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Harley Clark’s Judicial Legacy . BY BRETT CAMPBELL p ROGRESSIVES HAVE generally reacted to the passing of the Egregious Eighties with little regret. Thanks if that’s the word to the phenomena grouped under the rubric of the Reagan Revolution, the last decade was an era of retrenchment and retreat from government action in the public interest. Still, Texans had at least one reason to mourn the decade’s end: It also meant the retirement of one of the more influential judges in state history. When Harley Clark doffed his black robe for the last time at the end of last year, the state became a little poorer. In his dozen years as a state district judge, Clark probably did as much as any single person to brighten Texas’s future. Clark’s departure to practice law with an Austin firm coincided with perhaps his most exultant moment: the Texas Supreme Court’s unanimous decision upholding his judgment in the landmark school finance case \(TO, 10/ Edgewood v. Kirby threw out the state’s manifestly inequitable system of paying for its children’s education, and threw state government into a tizzy which becomes even more frantic now, as legislators struggle in the current special session to devise a system that will meet even a minimal test of equity. “The short-term impact [ofEdgewood] is to force the Legislature to do what they should have been doing all along give the attention to education that it needs, which means not only rules and regulations but also means money,” predicted Rick Gray, one of the attorneys for the plaintiffs. “I’ll be extraordinarily surprised if Texas’s commitment to education is not increased significantly” as a result of Clark’s ruling, Gray said. But the decision will reverberate down the years as well. “The second impact, which won’t be fully realized for a generation to come, will be on the educational process itself,” Gray continued. “The ruling will provide a substantially better education to a million or two million school kids every year.” Concluded Gray, who has both won and lost big cases before Clark: “It takes a very courageous judge to strike down the state system of education. Our future is tied to education of our youth, so [Clark] has had a Brett Campbell is an Observer editorial assistant. monumental impact on the future of Texas and it’s monumentally good.” While the school-finance case drew the most attention, Judge Clark’s actions in several other important cases will also leave a lasting legacy for generations of Texans. Because of his ruling in the -Open Beaches case of 1984, “We have a better chance of preserving our heritage of public beaches in the future in light of the threat of shoreline erosion,” said Ken Cross, who argued the case for the state. Global warming \(probably precipitated by human industrial developand closer to the privately developed stretches along the coast. The rights of the landowners upon whom the waterline encroached were on a collision course with the rights of the public, who had long had the right to enjoy the state’s public beaches. When Hurricane Alicia swamped Galveston in 1983, it became apparent that one group’s rights would have to give way in the face of nature’s implacable advance. “Clark ruled that the public’s right to enjoy the beaches migrates with the beaches,” Cross recalled. Consequently, access to public coastal areas won’t be limited only to those who can afford to buy them; instead, all Texans \(unlike the residents of some states with less-enlightened beaches. Clark’s judgments in other landmark cases included Clements v. Valles \(1981, which struck down discriminatory redistricting boundaries, thus protecting minority voting cases that stopped the decades-long discrimination against farmworkers that excluded them from workers’ compensation and unemployment compensation benefits. Said the Texas Civil Liberties Union’s Jim Harrington, who participated in those cases, “Clark drew attention to the fact that you could litigate cases in state court under the Texas Bill of Rights. That’s not to say that he was the only judge doing that, but because they were very high-profile cases, they drew the attention of the press and other judges.” The farmworker cases, for example, were the first brought under the Texas Equal Rights Amendment, Harrington noted. Not that Clark was a predictable vote in favor of the underdog. Harrington is still baffled and bitter about the judge’s 1989 decision to halve the jury award made to Opal Petty, a woman who had been wrongly locked away in the State Mental Hospital for half a century. He was even more hurt by Clark’s refusal to award attorney fees to the TCLU, despite their months of work on the case and the fact that civil rights groups depend on those fees to be able to litigate social justice issues. \(TCLU is now in deep financial public interest when the law permitted him to do so. T’S NO ACCIDENT that Clark played a pivotal role in such complex and con flict-laden cases. “He was willing to take almost every political hot potato case in Austin,” said Gray admiringly. And he was well-positioned to do so. “Because it’s the seat of state government, the major reform litigation is going to be brought in Travis County,” said Austin attorney David Richards. “So the Travis County judiciary is more significant by light years than [that of] any other town in the state for that kind of case.” This has been especially true in recent years, with the Reagan-appointed federal judiciary ideologically disinclined to take bold steps, and the budget-strapped Legislature unable or unwilling to address some of the state’s most pressing needs. Advocates of social progress have accordingly been forced to take their cases to state courts. “The fact that Harley Clark was there on the bench made it both plausible and even attractive to begin to litigate significant civil rights and constitutional issues in state court in a way that had never been done before,” said Richards, who represented the plaintiffs in Edgewood and Valles. Clark’s vision wasn’t the only factor that gave his opinions such weight. According to several lawyers, his hard work and attention to detail helped ensure that his intrepid decisions wouldn’t be easily overturned on a procedural pretext. His legendary patience, willingness to let both sides have their say, and compassionate manner forestalled fears of an imperious, bullying judiciary. On the other hand, some say he let the lawyers go on too long. Yet “Travis County has the fastest, most efficient civil jury system in the state, and as presiding judge, Harley Clark had a lot to do with that,” pointed out Gray. The respect he earned among lawyers and litigants who appeared before him he consistently ranked at the top of the annual Bar Association polls made even conservative forces willing to try 6 MARCH 23, 1990