Protect Plano

In this Facebook post you'll read Ben Smith admitting he was approached by "several interested parties trying to argue the merits of thier case". Ben Smith then admited to a third party that "he wouldn't like it if A21 (similar to PTP lawsuit), was forced on his community". Therefore he allowed these ex parte conversations to influnce his judgment in violaiton of the Texas Code of Conduct. 

This is the "Order of Assignment" by Judge Wheless ordering Judge Wade to hear cases in Judge Smith's 380th court for one day. This happens to be the one day the PTP lawsuit was to be heard by Smith. This order DOES NOT transfer the PTP lawsuit to the 366th court. This has been a common misconception spread by Smith and his supporters. 

This is the letter from the Plaintiff's attorney to Judge Smith demanding full disclosure as to the parties that engaged in the illegal ex parte conversations with Smith. This letter was officially recorded with the case; Smith has never responded to this official request.

This is a personal account of an attorney who was present at the court house and had intended to attend the PTP hearing. 

I was present at the courthouse the morning of the hearing. Like many who have posted here, I am very interested in the lawsuit regarding the right of the citizens of Plano to vote on something as important as the blueprint for the future of their city. I drove out to McKinney the morning of the hearing looking forward to watching the arguments and watching the next step in this long arduous battle. Since I was only an observer, I had no reason to arrive early, so I appeared at the 380th court at 8:50; ten minutes before cases were scheduled to be heard. When I entered the court, I saw one of the plaintiffs, who was also waiting inside. I did not see attorneys for either party in the courtroom, so I assumed they had stepped inside a conference room to attempt last minute negotiations. The bailiff was very busy at the time, calling people up to meet with him to review and correct paperwork. He had the gate closed so that he could not be approached, and he was calling various people up to meet with him. Eventually, some time after 9 am, Judge Smith finally entered the courtroom, and called a case to start. At this point I still assumed that the attorneys were attempting settlement and the court had chosen to begin the next case on the docket. When finally the bailiff opened the gate and came out into the gallery, I quietly asked him if the attorneys for the PTP suit were in conference. He stated "Oh, I'm sorry, that case is being heard next door." I quickly grabbed the plaintiff sitting in the courtroom and we went to the 366 in time to see everyone packing up. It is my understanding from more recent discussions that a reporter for Empower Texas was also sitting in the wrong courtroom. We had all carefully checked and there was absolutely no notice that the case was not being heard in the 380. Words cannot describe how angry and disappointed I was at having driven all that way and completely missed the hearing.

After the hearing, I talked with the plaintiffs' attorney, Jack Ternan. He explained that he was in the 380 about a half hour early, as one would expect for the attorney of record. As soon as the bailiff entered the courtroom, Ternan checked in, as you noted that attorneys know to do. At that time, the bailiff stated, Oh, that case was moved over to the 366, and Ternan had to quickly pack up and move over to the other courtroom. He was able to grab some of the plaintiffs who were in the hallway waiting. After hearing that the location of the hearing was a surprise to Ternan as well, we were all very curious how the case ended up being in the 366. We had previously checked the electronic record and there was nothing in the record to show that the case had been, as you say, transferred to the 366. The order from Wheless that you refer to as a transfer order was not at that time entered into the court record. There was absolutely nothing that would have let us know the case had been moved to another court room. Even after the hearing, the electronic case record still showed the case assigned to the 380, and in fact, the judge for the 380 was in his court at the appointed time hearing cases. It was at the time a complete mystery as to how the case was transferred. It was a mystery to me that the bailiff had not at least announced that the case was moved to another court so that the parties and those observing the case could move to the correct court, especially since the court record still reflected the case being assigned to the 380.

