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NO.

DC-15-04484
STATE FAIR OF TEXAS

Plaintiff,
v.
RIGGS & RAY, P.C.
Defendant.

IN THE DISTRICT COURT

DALLAS COUNTY, TEXAS

101ST JUDICIAL DISTRICT

PLAINTIFFS MOTION FOR RECUSAL


Pursuant to Rules 18a and 18b of the Texas Rules of Civil Procedure
Plaintiff State Fair of Texas (State Fair) moves for the recusal of the Honorable
Staci Williams, presiding judge of the 101st Judicial District Court. Recusal is
appropriate because of certain social-media activity of the judge as described
below. This motion is not based on any a claim of actual bias but on the ground
that the judges impartiality might reasonably be questioned. Tex. R. Civ. P.
18b(b)(1).
The rules require that the clerk of the court immediately deliver a copy of
this motion to Judge Williams and to the presiding judge of the administrative
judicial region. Id. 18a(e). Judge Williams must, within three business days, sign
and file with the clerk either an order of recusal or an order referring the motion to
the presiding judge of the administrative judicial region. Id. 18a(f).
I.

LEGAL STANDARD

A judge must recuse in any proceeding in which [among other grounds]:


(1) the judges impartiality might reasonably be questioned; [or] (2) the judge has a
PLAINTIFFS MOTION FOR RECUSAL Page 1

personal bias or prejudice concerning the subject matter or a party. Tex. R. Civ.
P. 18b(1),(2). The test for recusal is whether a reasonable member of the public at
large, knowing all the facts in the public domain concerning the judges conduct,
would have a reasonable doubt that the judge is actually impartial. Hansen v.
JPMorgan Chase Bank, N.A., 346 S.W.3d 769, 776 (Tex. App.Dallas 2011, no
pet.); see also Humitech Development Corp. v. Perlman, 424 S.W.3d 782, 797
(Tex. App.Dallas 2014, no pet.); Rogers v. Bradley, 909 S.W.2d 872, 881 (Tex.
1995) (Enoch, J., responding to declaration of recusal). The impartiality of the
judge is not only a matter of constitutional law, but also of public policyPublic
policy demands that a trial judge act with absolute impartialityIt also demands
that a judge appear to be impartial so that no doubts or suspicions exist as to the
fairness or the integrity of the court. Rymer v. Lewis, 206 S.W.3d 732, 736 (Tex.
App.Dallas 2006, no pet.) (emphasis added); see also Caperton v. A.T. Massey
Coal Co., Inc., 556 U.S. 868, 883-84 (2009) (recusal is necessary when under a
realistic appraisal of psychological tendencies and human weakness, the [judges]
interest poses such a risk of actual bias or prejudgment that the practice must be
forbidden if the guarantee of due process is to be adequately implemented).
II.

FACTUAL GROUNDS FOR THE MOTION

As part of routine preparation for a hearing before a comparatively new


member of the judiciary, on November 23, 2016 counsel for State Fair reviewed
news and social-media mentions of the presiding judge of the Court. Counsel
intended only to obtain a better understanding of the judges life experience;
PLAINTIFFS MOTION FOR RECUSAL Page 2

political, social, and cultural outlook and affiliations; and judicial attitude and
approach. Among the first sources reviewed by counsel was the judges official
Twitter account. The account does not declare itself an official judicial account.
But its presentation and its content leave no doubt that it represents
communications from the presiding judge of the 101st District Court about her
judicial work rather than about her personal life:

On July 20 of this year, the judge retweeted, without comment, a tweet from
a local political commentator and radio host, Ed Gray, concerning State Fair and
this case. The following is how the entry appears in the judges account:

PLAINTIFFS MOTION FOR RECUSAL Page 3

As of November 23, the judges Twitter account included 245 tweets. Every
one of the 244 entries not counting the July 20 retweet has as its subject a person,
topic, activity, or communication of which the judge approves, that she
recommends, or that sheds light on the life and work of a judge generally or
activities in the 101st District Court specifically. Aside from that contextual
evidence, although retweeting does not necessarily and inevitably reflect
agreement with or approval of the underlying tweet, retweeting without comment
or

indication

of

disagreement

is

understood

to

signify

approval

or

recommendation,1 and the judge retweeted Mr. Grays tweet without comment.
1

See https://answers.yahoo.com/question/index?qid=20110118162046AAJNioP (Best Answer:


If you see a tweet that is interesting, funny, etc., somehow worthy of being passed on, you would
retweet it so all your followers could read it too. So she liked your tweet and wanted everyone to
PLAINTIFFS MOTION FOR RECUSAL Page 4

Mr. Grays tweet includes a large photograph of the head of Big Tex, the
preeminent symbol of the State Fair of Texas, altered to add a black eye. The
caption of the tweet reads: Fair Park & transparency needs 2 happen I
appreciate Judge @StaciWilliams8. The Gray tweet links to an article from the
Dallas Observer. A copy of the article is attached as Exhibit A. 2 The subject of the
article is this case. It is a polemical piece, taking one side of the dispute, and is
replete with the exaggerations, distortions, and outright falsehoods permitted by
the First Amendment in the context of political journalism. Its centerpiece is a
purported description of this case and the Courts rulings written entirely from the
perspective of Riggs & Ray and its anonymous client on whose behalf Riggs &
Ray has stated it transmitted the request for information that led to this case: 3
read it.); see also https://www.qdigitalstudio.com/library/do-retweets-mean-endorsement
(noting that whether or not correct, A retweet, without any personal comment, can easily be
seen as full (albeit tacit) endorsement.).
2
The article is available online at: http://www.dallasobserver.com/news/transparency-isnt-justimportant-in-fair-park-debate-its-the-whole-enchilada-8504231.
3
Although Riggs & Ray has not identified the client, a July 15, 2016 Dallas Morning News
editorial identified the client as J. McDonald (Don) Williams, a vocal critic of State Fair, and
his foundation:
The State Fair of Texas a private nonprofit, just like the foundation is
fighting hard to insist it be exempt from Texas open-records laws. It has gone to
court to repel a colossal records request submitted last year under the Texas
Public Information Act by the Foundation for Community Empowerment, a
Dallas nonprofit founded by frequent State Fair critic Don Williams.
The State Fair sued, seeking a judgment declaring that it is not subject to the act.
Instead, a judge dismissed the suit and sanctioned the State Fair. The State Fair
has appealed, so the legal questions are not yet settled.
http://www.dallasnews.com/opinion/editorials/2016/07/15/editorial-dallas-needs-transparencynew-fair-park-foundation-state-fair (emphasis added).
PLAINTIFFS MOTION FOR RECUSAL Page 5

