Primary upset could put more women on bench, but is voting the way to do it?

By Ryan Autullo

Travis County Democrats ousted a respected longtime judge on Tuesday in favor of a lawyer who earned no political endorsements, raised next to no money, was sanctioned by two Austin courts for filing harassing lawsuits — and admits she is not a Democrat.

District Court Judge Tim Sulak’s stunning primary loss to Madeleine Connor angered many in the legal community who suspect voters were unaware of the flaws in Connor’s candidacy but picked her in the down-ballot race because they preferred a woman to a man.

Sulak and criminal court Judge David Wahlberg ended the night as the third and fourth male incumbent District Court judges in Travis County to surrender their bench to a female opponent since 2016. Only Sulak’s defeat was competitive. When Connor takes over next January, all of the county’s 11 civil district court benches will likely be occupied by a woman.

Connor’s victory also fuels the ongoing debate about Texas’ process for picking judges through elections rather than appointments.

A committee approved by Gov. Greg Abbott through legislation last year had already been examining the topic after Republicans were wiped off of appeals courts in major counties two years ago when Democrats rode the coattails of U.S. Senate candidate Beto O’Rourke.

The bipartisan committee is scheduled to issue a report on the final day of the year that explores other options.

Texas is among a handful of states that elect judges through partisan elections all the way up through the high courts.

“Democracy isn’t perfect,” District Judge Amy Clark Meachum said last week. “The alternative is much worse. A pure appointment system is by definition anti-democratic and highly likely to give us exactly what we have statewide — a completely unbalanced Texas Supreme Court. Every Gov. Abbott appointment reinforces that imbalance.”

Connor’s comeback

Regarding Connor’s victory, Clark Meachum — who was victorious Tuesday in a Supreme Court primary for chief justice — said, “I’m sad for the lawyers and the public, but this is a problem that can be corrected.”

Connor trailed by 9 percentage points after early returns, suggesting that Sulak was probably safe. But by the time all ballots were counted, Connor had completed a stunning comeback to win by less than 2,000 votes — earning 50.5% of the share in the two-person race. She scored nearly 11,000 more primary day votes than Sulak.

It was the first time Connor won a judicial election in five tries. She ran three times as a Republican, and in 2012 described herself as a “longtime conservative.” She now calls herself an independent.

Without a Republican candidate opposing her in the November primary, Connor is all but assured of taking over Sulak’s 353rd District Court, something attorneys predict will cause delays as they move to reset cases assigned to Connor in hopes of getting a different judge for the next setting.

“It’s going to disrupt the entire central docket because attorneys are going to do everything they can for their case to not be in her court,” said Austin lawyer Jason Snell. “I cannot tell my clients they can trust her as a judge.”

Snell, a business litigator who has earned high ratings among his professional peers, said he is considering opposing Connor in the general election and encouraging voters to pick him as a write-in candidate.

“Not because I want to become a judge at this stage of my career, but because someone has to step up and do it,” he said.

Criticism and court trouble

Personal injury lawyer Adam Loewy slammed the Travis County Democratic Party for not intervening with a rare endorsement for Sulak. Loewy, a major Democratic donor who is considering a run for the state Senate seat being vacated by Kirk Watson, tweeted a day after the primary that he might cut off funding to the party and donate only to individual candidates.

He contrasted the party’s reaction to the response from Travis County Republican Party Chairman Matt Mackowiak who vowed to “light myself on fire” if GOP provocateur Robert Morrow wins a Republican runoff for the State Board of Education. Morrow has made enemies with his party for what members consider to be vulgar behavior like tweeting photos of women’s breasts.

“Absolutely inexcusable,” Loewy said of the Democrats in his tweet. “Disgraceful. What’s the point of a party if party leadership allows garbage like this?”

Travis County Democratic Party Chairwoman Dyana Limon-Mercado did not return messages from the American-Statesman about Loewy’s tweet. Limon-Mercado ran unopposed in the primary.

Connor was involved in a contentious lawsuit with a Lost Creek homeowners association that ended with District Judge Catherine Mauzy — Connor’s soon-to-be colleague — declaring her a vexatious litigant last year. It meant the judge felt Connor had used Mauzy’s court as a weapon to harass the homeowners with a flurry of repetitious lawsuits that had no shot of succeeding.

A year earlier, U.S. District Judge Robert Pitman also found Connor to be vexatious for similar conduct in his court in the feud with the homeowners.

