Case: 3:18-cv-81 As of: 05/26/2019 12:59 PM CDT 1 of 4
CLOSED,MOTREF
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Galveston) CIVIL DOCKET FOR CASE #: 3:18−cv−00081

Willey v. Ewing Assigned to: Judge George C Hanks, Jr Cause: 42:1983 Civil Rights Act
Plaintiff Andrew Willey

Date Filed: 03/19/2018 Date Terminated: 04/22/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Eric Halperin Civil Rights Corps 910 17th Street NW Suite 200 Washington, DC 20006 202−854−1518 Email: eric@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles Lewis Gerstein Civil Rights Corps 910 17th Street NE Suite 200 Washington, DC 20006 202−670−4809 Email: charlie@civilrightscorps.org ATTORNEY TO BE NOTICED

V. Defendant Hon. Jack Ewing

represented by Michael Jude Lowenberg Lowenberg Law Firm PLLC 7941 Katy Freeway #306 Houston, TX 77024 832−241−6000 Fax: 832−241−6001 Email: mike@thetexastriallawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 03/19/2018
03/19/2018 03/20/2018 04/06/2018

# Docket Text
1 COMPLAINT against Jack Ewing (Filing fee $ 400 receipt number 0541−19759518) filed by Andrew Willey. (Attachments: # 1 Civil Cover Sheet)(Gerstein, Charles) (Entered: 03/19/2018)
2 Request for Issuance of Summons as to Jack Ewing, filed.(Gerstein, Charles) (Entered: 03/19/2018)
Summons Issued as to Jack Ewing. Issued summons delivered to plaintiff by First−class mail, filed.(agould, 3) (Entered: 03/20/2018)
3 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 7/31/2018 at 09:30 AM in 7th Floor Courtroom before Magistrate Judge Andrew M Edison(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3) (Entered: 04/06/2018)

Case: 3:18-cv-81 As of: 05/26/2019 12:59 PM CDT 2 of 4

04/09/2018 04/16/2018 05/22/2018 05/25/2018
05/25/2018 06/06/2018 06/13/2018 06/13/2018 06/20/2018 06/20/2018
07/11/2018 07/11/2018 07/20/2018 07/20/2018 07/20/2018 07/26/2018

4 CERTIFICATE OF INTERESTED PARTIES by Andrew Willey, filed.(Gerstein, Charles) (Entered: 04/09/2018)
5 WAIVER OF SERVICE Returned Executed as to Jack Ewing served on 3/23/2018, answer due 5/22/2018, filed.(Gerstein, Charles) (Entered: 04/16/2018)
6 MOTION to Dismiss 1 Complaint by Request of Pre−Motion Conference Letter by Jack Ewing, filed. Motion Docket Date 6/12/2018. (Lowenberg, Michael) . (Entered: 05/22/2018)
7 NOTICE of Setting re: 6 REQUEST for pre−motion conference. Parties notified. Telephone Conference set for 6/20/2018 at 10:15 AM by telephone before Judge George C Hanks Jr, filed. Please call the conference line at 409−763−7801 ten minutes prior to the scheduled hearing. Once you call the number, you will be connected to the meet−me−line; there will be silence so please hold until the Case Manager calls in to connect all parties. Everyone must be on a landline. No cell phones or speaker phones are permitted. If you have a volume control, please be sure that it is turned up. If more than one attorney/party is on the line, for clarity of the record, please state your name when responding to the Court.(agould, 3) (Entered: 05/25/2018)
8 RESPONSE to 6 REQUEST for pre−motion conference filed by Andrew Willey. (Attachments: # 1 Appendix De Luna v. Hidalgo County, Doc. 50)(Gerstein, Charles) (Entered: 05/25/2018)
9 NOTICE of Resetting as to 7 Notice of Setting. Parties notified. Telephone Conference set for 6/20/2018 at 10:15 AM by telephone before Judge George C Hanks Jr, filed. This is to notify the parties of the new conference line call in information. (SusanGram, 3) (Entered: 06/06/2018)
10 MOTION for Eric Halperin to Appear Pro Hac Vice by Civil Rights Corps, filed. Motion Docket Date 7/5/2018. (Gerstein, Charles) (Entered: 06/13/2018)
11 ORDER granting 10 MOTION for Eric Halperin to Appear Pro Hac Vice, Attorney Eric Halperin for Andrew Willey added (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3) (Entered: 06/15/2018)
12 NOTICE of Resetting as to 6 REQUEST for pre−motion conference. Parties notified. Telephone Conference set for 6/20/2018 at 12:30 PM by telephone before Judge George C Hanks Jr, filed. (SusanGram, 3) (Entered: 06/20/2018)
13 Minute Entry for proceedings held before Judge George C Hanks, Jr. At the hearing, the following rulings were made as stated on the record. Telephone conference held on Defendants request for a pre−motion conference. (Dkt 6 . Defendants 12(b) motion is due Wednesday, July 11, 2018, at 5:00 PM.Plaintiffs response is due 21 days after the motion is filed. Defendants reply, if necessary, is due 7 days after response is filed. Appearances: Michael Jude Lowenberg, Eric Halperin, Charles Lewis Gerstein.(Digital # 12:28 pm − 12:42 pm)(ERO:Lorraine Trevino), filed.(ltrevino, 3) (Entered: 06/26/2018)
14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss ( Motion Docket Date 8/1/2018.) by Jack Ewing, filed. (Attachments: # 1 Exhibit Galveston County Indigent Defense Plan)(Lowenberg, Michael) (Entered: 07/11/2018)
15 PROPOSED ORDER of Dismissal Pursuant to Rule 12 (b), filed.(Lowenberg, Michael) (Entered: 07/11/2018)
16 MOTION for Extension of Time Initial Pretrial Conference by Jack Ewing, filed. Motion Docket Date 8/10/2018. (Attachments: # 1 Proposed Order Proposed Order − Adjourn Initial Pretrial Conference)(Lowenberg, Michael) (Entered: 07/20/2018)
17 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Jack Ewing, filed.(Lowenberg, Michael) (Entered: 07/20/2018)
18 CERTIFICATE OF INTERESTED PARTIES by Jack Ewing, filed.(Lowenberg, Michael) (Entered: 07/20/2018)
19 ORDER denying 16 Motion for Extension of Time.(Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3) (Entered: 07/26/2018)

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07/31/2018
07/31/2018
07/31/2018 08/07/2018 10/31/2018 11/01/2018 11/29/2018
11/30/2018
12/17/2018
12/31/2018 01/02/2019 01/14/2019 01/22/2019 01/24/2019

Minute entry for proceedings before Magistrate Judge Andrew M. Edison. Initial conference held on July 31, 2018. The court and parties conferred and the court set out a schedule for the case. The scheduling order will be entered separately. Appearances: Michael Jude Lowenberg, Eric Halperin and Charles Lewis Gerstein. (ERO:Yes), filed. (wbostic, 4) (Entered: 07/31/2018)
20 SCHEDULING ORDER entered. ETT: 5 Days. Bench Trial. Amended Pleadings due by 10/11/2018. Joinder of Parties due by 8/17/2018. Pltf Expert Report due by 2/15/2019. Deft Expert Report due by 3/15/2019. Discovery due by 5/10/2019. Dispositive Motion Filing due by 5/24/2019. Non−Dispositive Motion Filing due by 6/21/2019. Joint Pretrial Order due by 8/26/2019. Docket Call set for 9/6/2019 at 09:30 AM in Sixth Floor Courtroom before Judge George C Hanks Jr. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 07/31/2018)
21 RESPONSE in Opposition to 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss , filed by Andrew Willey. (Gerstein, Charles) (Entered: 07/31/2018)
22 REPLY to Response to 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss , filed by Jack Ewing. (Lowenberg, Michael) (Entered: 08/07/2018)
23 NOTICE of Referral of Motion to Magistrate Judge Andrew Edison re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss , filed. (jegonzalez, 3) (Entered: 10/31/2018)
24 NOTICE of Setting as to 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss . Parties notified. Motion Hearing set for 11/29/2018 at 10:00 AM in 7th Floor Courtroom before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 11/01/2018)
Minute entry for proceedings before Magistrate Judge Andrew M. Edison. Motion hearing held on November 29, 2018. The Court heard arguments on the Motion to Dismiss [Dkt. 14] and the motion is taken under advisement. Appearances: Eric Halperin and Charles Gerstein for the plaintiff Andrew Willey and Michael Lowenberg for the defendant Hon. Jack Ewing. (ERO:Yes), filed. (wbostic, 4) (Entered: 11/29/2018)
25 AO 435 TRANSCRIPT REQUEST by Charles Gerstein for Transcript of Motion Hearing on 11/29/2018 Before Judge Edison. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Trinity Transcription Services, filed. (Gerstein, Charles) ELECTRONICALLY FORWARDED TO TRINITY TRANSCRIPTION SERVICES 12/3/2018 (agould, 3). (Entered: 11/30/2018)
26 MEMORANDUM AND RECOMMENDATION entered. The Court RECOMMENDS that Defendant'sMotion to Dismiss [Dkt. 14] be GRANTED in part and DENIED in part. Specifically, Willey's claims for injunctive relief and attorney's fees under 42 U.S.C. § 1988 should be DISMISSED. The motion should be denied in all other respects. Objections to M&R due by 12/31/2018. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 12/17/2018)
27 OBJECTIONS to 26 Memorandum and Recommendations, filed by Jack Ewing. (Lowenberg, Michael) (Entered: 12/31/2018)
28 TRANSCRIPT re: Motion Hearing held on November 29, 2018 before Magistrate Judge Andrew M Edison. Court Reporter/Transcriber Trinity Transcription Services. Ordering Party Charles L. Gerstein, Esq. Release of Transcript Restriction set for 4/2/2019., filed. (cbattaglia, ) (Entered: 01/02/2019)
29 RESPONSE to 27 Objections to Memorandum and Recommendations , filed by Andrew Willey. (Gerstein, Charles) (Entered: 01/14/2019)
30 REPLY to 26 Memorandum and Recommendations, Reply in Support of Objections, filed by Jack Ewing. (Lowenberg, Michael) (Entered: 01/22/2019)
31 ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 26 Memorandum and Recommendations GRANTING IN PART AND DENYING IN PART 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION

