of the peace from openly expressing a religious belief that opposes homosexual behavior," said the petition, which argued that disapproving of that behavior does not show bias against a homosexual as a person in court.

Jacqueline Habersham, interim executive director of the judicial conduct commission, declined to comment.

Hensley isn't  the first public official in the nation to land in hot water over the same-sex marriages. Kentucky count clerk Kim Davis was sued and ultimately lost a lawsuit after she cited her religious beliefs for refusing to grant marriage licenses to same-sex couples.

Herring, the ethics attorney, said that Hensley's situation is different since Texas judges are not required to perform wedding ceremonies. Also, unlike in Davis' case, no one sued Hensley because she refused to officiate a same-sex ceremony.

Read the petition:

Other lawsuits

It's not unprecedented for a sanctioned judge to file a civil lawsuit against the judicial conduct commission, noted Lillian Hardwick, an Austin solo practitioner who practices judicial ethics law.

Lillian Hardwick Austin solo Lillian Hardwick. Courtesy photo

Previous civil cases were filed in federal courts and raised federal constitutional free speech arguments against the commission's actions or judicial canons. Hensley's case may be the first to raise religious freedom arguments.

In Jenevein v. Willing, a judge lost an appeal of a sanction first and then filed a federal lawsuit alleging that his sanction violated his free speech rights. The judge there had held a press conference and sent an email regarding allegations against his wife in a lawsuit, which the judge considered an abusive litigation tactic designed to make him recuse himself from another case. The U.S. Court of Appeals for the Fifth Circuit upheld most of the judge's sanction in 2007, finding that even though the judge couldn't face a sanction for the content of his message, the state still had a compelling interest to stop the judge from boosting his message by using his judicial office.

In Scott v. Flowers, the Fifth Circuit ruled in 1990 that a judge who made truthful public statements that criticized the administration of his county's judicial system was speaking on a matter of public concern. The judge's free speech rights outweighed the state's interest in promoting the efficiency and impartiality of its courts, the ruling said.

Successful appeals

There are high-profile examples of judges who used constitutional arguments to overturn sanctions.

First Amendment attorney Chip Babcock of Houston in 2006 succeeded in arguing that free speech rights prevented the commission from sanctioning Nathan Hecht, then-justice and now chief justice of the Texas Supreme Court, for supporting colleague Harriet Miers' nomination to the U.S. Supreme Court. Babcock also succeeded in 2015 in using First Amendment arguments to overturn a sanction against Michelle Slaughter, then a district judge and now a Texas Court of Criminal Appeals judge, who had posted to Facebook about a criminal trial before her.

Michelle Slaughter and Chip Babcock Judge Michelle Slaughter and Jackson Walker partner Charles "Chip" Babcock talk in the Texas Supreme Court's courtroom in Austin, where a special court of review in July 2015 presided over Slaughter's appeal of a judicial misconduct sanction. Photo: Angela Morris/ALM

If he were representing Hensley, Babcock said he would have gone to a special court of review instead of suing. If that court ruled in Hensley's favor, that would be the end of the matter. If the court ruled against her, the next step could be the U.S. Supreme Court.

Babcock, a partner in Jackson Walker, added that he can think of one reason a judge would want to file a lawsuit rather than appeal the sanction through the regular process.

"Here, if she's successful, the statute provides for attorney fees," he said.