Weatherford judge under scrutiny for fliers that target the EPA

By Mark Drajem

Bloomberg News

As part of his election campaign, state District Judge Trey Loftin in Weatherford is promoting his recent decisions favoring a Fort Worth natural gas producer in its dispute with a local landowner and the EPA, a move that some legal scholars say may violate state judicial ethics rules.

With aspects of the case still pending in Loftin's courtroom, the fliers say he forced the Environmental Protection Agency to back down. Loftin also sent out materials with an image of talk show host Rush Limbaugh, who credited the judge's ruling in favor of Range Resources Corp. for getting the EPA to withdraw an emergency order it issued in December 2010.

"The problem of having judges run for office is that sometimes they cross a line in trying to get elected," said James Alfini, a professor at South Texas College of Law in Houston and co-author of a book on judicial ethics. "In this case, I think he crossed a line."

Texas and 38 other states elect judges, according to the American Bar Association.

A message left at Loftin's office drew a response from Craig Murphy, who runs the Austin-based political consulting firm Murphy Turner Associates. Murphy, who said he is a spokesman for Loftin's campaign, declined to elaborate on the fliers or even to say whether they referred to this case.

"We were real careful in the mailings to make sure everything in there was appropriate," he said. "What we've done is strictly reprint things that are in the public record."

The Texas code of judicial conduct prohibits judges from commenting on pending cases "in a manner which suggests to a reasonable person the judge's probable decision."

Alfini said the State Commission on Judicial Conduct should investigate.

The commission's executive director, Seana Willing, said the agency doesn't disclose whether a complaint has been filed against a judge. And until a complaint is filed and examined, there is no way to know whether a particular campaign statement violates the state code, she said.

Loftin was appointed to the 43rd District Court in Parker County and is running to retain the post.

In January and February, he ruled in favor of Range three times in a legal dispute with Parker County landowner Steven Lipsky and environmental consultant Alisa Rich. Lipsky sued Range in 2011, saying two of its gas wells contaminated his water wells. Range countersued, saying Rich and Lipsky conspired to defame the company by getting the EPA to intervene, prompting news coverage.

One decision is under appeal, but other parts continue in Loftin's courtroom. Last week, he ruled that blogger Sharon Wilson must turn over e-mails that Range demanded.

According to a Loftin campaign flier, "The EPA, using falsified evidence provided by a liberal activist environmental consultant, accused and fined a local gas driller of contaminating wells," It says President Barack "Obama's EPA backed down only after Judge Trey Loftin ruled that the evidence was 'deceptive.'"

The Facebook page for Loftin's campaign includes a reprinted "morning update" by Limbaugh from April 9, in which he says the judge's decision in favor of Range in the Lipsky case forced the EPA to backtrack. Loftin's campaign mailer also credits a story in the Star-Telegram about his decision in the Range case.

Even though none of the parties are named in the mailers, they may cause a reasonable person to think that Loftin was biased, said Keith Swisher, a professor at the Phoenix School of Law and an expert on judicial ethics.

"The fact that a specific name wasn't used doesn't provide" an out, Swisher said. Lipsky's or Rich's lawyers could use the materials to have Loftin removed from the case, he said.

"It would be disturbing to think that there was any association between this mailer and myself," Rich said. Rich's lawyer, George Carlton, said he is reviewing the documents.

"I've never run across anything like this before," he said. "We're deciding what, if anything, we need to do."

"I don't think a judge should ever comment about a case pending in his court," said Craig Towson, Loftin's opponent in Tuesday's Republican primary. "One could feel slighted if you have a judge commenting on the case."

The case has become fodder for a nationwide fight that pits activists increasingly worried about the health effects of hydraulic fracturing against drillers complaining about increased scrutiny from federal regulators.

It is one of at least three examples nationwide in which the EPA initially linked water contamination to fracking, which pumps millions of gallons of water mixed with sand and chemicals deep underground to free gas and oil.

The agency backed off in each case, settling with Range, agreeing to more testing in another case and concluding that homes in a third area are largely free of contamination.

Loftin first ruled that Lipsky needed to file his case in Austin. He later rejected Rich and Lipsky's motion to dismiss Range's countersuit, saying the two collaborated to produce a "deceptive video" about Lipsky's wells. That decision was appealed.

On March 30, the EPA settled its dispute with Range. In his campaign materials, Loftin takes credit for the agency's about-face.

This report includes material from the Star-Telegram archives.

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