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04/04/2019 04/04/2019 04/05/2019
04/09/2019 04/22/2019
04/22/2019

to Dismiss (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3) (Entered: 01/24/2019)
32 LETTER OF AGREEMENT re: Mediation with Magistrate by Jack Ewing, filed.(Lowenberg, Michael) (Entered: 04/04/2019)
33 ORDER granting 32 Letter of Agreement (Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3) (Entered: 04/05/2019)
34 NOTICE of Setting. Parties notified. Mediation set for 4/9/2019 at 08:30 AM in 7th Floor Courtroom before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 04/05/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. MEDIATION held on 4/9/2019, filed. (wbostic, 4) (Entered: 04/09/2019)
35 Agreed MOTION for Entry of Judgment by Andrew Willey, filed. Motion Docket Date 5/13/2019. (Attachments: # 1 Exhibit 1 Settlement Agreement)(Gerstein, Charles) (Entered: 04/22/2019)
36 AGREED FINAL JUDGMENT. Case terminated on April 22, 2019(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 04/22/2019)

 
 Case 3:18-cv-00081 Document 1 Filed in TXSD on 03/19/18 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

)

ANDREW WILLEY,

)

)

Plaintiff,

)

)

v.

) Case No. 18-CV-81

)

THE HONORABLE JACK EWING, in his )

capacity as Judge of Galveston County Court )

at Law Number Three,

)

)

Defendant.

)

)

COMPLAINT The American criminal system is adversarial. In an adversarial system, cases are resolved not by the inquiries of a judge, but instead by the confrontational testing of facts by the state and defense counsel. For this to work, defense counsel must be independent of the judge: he must be free to express his views and to advocate for his clients without fear of personal retaliation from the court. “Indeed,” the United States Supreme Court has said, “an indispensable element of the effective performance of [the defense function] is the ability to act independently of the Government and to oppose it in adversary litigation.” Ferri v. Ackerman, 444 U.S. 193, 204 (1979). Andrew “Drew” Willey is a criminal defense attorney who vigorously advocated for his clients in court. He also publicly expressed the view that his clients deserve to be treated fairly even though they are too poor to afford an attorney. He sought to provide them with a defense that met the minimal standards of the State Bar of Texas and of the United States Constitution. In retaliation, Defendant Judge Jack Ewing attempted to silence him by improperly removing him from cases to which he was assigned and by passing him over for future appointments. Willey files

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this suit to vindicate his right to advocate for his clients and to speak out on their behalf without fear that he will be removed from his position as a result.
Parties 1. Plaintiff Drew Willey is a graduate of Gideon’s Promise, a non-profit organization, formerly known as the Southern Public Defender Training Center, that aims to provide a “voice for the voiceless” by giving “new public defenders the skills and knowledge necessary to become excellent advocates for those they represent.” Through Gideon’s Promise, Willey attended training at the Harris County Public Defender’s office. 2. Willey is passionately committed to indigent defense. He believes that commitment to be commanded by his Christian faith. And in the service of that commitment, he has created a non-profit organization called Restoring Justice, whose “mission is to pursue Christ’s justice” through “loving and fighting for the people the system has forgotten.” 3. While he is working to get the non-profit off the ground, Willey maintains a successful criminal-defense practice. He takes both appointed and retained cases in Houston, Galveston, and their environs. 4. Willey’s private practice is financially successful. He takes appointed cases in Galveston because he believes that it is his duty as an attorney and as a person to use his experience and skills to help those in need and to use his practice to change the criminal system for the better. 5. Defendant Judge Jack Ewing is the judge of Galveston County Court at Law Number Three. He was first elected in 2014. He is sued in his official capacity.
Indigent Defense in Texas and Galveston County 6. The indigent defense system in Texas is in crisis. Lawyers throughout the state are forced to handle so many cases that they could not possibly provide their clients the defense

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required by the Constitution. In 2015, the Texas Indigent Defense Commission studied the problem of inadequate defense throughout the state. It found that a constitutionally adequate defense system required a 66% increase in attorney time for indigent defendants, a 500% increase in attorney time spent filing motions, and a 1,300% increase in investigator time.
7. Under Texas law, judges control the appointment of counsel for indigent people charged with crimes. Although some judges authorize a public defender’s office to represent defendants in their courts,1 the overwhelming majority of indigent defendants in Texas are appointed private counsel selected by the judges before whom the defendants’ cases are pending. This creates an entrenched conflict of interest: instead of fighting for the undivided interests of their clients, lawyers must ensure they do not upset or inconvenience the judges. Throughout Texas, lawyers fear retaliation if they advocate too vigorously for their clients.
8. Before 2001, each Texas judge was solely responsible for the appointment of counsel in her courtroom. According to expert reports prepared at the time, this resulted in a “hodgepodge” of systems that varied between counties and between individual judges within counties. Many people were convicted and sentenced to jail without counsel at all. When lawyers were appointed, they were often untrained in criminal law and ill-equipped to handle their cases. The State exercised no oversight over indigent defense. TEXAS APPLESEED, THE FAIR DEFENSE REPORT 44–45 (2000).
9. In 2000, a survey revealed that judges in Texas were abusing their appointment powers. “Nearly half of . . . judges [surveyed] (46.4 percent) report[ed] that their peers sometimes appoint counsel because they have a reputation for moving cases, regardless of the quality of the
1 In Texas, each court has only one judge. Galveston County has four Justice of the Peace Courts (numbered 1–4); three County Courts at Law (numbered 1–3); six Judicial District Courts (the 10th, 56th, 112nd, 212th, 306th, and 405th); and one probate court.

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defense they provide . . . [and] [n]early four in ten judges (39.5 percent) indicate[d] that their peers occasionally appoint an attorney because he or she is a friend, while roughly one-third of judges sometimes consider whether the attorney is a political supporter (35.1 percent) or has contributed to their campaign (30.3 percent).” ALLAN K. BUTCHER & STEPHEN K. MOORE, THE TEXAS STATE BAR ASSOCIATION, MUTING GIDEON’S TRUMPET: THE CRISIS IN INDIGENT CRIMINAL DEFENSE IN TEXAS 12 (2000) (emphasis in original).
10. In 2001, in response to widespread problems with the assigned-counsel system, Texas passed the Texas Fair Defense Act (TFDA), which requires that counties adopt formalized “indigent defense plans” and that those plans meet a few minimal requirements.
11. Although the TFDA allows counties to establish public defender offices, each judge is empowered to determine whether that office may represent clients in that judge’s court. The vast majority of judges do not use a public defender, either because no public defender is established in their county or because they choose not to allow the public defender to appear in their court.
12. The TFDA requires that counties employ a “system of rotation” to assign counsel for criminal defendants. In each case, “[t]he court shall appoint attorneys from among the next five names on the appointment list in the order in which the attorneys’ names appear on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order. An attorney who is not appointed in the order in which the attorney’s name appears on the list shall remain next in order on the list.” Tex. Code Crim. P. art. 26.04 (a). The act specifically requires that county plans “ensure that appointments are allocated among qualified attorneys in a manner that is fair, neutral, and nondiscriminatory.” Id. at (b)(6).2
2 Some counties may use an “alternative plan.” Tex. Code Crim. P. art 26.04(g). These plans are chiefly used in small counties that join other small counties to coordinate services. In counties using an alternative plan, “appointments [must be] reasonably and impartially allocated among qualified attorneys.” Id.