Last year, rather than go through the normal legal process for an entity
that doesnt want to answer public information demands, the fair
board sued the Austin law firm that had sent them the questions.
State District Judge Staci Williams threw the fair board out of court,
telling them to go through the steps prescribed by law for people who
object to a public information demand an appeal to the Texas
attorney general and, if theyre still not happy there, maybe a visit to
court in Austin, not Dallas.
But Williams took another extraordinary step, agreeing with the
defendants that the State Fair of Texas had violated state law by suing
them as a way to prevent them from exercising their constitutional
right of free speech. The judge awarded attorneys fees to the
defendants plus a matching sanction amount that the judge made
clear was the fairs penalty for abusing state law.
Was that enough to make the fair repent? Absolutely not. As we
speak, the fair is engaged in an appeal of Williams opinion. The fair
board is still firmly determined not to answer any of the questions put
to it under state public information laws.
The fair has argued that it is not a public entity and therefore not
subject to the public information laws of the state. The defendants
argue that the fair is public enough, under the law, given both a
history of financial support from the city and the obvious important
effects the fairs operations have on the public good, for better or for
worse.
The last paragraph of the passage just quoted, from an article published just 12
days before the Court of Appeals reversed this Courts rulings, specifically predicts
what will happen if the case returns to this Court:
That question [whether the fair is a public entity] hasnt been
litigated yet and wont be, ironically, unless the fair wins its appeal. If
it wins, then its lawsuit will come back to Dallas for trial, and all of
that laundry will be done in court a prospect the fair ought to be
having second thoughts about. (emphasis added)
Concerned by the presiding judges July 20 retweet, counsel for State Fair
looked further at the Twitter account. Under the heading Likes on the presiding
PLAINTIFFS MOTION FOR RECUSAL Page 6

judges Twitter accountwhich identifies tweets as to which the operator of a


Twitter account has clicked likecounsel found that the judge had liked the
following tweet from Phillip Kingston, added to the account on June 9, one day
after this case was argued in the Court of Appeals: 4

Mr. Kingston is a member of the Dallas City Council and, along with Riggs
& Rays anonymous client, a leading public critic of State Fair.5 His June 9
tweet liked by the presiding judge links to an article also from the Dallas
Observer and written by the same columnist who wrote the article linked to Mr.
4

For greater readability, enlarged copies of the liked tweet of Mr. Kingston and the retweeted
tweet of Mr. Gray appear together as Exhibit E.
5
In addition to the embedded image, see, for example, http://www.dallasnews.com/news/dallascity-hall/2015/12/10/audit-to-look-at-whether-state-fair-of-texas-others-are-doing-their-fairshare-for-fair-park (There is broad skepticism that the State Fair is a legitimate nonprofit, says
Philip Kingston.). See also http://www.dallasobserver.com/news/rumors-that-the-plan-for-aprivated-fair-park-is-in-trouble-spark-new-proposals-8753590.
PLAINTIFFS MOTION FOR RECUSAL Page 7

Grays July 20 tweet retweeted by the presiding judge. A copy of the June 9 article
is attached as Exhibit B. 6 In addition to Mr. Kingstons tweet being headed, State
Fair governance and its [sic] hold on city hall are embarrassing, the article
starts with the photograph shown on the tweet but with its caption disclosed: The
State Fair of Texas has always been an opaque entity, fiercely guarding its
secrets. The article goes on to mention a purported series of devastating audits
and outside reports[that] have tarnished State Fair, all included in an
anonymous binder that the articles writer discovers was admittedly put together
by Riggs & Rays anonymous client and is intended to discredit the moneyed
gray-hairs and blue-beards from the Park Cities that allegedly make up [t]he
board that controls the State Fair. The article goes on to describe the dispute as a
class thing with State Fair side represented by all of the Park Citiesthe
power and the glory, the high-end tailgatersthe tailgate crowd.
According to the official Twitter website, likes are commonly used to
show appreciation for a Tweet. 7
As the Courts records reflect, the mandate of the Court of Appeals issued
on October 13, returning jurisdiction of this case to the Court. The next day State
Fair voluntarily non-suited the action, giving the following explanation:
After the filing of this action seeking a declaratory judgment on the
6

The article is available online at: http://www.dallasobserver.com/news/take-an-embarrassingpeek-into-the-love-between-the-state-fair-of-texas-and-fair-park-8374766.


