The lawsuit which has bitterly divided Galveston County government and cost tax payers $1.3 million is now over. A unanimous, all Republican Texas Supreme Court just blew Galveston County District Judge Cox and his frivolous lawsuit against county commissioners out of the water.
Click here to read the Supreme Court decision. Why do I call Cox's 2015 lawsuit against County Judge Mark Henry frivolous? First, the Texas Supreme Court ruled against Cox on every legal point. Second, Cox dismissed his case before the trial court could even reconsider the case after the Supreme Court ruling. After forcing the county to spend over $1.3 million in legal fees to defend his lawsuit, Cox just suddenly dropped it after his total defeat before the Supreme Court. Any reasonable settlement to the entire dispute was fought by Cox long past the point of reason or fairness. The three county court at law judges made their own separate peace with the county even though Cox tried to prevent them. This is why I call the Cox lawsuit frivolous. Judges should not tolerate frivolous lawsuits and they certainly should not file them.
Judge Cox is now trying to mislead the public and pretend he won his case before the Supreme Court. It is as if a guy asked a woman to marry him on the Jumbotron screen at an Astros' game and the lady slapped him, screamed "hell no," spit in his face and dumped her tray of nachos on his head and then the rejected suitor sent out a mass e-mail thanking the woman, saying "as a man, I could not agree more with this heart-felt response."
This loss in the Supreme Court is absolutely not the result Cox desperately wanted and now he has the nerve to claim victory. Galveston County Republicans are far too smart to be fooled.
To be sure, I plan to mail a copy of this article to every household that voted in the last Republican primary.
Cox sent out a mass e-mail right after the Supreme Court ruling exploded like a bomb shell at the county courthouse. Cox, to be polite, was not honest in his e-mail.
Cox's email gives the impression that he won. Instead, the Supreme Court concluded that Cox lost on all of his arguments. The Supreme Court ruled that Cox should have sued all of the county commissioners and that the trial judge was wrong to do as Cox asked and order the commissioners to rehire a court administrator at a specific (and very high) salary.
The case was sent back to the trial court as Cox said in his e-mail, but only after a total reversal, with instructions to try again and this time follow the law and do it right. The Supreme Court ruling was a complete loss for Cox and it is totally false for him to spin the decision any other way.
The most brazen falsehood in the Cox e-mail was this:
As a member of the judiciary I couldn't agree more with the Supreme Court. I'm anxious to return this case of separation of powers and independence of the Judiciary back to the trial court for a final resolution in favor of the Judges.
This is a truly amazing statement for Cox to make given that his legal position was totally rejected by the Supreme Court justices (who are also, of course, judges themselves). How could Cox truthfully say he could not agree more with the Supreme Court when they had just rejected all of his legal arguments? In fact the Supreme Court ruled that Cox had overstepped his constitutional authority, saying:
Here, the county's judicial branch encroached on the county's legislative branch, the Commissioners Court, which was performing a constitutionally and statutorily authorized function. Personnel is policy, as they say, and fiscal-policy decisions, including staffing, are a quintessentially legislative prerogative. Neither the Constitution nor the Government Code allows the judiciary to usurp a county's budgeting discretion by, for example, dictating specific salaries for county employees other than within the designated range, as the Code allows. County budgets are set by county budgeters. And while section 75.401(d) authorizes the "judges served" to determine ultimately what qualifies as "reasonable compensation," step one in the process, the salary range, is "set by the commissioners court."
In this case, the trial court [acting at Cox's request] lacked the authority-constitutional, statutory, inherent, or otherwise-to require County Judge Henry to reinstate a county judicial employee at a specific salary. At most, the trial court should have directed the Commissioners Court to reset the range. As it stands, however, the trial court lacked the authority to bind the Commissioners Court in the first place, because Judge Cox failed to name anyone but Judge Henry in the request for injunctive relief. The trial court thus erred in issuing the temporary injunction.
