Dallas County Court at Law Judge D’Metria Benson said the mandatory mask mandate that she ordered for all participants in her courtroom is necessary to protect a personal health condition that makes her “highly susceptible to infection.”
In a letter dated May 15 to Texas Supreme Court Chief Justice James Blacklock, Judge Benson said she was unaware of the “inflammatory” allegations made by a Dallas plaintiff’s lawyer who claims that the standing order needs to be struck down because it “lacks any supporting legal authority” and infringes “on the constitutional right to a fair trial by jury by inhibiting the jury’s role in assessing witness credibility.”
But the lawyer who originally made the allegations said he has recently witnessed Judge Benson at campaign fundraisers and events where neither the judge nor anyone was wearing a mask.
Judge Benson was responding to a letter Chief Justice Blacklock sent to her on May 13, demanding that she explain the mask mandate or face an order to withdraw it.
“I was totally unaware of the complaint and inflammatory allegations referenced in the article until I received your letter,” Judge Benson wrote, referring to a May 12 article in The Lawbook. “I have never seen the 14-page complaint referenced in the article. I am also perplexed as to how and why the contents of your letter would appear in a publication prior to me having actually received it.”
The 14-page complaint was filed on May 5 by Dallas products liability and medical malpractice trial lawyer Scott Frenkel, claiming that Judge Benson has a standing order requiring people in her courtroom to wear Covid-19-era facemasks and to disclose if they have certain health issues, such as diarrhea.
“I cannot address allegations that I have not seen,” Judge Benson wrote to Chief Justice Blacklock. “I require masks to protect my personal health and safety. Just as a bailiff is present in the courtroom to protect the judge’s safety, a mask is required to protect me from infection, which a bailiff cannot do. Without going into specific detail, my masking requirement is based upon my personal health condition, I have a rare autoimmune disorder — developed after COVID — which makes me highly susceptible to infection.”
Judge Benson said she based the legality of her standing order on the masking requirement upon Chapter 21 of the Texas Government Code and Texas AG Opinion KP-0322. And the judge wrote that past court decisions have determined that courts possess “broad discretion over the conduct of its proceedings” in the courtroom.
“Both of which I believe reflect pertinent, relevant and current law,” Judge Benson wrote. “I understand that you have the authority to order me to change my policy and I seek your advice on a reasonable accommodation regarding how to protect my health and safety while conducting court proceedings should you decide to do so.”
On Monday, Frenkel, in a statement to The Texas Lawbook, said he read Judge Benson’s letter and said her “statements appear inconsistent with the image presented by her own conduct outside the courthouse.”
“I have personally observed Judge Benson attending fundraisers without a mask, in settings where no one else was masked and where there were no masking or screening requirements at the door,” Frenkel said. “Most recently, just a few months ago, I saw her at an event hosted at a Dallas law office attended by approximately 75 people. Neither Judge Benson nor any of the attendees were wearing masks. She moved freely throughout the room, engaging with attendees without any apparent concern.”
“I also know individuals who have seen her shopping at grocery stores without a mask on numerous occasions,” the lawyer told The Lawbook. “I am glad that her condition permits her that degree of flexibility. However, on those occasions when she does choose to protect herself via mask, that burden should remain on her alone rather than being imposed upon the public.”
Here is a photo of Judge Benson speaking at a LULAC breakfast event in October.
The controversy was launched on May 5 when Frenkel’s lawyer, Brian Hail of Kane Russell Coleman Logan, wrote a letter of complaint to First Administrative Judicial Region Judge Ray Wheless, stating that Frenkel was recently counsel in two different cases in Judge Benson’s court but was not allowed in the courtroom to represent his clients because he declined to wear a mask.
“The unauthorized mask mandate presents a myriad of logistical problems and fundamental unfairness, and additionally punishes those that cannot be masked for a lengthy period of time for medical or other reasons,” Hail wrote in the letter to Judge Wheless. “Mr. Frenkel is one that cannot wear a mask covering his nose and mouth for very long. It is not the business of the judiciary to require any further explanation on this issue.”