A Dallas judge who had publicly accused an attorney of using the type of intimidation tactics “we normally reserved for the mob” appeared Sept. 24 before a special master appointed by the Texas Supreme Court to answer misconduct allegations. Bob Jenevein, judge of Dallas County Court at Law No. 3, repeatedly denied that he’s done anything wrong during the fact-finding trial convened by the State Commission on Judicial Conduct in Austin.
“To date, I do not believe that I did anything that an honorable judge and an honorable husband wouldn’t do,” Jenevein told Senior Judge Mike Westergren, special master in the case.
Jenevein’s attorneys, Randal G. Mathis and Mark Donheiser, shareholders in Mathis & Donheiser in Dallas, blasted the commission for pursuing the misconduct allegations.
The judicial conduct commission examiners are “after judges,” Mathis said at the hearing. “They act as though they are a judge and jury and grand jury all rolled into one. They are after convictions,” he said.
Mathis and Donheiser urged Westergren, a former state district judge, to dismiss the allegations, but he declined to do so.
Mark Greenwald, the judicial conduct commission’s special counsel in Jenevein’s case, said the record shows Jenevein was personally offended by a statement made about his wife.
“This is an old-fashioned Sicilian vendetta,” Greenwald, an associate with San Antonio’s Tinsman, Scott & Sciano, told Westergren.
The commission has accused Jenevein of misconduct in connection with a July 2000 news conference he held in his courtroom, while wearing a judicial robe, to blast Dallas attorney Lawrence J. Friedman’s pleadings in a high-profile case pending before another judge. A second misconduct allegation stems from an e-mail that Jenevein sent to 76 people to explain the reason he had been featured in news broadcasts.
In the news conference and the e-mail, Jenevein discussed allegations made about his wife, Terrie, a Dallas solo, and David R. Gibson, then judge of County Court at Law No. 1, in an amended petition in Universal Image Inc. d/b/a Chalkboard.com v. Yahoo! Inc., et al.
The pleading, which was signed by Friedman, stated: “On information, ancillary to this matter but relevant to issues of pattern and pervasiveness of the type of conduct being complained of, Gibson has in other cases exchanged rulings for sexual favors, has made frequent ad litem appointments to Judge Robert Jenevein’s wife and to . . . a lawyer with his former firm, and with whom Gibson is alleged to have a more intimate relationship.”
“That is a crock of horse manure,” Randy Johnston, Gibson’s attorney, says of the statement. “There is no proof of that, never was any proof of it. It’s a scandalous allegation,” says Johnston, a partner in Dallas’ Johnston Tobey.
At the Austin hearing, Jenevein said he interpreted the pleading to mean that his wife was getting appointments from Gibson in exchange for sexual favors, which he said is untrue. The claim that his wife received frequent appointments from Gibson also is false, Jenevein said, noting that she received five appointments in 21 months.
Terrie Jenevein, the only other witness at the Sept. 24 hearing, testified that she was paid $18,000 for the five appointments.
Friedman, a partner in Friedman & Feiger, declines comment about the statement in the pleading or Jenevein’s accusations because the Yahoo! case is still pending.
Dallas solo Braden W. Sparks, Friedman’s attorney, says a judge should not make disparaging comments about a lawyer in a pending matter not only because of ethical considerations, but because of considerations about professionalism.
Sparks alleges Jenevein, dressed in robes, got up before the bench in his courtroom and disparaged Friedman. “If we let judges decide when and who they can disparage, we are throwing professionalism out the window,” Sparks says. “This judge ought to abide by the rules and ethics that he has sworn himself to defend.”
As Universal Images’ attorney in the $5 billion contract dispute, Friedman repeatedly had sought Gibson’s recusal.
The judicial conduct commission also investigated Gibson in connection with the Yahoo! case. Gibson agreed to step down from the bench on Jan. 1, 2002, in exchange for the commission’s agreement not to pursue a disciplinary case against him. The commission alleged that Gibson should have recused himself after Steven H. Stodghill, a defense lawyer in the case and now a principal in the Dallas office of Fish & Richardson, allegedly agreed to represent Gibson in his divorce proceeding for no charge. [See "Commission Releases Details of Allegations in Gibson Case," Texas Lawyer, Dec. 24, 2001, page 13.]
