A growing number of lawyers are sharing the concern that possibly hundreds of orders signed by former Associate Judge Robert Newey may be void and unenforceable because he had already hit the mandatory retirement age for judges when Judge Denise Pratt first appointed him to be her Associate Judge.
I think that orders Judge Newey signed that were not also signed by Judges Pratt or Franklin are unlikely to be declared void. All orders signed by Judge Newey are presumed valid until a court rules otherwise.
However, some very smart lawyers have looked at a draft of this article and they feel there is a realistic chance that orders signed by Newey could be ruled void. That could create a huge mess, at least for the relatively small number of orders Newey signed which Pratt or Franklin did not also sign.
At the very least, this matter raises several vexing issues that need to be answered to avoid future situations where a judge takes office who is not qualified by law for the position.
Here are the facts, which I verified by talking to David Farr and Robert Newey:
Bob Newey was born on October 28, 1935. He turned 75 on October 28, 2010. Newey became Judge Denise Pratt's Associate Judge in January 2011 after his 75th birthday. Newey became Judge Alicia Franklin's Associate Judge on June 17, 2014, after his 75th birthday, but during Pratt's original four year term. Judge Newey retired in December 2014.
When Denise Pratt suddenly resigned in March 2014, Administrative Judge David Farr found himself dealing with a true crisis and a court that was totally screwed up in many ways. It made sense to keep Judge Newey on for the sake of continuity. However, Judge Farr knew Newey was already 75 and he had the staff attorney who works for the judges research the issue. Farr actually re-swore Newey right after Pratt's resignation and then fired and re-hired him twice because of concerns over his age and because of the varying legal advice Farr was receiving. However, Farr and everyone else involved assumed that Newey turned 75 after he became Pratt's Associate Judge. Farr says he never imagined that Pratt would hire someone who was already ineligible.
In the end, the legal advice Farr received concluded that Newey could finish out Pratt's four year term because it was assumed he had turned 75 during that term. Apparently no one asked Newey what his birth date was until this month. So, Alicia Franklin was told it was okay for her to hire Newey as her A.J. and she did. Franklin required Newey to retire at the end of what would have been Pratt's original four year term based on the legal advice she was given.
It was not until this month when a lawyer warned Farr that there was a potential explosive legal issue involving Newey's age. Farr then called Newey and realized for the first time that Newey had turned 75 before he even took office.
Obviously, Bob Newey knew when he turned 75 and he clearly in the Spring of 2014 knew how very concerned Judge Farr and others were about whether he was eligible to serve as a judge. However, Newey says no one asked him when his birthday was and no one every mentioned that when he turned 75 could be a problem. Judge Newey never hid his birth date and it is all over his employment records with the county. It seems very likely that Denise Pratt did not know about the mandatory retirement age for judges in the Texas Constitution.
The Texas Family Code says:
Sec. 201.002. QUALIFICATIONS. (a) Except as provided by Subsection (b), to be eligible for appointment as an associate judge, a person must meet the requirements and qualifications to serve as a judge of the court or courts for which the associate judge is appointed.
So, Judge Newey could only serve as the A.J. for a family district court if he had the qualifications to be a family district judge. It does not matter that he was actually employed by Harris County - he had to meet the State's qualifications for a district judge.
The Texas Constitution, Article 5, Section 1-a says:
Sec. 1-a. RETIREMENT, CENSURE, REMOVAL, AND COMPENSATION OF JUSTICES AND JUDGES; STATE COMMISSION ON JUDICIAL CONDUCT; PROCEDURE. (1) Subject to the further provisions of this Section, the Legislature shall provide for the retirement and compensation of Justices and Judges of the Appellate Courts and District and Criminal District Courts on account of length of service, age and disability, and for their reassignment to active duty where and when needed. The office of every such Justice and Judge shall become vacant on the expiration of the term during which the incumbent reaches the age of seventy-five (75) years or such earlier age, not less than seventy (70) years, as the Legislature may prescribe, except that if a Justice or Judge elected to serve or fill the remainder of a six-year term reaches the age of seventy-five (75) years during the first four years of the term, the office of that Justice or Judge shall become vacant on December 31 of the fourth year of the term to which the Justice or Judge was elected.
The Texas Legislature has not set the mandatory retirement age for judges, so the Constitution's age 75 limit is in effect. The statute on the qualifications to be a district judge merely sets the minimum age at 25 but does not say a judge cannot serve past the age 75. Gov't Code, Sec. 24.001 ("A district judge must be at least 25 years old").
