Yesterday Kelly Case, Judge of the 9th District Court in Montgomery County, Texas, found the remainder of Section 33.021 of the Texas Penal Code unconstitutional, and dismissed the case against a defendant charged with that crime. ((You can stop calling and emailing to tell me about it. I was there.))
Scared White Republican Voters are up in arms. Phil Grant is up in arms. ((To hear Phil Grant tell it, you would think that Montgomery County is a hotbed of pedophilia. Why is that? Are the SWRVs who flee the scary diversity of the city for the scared whiteness of MoCo especially prone to kiddy diddling?))
Judge Kelly Case and prosecutor Phil Grant both took the same oath: to preserve, protect, and defend the Constitution and laws of the United States and of this State. In holding the remainder of Section 33.021 unconstitutional, Case kept his oath. In his criticism of the decision, Grant calls into question his ability to keep his own oath.
Section 33.021 is a content-based restriction on speech. A content-based restriction on speech is presumptively invalid. Unless the State shows that the statute meets strict scrutiny — that it is, that it is narrowly tailored to further a compelling governmental interest, a judge is bound by his oath to find it unconstitutional. Absent any authority binding him to hold the statute constitutional, Judge Case was bound by oath to do what he did yesterday.
There should be nothing special about a district court judge holding a statute unconstitutional. It should happen regularly. Constitutions trump statutes, and appellate courts have found three Texas statutes unconstitutional under the First Amendment in the last two years alone. ((District judges have held another two statutes unconstitutional; three including 33.021(c).)) Yet when Judge Case follows his oath to defend the Constitution, people are surprised. Phil Grant gnashes his teeth, and the defense bar cheers.
There is a word for a judge who violates his oath to defend the Constitution. That word is corrupt. A judge who fails to defend the Constitution, for fear of losing his job or for hope of pecuniary gain or for any other reason, is a corrupt judge.
A judge who takes into account the wishes of the voters or of prosecutors in deciding not to hold a statute unconstitutional is as corrupt as a judge who takes money to rule a certain way. It avails the corrupt judge nothing to say that he would have ruled the same way regardless of the corrupt influence.
I can count on one hand the Harris County judges who are willing always to do the right thing despite how it will look to the voters. To most of my judicial readers: what’s it like, being corrupt? How does it feel to know that I know that you’re corrupt?
Judge Case is not corrupt. Phil Grant wishes Judge Case were corrupt, and rants against Judge Case because Judge Case is not corrupt and does not subordinate his oath to reelection. Phil Grant would incite corruption in the judiciary. Phil Grant wants to be a judge himself. Because of his visceral reaction to Judge Case following his oath, we can safely assume that when Phil Grant is judge he will relegate his own oath.
The Montgomery County Criminal Lawyers Association responded to Phil Grant’s statements in the Conroe paper. Here’s my favorite bit:
if Mr. Grant is incapable of protecting the children of Montgomery County without the help of unconstitutional statutes, then he is incapable of keeping his own oath, and is unfit to be either a prosecutor or judge.
Can you not see the problem here, Phil?