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13. Galveston County’s indigent defense plan mirrors the TFDA. Galveston’s plan creates a graduated list of attorneys under which more experienced attorneys may be appointed to represent clients charged with more serious crimes. The plan also creates the office of an Indigent Defense Services Coordinator tasked with maintaining the list of attorneys, ensuring that the attorneys on the list are qualified, ensuring that the Criminal Courts “follow the plan for appointing attorneys,” and processing complaints about appointed attorneys.
14. By March 1 of each year, the Criminal Courts Board—which is composed of all district and county-court-at-law judges with jurisdiction over Galveston County—must conduct a performance review of every attorney on the list. By majority vote, the judges determine if each attorney should stay at the same level on the graduated list, go up a level, go down a level, or be removed from the list.
15. The plan lists eight specific grounds for removal from the list, but, regardless of the other grounds, the plan allows an attorney to be removed from the list “for good cause at the discretion of a majority vote of the Criminal Courts Board.”
16. If someone makes a complaint about an attorney, the Plan provides that the Coordinator shall forward the complaint to the Board. The Board “shall schedule a hearing to address the complaint.” The Coordinator “shall notify the attorney, in writing, of the Board meeting and shall provide the attorney copies of the written and signed complaint. The attorney may respond to the complaint by providing a written, signed response to the Board, by appearing in person at the Board meeting to address the Board, or both.”
17. In the County Courts at Law, attorneys are appointed to individual cases of nonjailed defendants from within the first five names on the level of the graduated list to which the case belongs. No attorney may be passed over from within those five “more than twice” unless the

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court finds, in writing, that she is conflicted out of the case or that there is other “good cause” for failing to appoint her.
18. The County Court at Law judge who is assigned to the jail docket appoints two attorneys to represent defendants charged on that docket “for a period not to exceed one week.” The two attorneys generally agree that each will represent half of the defendants charged that week. According to the Galveston County Plan, “the County Court at Law Judge shall appoint the attorneys for the week from within the first five names on the . . . Graduated List with the understanding that the attorney appointed for the week must come from within the first five names on the appointment list.”
19. The Galveston County Plan requires that “[e]xcept where otherwise provided for in Section XII C of the Plan [which covers people arrested on warrants from other counties], the attorney representing the defendant at jail docket is appointed to represent the defendant in the pending criminal matter until final resolution of the case.”
20. If a judge wishes to replace appointed counsel, the judge may do so only after “entering written findings in the record showing good cause for the replacement and no prejudice to the defendant, including, without limitation: (a) Current information about the defendant and charges indicates that counsel of different qualifications is appropriate for the defendant under these rules; or (b) Replacement of appointed counsel in a death penalty case is required under . . . the Code of Criminal Procedure.” Otherwise, the attorney must remain on the case absent a request by the defendant or the attorney.
21. If an attorney believes that a client’s case requires the assistance of an investigator or mental-health professional, the attorney must move the court for approval of funds for those

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services. If the request is approved, the service providers submit their bills directly to the Indigent Defense Services Coordinator.
22. After a case or appointment is completed, the attorney submits a voucher to the court that presided over the case. If that court’s judge does not approve the full voucher amount, she must “make written findings stating . . . the reason for approving an amount different from the requested amount.” The attorney may then “file an appeal with the Presiding Judge of the 2nd Administrative Region,” which contains Galveston County. The trial judge then has an opportunity to increase the voucher amount. If the trial judge declines to increase the amount, or if the increased amount remains insufficient to satisfy the attorney’s fee, the Presiding Judge rules on the appeal and determines the final approved amount.
The Galveston Jail Docket 23. People arrested in Galveston County who cannot immediately pay a secured money bail amount—and who are therefore jailed—appear before a County Court at Law Judge on a “jail docket.” 24. Defendants on the jail docket are brought in shackles to a courtroom in the Galveston County Jail. In the courtroom, the defendants remain behind a Plexiglas wall that divides the courtroom roughly in half. 25. On either side of the courtroom sit two attorney-consultation areas where lawyers may speak to their clients, also through Plexiglas and aided by a telephone. 26. A Galveston County Court at Law judge presides over the docket from chambers via a videolink system. The judges preside over the jail docket in weeklong rotations. On the jail docket, judges appear on the videolink only when it is time to formally appoint counsel and accept bargained-for pleas.

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27. Before the daily court sessions begin, the defense attorneys plea bargain with the prosecutor in the courtroom. The defense attorneys relay offers from the assistant district attorney on duty in the courtroom to their clients via the Plexiglas-partitioned telephone system. This is the first occasion that an attorney and client have met, and no legal or factual investigation has been done on the case. If a detained person decides to accept a plea offer, that person may enter her plea when court begins. If she does not accept a plea offer, she will be jailed until her trial unless she can pay a money-bail amount.
Judge Ewing Removed Willey from Cases to Which he had Been Assigned and Refuses to Assign Him to Further Cases Because of His Constitutionally Required Advocacy on Behalf of his Clients in their Cases and his Political Advocacy Concerning
Systemic Constitutional Violations 28. On June 22, 2015, Judge Ewing appointed Willey to represent W.L., who had been charged with Burglary of a Vehicle, a Class A Misdemeanor under Texas law. 29. When Willey initially began work on the case, he quickly discovered blatant inconsistencies in the arresting police officer’s statements regarding the case. 30. Willey accordingly asked the assistant district attorney working on the case to dismiss the burglary charge or, alternatively, to reduce it to an attempted burglary charge. The assistant district attorney refused. 31. Unable to persuade the assistant district attorney that the charges were unsupportable, Willey needed to prepare the case for trial. To do that, he needed to interview witnesses, some of whom were potentially adverse to his client. 32. The State Bar of Texas’s Non-Capital Defense Performance Guidelines read: “If Counsel conducts interviews of potential witnesses adverse to the client, counsel should attempt to do so in the presence of an investigator or other third person in a manner that permits counsel to effectively impeach the witness with statements made during the interview.”

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33. Consistent with the State Bar of Texas’s guidelines, Willey hired an investigator, Geoff Anderson.
34. After several months of investigating, negotiating with the assistant district attorney, and appearing in court, Willey secured a plea offer from the State with terms that were very favorable to W.L.
35. W.L. accepted the offer. On February 23, 2016, W.L. disposed of his case by pleading guilty to a Class C Misdemeanor.
36. On February 29, 2016, Willey submitted a payment voucher to the Galveston County Criminal Courts at Law for $1,320.
37. By email, Judge Ewing altered the voucher, approving only $511.15. 38. Judge Ewing wrote that the payable amount had been reduced because of “excessive out of court hours.” 39. Willey appealed that determination to the presiding judge of the administrative region containing Galveston County. 40. In response to the appeal, Judge Ewing added roughly $300 to the voucher request. 41. Willey continued to request the full amount, and the presiding judge, after reviewing Willey’s appeal, approved the full voucher amount. 42. Willey later discussed the voucher issues with Judge Ewing and explained that he believed that a constitutionally adequate defense required the expenditures that he made. He explained that his concern was less with a few hundred dollars and more with the principle that the County should provide constitutionally adequate funds for indigent defense. 43. Previously, on November 4, 2015, Judge Ewing appointed Willey to represent C.L., who had been charged with a Class B misdemeanor.

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44. Willey helped C.L. negotiate a disposition that required her to participate in a diversion program in order for her case to be dismissed. Because C.L. is indigent, Willey needed to work closely with her to ensure that she was placed in a program without unaffordable fees— most such programs in Texas currently require defendants to pay money not to be prosecuted— and to convince the district attorney on the case that such a program was appropriate.
45. On April 28, 2016, C.L.’s case was dismissed. Willey submitted a voucher on May 2, 2016.
46. Willey’s voucher for C.L.’s was for $528. On May 3, 2016, Judge Ewing reduced that amount, by email, to $330, citing excessive time for a case that was ultimately dismissed. Willey appealed Judge Ewing’s decision, and the Presiding Judge denied the appeal.
47. On May 3, 2016, Willey sent Judge Ewing a letter explaining his concerns about the lack of resources for appointed attorneys in Galveston. In the letter, Willey discussed a denied request for investigator funds in the case of M.M., one of the clients whom Willey represented. Willey also discussed the vouchers he submitted on behalf of W.L. and C.L.
Willey Diligently Advocates for his Jail-Docket Clients in May 2016 48. Willey was appointed to work the jail docket for the week of May 2, 2016, alongside another local attorney named Mark W. Stevens. Judge Ewing was on the bench in the jail docket that week. 49. As is typical on the jail docket, Willey and Stevens agreed that each would represent half of the defendants charged that week. 50. Of the clients Willey represented on the jail docket, only four clients did not plead guilty that week: C.N., J.F., K.N., and J.P. Willey began working on their cases.