The Supreme Court clearly told Cox that he was trying to violate the separation of powers and overstep his authority. The case would have gone back to the trial court, but not to obtain a final order in favor of Cox. The trial judge was told to do it over and this time follow the law. The Supreme Court also strongly suggested that the district judges follow the example of the county court at law judges and reach a compromise.
Yet, within days of sending out his e-mail saying he looked forward to victory back before the trial court, Cox dismissed his lawsuit.
That's right, Cox lost before the Supreme Court after wasting $1.3 million of tax payer dollars on the litigation, falsely claimed victory and then dropped his lawsuit which caused the entire mess in the first place.
For Cox to claim victory in the face of this total legal defeat before the Supreme Court is a sorry attempt to mislead the voters. If Cox was so eager to get his case back before the trial judge, why did he dismiss his lawsuit after he lost before the Texas Supreme Court? Cox was probably worried a fair judge would make him repay the county for the $1.3 million spent fighting his lawsuit.
Another disturbing issue arising from the mass e-mail Cox sent out is that he is being accused of using confidential juror information to add names to his e-mail database. One citizen posted this recently on Facebook:
The citizens who care enough to show up for jury duty should not be tricked into providing their e-mail addresses so a judge can send repeated political e-mails attacking a fellow Republican. This allegation needs to be investigated and I sure hope this is not what Judge Cox has done.
This lawsuit arose because in 2014, County Judge Mark Henry fired the county's Director of Justice Administration, Bonnie Quiroga. I talked to Lonnie Cox immediately after the Quiroga firing at a political function and he was not upset in the least that his judicial powers had been usurped. But, even on the day Quiroga was fired, Cox was spinning a conspiracy theory that Quiroga had been fired because she complained about video cameras in the jail that could have eavesdropped on defense lawyers and their clients. Cox was clearly hoping Quiroga would sue the county (and she did). I have known Bonnie Quiroga a long time and have worked with her closely on many projects and there was never any doubt that Quiroga served the various judges but she worked for the County Judge and that Mark Henry had the power to fire her (her lawsuit claims otherwise now).
I also know that the county commissioners had in recent years made some "penny wise, pound foolish" budget moves which understandably aggravated the judges. I do think the Republican county commissioners should treat the elected judges of their county with respect and courtesy. Yet, almost everyone at the courthouse in 2014 was very aware of how much Cox disliked his fellow Republican Mark Henry. Cox managed to play on the friction between Mark Henry and the other judges and create a show-down over the Quiroga firing. Quiroga was merely a pawn in the battle between Cox and Henry. It can be argued that the lawsuit Cox filed served a limited purpose in the beginning because it forced the county commissioners to suddenly become much more reasonable with the judges. But nothing the commissioners did was good enough for Cox and he escalated the political tension and refused many reasonable offers to settle and make peace with his fellow Republic elected officials. Now, Cox has dismissed his lawsuit after the Texas Supreme Court rejected each and every one of his legal arguments.
Judge Cox grossly overstepped his judicial authority, created a painful disagreement between our elected Republican officials and wasted over $1.3 million of tax payer dollars on his lawsuit. Cox showed that either he does not know what the law says or he does not care. The nine Republican Justices on the Texas Supreme Court do know the law and they made clear that the constitutional limits on judicial activism must be obeyed. The Supreme Court said,"the county's judicial branch [Judge Cox] encroached on the county's legislative branch, the Commissioners Court, which was performing a constitutionally and statutorily authorized function."
I am reminded of a U.S. Senate hearing in 2015 when Senator Ted Cruz complained about the "judicial tyranny" of activist judges who overstepped their authority and ruled based on what they wanted instead of what the law or constitution says. Senator Cruz could have been talking about Judge Lonnie Cox when he proclaimed:
"So long as justices on the court insist on behaving like politicians ... they should not expect to be exempt from the authority of voters who disagree with their policy decisions."