7
See https://support.twitter.com/articles/20169874; see also http://follows.com/blog/2016/01/
tweet-likes-twitter (Additionally, of course, when you like a tweet, the poster of that tweet is
notified.).
PLAINTIFFS MOTION FOR RECUSAL Page 8

question whether SFT is a governmental body under the Texas


Public Information Act (TPIA) the following events have occurred:
(1) The Supreme Court of Texas has issued a decision making plain
that SFT is not a governmental body under the TPIA, Greater
Houston Pship v. Paxton, 468 S.W.3d 51 (Tex. 2015); (2) the Dallas
Court of Appeals has confirmed that SFT acted entirely within its
legal rights in filing this action for declaratory relief; and (3) the
Dallas Court of Appeals has confirmed that SFT was not required to
seek a ruling from the Attorney General of Texas as to whether SFT is
a governmental body under the TPIA. Given those developments,
SFT no longer sees the need to prosecute this action at this time and
therefore voluntarily nonsuits the action without prejudice. 8
On October 17 the Court duly signed an order dismissing the action. 9 But on
November 14, just before the Courts plenary power expired, Riggs & Ray filed a
motion for sanctions against State Fair. 10 The motion essentially asks the Court to
disregard or overturn the decision of the Court of Appeals and reinstate the award
of attorney-fee sanctions granted in the Courts previous order that the Court of
Appeals reversed. As grounds, Riggs & Rays motion relies on the same point
expressly rejected by the Court of Appeals: State Fairs allegedly improper
purpose in seeking a declaratory judgment rather than asking the Attorney
General for a ruling, as Riggs & Ray preferred.
One day later, on November 15, a post appeared about Riggs & Rays
motion for sanctions on a website styled watchdog.org. A copy of the post is
attached as Exhibit C. 11 Written in the same style as the Dallas Observer articles
cited in the tweets on the presiding judges Twitter accountentirely from the
8

Plaintiffs Notice of Nonsuit, at 1 (Oct. 14, 2016).


Order of Nonsuit (Oct. 17, 2016).
10
Defendants Motion for Sanctions or, Alternatively, Motion to Modify (Nov. 14, 2016).
11
The post is available online at: http://watchdog.org/281877/state-fair-sanctions/.
9

PLAINTIFFS MOTION FOR RECUSAL Page 9

point of view of Riggs & Ray and its anonymous clientthe post praises the
Courts previous ruling, describes the motion for sanctions, and speculates about
why State Fair nonsuited its action: the nonsuit allegedly allowed fair officials to
avoid giving depositions during a volatile period. Three days later, on
November 18, Riggs & Ray asked State Fairs counsel to schedule the depositions
of three witnesses affiliated with State Fair. A copy of the letter requesting the
depositions is attached as Exhibit D. With respect to the sanctions motion, the
watchdog.org post concludes: Williams, the judge who already thought the fair
was acting in bad faith, will rule on the motion. Considering its setting, the
statement must be taken as reflecting the opinion of Riggs & Ray and its
anonymous client.12
III.

ARGUMENT

Given the preceding, State Fair has concluded that the presiding judges
impartiality might reasonably be questioned, Tex. R. Civ. P. 18b(b)(1), not
generally, but with respect to the current dispute involving State Fair. Without
reference to any other factor or factors, the judges publicly posted approval on her
Twitter account of two tweets linked to two articles vituperatively critical of State
Fairs management generally and State Fairs position on its legal rights and
obligations with respect to disclosure of its books and records specifically

12

State Fair does not suggest that Judge Williams had any involvement in the watchdog.org post.
State Fair references the post here for context and because one consideration on recusal motions
is, What is the attendant publicity that might affect the publics perception of impartiality?
Lueg v. Lueg, 976 S.W.2d 308, 311 (Tex. App.Corpus Christi 1998, pet. denied).
PLAINTIFFS MOTION FOR RECUSAL Page 10

including one tweet-article that expressly praises the judge by name for her nowreversed rulings and anticipates return of the case to the Courtwould cause any
reasonable observer to doubt the judges ability to be, or appear, objective about
this specific dispute.
Despite the modern social-media setting from which State Fairs concerns
arise, the substance is no different than if the presiding judge had posted printed
versions of the same tweets and articles on the door of her courtroom for any
member of the public to read as they entered. Examining the tweets and articles,
any reasonable person, not just moneyed gray-hairs and blue-beards from the Park
Cities or high-end tailgaters, would believe that the judge has fixed views
incompatible with an ability to resolve the dispute between Riggs & Ray and State
Fair impartially. Accordingly, because the judges impartiality might reasonably
be questioned the judge must be recused.
In Youkers v. State, 400 S.W.3d 200 (Tex. App.Dallas 2013, disc. rev.
refd), the Dallas Court of Appeals applied recusal principles for the first time to
social-media activity:
Recusal based on bias is not required simply because of a business
relationship or acquaintance with a party. See Woodruff v. Wright, 51
S.W.3d 727, 737-38 (Tex. App.Texarkana 2001, pet. denied)
.Merely designating someone as a friend on Facebook does not
show the degree or intensity of a judges relationship with a person.
ABA Op. 462.
Id. at 206. Compare Texas Ethics Commn v. Sullivan, 2015 WL 6759306, * 2
(Tex. App.Ft. Worth 2015, pet. filed) (noting that district judge who followed
party on Twitter without disclosing that fact ordered involuntarily recused). State
PLAINTIFFS MOTION FOR RECUSAL Page 11

Fairs concern about the presiding judge here stems not from any known
relationship with Riggs & Ray or its anonymous client but from her extrajudicial communications on Twitter approving posts critical of State Fair
management and State Fairs position in this case and praising the judge for
dismissing the case and awarding sanctions against State Fair.
A Special Court of Review last year set aside sanctions imposed on a district
judge by the State Commission on Judicial Conduct for extra-judicial
communications on social media about cases pending in her court but also made
comments relevant to recusal. In re Slaughter, 480 S.W.3d 842 (Spec. Rev. Ct.
2015):
The Respondent maintained a public Facebook page which displayed:
(1) a photograph of the Respondent wearing her judicial robe; (2)
featured a photograph of the Galveston County Courthouse; and (3)
described the Respondent as a public figure and as Judge of the
405th Judicial District Court. After her election to the bench, the
Respondent was very active in posting comments about matters that
were occurring in her court and in utilizing her Facebook page as a
means to educate the public about her court.
Id. at 846. The Special Court of Review, citing Youkers and secondary authorities,
set out a framework for analysis of judicial social-media comments on pending
cases. The court began by observing that only willful or persistent violations
would warrant sanctions imposed by the Commission on Judicial Conduct. Id. at
848. The court then held:
[O]ur analysis of the allegations of misconduct alleged against the
Respondent should not change simply because the communication
occurred online rather than offline. See Youkers, 400 S.W.3d at 206.
Our analysis, therefore, should focus on the substance of the
comments rather than the vehicle by which they were disseminated.
PLAINTIFFS MOTION FOR RECUSAL Page 12