Gibson recused himself from the Yahoo! case on July 27, 2000, the day before Jenevein’s news conference. Jenevein announced at the news conference that he would not participate in the case and instead would file a grievance against Friedman with the State Bar of Texas, using the grievance as the rationale for his voluntary recusal, according to a copy of his statement at the news conference.
Jenevein said at last week’s hearing that he did not believe that he had to keep confidential the filing of the grievance against Friedman.
On Sept. 20, 2001, an evidentiary panel of the District 06A Grievance Committee alleged in an evidentiary panel charge that Friedman violated several Texas Disciplinary Rules of Professional Conduct in connection with the statements alleged in the Yahoo! pleading. Mathis said at last week’s fact-finding trial that the grievance is set for hearing on Oct. 29.
Mathis said at the hearing Jenevein did what any other man � any other judge � would have done in response to the statements. “He held a press conference and responded to somebody calling his wife a whore,” Mathis told the special master.
The judge’s statements are protected by the First Amendment, Mathis argued and cited the U.S. Supreme Court’s recent ruling in Republican Party of Minnesota v. White. In a 5-4 decision on June 27, the high court struck a provision in Minnesota’s judicial canons that had prohibited judicial candidates from announcing their views on disputed legal or political issues during campaigns.
Greenwald, special counsel for the judicial conduct commission, said prospective jurors for the Yahoo! case could have seen Jenevein’s news conference, portions of which were broadcast by Dallas television stations. The judge’s statements created negative media coverage about Friedman, one of the lawyers in the case, Greenwald said.
The commission alleged in its formal charging document that Jenevein’s decision to hold the news conference in the courtroom to voice his personal feelings and criticisms of Friedman in connection with a pending case constituted “willful or persistent conduct” inconsistent with the proper performance of his duties and cast public discredit on the judiciary. The commission also alleged that Jenevein’s actions constituted an improper use of his official position to promote his private interests and the private interests of others and demonstrated he allowed his relationships with Gibson and parties and attorneys in the Yahoo! case to influence him.
Jenevein’s discussion of the case in the e-mail constituted an improper ex parte communication, the commission alleged. Recipients of the e-mail included Judge David Evans, of Dallas’ 193rd District Court, where a suit filed by Gibson against attorney Jeffrey Robnett was pending, the commission alleged. Robnett had filed an affidavit implicating Gibson in an alleged bribery scheme relating to the Yahoo! case, according to the commission’s factual allegations.
In an Aug. 9, 2000, e-mail Evans asked Jenevein not to communicate with him about either Gibson v. Robnett or the Yahoo! case. “Because a judge is a party to this case, communications received from other judges will have to be carefully considered as potential ex parte communications because non-judge parties might otherwise justifiably be concerned that advocacy is occurring in their case of which they are not given notice or an opportunity to be heard,” Evans wrote. Evans ordered that Jenevein’s e-mail be filed and served on all parties in Gibson’s case.
The commission alleged that Jenevein’s conduct violated Article V, �1-a(6)(A) of the Texas Constitution, which provides for a judge to be removed from office, disciplined or censured for misconduct. The commission also alleged violations of Canons 2A, 2B, 3B(2), 3B(4) and 4A(1) of the Texas Code of Judicial Conduct.
Jenevein testified that he had done everything he could, including taking a polygraph test, to answer the allegations, which he said caused him to draw a challenger in the Nov. 5 election. A Republican who first won office in 1998, Jenevein is being challenged by Democrat Sally Montgomery.
In an interview, Montgomery, a former district judge, refutes Jenevein’s statement that the commission’s investigation of him prompted her to enter the race.
Westergren will submit his factual findings in Jenevein’s case to the judicial conduct commission, which can dismiss the allegations, censure the judge or recommend that he be removed from office.
Jenevein’s wife says she sued Friedman for defamation, seeking to carve out an exception to the rule that provides immunity for statements made in the context of pleadings. Friedman responded with a countersuit, alleging that Terrie Jenevein’s suit had hurt his business.
Ironically, Westergren is presiding over that litigation as well. In a telephonic prehearing conference on Sept. 19, Westergren advised lawyers for Jenevein and the commission of his involvement in the litigation, a transcript of the conference shows.
Westergren granted summary judgment to Friedman in Terrie Jenevein’s suit, which has been appealed to the 5th Court of Appeals, and abated Friedman’s countersuit during the appeal.