So, what is the effect if a sitting judge does not have the constitutional qualifications to be a judge? There is no appellate case on a judge taking office after age 75, past the age when judges are allowed to serve by the Constitution (which is what the staff attorney told Judge Farr in the Spring of 2014). There is no law on the subject and the Texas Constitution only addresses a judge turning 75 during his or her term. However, there is a case involving a judge who failed to take the oath of office required by the Constitution. In
French v. State
, 572 S.W.2d 934 (Tex. Crim. App. 1978), the highest criminal court in Texas noted that the Texas Constitution requires judges to take an oath. The court held that any act by a judge who did not take the oath of office is void. "We are not dealing with the rights of a de facto judge but, rather, which right depends upon the taking of the oath of office prescribed by the Constitution, constituting a condition precedent to his right to act in that capacity."
So, if an order signed by a judge who did not take the constitutionally required oath of office is void, is an order signed by a judge who was past the constitutionally mandated retirement age of 75 when he first took office void? No one knows and my bet is that the orders will not be found to be void. Everyone, except maybe Judge Newey, assumed Newey had the legal qualifications to serve as Associate Judge and it looked to the world like he was an associate judge and he performed that office's functions. Were it not for the French case, cited above, it is likely that Judge Newey would be considered a "de facto judge" and thus his actions could not be collaterally attacked. In
Ryder v. U.S.
, 115 S.Ct.2031, 515 U.S. 177, 132 L.Ed.2d 136, (1995) the Supreme Court noted that the "de facto officer doctrine" confers validity upon acts performed by a person acting under color of official title even though it is later discovered that the legality of that person's appointment or election to office is deficient." At least one Texas case has followed the "de facto officer" doctrine.
Pyote I.S.D. v. Estes
, 390 S.W.2d 3 (Tex. Civ. App. - El Paso 1965, writ ref'd n.r.e.).
The problem is that the
case held that a "judge" who did not meet the condition precedent for being a judge is not a "de facto" judge. The Texas Constitution, Article V, Sec. 1-a says when judges must retire and declares their offices vacant at the expiration of the term during which a judge turns 75. The provision does not explicitly say that a judge who is already age 75 cannot take office, whereas the Constitution does require every judge to take an oath of office (I am requesting verification that every family associate judge in Harris County since 2010 has signed an oath of office). However, if a judge cannot serve past age 75 (or at least past the end of the term during which she turns 75), it is clearly implied that a judge who is already 75 cannot take office.
Any appellate court would want to desperately find some way to avoid invalidating the many orders Judge Newey signed, so my bet would be that some loop hole would be found to avoid a result that voided divorces and terminations and adoptions and changes of custody and increases of child support and contempt actions and monetary judgments.
The good news is that Pratt seldom let Judge Newey do that much on his own and she required that most of his orders be approved and signed by her (which at the time was one of the many complaints we all had about her). Alicia Franklin wisely decided to also sign almost every order Judge Newey signed. So, there are probably not that many orders that bear just Newey's signature. But, there are some and apparently lawyers are working on motions and maybe a mandamus to challenge whether those orders are void.
I predict (and hope) that orders signed by Judge Newey will ultimately not be declared void, but that begs the questions about how this happened in the first place and who checks to make sure judges are eligible to serve when they are elected or appointed.
Who has verified that our current group of Associate Judges are eligible to serve? They all appear to be over age 25 and under 75, but perhaps A.J.'s should provide birth certificates and proof of residence just like a school kid does when starting at a new school (shot records should not be required).
Finally, a word on Bob Newey. Despite what articles in this newsletter might make it appear, I am a big Newey fan. To know Newey is to love him. The more you know about him and the service he provides the community and his deep faith, the more you respect and like him. I never had problems with him as a lawyer in his court. But, as a pseudo-journalist, I have written articles that have made him squirm. Judge Newey was gracious enough to take me to lunch after one article and we truly enjoyed ourselves. I can only hope in 20 years I am as active and able as he is now. If anything, Bob Newey shows that some judges can serve capably and well past the arbitrary age of 75.
This article is not an attack on Bob Newey, but rather an effort to share pertinent information and ask questions that need to be asked. Lawyers are already talking about this problem and I understand some are researching motions and appellate filings based on the argument that his orders are void. However much we respect Judge Newey, this is an issue that needs to be out in the open and discussed. We can all understand that Judge Newey felt he was capable of serving as a judge and could really help after Pratt resigned, but he clearly knew when he turned age 75. Newey feels that it is the employer's duty to determine if a new hire is eligible for the job and he points out that no one ever asked about when he turned 75 until this month.
No one told Newey he was not eligible back in January 2011 or even raised that possibility and it is not 100% certain even now that he was disqualified from serving as an A.J. Yet, Newey, by the Spring of 2014, knew all about the concerns regarding his eligibility to serve based on the mandatory retirement age of 75 in the Texas Constitution. Judge Farr and others just assumed Newey turned 75 after he became Pratt's A.J. because they just did not think anyone would have taken the post after the time the Constitution says they cannot serve. As much as everyone wanted Newey to stay and help clean up the mess in the 311th, Newey in retrospect should have declined the offer or at least made sure everyone knew he had been 75 all along and let others make the call. Someone should have verified that Newey was eligible to be an A.J. when he was first appointed in January 2011.