However,any extrajudicial comment by a judge about a pending


case can pose a problem.
Id. at 849. The court then proceeded to address one of the canons from the Texas
Code of Judicial Conduct that the Commission charged the judge with violating,
Canon 3(B)(10):
A judge shall abstain from public comment about a pending or
impending proceeding which may come before the judges court in a
manner which suggests to a reasonable person the judges probable
decision on any particular case.
Id. (emphasis added). The Facebook comments for which the Commission on
Judicial Conduct concluded that the judge should be sanctioned were:
We have a big criminal trial starting Monday! Jury selection Monday
and opening statements Tues. morning.
Opening statements this morning at 9:30 am in the trial called by the
press the boy in a box case.
After we finished Day 1 of the case called the Boy in the Box case,
trustees from the jail came in and assembled the actual 6 x 8 box
inside the courtroom!
This is the case currently in the 405th!
We have a jury deliberating on punishment for two counts of
possession of child pornography. It is probably one of the most
difficult types of cases for jurors (and the judge and anyone else) to sit
through because of the evidence they have to see. Bless the jury for
their service and especially bless the poor child victims.
We finished up sentencing today with a very challenging defendant.
Id. at 847-48. The court noted that one of the comments just quoted included a link
to a Reuters article entitled Texas father on trial for putting son in box as
punishment. Id.
Although the court found troublesome that these comments go beyond
PLAINTIFFS MOTION FOR RECUSAL Page 13

mere factual statements of events occurring in the courtroom and add the judges
subjective interpretation of these events at or near the time of their occurrence, it
ultimately concluded that [t]he Commission did not present evidence that the
Respondents extrajudicial statements would suggest to a reasonable person the
judges probable decision on any particular case or that would cause reasonable
doubt on the judges capacity to act impartially as a judge. Id. at 851-52. The
court nevertheless admonished that extrajudicial comments made by a judge
about a pending proceeding will likely invite scrutinycreate the very real
possibility of a recusal (or even a mistrial) and may detract from the public trust
and confidence in the administration of justice. Id. at 852. And the
communications in Slaughter did in fact result in the judges involuntary recusal
from and a mistrial in one of the cases. Id. at 847.
As the federal Second Circuit Court of Appeals observed recently in the
course of disqualifying a district judge for public comments related to pending
litigation that caused her impartiality to be reasonably questioned:
Cases involving public comment by a presiding judge, other than
statements in open court, are infrequent. As the First Circuit has
remarked, [j]udges are generally loath to discuss pending
proceedings with the media.The very rarity of such public
statements, and the ease with which they may be avoided, make it
more likely that a reasonable person will interpret such statements as
evidence of bias.
Ligon v. City of New York, 736 F.3d 118, 126, 127 (2nd Cir. 2013). There are
nonetheless examples from a number of jurisdictions, including Texas, where

PLAINTIFFS MOTION FOR RECUSAL Page 14

courts found that judges had crossed the line. 13 And now comments can be shared
on social media such as Twitter with an ease and speedrequiring literally just the
click of a computer mousethat do not afford the time for reflection and second
thoughts a judge has before deciding to speak with a reporter, appear on a news
program, write a letter to editor, or post a magazine article on the courtroom door.
The narrowing of the time gap between thought and comment typical of social
media no doubt explains in part the cautionary words about judicial use of such
media offered by the Court of Appeals in Youkers and by the Special Court of
Review in Slaughter.
In this case, the presiding judgeby her retweet of one tweet and her like
of another, both tweets harshly critical of the management and board of State Fair
over the very issue that was the subject matter of a case on appeal from her court
and thus impending therepublicly approved and adopted the position of Riggs
& Ray and its anonymous client over the opposing views of State Fair. Her
communications went far beyond anything that could be fairly termed an effort, as
the judge in Slaughter characterized her Facebook posts, to be transparent and to
keep the public informed of the cases being tried in her court. Id. at 851.
The presiding judge may have been so confident that her rulings would be
affirmed by the Court of Appeals that she saw no risk from reaffirming extra13

See, e.g., Ligon, 736 F.3d at 126-27; United States v. Microsoft Corp, 253 F.3d 34, 107-17
(D.D.C. 2001); In Re Boston Childrens First, 244 F.3d 164 (1st Cir. 2001); U.S. v. Cooley, 1
F.3d 985, 992-996 (10th Cir. 1993); Shapley v. Tex. Dept Human Res., 581 S.W.2d 250, 252-53
(Tex. Civ. App.El Paso 1979, no writ); Matter of Hey, 425 S.E.2d 221, 224-26 (W. Va. 1992);
Matter of Sheffield, 465 So.2d 350 (Ala. 1984).
PLAINTIFFS MOTION FOR RECUSAL Page 15

judicially the views reflected in her judicial rulingsrulings that earned her public
plaudits from journalistic and political detractors of State Fair and allies of Riggs
& Rays client. Perhaps she would argue, as other judges have, that she did not
manage or read her own Twitter account, or even know of its existence. See
http://www.dentonrc.com/local-news/local-news-headlines/20150308-twitter-linkleads-to-burgess-removal-from-case.ece (No evidence was presented that said
Burgess even read his Twitter account or was even responsible for his Twitter
account, his lawyer argued). Compare Frazier v. Frazier, 2016 WL 4498320, *4*7 (Tenn. Ct. App. Aug. 26, 2016) (judge contended that Instagram photos
depicting close relationship with counsel for party opposing recusal movant were
not public photos; court of appeals ordered recusal based on Instagram posts that
raised reasonable question of impartiality).
Whatever the explanation, however, based on her Twitter activity alone the
appearance of partiality and pre-judgment against State Fair is not just reasonable;
it is unavoidable. Although judicial rulings are almost never enough by themselves
to show bias sufficient to warrant recusal, that the presiding judge here incorrectly
ruled against State Fair and awarded relief that even one journalistic ally of Riggs
& Rays client described as extraordinary, 14 and that Riggs & Ray now seeks
sanctions against State Fair based on the very arguments rejected by the Court of
Appeals, reinforces State Fairsand the reasonable personsconcerns about
impartiality. Accordinglyand making no judgment about actual bias or
14

See Exhibit A (article attached to July 20 retweet).

