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Case Name Willey v. Ewing PD-TX-0002
Docket / Court 3:18-cv-00081 ( S.D. Tex. )
State/Territory Texas
Case Type(s) Criminal Justice (Other)
Indigent Defense
Attorney Organization Civil Rights Corps
Case Summary
On March 19, 2018, a criminal defense attorney in Galveston, Texas, filed this lawsuit in the U.S. District Court for the Southern District of Texas. He sued a Galveston County Court judge under 42 U.S.C. § 1983. The plaintiff, represented by the Civil Rights Corps, requested declaratory and ... read more >
On March 19, 2018, a criminal defense attorney in Galveston, Texas, filed this lawsuit in the U.S. District Court for the Southern District of Texas. He sued a Galveston County Court judge under 42 U.S.C. § 1983. The plaintiff, represented by the Civil Rights Corps, requested declaratory and injunctive relief together with attorney's fees. He claimed that the defendant judge had retaliated against him for speaking out against abusive practices in the Galveston County criminal justice system in violation of his First Amendment rights.

According to Muting Gideon's Trumpet: The Crisis in Indigent Criminal Defense in Texas, indigent defendants in Texas struggle to obtain competent representation. Judges frequently appoint defense lawyers based on their reputations for moving cases along quickly, personal friendship, or political support. In the early 21st Century, the state adopted the Texas Fair Defense Act (TFDA) to standardize how courts appoint lawyers for indigent defendants. Under TFDA, judges appoint the lawyer whose name appears at the top of a rotating list.

The plaintiff provided criminal defense services to indigent defendants in Galveston, Texas. The defendant judge appointed him to represent several indigent defendants under TFDA. In one case, the plaintiff hired a third party investigator to interview witnesses. In others, he challenged the constitutionality of jailing defendants who could not afford bail. Later, the plaintiff complained to the Texas Indigent Defense Commission about several abusive practices in the Galveston criminal justice system.

The relationship between the plaintiff and the defendant judge quickly broke down. The complaint alleged that the defendant judge refused to authorize the plaintiff to spend funds he requested for additional investigators. The judge also cut back on the plaintiff's compensation, citing the plaintiff's "excessive out of court hours." Eventually, the defendant judge removed the plaintiff from all but one of his cases and, with one exception, stopped assigning him to new cases.

In response, the plaintiff filed this lawsuit against the defendant judge for retaliation in violation of the plaintiff's First Amendment rights. The defendant judge promptly moved to dismiss the case. First, he argued that the plaintiff lacked standing to bring a claim on behalf of indigent defendants. Second, he argued that the complaint was too vague and speculatory to state a claim for retaliation.

On December 17, 2018, Magistrate Judge Andrew M. Edison issued a report and recommendation granting in part and denying in part the defendant judge's motion to dismiss. Judge Edison rejected the defendant judge's argument that the plaintiff lacked standing as "predicated on an inaccurate summation" of the complaint, which alleged harm to the plaintiff rather than the plaintiff's clients. He also found that the plaintiff had properly pleaded the elements of a First Amendment retaliation claim: (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the public interest in disclosure outweighed the defendant's interest in efficiency; and (4) the speech was a substantial factor in the adverse employment action.

Nevertheless, Judge Edison recommended that the plaintiff's claims for injunctive relief and attorney's fees be dismissed under Davis v. Tarrant. In Davis, the Fifth Circuit held that appointing an attorney under TFDA is a judicial act, so judges enjoy broad immunity from suits brought under § 1983 for violations of TFDA. District Judge George C. Hanks, Jr. signed an order adopting the Magistrate's recommendations on January 24, 2019.

The plaintiff pressed on with his claim for declaratory relief. On April 4, 2019, the parties notified the court of third party mediation and soon reached a settlement. The settlement provided that:
  • Both parties would follow the TFDA and Galveston County Indigent Defense Plan;
  • The plaintiff's obligations would be contingent on his continued acceptance of appointments; and
  • The defendant judge would not admit any wrongdoing.
Judge Hanks entered an order directing the parties to agree to the terms of the settlement agreement on April 22, 2019. The case is now closed.

Related Opinions:
2018 WL 7115180
2019 WL 313432

Timothy Leake - 05/26/2019


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
General
Access to lawyers or judicial system
Courts
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) Judge
Plaintiff Description Criminal defense lawyer who represented indigent defendants in Galveston, Texas.
Indexed Lawyer Organizations Civil Rights Corps
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Filed 03/19/2018
Case Closing Year 2019
Case Ongoing No
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Galveston County, TX: Judicial Interference
http://www.civilrightscorps.org/
Date: Apr. 22, 2019
By: Civil Rights Corps
[ Detail ] [ External Link ]

  His Clients Weren’t Complaining. But the Judge Said This Lawyer Worked Too Hard.
https://www.nytimes.com/
Date: March 2018
By: Richard A. Oppel Jr. (The New York Times)
[ Detail ] [ External Link ]

  Securing Reasonable Caseloads: Ethics and Law in Public Defense
Date: 2011
By: Norman Lefstein (Indiana University--Indianapolis Faculty)
Citation: (ABA 2011)
[ Detail ] [ External Link ]

  Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel.
Date: Apr. 14, 2009
By: National Right to Counsel Committee (The Constitution Project)
Citation: National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel (2009)
[ Detail ] [ PDF ] [ External Link ]

  The Third Generation of Indigent Defense Litigation
New York University Review of Law and Social Change
Date: 2009
By: Cara Drinan (Columbus School of Law, Catholic University Faculty)
Citation: 33 N.Y.U. Rev. L. & Soc. Change 427 (2009)
[ Detail ] [ External Link ]

  Indigent Defense Reform: The Role of Systemic Litigation in Operationalizing the Gideon Right to Counsel
Date: May 7, 2007
By: Vidhya K. Reddy (Washington University in St. Louis Law Student)
[ Detail ] [ PDF ]

  Muting Gideon’s Trumpet: The Crisis in Indigent Criminal Defense in Texas
Prison Policy Initiative
Date: Sep. 22, 2000
By: Prison Policy Initiative
[ Detail ] [ External Link ]

Court Docket(s)
S.D. Tex.
04/22/2019
3:18-cv-00081
PD-TX-0002-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
S.D. Tex.
03/19/2018
Complaint [ECF# 1]
PD-TX-0002-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
12/17/2018
Memorandum and Recommendation [ECF# 26] (2018 WL 7115180 / 2018 U.S.Dist.LEXIS 220109)
PD-TX-0002-0002.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
01/24/2019
Order Adopting Magistrate Judge's Memorandum and Recommendation [ECF# 31] (2019 WL 313432 / 2019 U.S.Dist.LEXIS 11361)
PD-TX-0002-0003.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
S.D. Tex.
04/22/2019
Settlement Agreement [ECF# 35-1]
PD-TX-0002-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Edison, Andrew M Court not on record [Magistrate] show/hide docs
PD-TX-0002-0002 | PD-TX-0002-9000
Hanks, George Carol Jr. (S.D. Tex.) show/hide docs
PD-TX-0002-0003 | PD-TX-0002-9000
Plaintiff's Lawyers Gerstein, Charles L. (District of Columbia) show/hide docs
PD-TX-0002-0001 | PD-TX-0002-0004 | PD-TX-0002-9000
Halperin, Eric I. (District of Columbia) show/hide docs
PD-TX-0002-0001 | PD-TX-0002-9000
Defendant's Lawyers Lowenberg, Michael Jude (Texas) show/hide docs
PD-TX-0002-0004 | PD-TX-0002-9000

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