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51. In the jail docket, Willey filed motions for release on personal recognizance on behalf of all four clients.
52. In support of the motions, Willey submitted an extensive memorandum of law. 53. Willey argued in the memorandum accompanying the motions that it is unconstitutional to jail someone solely because she cannot afford to pay a secured money bail amount. 54. No attorney appears to have argued before in the Galveston Criminal Courts that it is unconstitutional to jail someone solely because she cannot afford to pay a secured money bail amount, even though courts across the country—including the United States Court of Appeals for the Fifth Circuit—have recently held that it is.3 55. Judge Ewing summarily denied the motions. 56. Willey also filed motions for waiver of court costs for those who could not afford to pay them and for credit for time served for impoverished people who were jailed because they could not pay court costs. (Impoverished people are routinely jailed in Galveston County because they cannot pay court costs.) In support of these motions, Willey submitted an extensive memorandum of law in which he argued that it is unconstitutional to jail someone solely because she is poor. 57. No attorney appears to have made this argument before in the Galveston Criminal Courts, even though the Supreme Court has for decades held that it is illegal to jail someone solely because she cannot pay a sum of money.4
3 ODonnell v. Harris Cnty., Tex., ___ F.3d ___, 2018 WL 851776, at *10 (5th Cir. Feb. 14, 2018) (striking down the use of secured money bail without inquiry into ability to pay because it invidiously discriminates against the poor). 4 Bearden v. Georgia, 461 U.S. 660, 672–73 (1983); Tate v. Short, 401 U.S. 395, 398 (1971); Williams v. Illinois, 399 U.S. 235, 241 (1970).

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58. Judge Ewing summarily denied the motions. 59. Willey’s jail docket assignment ended on May 6, 2016. 60. At that time, Willey believed that Judge Ewing would follow the Galveston Indigent Defense plan and formally appoint Willey to represent the clients with whom he consulted and whose cases remained pending. 61. Willey discussed the appointments with Mark Stevens, the other lawyer assigned to the jail docket, and Mr. Stevens also believed that Willey would be appointed to represent the clients with whom he consulted and whose cases remained pending. Willey Files a Complaint with the Texas Indigent Defense Commission Alleging Systemic
Constitutional Violations in the Jail Docket 62. On May 20, 2016, Willey filed a complaint with the Texas Indigent Defense Commission. 63. In the complaint, Willey explained several problems with the jail docket in Galveston. He argued that the money-bail system in Galveston is unconstitutional, that the videolink system used by the court violates Texas law, that inmates are systematically serving jail time because they are unable to pay court costs, that the docket is impermissibly controlled by the district attorney’s office, and that attorneys cannot communicate with their clients confidentially.
Judge Ewing Removes Willey from Cases to Which He Had Been Appointed 64. On May 31, 2016, Willey discovered that he was no longer appointed to represent J.P. 65. By May 31, 2016, J.P.’s case had been assigned to Judge John Grady, Judge of Galveston County Criminal Court at Law Number 1.

Case 3:18-cv-00081 Document 1 Filed in TXSD on 03/19/18 Page 13 of 20
66. Willey spoke with Judge Grady’s clerk, Ms. Connie Nolan, who told him via email that she would correct what she thought must have been an error, and that she would reassign Willey to the case.
67. Willey also emailed Case Management Specialist Roger Morrison, who apologized for the inconvenience and said that he would see what could be done.
68. Later that day, Nolan told Willey that Aimee Rowe, Judge Ewing’s clerk, had visited Nolan that morning and told Nolan that Judge Ewing had told Rowe not to assign Willey to the case because he was upset with Willey over “something that happened in jail docket.”
69. When Nolan told Judge Grady about Judge Ewing’s instructions, Judge Grady instructed Nolan not to reassign the case to Willey.
70. Willey emailed Nolan asking her to confirm what happened. She wrote back that he should “take that up with Judge Ewing.”
71. Willey then checked his files and compared them with Galveston county’s online system. He discovered that he had been removed from the cases of C.N., J.F., K.N., and J.P. All four cases had been assigned to Mark Stevens.
72. By that point, only J.P.’s case remained pending. So, the same day, Willey emailed Stevens to discuss J.P.’s case. Willey told Stevens that he had met with J.P. outside of the jail and had gone to view evidence at the police station. Willey told Stevens that he believed J.P.’s case presented serious due process concerns.
73. Later in the day on May 31, 2016, Willey emailed Judge Ewing and Ms. Rowe to ask for clarification. Willey told Judge Ewing and Ms. Rowe that, despite being appointed to represent the clients on the jail docket, meeting the clients, advising the clients, and doing work

Case 3:18-cv-00081 Document 1 Filed in TXSD on 03/19/18 Page 14 of 20
for the clients, he was no longer appointed to represent them. Willey asked Judge Ewing to confirm that he had, in fact, asked Ms. Rowe to remove him from the cases.
74. By June 9, 2016, Judge Ewing still had not responded to Willey’s email. So Willey emailed to follow up with him about the appointments issue and two outstanding concerns: an unpaid voucher and an unfilled request for investigator funds.
75. In response, Judge Ewing wrote only that he had denied the request for investigator funds. Judge Ewing did not provide a reason for denying the request for investigator funds.
The Galveston County Office of Justice Administration Falsely Accuses Willey of Incompetence
76. On July 8, 2016, Bonita Quiroga, the Director of the Galveston County Office of Justice Administration (“OJA”), which supervises the Indigent Defense Coordinator and other offices, filed a response to Willey’s complaint with the Texas Indigent Defense Commission. OJA disputed Willey’s constitutional arguments and practical concerns.
77. But OJA went further. In response to Willey’s concerns about counsel appointments, OJA wrote that “a Court may assign a case to an attorney other than the jail docket attorney if the Judge of the Court believes the assigned attorney is not competent to represent the defendant. Although this happen [sic] very infrequently, it did happen with a case Mr. Willey was assigned to handle.”
78. Willey was very concerned that OJA had inaccurately reported the reason he had been removed from J.P.’s case. No one had alleged (much less found) Willey to be incompetent in any respect. OJA’s letter offered no basis for its allegation, and OJA has not offered one since.

Case 3:18-cv-00081 Document 1 Filed in TXSD on 03/19/18 Page 15 of 20
Judge Ewing Explains His Retaliation and Promises to Remedy It 79. On or around July 15, 2016, Judge Ewing met with Willey to discuss the response to his complaint and his removal from the cases to which he had been assigned in the jail docket. Willey recorded their conversation. 80. During the conversation, Judge Ewing began by saying that “it’s my prerogative who to appoint to represent people and I don’t have to justify why I appoint certain people and why I don’t.” He claimed that attorneys assigned to the jail docket are not necessarily appointed to represent their clients throughout their cases. Therefore, Judge Ewing said, Willey had not been “removed” from his clients’ cases; he had not been appointed to their cases in the first place. 81. But Judge Ewing immediately contradicted this view. In explaining why he appointed Mark Stevens to Willey’s clients’ cases, Judge Ewing said that “Mark Stevens happened to be on the jail docket and there were a number [of cases] that went without getting resolved that week.” If jail docket appointments did not ordinarily lead to appointments for the remainder of the case, Mark Stevens ought to have been as likely to be appointed as anyone else. 82. Judge Ewing revealed that he did not remove Willey from his clients’ cases because he believed Willey was incompetent. “I never said I didn’t think you were competent, but I decided that Mark Stevens should receive some of those cases.” Judge Ewing said he “felt as though there were two attorneys and they [the cases] should be divided up equally.” 83. The cases were not divided equally. Of the cases that were not resolved during the jail docket, Stevens was appointed to all of them and Willey appointed to none. When Willey pointed out this obvious fact, Judge Ewing responded by saying only “I don’t have to answer to you why I appoint people and why I don’t.”

Case 3:18-cv-00081 Document 1 Filed in TXSD on 03/19/18 Page 16 of 20
84. Judge Ewing and Willey then went back and forth over whether jail docket attorneys are supposed to represent clients throughout their cases. Judge Ewing maintained that there is no restriction on when a judge can replace counsel during the pendency of a case because indigent defendants do not have a right to choose their attorneys.
85. Then Judge Ewing abruptly shifted gears. He had been justifying appointing Stevens to represent Willey’s clients by claiming that he wanted appointments to be equally distributed. But then, unprompted, he said “I do feel as though you are the only attorney that on almost every case you had in my court, did you ask for an appointment of an investigator.” Judge Ewing revealed that “[i]n the year and a half that I’ve been judge—trust me—there are no others.”
86. Judge Ewing explained that he was concerned that Willey worked too many hours on cases in which the client pleaded guilty. For a case that is resolved in a guilty plea to warrant more than three hours of work, Judge Ewing said, there needed to be an “emergency.”
87. Willey has worked more than three hours on several cases that resulted in guilty pleas.
88. Willey explained, with respect to one particular case, that “the reason it took more work was because the prosecutors were unreasonable with their offer and then they became reasonable after four or five hundred dollars’ worth of work . . . . And after all that work then they saw that it was reasonable. So sometimes pleas don’t just mean pleas; sometimes you’ve gotta work and show the prosecutors the realities.”
89. Willey then asked Judge Ewing to clarify that he had never said, and did not believe, that Willey is incompetent. Judge Ewing said “I did not. I haven’t told anybody anything [and] I don’t have to explain to anybody the reason I don’t appoint somebody.”