PLAINTIFFS MOTION FOR RECUSAL Page 16

prejudicerecusal of the presiding judge from this specific case is required.


CONCLUSION
For the reasons stated, State Fair requests that within three business days
Judge Williams enter an order of recusal or if the motion is referred to the
presiding judge of the administrative judicial region that a judge appointed to hear
the motion enter an order of recusal as to Judge Williams.
Date: November 29, 2016.

Respectfully submitted,
THOMPSON & KNIGHT LLP
By: /s/ Bryan P. Neal
Bryan P. Neal
State Bar No. 00788106
James B. Harris
State Bar No. 09065400
Stephen F. Fink
State Bar No. 07013500
1722 Routh Street, Suite 1500
Dallas, Texas 75201
Telephone: (214) 969-1762
Facsimile: (214) 969-1751
E-mail: bryan.neal@tklaw.com
E-mail: james.harris@tklaw.com
E-mail: stephen.fink@tklaw.com
ROBERT B. SMITH
Robert B. Smith
State Bar No. 00786248
3838 Oak Lawn Avenue, Suite 1220
Dallas, Texas 75219
Telephone: (214) 522-5571
Facsimile: (214) 522-5009
E-mail: robert@smith-firm.com
ATTORNEYS FOR
STATE FAIR OF TEXAS

PLAINTIFFS MOTION FOR RECUSAL Page 17

CERTIFICATE OF SERVICE
I certify that on November 29, 2016, true and correct copies of this
document were served by electronic service through eFile.TXCourts.gov on the
following counsel of record:
Julie Pettit
The Pettit Law Firm
3710 Rawlins, Suite 1050
Dallas, Texas 75219
Facsimile: (214) 329-4076
jpettit@pettitfirm.com

Stephen F. Malouf
Jonathan Nockels
Jeremy C. Martin
Malouf & Nockels LLP
6688 N. Central Expy., Suite 1050
Dallas, Texas 75206
Facsimile: (214) 969-7648
maloufs@smalouf.com
jmartin@smalouf.com
jnockels@smalouf.com
/s/ Bryan P. Neal
Bryan P. Neal

078452 000010 18811468.3

PLAINTIFFS MOTION FOR RECUSAL Page 18

VERIFICATION
THE STATE OF TEXAS
COUNTY OF DALLAS

BEFORE ME, the undersigned authority, on this day personally appeared


Stephen F. Fink, a person whose identity is known to me. After I administered an
oath to him, and upon this oath, he verified that all of the factual statements in
Section II of this motion are true and correct, and are based on his personal
knowledge, and the attachments are true and correct copies of the documents they
are described to be in Section II of this motion.

SUBSCRIBED AND SWORN BEFORE ME, the undersigned notary, on


this 29th day of November 2016.

~LA/, L~=--=

Notary Public, State OfTeXaS


My Commission Expires:

SHERRI FARMER

u.,NoJary ID# 572506-7


- 7

PLAINTIFF'S MOTION FOR RECUSAL - Page 19

Commission Exon.
October e, 2011 ~

EXHIBIT A

Transparency Isn't Just Important in Fair


Park Debate. It's the Whole Enchilada.
BY JIM SCHUTZE

WEDNESDAY, JULY 20, 2016 AT 4 A.M.

Are there things the State Fair doesn't want us to know about Big Tex's past?

Kevin Brown , State Fair of Texas

Listen, the debate about Fair Park turning our 277-acre albatross two
miles east of downtown over to a private entity probably started out
with good enough intentions. But now, not so much.
Now its about nothing so much as shielding the board of directors of the State Fair of Texas
from public scrutiny, and the scrutiny theyre ducking from is pretty damned searing.
The specic questions the State Fair of Texas board has been ducking, dodging, suing and gluing
people over in the last year have to do with alleged kickbacks from vendors, conicts of interest,

people over in the last year have to do with alleged kickbacks from vendors, conicts of interest,
side-deals, nancial arrangements with the cops, a slew of things.
I would feel compelled to point out that these are just questions and its unfair to assume the
answers, except that the board has gone to such extraordinary lengths to avoid giving those
answers.
Last year, rather than go through the normal legal process for an entity that doesnt want to
answer public information demands, the fair board sued the Austin law rm that had sent them
the questions.
ADVERTISING

inReadinventedbyTeads

State District Judge Staci Williams threw the fair board out of court, telling them to go through
the steps prescribed by law for people who object to a public information demand an appeal
to the Texas attorney general and, if theyre still not happy there, maybe a visit to court in
Austin, not Dallas.
But Williams took another extraordinary step, agreeing with the defendants that the State Fair
of Texas had violated state law by suing them as a way to prevent them from exercising their
constitutional right of free speech. The judge awarded attorneys fees to the defendants plus a
matching sanction amount that the judge made clear was the fairs penalty for abusing state
law.
Was that enough to make the fair repent? Absolutely not. As we speak, the fair is engaged in an
appeal of Williams opinion. The fair board is still rmly determined not to answer any of the
questions put to it under state public information laws.
The fair has argued that it is not a public entity and therefore not subject to the public
information laws of the state. The defendants argue that the fair is public enough, under the law,

