Thompson Coe litigation partner Matthew Kolodoski, a Republican candidate for the Fifth Court of Appeals in Dallas, will have to decide in the next few days whether he will challenge the official election results in his race against his Democratic opponent, Dallas Criminal Court Judge Tina Clinton.
If Kolodoski prevails, Republican judges will have an eight-to-five advantage on the regional court that handles all appeals of civil and criminal cases in Dallas, Collin, Rockwall and Kaufman counties. A victory by Judge Clinton narrows the GOP’s control to one vote in important disputes decided by the full court rather than three-judge panels.
But legal experts who closely monitor the Dallas Court of Appeals and who know both candidates say the ultimate result of the election will have little to no effect on the outcome of cases the court decides.
“I don’t think there will be a material difference between a 7-6 court and an 8-5 court,” said Anne Johnson, an appellate law partner at Tillotson Johnson & Patton. “Cases are decided by a randomly-chosen panel of three justices. In my experience, partisan politics rarely comes into play in how cases are decided in the Dallas Court of Appeals.”
Dallas appellate law expert Jeffrey Levinger said a Kolodoski victory “could slightly increase the odds of drawing an all-Republican three-judge panel.”
“But even that isn’t very material,” Levinger said.
When votes were tallied on election night, Nov. 5, Kolodoski was unofficially declared the winner, leading Judge Clinton by 1,512 votes.
Headlines throughout the news media, including in The Texas Lawbook, heralded the Republicans’ stunning victorious sweep of all eight Dallas appellate court judicial positions up for election.
Then, last Wednesday afternoon, the Texas Secretary of State posted updated results that included mail-in and provisional ballots that showed a 3,000-vote swing in Judge Clinton’s favor. The current official vote count shows Judge Clinton defeating Kolodoski 760,927 to 759,331.
Initially, Kolodoski conceded to Judge Clinton in a text message.
Kolodoski is now considering challenging the new results either by demanding a recount or filing a legal complaint, according to multiple lawyers familiar with the two candidates.
“Mr. Kolodoski was incredibly gracious and congratulated me on the election victory,” Judge Clinton told The Lawbook in a Nov. 18 interview. “He wished me the best as a new judge on the court of appeals. Mr. Kolodoski has been professional throughout, and we both ran a very congenial campaign.”
Lawyers close to both candidates say that state Republican party leaders were dismayed with Kolodoski’s decision and have worked to convince him to “pull an Al Gore and rescind his concession.”
After the recount is final, either side could file a lawsuit under the Texas election code. A judge outside the Dallas area would be selected to hear the case in an expedited manner.
Multiple efforts to interview Kolodoski have been unsuccessful.
“With or without Judge Clinton on the appellate bench, the Dallas Court of Appeals now has both a Republican majority and a Republican chief justice,” said Chris Kratovil, an appellate law partner at Dykema in Dallas. “If the new Republican justices want to make changes in how the Court of Appeals operates or what cases need to be reheard en banc, they have the votes to do so even if Judge Clinton is confirmed as the lone new Democratic justice on the Court.”
“The most tangible benefit of a partisan majority on the Court of Appeals is the ability to take cases for en banc review and to use en banc review to modify panel opinions that the Court’s partisan majority disagrees with,” Kratovil said. “We saw a notable increase in en banc activity on the Dallas Court of Appeals after the Democratic “slate of eight” majority was elected in 2018. I expect something similar may happen with the new Republican majority starting in January.”
The good news, according to all of the experts, is that both Judge Clinton and Kolodoski are well qualified for the position and respected by leaders of the bar.
“When the final vote is as close as it was between Tina Clinton and Matthew Kolodoski, I suppose a request for a recount is not surprising,” Johnson said. “The good news is that they are both very qualified candidates.”
Dallas appellate lawyer Chad Ruback agrees with Johnson and Levinger.
“Further, neither of them is an extremist, and neither would take extreme positions in deciding cases,” Ruback said. “The difference between having Republicans and Democrats on the Dallas Court of Appeals might not be as dramatic as some people would think. For the vast majority of cases in the Court of Appeals, the law is well-established by unambiguous statute or case law.”
“In the relatively small number of cases where the law is unclear, a justice’s political philosophy would be more likely to impact the outcome,” Ruback said. “Unless a justice is willing to blatantly ignore the law, there little room for political philosophy to impact the outcome.”