The penalties were stiff: Mauzy slapped Connor with about $27,000 in fees and sanctions. Pitman followed with $43,000 in attorney fees and other other expenses. Connor is prohibited from filing another lawsuit on behalf of herself in any Texas state court without the approval of a local court’s administrative judge.

Connor was the only person in Travis County who was declared a vexatious litigant in 2019 among 23 people statewide. At the time, she was a licensed attorney who was employed as general counsel of the Texas Veterans Commission, a position she still holds and says she intends to keep until she takes over Sulak’s bench. Unlike Connor, most of the vexatious litigants who have been blacklisted in the state are non-lawyers who represented themselves in a civil case.

Connor has called the vexatious litigant statute unconstitutional and says the many actions she took against the homeowners were unique and that Mauzy erred when she found them to be repetitive.

An examination of court records shows Connor has filed other lawsuits unrelated to the issue with the homeowners.

She alleged harassment against her former co-workers at the Texas attorney general’s office, and in a separate suit said she was denied equal pay.

She alleged personal injury by a veterinarian and by a pharmaceutical company. She sued Travis County because she felt the appraised value of her home was too high.

She also accused her ex-husband of breaching a financial agreement they had reached in their divorce.

In all of the actions, Connor settled with the defendant, or a judge rendered a judgment against Connor.

Claire Reynolds, public affairs counsel for the state bar, said Connor has never been disciplined by the bar. Reynolds said she legally could not say if the bar is investigating the behavior that led to the vexatious litigant finding.

Sulak’s campaign team tried to get the word out, issuing mailers and purchasing TV, newspaper and digital advertisements that highlighted Connor’s troubles and touted Sulak’s experience in three terms on the bench. A survey of local attorneys last year showed him with the highest score for overall excellence among the county’s eight civil district judges.

It came at a steep cost. The most recent financial numbers show Sulak’s team spent $382,000 since January. Connor accepted $49 in a single donation and spent $541.99.

The American-Statesman wrote about Connor’s troubles in January and the Austin Chronicle followed with a story in February while also strongly supporting Sulak in its endorsement issue. A legal publication also reported on her sanctions.

Connor said she offset the bad exposure by attending community events and promising voters she would make fair decisions and refuse to bow to political pressures.

“That was my only message throughout the whole campaign,” she said.

Gender politics?

Connor said it was speculative to suggest gender played a role in her win, but that if women do have an advantage “that’s probably a good thing and is more in line with values of the Democratic Party.”

Sulak’s campaign manager, Alfred Stanley, shared statistics that show voters are increasingly less likely to skip down-ballot races than they once were. In the last three Democratic primaries with a contested presidential nomination, the percentage of Travis County voters who skipped judicial races has decreased from 34% in 2008 to 25% in 2016 to 21% this year.

“I don’t think people are better informed about these judicial races than they were 12 years ago,” Stanley said. “I just think they feel compelled to make a choice.”

Wahlberg, a two-term judge, lost by more than 23,000 votes to longtime prosecutor Dayna Blazey, suffering the same fate as criminal court judges David Crain in 2018 and Jim Coronado in 2016, who also were crushed by female challengers.

This year, former misdemeanor court Judge Mike Denton got just 11% of the vote in a four-candidate race for county attorney that ended with Laurie Eiserloh and Delia Garza heading to a runoff. Even District Court Judge Tamara Needles, who was uncontested, received about 4,400 votes more than District Court Judge Brad Urrutia, who also ran uncontested.

Some wondered if voters thought civil judge candidate Kennon Wooten, a woman, was actually a man based on the ambiguity of her name. She lost by almost 14 points to Maria Cantú Hexsel even though Wooten received more endorsements and spent more money.

“I support electing women,” local attorney Greg Hitt said. “We need more women lawmakers. But I don’t support voting for any person based solely on a particular characteristic and throwing out good judges like Tim Sulak. He is a great judge — fair, deliberative, kind and thoughtful.”

Hitt lost badly to two women for an open bench in 2018 even though he was the only candidate who was board-certified in family law.

Sulak said he doesn’t know what’s next, but he wants to continue serving the public when he leaves the bench.

“I am proud of the work I have been able to do, and while I’m saddened by the outcome, I’m grateful for having had the privilege to serve the community which has provided so much to me,” he said.