information laws of the state. The defendants argue that the fair is public enough, under the law,
given both a history of nancial support from the city and the obvious important effects the
fairs operations have on the public good, for better or for worse.
That question hasnt been litigated yet and wont be, ironically, unless the fair wins its appeal. If
it wins, then its lawsuit will come back to Dallas for trial, and all of that laundry will be done in
court a prospect the fair ought to be having second thoughts about.
In the meantime and of more immediate importance to you and me, the whole transparency
issue is front and center way front, way center in deliberations at the park board about which
plan it ought to adopt for turning Fair Park over to a private entity.
Several park board members have been saying they want any new entity that takes over Fair
Park to agree by contract to make itself subject to state public information and public meetings
laws. I told you here a little over a month agothat Walt Humann, the person who is heading up a
particular proposal closely allied with the fair board, was adamantly opposed to anything like
that.
Humann told me that making the new private entity subject to public information laws would
render it susceptible to attack by saboteurs. Humann said the entitys enemies might exploit
state law to destroy the private entity with an inundation of trivial and bogus information
requests.
Maybe. Its not impossible. It does seem kind of like reaching for something to worry about, but
its theoretically possible. I guess they could also jam the new entitys board meetings with way
more people than the entity had folding chairs for.
But lets see if we can imagine a more down-to-earth reason why the fair might want Humann to
shield his new private entity from the public information laws. First of all, whatever contract the
city grants to such an entity will govern and subsume the next contact that the entity signs with
the fair. If the new entity signs a contract in which it agrees to be subject to the public
information laws, it cant sign one with its principal tenant that doesnt impose the same
conditions.

Walt Humann

Mark Graham

Once that happens and assuming the state fair wants to stay at Fair Park, then the fair will have
to call off its legal dogs, forget the appeal or any other maneuvers and answer questions like any
other entity subject to state law. In other words, they will have to answer the questions they are
presently suing to avoid answering.
I have spoken with reliable sources, who talked to me in return for my promise not to name
them, who have told me that the questions the fair is suing over now were inspired by
information received from multiple anonymous whistle-blowers, at least one of whom was a
state fair employee at one time, some of whom were not but who had extensive dealings with
the fair.
Of the 61 questions, some are broad, asking, for example, for minutes of board meetings,
statements of policy and so on. But some are wickedly specic:

Documents and communications reecting fundraising for the reconstruction of Big Tex due
to SFOT (State Fair of Texas) underinsuring for the destruction of same.
The use of paving equipment and/or materials for the repaving of properties outside Fair
Park.
Any agreement with a SFOT subcontractor to provide paving services on properties outside
Fair Park as a contract term, rebate or condition of receiving a contract on Fair Park
property.
All economic impact studies of any kind performed on behalf of SFOT or on behalf of any
consultant retained and/or paid in whole or in part by the SFOT for the time period set out
above.
All documents and communications regarding any benet conferred on SFOT board
members (both current and former) in each of the last 10 years.
All documents and correspondence regarding compensation of (former State Fair CEO)
Errol McKoy ... (former supervisor of nance) Lee D. Winton (current CEO) Mitchell

Errol McKoy ... (former supervisor of nance) Lee D. Winton (current CEO) Mitchell
Glieber.

Other questions have to do with the fairs sources and amounts of income and what it tells the
city every year about its income and expenses. Several questions have to do with cash sidepayments made by vendors to state fair employees. A series of questions seek information about
money the fair claims to pay toward scholarships every year.
Even though the fair has fought bitterly to hold all of this information secret, some answers
have emerged anyway through the process of normal public discourse and the fact that lots of
people are interested. I told you last April about an economic impact study done by the Baylor
Center for Business and Economic Research that blew the State Fairs own claims about its
economic impact right out of the water.
Here were some highlights of that report:

In fact the State Fair has not provided supporting evidence for any of its claims nor has it
released a single economic impact study. The estimates themselves vary so widely that future
city planning based on them would be both difcult and unwise.

No reliable data conrm State Fair attendance is 3 million as published. Available evidence
indicates attendance, not counting employees or football games, is between 1.5-1.7 million.

Here is perhaps our most important conclusion. If previous assessments of Fair Parks
economic impact have caused ofcials to think that the status quo is working well, then the
City of Dallas is misinformed.

Against that backdrop, some of the smaller but more wickedly pointed questions take on a more
sinister appearance. All of it smacks of an entity that has operated for way too long on an
anachronistic, hip-pocket, good-old-boy basis and now cant stand up to the light of day.
Last week Humann under great pressure to do so from impatient park board members
nally named the people he wants to see as board members on the new entity, which he intends
to head himself. Incredibly enough, the park board still has not seen nal numbers for the
enormous public subsidies, thought to be in the annual tens of millions of tax dollars, that the
new entity will expect from the city.
When the names were announced, a certain buzz went up over the fact that Humann had
appointed some of his most staunch critics to the board. Certainly that was a good faith effort

appointed some of his most staunch critics to the board. Certainly that was a good faith effort
on his part.
But those people have been critics of the Humann plan largely because they are allied with
community groups in the city, especially in the area around Fair Park. They need to think about
what theyre doing before they jump in.
If this new entity is created as a kind of information Alamo for the old guard types who have
always run the state fair board if the members of the board of the new entity are going to be
bound by the same culture of secrecy that rules the fair board then those new board members
will soon nd themselves deeply estranged from their own communities.
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2016DallasObserver,LP.Allrightsreserved.

Take an Embarrassing Peek Into the


Love Between the State Fair of Texas and
Fair Park
BY JIM SCHUTZE

THURSDAY, JUNE 9, 2016 AT 4:09 A.M.

The State Fair of Texas has always been an opaque entity, ercely guarding its secrets.

