Breaking: Cook Children’s Hospital Sues to Have Judge Recused

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It seems, based on legal filings reviewed by Direct Action Texas, that Cook Children’s Hospital really wants to wash its hands of infant Tinslee Lewis.

Cook Children’s is suing to have Judge Alex Kim recused from legal proceedings after the jurist issued a temporary restraining order preventing the hospital from pulling the plug on Lewis on November 10. Judge Kim later scheduled a hearing within the statutorily required timeframe.

On October 30, Cook Children’s evoked the 10-Day Rule on Lewis, a Texas law that permits hospitals to end life-sustaining treatment against the wishes of a patient’s family. Lewis, a 10-month-old, was born prematurely and requires a ventilator to breathe.

In judge shopping legal filings, the hospital contends Kim should be recused because of the mechanics used to get the restraining order in place and on the grounds that Kim compromised his ability to oversee further proceedings.

Neither appears to be true based on representations from the hospital.

The filing suggests it was inappropriate for Texas Right to Life, a pro-life organization providing legal representation to the infant, to find a local judge to have a last-minute order issued to stop her death.

Goodbye moral high ground.

With no means by which to reach an on-call civil judge in this case, efforts by TLR and other concerned citizens to reach a judge and have a TRO filed can be likened to in case of emergency, break glass. Judge Kim, whose court deals with children, is a logical call to make.

Moving to the procedure, the filing contends Kim should not be the judge to hear arguments and that it should be heard by a randomly assigned district judge. Overtaxed as they are, it’s unlikely there will be complaints from fellow jurists about a judge already involved in a case (after issuing a TRO) hearing arguments.

Outside of objecting to a TRO being issued in the first place and Judge Kim stepping up to take on the extra caseload, Cook Children’s throws everything and the kitchen sink to try and undermine Kim’s impartiality.

The motion takes issue with such inane things as Kim watching a Facebook Live event, speaking dispassionately in public about what had been reported in the news and for issuing innocuous comments unrelated to the case.

Facts in the public domain cited by the hospital don’t rise to the level of having a judge recuse himself from a case.

The motion goes so far as to suggest an elected official being photographed in front of an organization banner is enough to ascribe to him all of the positions of the organization, retroactively and in perpetuity. The case law cited is not applicable.

Further, the filing contends that liking a facebook post, in which it was mentioned that Kim gave a summation of a case (without stating a position) constitutes a recusable offense. It doesn’t.

Ironically, Cook Children’s cites Slaughter, a case involving Judge Michelle Slaughter. A Special Court of Review opinion stated Slaughter used her, “Facebook page as the medium through which to comment publicly and enthusiastically about pending criminal cases was inconsistent with the proper performance of her duties as a judge.” Kim comes nowhere near this hurdle.

Similarly to the motion’s arguments in subsection A, case law aimed at proving irregular procedural conduct fails to hit the mark. Relevant Texas law governing the recusal of judges can be found in Government Code, Chapter 29, Subchapter A-1.

TRL and the Lewis family are playing against a system stacked against them. Hospitals are disincentivized to take patients who have been given the 10-day rule mark.

Hospitals, members of associations that do not appreciate the intervention of citizens, act in ways reminiscent of the lysine price-fixing conspiracy or Major League Baseball free agency practices from the 1980s.

A hearing on the motion to recuse Kim has been set for December 10, the TRO will remain in force until that hearing.

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