I later read a Facebook post from Judge Ben Smith in which he stated that the transfer of the case to the 366 was posted on some bulletin board in the judges's chambers. After I got over the shock that a judge was commenting on the details of a case in his court on a public forum like facebook, I tried to understand what had happened. I don't have 34 years of experience as you do, but I do have 19 years of experience as an attorney, and have been in the Collin County Courthouse many times. Yet I have never heard of this super secret bulletin board on which little slips of paper are posted that transfer cases--at least that is how I recall it being described in Judge Smith's post. Being one to have an open mind, I thought this might be something I just had not come across. So I called a number of attorneys I know, and they too were not familiar with this super secret bulletin board with transfer notices posted. Furthermore, we all scratched our heads wondering how a system like that would work. If the court clerk records showed the case assigned to the 380, how would the public know the location of the case if transfers were posted on a secret bulletin board in the judges chambers?  

As the very public discussion ensued on Judge Smith's facebook page, I was again startled at the very thought that a judge would be discussing in a public forum the details of a case over which he still held plenary power. At the time, and for weeks after the hearing, the case had not, as you suggest, been transferred to the 366. In fact, the case was not, nor has it ever been, transferred to the 366. Weeks after the hearing, the case was transferred to a new court, but not he 366. At the time that Judge Smith was posting comments about the case on his facebook page, the case was still assigned to Judge Smith's court. Even if the case were no longer assigned to his court, he had presided over the case for 3 years, and I am still shocked to think that he was discussing issues in that case on facebook. But I digress. Eventually Judge Smith posted in a comment that a number of people had talked to him about the case and he had eventually felt uncomfortable hearing the case. Judge Smith indicated that such content made him feel the need to recuse himself, so he had the case transferred to the 366.

After Ternan was made aware of Judge Smith's public post that he felt the need to be recused, Ternan filed a formal request for an explanation from Judge Smith. Ternan followed appropriate procedure by filing the letter with the court clerk and having all counsel of record receive eletronic notice. Ternan has to date never received a response. Ternan asked for disclosure of the parties that had made ex-parte contact.

After Ternan filed the formal request, an electronic record update was posted by the court clerk, in which the order dated September 13, 2019 appeared in the court record. The order, which you refer to as a transfer order, assigned Judge Wade to the 380 for one day, being the day that the PTP lawsuit happened to be heard. However, Judge Smith was actually hearing cases in the 380. Therefore Judge Wade was apparently hearing cases in the 366th. I see nothing in the "transfer order" that transferred the PTP lawsuit to the 366. If the order appointed Wade to the 380, but Smith was hearing cases in the 380, how was the decision made as to which cases Wade would hear? You are correct that cases are transferred fairly frequently, but normally that would be due to case overload, vacations, etc. In this instance, though, Judge Smith in his own words stated that he felt the need to be recused from the PTP case. If he had a conflict of interest so great that he had the need to be recused, again in his own words, then how would he be able to have a say in who then heard the case? Should not the case have been randomly reassigned to another court? Why did Judge Smith retain plenary power? Smith continued to be reflected as the presiding judge for the PTP case until weeks after the hearing!. How can a judge who feels the need for recusal be the person who determines which court will then hear the case. Please review the order dated Sep. 13 (which did not appear in the court records until some time after the hearing on the 19th) and explain to me where there is a transfer of the case out of the 380.

Ternan, who is the attorney for the plaintiffs in the PTP case, considered the options he considered best for his clients and appealed the matter some time ago. I am confident he will continue to represent the plaintiffs' interests as well as he has for the last 3 years that brought the case to the Texas Supreme Court for a plaintiffs' win twice. Reading all the Facebook posts, the plaintiffs and many citizens are very disappointed and angry that Smith passed off their case, that there was no notice TO THE PLAINTIFFS AND THE PUBLIC noting that the case had been transferred, and in fact there is no such transfer order. At this point in time, we do not know all that happened. However, the appearances of impropriety are obvious. Judge Smith commented that he felt the need to be recused, but yet the record does not contain a recusal. Judge Smith claims the case was transferred to the 366, but there is no record of such a transfer. There is only an order appointing a visiting judge for one day to the 380. Instead there was a visiting judge in the 366. Questions remain as to how the decision was made that it would be the PTP case that was transferred to the 366. Judge Smith was asked to provide an explanation to the plaintiffs, but to date has not responded to this request. Hopefully the actual facts will help you to understand why many people feel that they would not want to support or vote for a judge whose actions have such an appearance of impropriety