Case 3:18-cv-00081 Document 1 Filed in TXSD on 03/19/18 Page 17 of 20
90. Instead, Judge Ewing turned to his third inconsistent explanation for removing Willey from his cases. This time, Judge Ewing explained that Willey “lacked . . . the experience that Mark Stevens has, which is true by, 20 some odd years. So you lack the experience he has.”
91. Willey asked whether Judge Ewing believed that he did not have enough experience to represent the clients from whose cases he had been removed.
92. Judge Ewing did not contend that Willey lacked the experience to competently represent the clients from whose cases he had been removed.
93. Instead, Judge Ewing explained that Willey lacked the experience to “to know what is reasonably needed sometimes to handle the case.” Judge Ewing said he “think[s] [Willey] overwork[s] cases.”
94. Court appointments, Judge Ewing said, “[are] not a glamorous thing to do. I did my tour of duty on court appointments. And it is very hard, when you start, to understand the volume of people that come through and the cases that we have to handle. There is a delicate balance between making sure that that person gets adequately represented, as opposed to did they get the best representation.”
95. Judge Ewing had previously said that Willey was the only lawyer in his court to request funds for an investigator in any misdemeanor cases. As the Texas State Bar’s guidelines confirm, it is impossible to provide an adequate defense in many cases without an investigator.
96. Willey said that he was “gonna be honest on my timesheets on the time that I spend and if you’ve got to cut ‘em for budgetary reasons, whatever, you know, that’s, we’ll deal with that, and that’s not my big issue right now. My big issue was being pulled off a case because of whatever thoughts about that.” Willey meant that Judge Ewing and he could deal with disputes

Case 3:18-cv-00081 Document 1 Filed in TXSD on 03/19/18 Page 18 of 20
over the appropriate payment for his work through the process established by the Galveston Indigent Defense Plan and the Texas Fair Defense Act.
97. Judge Ewing responded that it’s “within my prerogative as a judge, moving our docket, who to assign cases and who not to.”
98. Willey continued to explain that his primary concern was with continuity of representation for his clients. Judge Ewing asked whether Willey wanted to be re-appointed to J.P.’s case, and when Willey said he did, Judge Ewing said “I’ll do that.”
Willey Files a Complaint with the State Commission on Judicial Conduct 99. By June 15, 2017, Judge Ewing still had not appointed (or asked Judge Grady to appoint) Willey to J.P.’s case, as he had promised to do. 100. On June 15, 2017, Willey filed a complaint with the State Commission on Judicial Conduct alleging that Judge Ewing violated the principles requiring continuity of representation. 101. On October 17, 2017, the Commission wrote back to Willey. The Commission explained that “the judge’s conduct in this instance, while not necessarily appropriate, did not rise to the level of sanctionable misconduct.” The Commission “remains confident that the conduct will not occur in the future.”
Judge Ewing Further Retaliates by Refusing to Appoint Willey to New Cases 102. Since the May 2, 2016, jail docket, Willey has been appointed to only one case before Judge Ewing. 103. In that case, Willey was appointed pursuant to recently revised procedures during the jail docket over which another judge was presiding. These new procedures require that attorneys be appointed immediately for anyone who has been arrested, but that appointment is

Case 3:18-cv-00081 Document 1 Filed in TXSD on 03/19/18 Page 19 of 20
effected only through handing the lawyer a piece of paper with the client’s name on it; the lawyer does not receive a formal appointment until a later stage of the proceedings.
104. Therefore, Judge Ewing did not choose to appoint Willey to the one case to which Willey has been appointed in Judge Ewing’s court.
105. Willey has not been appointed to any non-jail-docket cases in Judge Ewing’s court since May 2016.
106. Before May 2016, Willey regularly received appointments to non-jail-docket cases in Judge Ewing’s court. And given the number of attorneys on the panel in Galveston, it is very unlikely (even without knowledge that Judge Ewing had previously intentionally removed Willey from cases because of his advocacy) that random selection would have caused Willey to receive zero appointments in non-jail-docket cases before Judge Ewing over this period.
107. Judge Ewing has not issued any findings that Willey is conflicted or otherwise ineligible to be appointed to cases in his court.
108. Throughout his time representing indigent clients in Galveston County, Willey has worked diligently on behalf of his clients and has billed only reasonably necessary hours.
Claim for Relief Count One: Retaliation in Violation of Willey’s First Amendment Rights 109. Willey incorporates by reference paragraphs 1–108 of this Complaint. 110. Judge Ewing removed Willey from the cases to which he had already been appointed and refuses to assign him to additional cases because Willey publicly complained about the practices in the Galveston County criminal system, because he sought to provide a vigorous legal and factual defense for his clients, and because he made reasonable requests for the funds necessary to provide a vigorous legal and factual defense for his clients.

Case 3:18-cv-00081 Document 1 Filed in TXSD on 03/19/18 Page 20 of 20
111. Judge Ewing retaliated against Willey because of his constitutionally protected
advocacy, which includes, but is not limited to, non-frivolous (indeed meritorious) motions,
requests for reasonable funds, complaints to state authorities, in- and out-of-court memoranda, and
in-person conversations with Judge Ewing.
Prayer for Relief
Plaintiff Andrew Willey respectfully requests:
 A declaratory judgment that Judge Ewing may not retaliate against him for filing nonfrivolous motions, requesting reasonable funds, and for advocating in and out of court;
 An injunction requiring Judge Ewing to reinstate Willey to his previous position on the graduated list and to resume appointing him to cases5;
 An award of reasonable attorney’s fees under 42 U.S.C. § 19886;  And any other relief this Court considers appropriate.
Respectfully submitted,
/s/ Charles Gerstein Charles Gerstein Attorney in Charge (S.D. Tex. Bar No. 2998395) Eric Halperin (pro hac vice application forthcoming) Civil Rights Corps 910 17th Street NW, Suite 200 Washington, DC 20006 charlie@civilrightscorps.org (202) 670-4809
5 Willey recognizes that the Fifth Circuit has held that maintaining and administering a panel for counsel appointments is a judicial act, and he recognizes that an injunction therefore may not issue against Judge Ewing under 42 U.S.C. § 1983 unless declaratory relief was unavailable or unless Judge Ewing violates a declaratory decree. Davis v. Tarrant Cnty., Tex., 565 F.3d 214, 227 (5th Cir. 2009). Willey includes this claim for relief only to preserve his argument that the Fifth Circuit’s holding on this point is incorrect. See, e.g., Mitchell v. Fishbein, 377 F.3d 157, 174 (2d Cir. 2004).
6 Willey also recognizes that attorney’s fees are unavailable under Davis. Willey includes this request to preserve his argument that the Fifth Circuit’s holding in Davis is incorrect.

 
 Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

Page 1 of 15
United States District Court Southern District of Texas
ENTERED
December 17, 2018
David J. Bradley, Clerk

ANDREW WILLEY Plaintiff.
vs.
HON. JACK EWING Defendant.

