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A matter of judgment By Eric Hartman Austin If Chief Justice Joe Greenhill of the Texas Supreme Court could have his druthers. Texas judges would be spared the discomfiture of standing for popular election to the bench. The chief justice, who owes his initial rise to the high court and his promotion to its top job to gubernatorial appointments, sees serious drawbacks in the elective system that came to Texas out of Jacksonian America by way of the Reconstruction backlash against executive authority. In law review remarks and other public comments, Judge Greenhill has focused his attention on ethical problems posed by the sort of big-time fundraising he hasn’t needed since a costly contested race in 1958 against Sarah Hughes. But a Feb. 10, 1978, letter asking for contributions to his current campaign for reelection has invited questioning in the same spirit. In the first place, the chief justice is taking in contributions for a race in which he has no opposition; in the second place, there are questions about who is actually soliciting the fundsGreenhill or friends acting for himand when the receipts must be reported. The Feb. 10 letter was sent by former Greenhill law clerk W. Douglas Matthews, now a prominent Houston attorney and past president of the Texas Trial Lawyers Association. His letter asked the 80 or so plaintiff’s lawyers who received it to chip in $15 each to help defray the cost of Greenhill’s $1,500 filing fee and to cover travel expenses the chief justice would incur in honoring campaign commitments to speak around the state. But it turns out that, Matthews was not the only one soliciting money. Indeed, Matthews said in his letter that he had been asked to serve on a “committee” to raise funds for Greenhill, though he later told the Observer that he couldn’t recall why he used that term, for he never really meant to imply that there was a campaign finance committee in any legal sense. His story is that he and A. Frank Smith of Houston’s Vinson & Elkins firm approached Greenhill well before last month’s filing deadline to propose that a handful of friendly lawyers be permitted to raise money on the chief justice’s behalf from among their professional acquaintances. \(Besides Matthews and Smith, the handful of solicitors are known to include Bill Harvin, Will Perry and Frank Abraham, all senior partners in prestigious HousJudge Greenhill, who doubles as his own campaign treasurer, says he gave the go-ahead for fundraising only after making sure that the amounts requested would be low and those asked to contribute widely dispersed. He also insists that he neither previewed nor authorized the specific language of Matthews’s letter. Matthews professes himself “frankly surprised” that anyone would raise an eyebrow at their fundraising effort, since it’s meant to raise just a few thousand dollars to meet actual expensesmoney that Judge Greenhill, whom Matthews terms a “man of modest means,” could ill afford to part with. \(Greenhill is paid an annual salary of $47,900 as chief jusestimate precisely what expenses the unopposed candidate expects to incur, nor do they know exactly how many requests have been made by the group or how much will be raised. Matthews says that his appeal has brought in between $800 and $900, and Greenhill thinks about $1,200 has come into his office so far, though he has not gotten around to tallying it. Harvin acknowledges that contributions up to $100 per lawyer have been sought and received. Judge Greenhill and those of his soliciting friends who would talk to the Observer plainly don’t think they have done , anything wrong. Even though Greenhill was unlikely to have opposition, the chief justice was “quite anxious to maintain visibility to avoid having an opponent,” said Harvin. Similarly, though he definitely had no opponent by the time Matthews’s letter went out, Greenhill deemed it poor politics to cancel his scheduled campaign appearances. But the solicitations have raised the hackles of a number of attorneys, some of whom told the Observer that the chief justice appeared to be , holding them up. One large and prosperous Houston firm of more than a hundred lawyers reportedly let Greenhill know what it thought of his dun by forwarding a check for a measly $100 from the entire firm. Moreover, while Matthews and Greenhill see no problem with their appeal for funds, not every member of the soliciting group cares to discuss it. When Frank Abraham was queried about reports that he’d been asking lawyer friends to cough up $50 apiece for Greenhill, he offered “no comment. Pressed to explain how that response comported with the public’s interest in knowing the facts about a candidate’s campaign finances, Abraham said, “I just really don’t think it’s the public’s business.” Of course, the state campaign reporting laws make clear that the public does have a right to know how much a candidate collects \(and the names of those how soon the public can find out, and the Greenhill case may fall between the cracks of the law. Political candidates must designate a treasurer to receive contributions, make expenditures, andordinarilyfile periodic preelection reports with the secretary of state’s office. But another provision may allow any unopposed incumbent to avoid the business of reporting until well after election day. Despite Matthews’s slip-of-the-tongue reference to a “committee’! in his letter, the lawyers soliciting for Greenhill probably don’t comprise a “specific purpose political committee” that has to comply on its own account with the election code’s ordinary reporting requirements. As a result, it’s possible no report of the amounts they’ve raised will be available to the public until Greenhill files his annual officeholder report next January. It is the chief justice’s interpretation of the law that heand any other unopposed officeholder in Texascan handle campaign funds this way. His view is shared by two other Texas jurists who also are running unopposed for reelection this yearSupreme Court associate justice Sam D. Johnson and Judge Wendell Odom of the Court of Criminal Appeals. But there are differences between their situations and Greenhill’s. Neither Odom nor Johnson is soliciting campaign money, for one thing. And asked whether he ought to report such campaign contributions before election day even if he were not required to, Johnson said simply, “Yes, I should and I would.” Land Commissioner Bob Armstronganothe unopposed incumbent running this yeartakes an even stronger stand on what he sees as both a legal and ethical obligation to report contributions before balloting. Says Armstrong. “I’m clearly required to file preelection reports, just the same as every other candidate does. What’s more, it’s in my self-interest to do so.” Greenhill is not trying to skirt any laws. He says that although the secretary of state’s office has assured him that he can wait until January 1979 to file his campaign report, he will comply with the law, whatever it is. There’s the problem. Ultimately, the secretary of state, the attorney general, or the state courts \(posa definitive ruling on what constitutes proper filing procedures. But a better way may be for the next Legislature to rewrite this section of the code to eliminate any special treatment of unopposed candidates by requiring everybody to report before election day. Otherwise, the election code effectively denies its own premise that voters need such information to make wise electoral decisions. 8 MARCH 31, 1978