Legally Speaking: Presiding Over the Court of His Own Opinions

John G. Browning Apr. 1, 2009, 1:56pm

Dallas Judge C. Victor Lander recently ignited a firestorm of controversy over some of his writing – not a ruling or a judicial opinion, mind you, but rather a newspaper column that the judge writes on the side.

Lander, a full-time municipal judge for the last 12 years (and the administrative judge who has overseen Dallas' municipal courts for the last 10 months), has dabbled in journalism by writing a column for Dallas Weekly, a newspaper with a primarily African-American readership, since sometime in 2004 or 2005.

In a March 4, 2009, column in which he praised the work of Dallas County District Attorney Craig Watkins, Judge Lander wrote that "black folks have been cleaning up white folks' messes for hundreds of years, so why should we expect any different now?"

The comments set off a deluge of criticism and garnered nationwide media attention. Dallas City Council member Mitchell Rasansky called for Lander's resignation, and stated "I am extremely offended and hurt by these unwarranted comments."

Other city leaders sprang to Lander's defense, including Deputy Mayor Pro Tem Dwaine Caraway and Dallas City Council member Angela Hunt. Hunt praised Lander's judicial work and said the judge was "new to having this much focus on his words. He needs to be more thoughtful in the future, and I'm hopeful he'll clarify his statement."

After a meeting with Mayor Tom Leppert, Judge Lander apologized for the comments, and said that while he doesn't plan on stepping down from the bench, he will no longer write his Dallas Weekly column.

On March 27, Lander said "I just want to make sure the things I say are not misconstrued again, therefore, I'm going to suspend with my column. That does not mean I'm going to be silent. But I believe it is in the best interests of all concerned if I communicate on issues dealing with the municipal courts and improvement of the processes there."

At the same time, however, Lander and a number of members of the media took exception to the controversy over both the specific comments and Lander's writing an opinion column in general. Dallas Morning News columnist Steve Blow professed to be "more bothered by Rasansky's overreaction," and wrote that "I understand that Lander, a black judge, was writing for a black audience, and we simply talk differently when we're communicating within our own ethnic or cultural groups."

My editor at DCEO Magazine, Glenn Hunter, wrote on D's Frontburner blog that Councilman Rasansky should "[g]et a grip," that "Lander may even be right," and that the judge's comments were protected free speech.

For his part, Lander seems to agree, claiming that he views his column as separate from his work as a judge.

"While we do serve as judges, we maintain our independence," he told the Dallas Morning News. "We are still members of the community, and we are persons who have a duty and responsibility that if you see wrong, you try to right it."

But Judge Lander gets no free pass from me.

First of all, the media have treated what Lander now calls a "flippant, throwaway line" as an isolated incident. What the papers do not tell you (out of a hyper-concern for political correctness or journalistic laziness, I'm not sure which) is that Judge Lander is no stranger when it comes to incendiary comments.

In a July 2007 commentary about the Jena 6 incident, he wrote "Jim Crow is alive and well, and living next door. If you're white you can pull a shotgun on someone and walk free. If you're black and in a school fight you face 80 years in prison."

More recently, in a Feb. 28 column defending President Obama's controversial former pastor Jeremiah Wright, Lander warned African-American readers "to be forever suspect of the mainstream media," saying that "the only place you will get the truth is from your own people" (Glenn, Steve – that leaves you out).

In a January column, Judge Lander also called for the criminal prosecution of former President George W. Bush and members of his administration, saying that he could forgive them, "but not until they are tried and convicted. It's only fair."

Now that W. has moved back to Dallas, he'd better be careful not to get a traffic ticket: the ol' "innocent until proven guilty" concept appears to be a new one on Judge Lander.

Not that the judge seems to have the highest opinion of what goes on in other courts – in a recent column, he wrote about a young man named Brian Steen "who got caught up in the blatant racism that was the essence of the Dallas County District Attorney's office before Craig Watkins took over."

Evidently of the strong opinion that Steen had been wrongfully convicted, Judge Lander freely took other courts to task, asking why Steen was "still locked up after a sham trial in 2004 when there were no black people on the jury," and "why did the Court of Appeals deny [Steen's] appeal?"

Clearly, racially charged commentary along the lines of his "white folks' messes" column is nothing new to Judge Lander, and his protestations about one line taken out of context ring hollow when you look at his body of work.

But even more disturbing to me is the fact that these kind of comments are authored by a sitting judge in the first place. The very freedom of speech in which members of the media have rushed to enshroud Judge Lander is not without its limitations. Judge Lander can write all the politically and racially controversial columns he wants, and he can be a judge – but he can't do both.

Canon 2(A) of the Texas Code of Judicial Conduct provides that "A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

In addition, Canon 4 mandates that "A judge shall conduct all of the judge's extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge."

Canon 3(b)(6) forbids a judge from showing bias or prejudice in his words or conduct. A judge must avoid not just actual wrongdoing but even the "appearance of impropriety," and he or she is prohibited by Canon 2(B) from using the prestige of judicial office to pursue "private interests."

Just how confident would white lawyers or white defendants be of getting fair and impartial rulings in Judge Lander's courtroom in light of the kind of comments he's made in his column?

How are these kind of inflammatory statements consistent with the goal of preserving the integrity of the judiciary?

How does criticizing the rulings of other courts promote public confidence in our justice system?

Although Judge Lander claims that airing such views are independent from his role as a jurist, then why is his column entitled "View from the Bench?"

A complaint has reportedly been filed against Judge Lander with the State Commission on Judicial Conduct, and rightfully so.

In this column, I have written about white judges who have been disciplined by the Commission for racially insensitive comments, and if justice is truly to be not just blind but color-blind, Judge Lander must be held accountable for his comments just as a white judge would be if he had made racially charged comments about "white people cleaning up black people's messes."

The sort of remarks Judge Lander has made over the years in his column have, if anything, potentially greater power to erode public confidence in the impartiality of the judiciary, for they have been made not in a courtroom before only a few litigants and attorneys, but to a reading audience of thousands in a column bearing the trappings of his office through the title "View from the Bench."

A judge can have a bench that is, and is perceived as, independent and impartial, or he can have the bully pulpit that is a political opinion column. He can't have both.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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