§ § § § § CIVIL ACTION NO. 3:18-CV-00081 § § § §

MEMORANDUM AND RECOMMENDATION Plaintiff Andrew Willey ("Willey"), a criminal defense attorney. who regularly takes appointed cases in Galveston County, alleges that Defendant Judge Jack Ewing ("Judge Ewing") removed him from cases to which he was assigned and refused to assign him to new cases after he engaged in speech critical of certain practices in the Galveston County criminal courts. Under 42 U.S.C. § 1983, Willey asserts a First Amendment retaliation claim against Judge Ewing, seeking declaratory relief, injunctive relief, and attorney's fees under 42 U.S.C. § 1988. Pending before the Court is Defendant's Rule 12(b)(l) Motion to Dismiss for Lack of Subject Matter Jurisdiction and Rule 12(b).(6) Motion to Dismiss for Failure to State a Cause of Action (''Defendant's Motion to Dismiss"). Dkt. 14. Defendant's Motion to Dismiss was referred t~ this Court pursuant to 28 U.S.C. § 636(b)(l). Dkt. 23. Having considered the parties' briefing, the applicable legal authorities, and oral argument, the Court recommends that Willey's claims for injunctive relief and attorney's

Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18 Page 2 of 15
fees under 42 U.S.C. § 1988 be dismissed, and Defendant's Motion to Dismiss be denied in all other respects.·
BACKGROUND
Willey is a criminal defense attorney, with a particular interest in providing defense to indigent individuals in and around Galveston County. Willey regularly accepts appointments to represent indigent defendants in the Galveston County Courts at Law. Judge Ewing is the judge of Galveston County Court at Law Number Three. · Willey has ·appeared before Judge Ewing on several occasions after receiving appointments to represent indigent defendants in his court.
Willey alleges that as a result of his practice in the Galveston C<?unty Courts at Law, he has discovered a myriad of troubling, if not unconstitutional, practices that occur in Galveston County's courts. For example, Willey alleges that (1) appointed attorneys are given inadequate resources to represent their clients; (2) Galveston County has an unconstitutional money bail system; (3) the courts' dockets are impermissibly controlled by the district attorney's office; and (4) defense attorneys cannot confidentially communicate with their clients. Willey alleges that he spoke out against these practices in three ways: he advocated out of court and filed complaints with state agencies; he made requests for fees and appealed their denial; and he advocated in court.. .
Willey claims that as a result of his zealous advocacy for changes to the Galveston County criminal courts and on behalf of indigent defendants, Judge Ewing removed him from cases to which he was already assigned (in Judge Ewing's court).and refused to
2

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assign him to new cases in his court. Based on Judge Ewing's alleged conduct, Willey filed this First Amendment retaliation suit.
· Judge Ewing moves to dismiss Willey's Complaint. MOTION TO DISMISS STANDARD
Because Defendant's Motion to Dismiss seeks dismissal under Federal Rules of Civil Procedure 12(b)(l) and 12(b)(6), the Court will first address the applicable.legal standards. A. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(l) allows a party to challenge the subject matter of the district court to hear a case. When a court evaluates subject matter jurisdiction, it may consider "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of the disputed facts." Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010) (internal quotation marks and citation omitted).
The standard of review for a 12(b)(l) motion to dismiss turns on whether the . defendant has made a "facial" or "factual" jurisdictional attack· on the plaintiff's . complaint. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A defendant makes a "facial" jurisdictional attack by merely filing a motion under Rule 12(b)(l) challenging the court's jurisdiction. See id. Under a "facial" attack, the court is only required to assess the sufficiency of the allegations contained in the plaintiff's complaint, which are presumed to be true. See id. A "factual" attack, however, is made by providing affidavits, testimony and other evidentiary materials challenging the court's
3

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jurisdiCtion. See id. When a "factual" jurisdictional attack is made by a defendant, the plaintiff must submit facts in support of the court's jurisdiction, and he bears the burden of proving by a preponderance of the evidence that the court, in fact, has subject-matter jurisdiction. See id. Because Judge Ewing challenges the sufficiency of the pleadings and d9es not provide affidavits, testimony and other evidentiary materials, his motion · will be analyzed as a facial attack. B. Rule 12(b)(6)
A pleading must co. ntain "a short and pla.in statement of the claim showing that the pleader is entitled to relief.'' FED. R. CIV. P. 8(a)(2). This pleading standard does not require "detailed factual allegations, but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). Under Rule 12(b)(6), a party may "move for dismissal for a failure to state a claim upon which relief can be granted." Lemieux v. Am. Optical Corp., 712 F. App'x 409, 412 (5th Cir. 2018) (internal quotation marks omitted). "The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true." Lowrey v. Tex. A&M Univ. Syst., 117 F.3d 242, 247 (5th Cir. 1997) (citation omitted).
Dismissal is appropriate "when a plaintiff fails to allege sufficient facts that, taken as true, state a claim that is plausible on its face." Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3cl 252, 254 (5th Cir. 2011) (citation omitted). However, "[m]otions to dismiss un.der Rule 12(b)(6) are viewed with disfavor and are rarely granted." Lormand
4

Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18 Page 5 of 15
v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (internal quota~ion marks and citation omitted). "Determining whether the plausibility standard has been met is 'a context-specific task that requires the reviewing court to draw on. its judicial experience and common sense."' Turner v. Pleasant, 663 F.3d 770,775 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).
SUBJECT MATTER JURISDICTION Judge Ewing argues that Willey lacks standing to proceed against him because Willey cannot demonstrate the elements required to invoke the Court's jurisdiction.1 Article III of the U.S. Constitution limits the power of federal courts to the resolution of "Cases" or "Controversies." U.S. CONST. art. III, § 2. The requirement that a plaintiff establish standing to bring suit "is an essential and unchanging part of the caseor-controversy requirement of Article III." Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Every federal court plaintiff must therefore meet the "irreducible constitutional minimum" of Article III standing, which requires: (1) an injury in fact that is concrete, particularized, and. actual or imminent; (2) that the injury be fairly traceable to the challenged action; and (3) that the injury can be tedressed by a favorable ruling. !d. at 560-61. See also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). Injury In Fact: Judge Ewing argues that Willey has failed to allege facts indicating that he. has suffered an injury in fact. "To establish injury in fact, a plaintiff 1 Judge Ewing also argues that Willey "lacks standing to challenge the statutory indigent defense system." Dk~. 14 at 16. This argument fails and is not worthy of a more robust discussion because Willey has not filed a claim attempting to challenge the statutory indigent defense system. See Dkt. 21 at 14 ("Willey's standing to challenge the indigent defense system is irrelevant because Willey does not challenge that system.").
5

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must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized."' Spokeo, Inc..v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560).
The Complaint describes, in great detail, the legal mechanisms in place to ensure that cases involving indigent defendants in Galveston County are directed to suitable defense attorneys. A part of this process involves the creation and administration of a list of attorneys who have been selected to receive appointments. The Complaint details how certain rules are in place to ensure that appointments among those listed attorneys are properly allocated. Other rules detail the requirements necessary to remove an attorney from the list or to skip an attorney once his or her name has percolated to the top of the list. These allegations demonstrate the plausible existence of a legally protected interest.
The Complaint also expressly alleges that, prior to Judge Ewing's retaliatory conduct, Willey received appointments (for which he was paid) to represent indigent defendants in Judge Ewing's court.· Willey goes on to allege that since Judge Ewing began retaliating, he has not received any appointments from Judge Ewing, notWithstanding the fact that he is still on the Galveston County appointment list and no official actions have been taken to remove him from the list. The Court finds Willey has alleged a concrete harm.2
2 Judge Ewing also argues that Willey's harm is speculative in that he fails to indicate whether or not he was receiving appointments from other judges during this time period and fails to allege he was available to receive appointments during the time period in question. Willey merely speculates that it is unlikely random selection would have caused the lack of appointments.
6

Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18 Page 7 of 15
Causation: Judge Ewing next argues that Willey has not demonstrated a causal connection between the injury and his alleged conduct. This argument fails. Article III standing does not require that Judge Ewing be the most immediate cause, or even a proximate cause, of Willey's injuries; rather, it requires only that those injuries be "fairly traceable" to Judge Ewing. League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 431 (5th Cir. 2011) ("The causation element does not require a party to establish proximate causation, hut only requires that the injury be 'fairly traceable' to the defendant.") (citing Bennett v. Spear, 520 U.S. 154, 168-69 (1997)). Thus, Willey need only allege an injury that fairly can be traced to the actions of Judge Ewing. See Spokeo, 136 S. Ct. at 1547. Willey's allegations easily cross this threshold.
Redressability: Next, Judge Ewing contends that Willey has failed to allege facts sufficient to demonstrate that his injury will be redressed by a favorable ruling.
Judge Ewing first argues that although Willey has sought injunctive relief and attorney's fees, such relief is foreclosed by the Fifth Circuit's opinion in Davis v. Tarrant County, Texas, 565 F.3d 214 (5th Cir. 2009). In the Complaint, Willey concedes that under the holding of Davis, "an injunction ... may not issue against Judge Ewing under
42 U.s.-c. § 1983" and "attorney's fees are unavailable." Dkt. 1 at 20. Willey explains that
he included those requests for relief "only to preserve his argument that the Fifth
Dkt. 14 at 13. The Court is not persuaded by this logic. Willey has alleged he'has not received any appointments from Judge Ewing due to retaliation. For this Court's purposes at this stage of the case, it does not matter if Willey received any appointments from another judge. If Judge Ewing wants to argue that Willey's unavailability is the real reason Judge Ewing stopped appointing Willey to cases, he will have an opportunity to present such an argument in the context of a Motion for Summary Judgment or at trial.
7