I believe that as a citizen (who happens to be a lawyer), I have the right and the duty to criticize a politician who happens to be a judge. I am criticizing Cox for a mass email he sent out as a politician that spins his "Yuge" loss into a win based on "alternative facts" which insult the intelligence of GOP voters. I am criticizing Cox for pretending to fight for judicial independence when he was actually grossly overstepping judicial authority as part of a political vendetta against his fellow Republican, County Judge Mark Henry. This unanimous ruling against Cox by all nine Republican Justices on Texas' highest civil court came right after Cox announced he was running against County Judge Mark Henry in the GOP primary. This proves what so many political observers suspected all along -- this entire lawsuit (which has cost county tax payers over $1.3 million) was simply a political power play and vendetta. Cox was not fighting for judicial independence as he claimed, he is simply out to get Mark Henry.
I am also criticizing Judge Cox for not knowing the law. We expect judges to know the law. The Texas Supreme Court unanimously said Cox was absolutely wrong on the law, writing,"Texas law provides a ready answer" to the dispute between Cox and the county and that answer is what our elected county commissioners and County Judge Mark Henry have said from the beginning. Me and others pointed out over a year ago that Cox could not just sue Mark Henry and that he should have sued all of the county commissioners to even qualify for the relief he was seeking. The commissioners, such as Ken Clark, are our elected officials who voted on the court administration position Cox was complaining about. A first year law student would have known that Cox had not sued necessary parties and the Texas Supreme Court agreed. Cox did amend his petition to sue all the county commissioners (although they were not served), but only after the trial court had ruled and the case was appealed, which was too late for the Supreme Court.
Twice, Judge Cox in this dispute over the firing of Ms. Quiroga issued his own court orders against Mark Henry even though there was no pending lawsuit. Stop and think how scary and un-American that is. A judge does not hire a lawyer and file a case to be heard in fairness by another judge, but instead issues his own orders against his political foes, which makes him his own judge in his own case. That is not something one expects in the United States and it clearly violates constitutional principles of fairness and due process. Finally, even Cox realized he need to proceed through normal legal channels and he filed the lawsuit against Mark Henry, which he has now dismissed.
I am not criticizing Cox for what he does in his own courtroom as a judge (except when he issues his own orders without a pending case that benefits himself), but rather what he has done as a petty, mean spirited, dishonest politician. I am criticizing Cox as a litigant for pursuing a frivolous claim that has convulsed county government and wasted so much in tax payer dollars. I may be a lawyer and Cox may be a judge, but I am confident I can call out "liar, liar pants on fire" when any politician tries to fool the public and excuse his ridiculous behavior with half-truths and distortions.
Click here to read an interesting article on the constitutional right lawyers have to criticize judges (within certain limits).
I am also criticizing Cox for being a political bully.
I remember when Lonnie Cox ran for judge as a Democrat and spoke at black churches and union halls where he told his audiences what a good Democrat he was. But, the political winds shifted and Cox was one of the first Republicans elected county-wide. Cox is now considered the "God Father" of local GOP politics (in a "don't dare cross Don Corleone" kind of godfatherly way). Cox cannot stand that some of his fellow judges have not gone along with his tactics and he has recruited primary opponents for some. For example, Cox has talked a young lawyer, who works in Houston and who has ZERO criminal law experience, to run against Judge Patricia Grady (who hears important felony criminal cases) just because Judge Grady did not agree with Cox's fight against the county commissioners.
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Judge Lonnie Cox and Judge Michelle Slaughter pose with former Houston mayoral candidate Bill King, whose daughter has been recruited by Cox to run against Judge Patricia Grady.
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I am not the only person to have called Cox a bully. Here is what Friendswood Republican attorney Byron Fulk told the
Houston Chronicle in 2012:
Mr. Fulk is a respected Republican lawyer who runs the Friendswood Community Prayer Breakfast.
Click here to read the entire
Houston Chronicle article on Cox.
Our three Republican county court at law judges, Barbara Roberts, Jack Ewing and John Grady, dropped out of the fight with county commissioners and made their own peace months ago so that they could focus on fairly running their courts and not picking wasteful political fights. In fact, Cox actually filed a motion with the Supreme Court to prevent Judges Roberts, Ewing and John Grady from cooperating with the county commissioners to create their own office of county court administration.