Kathy Tran

Somebody slipped me a copy of a 2-inch-deep, loose-leaf binder being


circulated to members of Dallas' park board, who are stalled on what to
do with Fair Park, the citys 277-acre post-apocalyptic exposition park
two miles south of downtown.
No wonder theyre stalled.

EXHIBIT B

This week was supposed to be the deadline for the board to sign off on a plan promoted by the

This week was supposed to be the deadline for the board to sign off on a plan promoted by the
mayor that would have turned Fair Park over to a new private entity. Now the people pushing
that plan are hoping to get it done by the end of this month.
They should hope they can get it done by the end of the decade, if theres anything to this binder.
I did not get my copy, by the way, from anybody associated with the authors, the Foundation for
Community Empowerment or FCE, but I copied the top part of it to FCE founder Don Williams.
He conrmed it is their work.
Much of whats in it is stuff the park board and City Council should know already. In fact,
Williams characterized the whole binder as a compilation of city documents, although he
admitted it has taken years, thousands of open records requests and some serious litigation to
get a lot of it.
ADVERTISING

inReadinventedbyTeads

Heres the deal. We can talk all day long people do about various formulations of
governance designed to take this vast city-owned property, used three weeks every fall for the
State Fair of Texas and then left fallow, a dystopian wasteland, and turn it into something cool.

State Fair of Texas and then left fallow, a dystopian wasteland, and turn it into something cool.
But it all comes back to the State Fair of Texas.
The State Fair is the star attraction, the anchor tenant. Most people take the fair for a great
success, although a series of devastating audits and outside reports have tarnished that star in
recent months.
Before responsible elected ofcials can just turn over this massive public asset to some kind of a
private something or other, theyve got to do their due diligence. A handful on the park board,
mostly the appointees of the City Councils new, younger members, want to know what the State
Fairs role will be in the new arrangement and how the new entity will manage hundreds of
millions of taxpayer dollars being sought from the city for a major redevelopment of the park.
Some park board members have already been saying they have cold feet about the mayors plan,
which tilts heavily in favor of the State Fair as the prime tenant. If they dive very deep into this
binder, theyre going to feel that chill up to their chinny-chin-chins.
For me the chillingest section is some correspondence, letters and emails, that FCE somehow
got its hands on (bet it wasnt easy) between former State Fair President Errol McKoy and
former Dallas Park and Recreation Department Director Paul Dyer, all about the Cotton Bowl.
The board that controls the State Fair, heavily populated by moneyed gray-hairs and bluebeards from the Park Cities, dearly loves its Cotton Bowl football stadium at Fair Park, which it
considers to be its own property, even though its not, and where a grand total of three football
games are played per year, two during the annual fair.
The correspondence Im talking about in the FCE binder starts in 2007, when McKoy, then boss
of the fair, tells Dyer, his landlord at City Hall, that the $30.5 million in bond funds that the city
just kicked in to spruce up the Cotton Bowl wasnt enough. It seems the State Fair board wants
to see another $4.5 million, not of their own money, spent to create a new post-game media
center, better team locker rooms and a nicer nish-out for concessions at the Cotton Bowl.
But no problem. McKoy helpfully gives Dyer a refresher course on Dyers own budget, pointing
out to Dyer that Dyer still has $4.5 million in bond funds in his budget to renovate a complex of
buildings at the back of the Cotton Bowl where the cooking exhibits and petting zoo and stuff
like that are you know, all that corny stuff where people who cant afford $185 Cotton Bowl
tickets go.
McKoy writes: The State Fair suggests that the $4.5 million allocation from the bond program
for the Pan American Complex be reallocated to the Cotton Bowl Phase 2 construction budget.
In return, the State Fair will agree to fund the restoration of the Pan American complex during
the same time frame contemplated by the original bond sale schedule.

So you get that, right? McKoy is proposing a transaction that might be characterized by the well
known if not always welcome principle of nance expressed colloquially as, I will gladly pay
you Friday for a hamburger today.
But then the thing is, that damn Friday rolls around.

Everyone assumes the State Fair is an unbridled success, but a series of recent audits and reports have left it with a black eye.

Kevin Brown

In this case, Friday is March 12, 2010, when McKoy writes to Dyer at City Hall again, talking to
Dyer again about Dyers own budget, reminding him that the city recently received a $1 million
grant from the state of Texas having something to do with livestock facilities at Fair Park.
McKoy tells Dyer that this grant was obtained through our efforts, meaning Dyer has the State
Fair, really, to thank for the money.
McKoy asks, therefore, that the $4.5 million the State Fair still owes the city to pay for the Pan
American project be offset by this $1 million commitment and our obligation be reduced to $3.5
million.
In the real world, a real landlord might say, Look, we gave you $4.5 million for your nish-out.
You said you would pay us back $4.5 million. You dont need to worry about money we get from
other places. Just pay us what you said you would pay us.

other places. Just pay us what you said you would pay us.
But we didnt nish McKoys letter yet. Farther down, after McKoy says the State Fair wants a
million dollar credit for money the city got from the state, McKoy describes another major
investment that the State Fair is making in a summer entertainment program. Because that is
costing the fair a lot of its own money, McKoy says he wants the city to mutually agree that the
State Fair should be fully relieved of the remaining $3.5 million commitment.
Wow. Thats a bad Friday. He already got the hamburger. He said he didnt want to pay for the
bun. Then he said he didnt want to pay for the burger. Not even the pickles.
And City Hall said OK.
Thats exactly what the members of the park board and the City Council should be thinking
about. It comes down to kind of a class thing.
On the one end of the correspondence, youve got McKoy, who has all of the Park Cities behind
him, the power and the glory, the high-end tailgaters. On the other end you have a mid-level
City Hall bureaucrat, beaten about the ears for years, ditched and undefended half the time by
his own elected betters, and hes the one whos supposed to guard the public treasure. So he
throws open the vault and says, Please be gentle.
The end of that story is written before the rst page is turned, and the end will always be the
same if City Hall turns Fair Park and all that money over to the tailgate crowd. They have a
different version of Friday. Theirs is, We will have a free hamburger today, and then we will
have another one Friday.
Before that park board votes to give away 277 acres, a cherished chapter of city history and a
golden opportunity, they damn well better hold a separate meeting just on this binder.
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2016DallasObserver,LP.Allrightsreserved.