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Circuit's holding [in Davis] ... is incorrect." Id. The Court concurs with both parties; Davis is controlling authority in this case. See 565 F.3d at 227. Accordingly, Willey's requests for injunctive relief and attorney's fees are dismissed.
With respect to Willey's request for declaratory relief, Judge Ewing argues that the Court cannot grant declaratory relief because he has no interest adverse to Willey, and · in any event, no continuing controversy exists between them. "For the Court to gr~nt declaratory relief, there must be a 'substantial and continuing controversy between two adverse parties' and 'a substantial likelihood that the Plaintiffs will suffer injury in the future."' Browning v. PHH Mortg. Corp., No. CIV.A. H-12-0886, 2013 WL 3244094, at *6 (S.D. Tex. June 26, 2013) (quoting Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2008)) (brackets omitted).
In arguing that he.lacks an interest adverse to Willey, Judge Ewing· contends that Willey challenges his "actions, or lack thereof, taken while handling litigation on his docket" and "[a] judge acting in his judicial capacity and an attorney defending a client do not have adverse legal interests because the judge has no personal or institutional stake in the controversy." Dkt. 14 at 10. Judge Ewing's argument is predicated on an inaccurate summation of Willey's Complaint. Although Willey does allege that his interactions with Judge Ewing arose in certain cases, he does not allege that Judge Ewing's retaliatory conduct manifested as a result of Judge Ewing's adjudications in those cases. Said another way, Willey has not alleged that Judge Ewing's retaliatory conduct is based on an adjudication made against any of the parties to any of the cases Willey mentions in his Complaint. Instead, Willey alleges that Judge Ewing took actions
8

Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18 Page 9 of 15

against his personal legal interest in continuing to serve as appointed counsel within

Judge Ewing's court. That certain of Willey's instances of alleged protected speech

.

'

concerned or were made at some point within the context of a case does not mean Judge

Ewing's decision to disrupt Willey's ability to act as appointed counsel in his court was

made while he was acting in his adjudicatory capacity. This is fatal to Judge Ewing's _

argument. See, e.g, Terrebonne Par. N.A.A.C.P. v. Jindal, No. CIV. A: 14-069-JJB-

SCR, 2014 WL 3586549, at *3 (M.D. La. July 21, 2014) (explaining that the defendant's

argument that "standing was absent due to a lack of adversity between the plaintiff and

the d~fendant" was "misguided" and "unavailing" because unlike in Bauer, there were no

facts presented that the defendant "was acting in his adjudicatory capacity") (citing

Bauer, 341 F.3d at 359).

Judge Ewing's argument regarding the existence of a continuing controversy is

also unpersuasive. Judge Ewing contends that no continuing controversy exists because

after Willey's alleged protected speech occurred, he spoke with Willey and "explained

the reasons for [Willey's] removal from the ~ases at issue· and that said reasons were

inconsistent with retaliation." Id. at 11. Judge Ewing implies that Willey accepted the

resolution afforded by their conversation and therefore no continuing controversy exists.

. See id. This argument has no teeth. Although Judge Ewing might have explained his

reasons for removing Willey from cases, Willey certainly did not accept those reasons.

To the contrary, Willey forcefully argues (as evinced by the filling of this lawsuit) that a

controversy exists. Thus, Judge Ewing's argument fails.

9

Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18 Page 10 of 15

.

.

Judge Ewing also contends that the declaratory relief Willey seeks will not redress

his harm. In support of this claim, Judge Ewing makes several arguments about what

such prospective relief might look like and how such declarations will interact with the

Judicial Canons and other laws. The Court finds such arguments to be premature. At this

stage, the Court will not burden itself by attempting to discern all the possible

permutations that could be appropriate for a future declaration. The Court will consider

the specific construction of any declaration, if and when, such becomes necessary.

In sum, the Court finds that Willey's allegations are sufficient to establish

standing. See Spokeo, 136 S. Ct. at 1547 ("Where, as here, a case is at the pleading stage,

the plaintiff must clearly allege facts demonstrating each element.") (internal quotation

marks, alteration, and citation omitted).

The Court now turns to Judge Ewing's argument that Willey failed to state a

claim.

FAILURE TO STATE A CLAIM

To establish a First Amendment retaliation claim under Section 1983, Willey

"must show that (1) []he suffered an adverse employment action; (2) h[is] speech

involved a matter of public concern; (3) h[is] interest in commenting on matters of public

concern outweighed the defendant's interest in promoting ... efficiency; and (4) h[is]

speech was a substantial or mo~iyating factor in the defendant's adverse employment

action." Burnside v. Kaelin, 773 F.3d 624, 626 (5th Cir. 2014) (collecting cases).

Judge Ewing asserts that Willey's Complaint fails to allege sufficient facts to show

each element.

10

Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18 Page 11 of 15
Adverse Employment Decision: As described above, Willey alleges that as a result of engaging in protected speech, Judge Ewing removed him.from cases to which he was assigned and refused to assign him. to new cases in his court. Judge Ewing argues that those factual allegations are insufficient because "Willey fails to indicate whether or not he was receiving appointments from other judges during this time period and fails to allege he was available to receive appointments during the time period in question." Dkt. 14 at 13. And, thus, "Willey merely speculates that it is unlikely random selection would . have caused the lack of appointments." !d. The Court is not persuaded by Judge Ewing's argument. At this stage, the Court must accept all of Willey's factual allegations as true and make all reasonable inferences in Willey's favor. See Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 177 (5th Cir. 2018) ("we will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff') (internal quotation marks and citation omitted). In light of the highly deferential standard applicable at this stage of the litigation, and considering Willey's well-pleaded factual allegations, the Court finds Willey has sufficiently alleged an adverse employment decision.
Matter of Public Concern: Whether Willey's speech relates to a matter of public concern is a question of law to be resolved by the court. See Markos v. City ofAtlanta, 364 F.3d 567, 570 (5th Cir, 2004). "An employee's speech may contain an element of personal interest and yet still qualify as speech on a matter of public concern." Harris v. Victoria Ind. Sch. Dist., 168 F.3d 216, 222 (5th Cir. 1999) (citation omitted). "{E]ven a mere scintilla of speech regarding a matter of public concern is sufficient to treat the . entire communication as mixed speech." Stotier v. Univ. of Tex. at San Antonio, 508
11

Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18 Page 12 of 15
F.3d 812, 826 (5th Cir. 2007). "In mixed speech cases, to determine whether speech addresses a matter of public concern, a court must evaluate the 'content, form, and context of a given statement, as revealed by the whole record."' Brown v. Leflore Cty., 150 F. Supp. 3d 753, 762 (N.D. Miss. 2015) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)) (emphasis added).
Willey contends that he engaged in protected speech concerning unconstitutional practices in the Galveston County criminal courts in three ways: he advocated out of court and filed complaints with state agencies; he made requests for fees .and appealed their denial; and he advocated in court. The specific content of Willey's speech was not detailed in the Coni.plaint, but Willey does generally describe the type of unconstitutional conduct that Galveston County allegedly engaged in that served as the subject of, and reason for, him speaking out. Such speech presumptively involves a matter of public concern. In order to fully evaluate the nature of Willey's speech, the Court will need to consider the content, form, and context of the statements made, as revealed by the whole court record. Thus, the Court finds that the factual allegations in the Complaint plausibly suggest an entitlement to relief, which is sufficient to withstand a motion to dismiss at this time.
Balancing Public Concern and Efficiency: "In stating a prima facie case at the ·motion-to-dismiss stage of a case, there is a rebuttable presumption that no balancing is
'
required to state a claim."· Burnside, 773 F.3d at 628 (citation omitted). Here, "nothing in [Willey's] [C]omplaint indicates that [his] interest in commenting on [certain practices in the Galveston County criminal courts] was surpassed by [Judge Ewing's] interest in
12

Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18 Page 13 of 15

workplace efficiency. Thus, the [C]omplaint's allegations are sufficient to survive [Judge

Ewing's] motion to dismiss." Id. at 628-29.

Motivating Factor: Willey alleges Judge Ewing took adverse actions against him

because he engaged in protected speech. At least one of the forms of protected speech

took place only several days before Judge Ewing's alleged adverse actions began. See

e.g., Dkt. 1 ~~ 62 (Willey filed complaint with Texas Indigent Defense Commission on

May 20, 2016), 64 (on May 31, 2016, Willey discovered Judge Ewing removed him from

a case). The Court finds, therefore, that Willey has sufficiently alleged that his protected

.

I

·speech motivated Judge Ewing's actions. See Mooney v. Lafayette Cty. Sch. Dist., 538 F.:

App'x 447, 454 (5th Cir. 2013) ("Close timing between ... protected [speech] and an

adverse employment action can be a sufficient. basis for a court to find a causal

connection required to make out a prima facie case of retaliation."); Smith v. Call. of the

Mainland, 63 F. Supp. 3d 712, 719 (S.D. Tex. 2014) ("closeness intime is ... relevant in

the First Amendment retaliation context") (citation omitted).