Click here to read the motion filed by Cox to prevent the orderly and lawful cooperation among elected officials to partially resolve the dispute.
Click here to read Mark Henry's reply to Cox's motion, which includes a letter signed by the three county court at law judges. The Supreme Court rejected Cox's motion, so the county court at law judges were able to proceed with their compromise with the county commissioners. These filings to stop a reasonable settlement by judges no longer willing to follow Cox's lead show Cox was only out to cause conflict and not really resolve the problem. Now that Cox has dismissed his lawsuit, the district judges can hopefully take advantage of the court administration department the county created for them and surely our elected leaders can agree on the salary for the head of that department.
A few judges are scared of Cox politically and a few think they owe their political careers to Cox. Now, over half of our elected, Republican judges in Galveston County are willing to not follow the misguided leadership of Judge Cox. It is time that everyone stood up to Cox. I am a lawyer who practices mostly in Galveston County, so calling out Cox for what he is doing may involve some risks for me, but it is something everyone who cares about honest, efficient, common-sense government should do.
My Republican neighbors in Friendswood, where I live now, and in League City, where I lived for so long and raised a family, should not be fooled by Cox's attempts to deceive them. Their elected County Judge and County Commissioners won this case, but only after being forced to spent about $1.3 million of tax payer dollars to defend this frivolous lawsuit filed by Cox for the wrong reasons against the wrong defendant. The county's legal fees do seem high to me (I am a divorce lawyer who charges by the hour), but the county had to hire a high powered law firm to win a case before the Supreme Court (and boy, did their expensive lawyers kick ass!). None of those attorney's fees would have been incurred by the county if Cox had not filed his frivolous lawsuit which he has now dismissed after his big defeat before the Supreme Court.
The voters should read the words of their Texas Supreme Court and not believe the self-serving, misleading claims of Lonnie Cox.
Click here to read the full Supreme Court decision, which easily resolved the dispute between Cox and Mark Henry just as Mark Henry and county commissioners suggested.
Meanwhile, the battle between Cox and Mark Henry will go on, since Cox is running against Mark Henry in the 2018 GOP primary for County Judge, even though Cox was just re-elected district judge last year. Judge Cox has decided he does not have to give up his bench to run against Mark Henry and now he is wearing two hats - sitting judge hearing cases and politician seeking election to run the county government. I am sure I will have more to say about that fight in future editions of this newsletter.
Disclaimer: I am friends with folks on both sides of this controversy, including the few judges who still support Cox, and the judges who disagree with him (and a few who are too scared to do so in public). I am friends with Bonnie Quiroga who was fired and also with Mark Henry who fired her (I have represented Henry in the past). Judge Michelle Slaughter, for example, still agrees with Judge Cox and I gave her the first big contribution of her original campaign to run for judge. I have helped the campaigns of most of our Republican judges and I agree with them on most issues. I just disagree as a person, a citizen and a lawyer with this mess Cox created and I am repulsed by his attempts to deceive the voters about what he has done.
Again, I am writing as a concerned citizen about a very important public policy issue that is now a political controversy. I am criticizing Lonnie Cox for what he has done as a litigant and a politician. Except for trying to issue his own order for himself against Mark Henry when there was no pending case, I am not attacking Cox for his actions in his role as a judge hearing cases in his own court. Until the voters or some other authority removes Cox from office, he is due respect when he puts on the black judge's robe and hears cases in his courtroom. I just know that Judge Cox in his own court would never tolerate for a second a litigant before him who filed a frivolous lawsuit, who tried to twist the facts and the law, who refused to settle, who caused the defense to spend $1.3 million fighting the lawsuit and who then just dismissed the entire case as soon as he lost in the Supreme Court. That is lawsuit abuse plain and simple. Judge Cox would not put up with that behavior from a litigant in his court and neither should the voters of Galveston County. We should expect more from our judges.