StateFairfacingsanctionsforhidingfinances
PostedByJonCassidyOnNovember15,2016@3:01pm

[1]

NOTTHATBIG:BigTexisntasbigadeal,economicallyspeaking,assomefolkssaid.
TheStateFairofTexasisfacinglegalactionandmonetarysanctionsforusingthecourtstostallan
inquiryintoitssecretfinancialarrangements.
InMarch2015,AustinattorneyJenniferRiggsfiledanopenrecordsrequestwiththefairaskingfor
extensivefinancialrecords,contracts,andcorrespondenceamongfairexecutivesandDallasofficials.
TheexorbitantsalariesthattheostensiblynonprofitStateFaircorporationpaysitsofficialshavelong
beenthesubjectofcontroversy[2] ,ashavethefairsfailedventures,suchastheshortlivedSummer
Adventureswaterpark,whichbenefitedcontractorsandfewotherswhilelosingmillions.
WhenRiggssoughttotakeacloserlookatthefairsrecords,onbehalfofanundisclosedclient,the
companyrespondedfirstbyaskinghertonarrowdownherrequestacommonresponseby
governmentagencies.WhenRiggsrefused,thefairtooktheunheardofstepofsuing,insistingthatit
wasntagovernmentagencysubjecttopublicrecordslaws.
InTexas,publicrecordslaw[3] appliesnotjusttogovernmentagenciesbuttoquasipublicagencies
thatis,companiessupportedinwholeorinpartbypublicfundsarerequiredtosharetheirrecords,at
leastconcerningthepart,section,orportionofthecompanyreceivingsupport.

EXHIBIT C

TheStateFairisanonprofitcorporation,butitdependsonitsuseofFairPark,whichisownedbythe
CityofDallas.Aswell,thecityspends$19millionayearonFairParkmaintenance,andhaspoured
another$172millioninbondmoneyintotheparksince2002.
Evenafteracontroversial632015ruling[4] bytheTexasSupremeCourt,inwhichsupportedin
partbypublicfundswasgivenabrandnew,judgeinventeddefinitionclosertoheavilydependent,the
StateFairwouldlikelybeconsideredaquasipublicagency,asitdoesnthavethecashtobuyanother
location,orevenenoughrevenuetomaintainFairParkonitsown.
RELATED:StateFairsexpenseshelpexplainFairParksblight[5]
However,ratherthansubmitRiggsrequesttotheAttorneyGeneralsOfficeforadecision,theStateFair
sued.JudgeStaciWilliams[4] sidedwithRiggs,tossingthecaseandhittingthefairwithsanctionsfor
abusingthecourtsystem.ButthecourtofappealsruledthatthefairwasentitledtohavetheDallas
Countycourtdecidewhetheritisagovernmentagency.
Thedayafterthecasewassentbacktothetrialcourt,theStateFairdroppeditscase.Thatallowedfair
officialstoavoidgivingdepositionsduringavolatileperiod,withthepossibilitythatDallasmayendup
turningovertheparktoaprivategroupcloselyalignedwithfairexecutives.
Inotherwords,aftertyingRiggsupinlitigationfor19months,theStateFairdecideditdidntwanta
courtsopinionafterall.
OnMonday,Riggsfiledamotion[6] askingthecourttoimposesanctionsontheStateFairforabusing
thecourtsystemtodriveupcostsanddelayadecisionthatwouldnormallytaketwoorthreemonths.
Williams,thejudgewhoalreadythoughtthefairwasactinginbadfaith,willruleonthemotion.
RiggscouldstillsuetoforcetheStateFairtoturnoveritsrecords,invokingaprovisioninstatelawthats
supposedtomakerecordsautomaticallypublicwhenagovernmentagencydragsitsfeet.
ContactJonCassidyatjon@watchdog.orgor@jpcassidy000.

ArticleprintedfromWatchdog.org:http://watchdog.org
URLtoarticle:http://watchdog.org/281877/statefairsanctions/
URLsinthispost:
[1]Image:http://watchdog.org/wp
content/blogs.dir/1/files/2016/04/Big_Tex_for_State_Fair_of_Texas_20061.jpg
[2]subjectofcontroversy:http://watchdog.org/263154/statefairpaid/
[3]publicrecordslaw:http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.552.htm
[4]2015ruling:http://caselaw.findlaw.com/txsupremecourt/1706354.html
[5]RELATED:StateFairsexpenseshelpexplainFairParksblight:http://watchdog.org/263984/fair
expensespark/
[6]filedamotion:http://watchdog.org/wpcontent/blogs.dir/1/files/2016/11/Motionfor
SanctionsandModify.pdf

2016Watchdog.org.Allrightsreserved.

3710 Rawlins, Suite 1050 | Dallas, Texas 75219


Phone: 214-329-0151 | Fax: 214-329-4076

November 18, 2016


Via Email
Bryan P. Neal
Thompson & Knight LLP
One Arts Plaza
1722 Routh Street, Suite 1500
Dallas, TX 75201
Re:

DC-15-04484, STATE FAIR OF TEXAS vs. RIGGS & RAY PC

Dear Mr. Neal:


As you know, I represent Riggs & Ray PC in the above-referenced case. By November
23, 2016 please provide deposition dates for the following individuals to take place within the
next 3-4 weeks. The depositions should take less than an hour each.
Alan Walne
Mitch Glieber
Robert B. Smith
If we do not have dates from you by November 23, we will send a Notice of Deposition
for each witness. Please feel free to contact me if you have any questions.

Sincerely,

Julie Pettit

EXHIBIT D

EXHIBIT E