Remaining Arguments: Judge Ewing also seems to. imply that Willey was

required to, at a minimum, specifically. recite the elements of his First Amendment

retaliation cause of action. See Dkt. 14 at 20 ("In this case, Plaintiff fails to provide even

a formulaic recitation of the elements of his cause of action for retaliation for exercise of

free speech."). This argument is nonsensical because our case law makes clear that the

sufficiency of a Complaint is determined by considering its substance (factual

allegations), not its form. See, e.g., Rios v. City ofDel Rio, 444 F.3d 417, 420-21 (5th

Cir. 2006) ("the complaint must contain either direct allegations on every material point

13

Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18 Page 14 of 15
necessary to sustain a recovery or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial") (internal quotation marks, ellipses, and citations omitted). In this case, Willey provides 20 pages of factual allegations and specifically states that his claims for relief are based on "Retaliation in Violation of Willey's First Amendment Rights." Dkt. 1 at 19. Although Willey does not cite a case in his Complaint setting forth the· elements required to state such a claim, he has clearly alleged facts addressing each element. "The Court concludes that these allegations suffice to withstand a Rule 12(b)(6) motion at this time." Kleppinger v. Tex. Dep't ofTransp., No. CV L-10-124, 2012 WL 12893480, at *3 (S.D. Tex. 2012).
Judge Ewing also. argues that Willey has failed to state a claim because the Complaint fails to allege facts demonstrating that declaratory judgment is "necessary." Dkt. 14 at 27. Judge Ewing claims that "the factual assertions made by Plaintiff affirmatively demonstrate that declaratory relief is not required as the Galveston County Indigent Defense Plan already has procedures in place to address Plaintiffs alleged complaints," and Willey has already sought relief through "the proper state established vehicles for redress" !d. These arguments are not persuasive. In the Complaint, Willey describes the ins-and-outs of attorney appointments in Galveston County~ including certain. avenues of relief (under state law) that might be available to an aggrieved attorney. The mere existence of some avenue of relief-whether Willey avails himself of such relief or not-does not undermine Willey's claim for declaratory relief at this stage of the case. Willey has alleged sufficient factual allegations to support his claim for
14

Case 3:18-cv-00081 Document 26 Filed in TXSD on 12/17/18 Page 15 of 15
· declaratory relief, and in this Court's view, the necessity of such relief has been plausibly alleged. Finally, Judge Ewing argues that he "is entitled to judicial immunity in all actions taken in his judicial capacity." Jd. at 26. However, "judicial immunity i$ not a bar to prospective injunctive relief against a judicial officer." Pulliam v. Allen, 466 U.S. 522, 541 (1984). Thus, Judge Ewing's judicial immunity argument fails. CONCLUSION AND RECOMMENDATION For the reasons stated above, the Court RECOMMENDS that Defendant's Motion to Dismiss be GRANTED in part and DENIED in part. Specifically, Willey's claims for injunctive relief and attorney's fees under 42 U.S.C. § 1988 should be DISMISSED. The motion should be denied in all other respects. The Clerk shall provide copies of this Memorandum and Recommendation to the respective parties who have fourteen days from the receipt thereof _t~ file written objections pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002-13. Failure to file written objections within the time period mentioned shall bar an aggrieved · party from attacking the factual findings and legal conclusions on appeal. SIGNED at Galveston, Texas, this 17th day of December, 2018.
~rsoN
UNITED STATES MAGISTRATE WDGE
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 Case 3:18-cv-00081 Document 31 Filed on 01/24/19 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

Page 1 of 2
United States District Court Southern District of Texas
ENTERED
January 24, 2019
David J. Bradley, Clerk

ANDREW WILLEY Plaintiff.
VS. HON. JACK EWING
Defendant.

§ § § § § CIVIL ACTION NO. 3:18–CV–00081 § § § §

ORDER ADOPTING MAGISTRATE JUDGE’S MEMORANDUM AND RECOMMENDATION
Pending before the Court is the Memorandum and Recommendation of United States Magistrate Judge Andrew Edison. Dkt. 26. On October 31, 2018, Defendant’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction and Rule 12(b)(6) Motion to Dismiss for Failure to State a Cause of Action (“Defendant’s Motion to Dismiss”) was referred to Judge Edison pursuant to 28 U.S.C. § 636. Dkt. 23.
On December 31, 2018, Defendant filed his Objections (Dkt. 27). On January 14, 2019, Plaintiff responded to Defendant’s objections. (Dkt. 29). In accordance with 28 U.S.C. § 636(b)(1), this Court is required to “make a de novo determination of those portions of the [magistrate judge’s] report or specified proposed findings or recommendations to which objection [has been] made.” After conducting this de novo review, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.; see also Fed. R. Civ. P. 72(b)(3).

Case 3:18-cv-00081 Document 31 Filed on 01/24/19 in TXSD Page 2 of 2
Based on the pleadings, the record and the applicable law, the Court ACCEPTS Judge Edison’s Memorandum and Recommendation and ADOPTS it as the opinion of the Court. It is therefore ORDERED that
(1) Defendant’s Objections (Dkt. 27) are OVERRULED; (2) Judge Edison’s Memorandum and Recommendation is APPROVED AND ADOPTED in its entirety as the holding of the Court; and (3) Defendant’s Motion to Dismiss (Dkt. 14) is GRANTED in part and DENIED in part. Specifically, Willey’s claims for injunctive relief and attorney’s fees under 42 U.S.C. § 1988 are DISMISSED. Defendant’s Motion to Dismiss is DENIED in all other respects. It is so ORDERED. SIGNED at Galveston, Texas, this 24th day of January, 2019.
___________________________________ George C. Hanks Jr. United States District Judge
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 Case 3:18-cv-00081 Document 35-1 Filed on 04/22/19 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

ANDREW WILLEY Plaintiff.
vs.
HON. JACK EWING Defendant.

§ § §
§ § CIVIL ACTION NO. 3:18-CV-00081 §
§ § §

SETTLEMENT AGREEMENT

WHEREAS, Plaintiff Andrew Willey ("Willey") and Defendant Hon. Jack Ewing ("Judge

Ewing") share the goal of providing the highest-quality defense services for indigent people in

Galveston County, Texas; and

WHEREAS, They are both mutually committed to following Texas Law and the United States

Constitution when providing those services; and

WHEREAS, They are both committed to using this settlement agreement to continuously evaluate

improvements to the provision of defense services to indigent people in Galveston County, Texas,

Willey and Ewing THEREFORE agree to settle all claims and controversies now existing

between them according to the following terms:

(1) This settlement agreement is in compromise of disputed claims between the parties.

Nothing in this settlement agreement should be considered as an admission by Judge

Ewing of any wrongdoing.

(2) The parties agree to comply and abide by the provisions of (i) the Texas Fair Defense

Act governing the appointment of counsel, and (ii) the Galveston County Indigent

1/3

Case 3:18-cv-00081 Document 35-1 Filed on 04/22/19 in TXSD Page 2 of 3
Defense Plan. 1 The parties agree not to cause or ask others to violate the Texas Fair Defense Act and/or the Galveston County Indigent Defense Plan. (3) Willey's obligations under this agreement are contingent on his continued acceptance of appointments under the Galveston County Indigent Defense Plan. Nothing in this agreement shall be construed to impose any consequence on his failure to comply with the Texas Fair Defense Act and the Galveston County Indigent Defense Plan beyond the remedies available under the Galveston County Indigent Defense Plan. (4) The parties agree to jointly file a Final Judgment incorporating the terms of this agreement, and all discovery and deadlines are suspended. (5) Each signatory warrants and represents that he has the authority to bind the parties for whom that signatory acts. (6) Each signatory to this settlement has carefully read each and every provision of this agreement and has entered into the same freely and without duress after having consulted with professionals of his choice. Each party acknowledges that (a) the mediator is not the attorney for any party, (b) the party has conferred with counsel regarding the advisability of entering this agreement prior to signing it, (c) the party's counsel has independently reviewed this agreement prior to its execution, (d) the mediator has not given any advice or made any recommendations concerning this settlement agreement or the terms hereof. (7) This settlement agreement is contingent on approval by the Galveston County Commissioners' Court at its April22, 2019 meeting.
1 All references in this settlement agreement to the Texas Fair Defense Act and/or the Galveston County Indigent Defense Plan refer to the current versions and any subsequent amendments to and/or modifications of those provisions.
2/3

Case 3:18-cv-00081 Document 35-1 Filed on 04/22/19 in TXSD Page 3 of 3 Signed in Galveston, Texas this 9th day of April, 2019. Plaintiff: Approved by Attorney for the Plaintiff: Defendant: Approved by Attorney for the Defendant:
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