The judge presiding over Travis County's domestic violence court was forcibly recused from a case this week over her expression of support for domestic violence survivors.
It's a single decision, but the precedent set by the state court ruling could make it more difficult for Judge Dimple Malhotra to do her job. Malhotra handily won the runoff for County Court at Law No. 4 in July. The court hears cases involving criminal allegations of domestic violence and grants protective orders for people who accuse partners or spouses of abuse.
The state court decision stems from a motion filed in July by Austin defense attorney Steve Brand, who cited social media posts and interviews during her campaign as evidence Malhotra showed "a bias against those accused of domestic violence."
Brand, who is on the board of Austin's defense bar, is representing a man whose partner sought a protective order. He argued his client couldn't reasonably expect a fair outcome, and that, because he had no right to a jury trial, it was likely Malhotra would rule against him.
Neither Malhotra nor Brand would speak on the record for this story.
"Her numerous comments should absolutely disqualify her from being ... neutral."
Brand had argued her campaign's Facebook activity constituted advocacy. He specifically cited a March 24 post in which she asked followers "to please consider donating to domestic violence agencies" and characterized domestic violence during COVID-19 as an "epidemic."
Brand also cited a Facebook Live interview with former UT Longhorn Quan Cosby, a board member of SAFE Alliance, a nonprofit that serves as a countywide safety net for survivors of abuse. The video and others have since been taken down.
According to the court filing, Cosby praised Malhotra for her work in the video, suggesting she was "truly advocating for these victims [of domestic violence]" – a characterization Brand argued Malhotra "welcomed."
Brand said Malhotra's "lifelong drive to end domestic violence" was "noble," but that she shouldn't be deciding on the protective order.
Her commitment to ending domestic violence may "possibly still enable her to exercise the discretion necessary to prosecute these kinds of cases," he argued. "But it, along with her numerous comments should absolutely disqualify her from being the neutral and detached magistrate charged with being the final arbiter on the facts and law in a protective order hearing."
State District Judge Dan Mills on Monday granted Brand's request to remove Malhotra from the case. It could now be heard by another civil court judge or a visiting judge.
The ruling opens the door for other defense lawyers, who could cite it as grounds for Malhotra's recusal, says longtime defense attorney Betty Blackwell.
"I do think it is a big problem. I do think it does mean that she cannot hear protective orders," she said. "I think every attorney will be filing a motion to recuse her and using this as a basis on those protective orders."
Mack Martinez, director of the Travis County Attorney's Family Violence Division, called the ruling "political bull----" and suggesting to KUT that motions questioning Malhotra's partiality were filed only after she won the primary runoff – not ahead of the primary or in the run-up to the runoff.
"They don't want her to do her job."
Martinez hired Malhotra at the Travis County Attorney's Office, where she worked as a prosecutor for 10 years. He said there were "hundreds" of instances in which she showed restraint and chose not to pursue cases on behalf of the office. He characterized the move as "harassment."
"They are going to want to continue to battle this out, because that is their goal. They don't want her to do her job," he said. "She was a tough prosecutor, thank you very much, that was her job. It was her job to zealously pursue justice, and I worked with her long enough that I know she dismissed a lot of cases that she thought weren't good."
Malhotra defeated Margaret Chen Kercher in the July Democratic primary runoff for the judgeship, which she was appointed to fill when her predecessor, Mike Denton, ran for Travis County attorney last year. (Republicans fielded no candidate for the seat.)
Martinez argued Denton didn't face the same scrutiny. Denton was the court's inaugural judge in 1999 and advocated for its founding.
"She doesn't have a different background than Mike Denton had," he said, "and they didn't file on him."
It's unclear whether this ruling could also be used to disqualify Malhotra from presiding over criminal misdemeanor cases. Blackwell says this week's order could push attorneys to follow the same tack to recuse Malhotra in those criminal cases.
"That would, in fact, mean that she could not do her job," she said.
Got a tip? Email Andrew Weber at aweber@kut.org. Follow him on Twitter @England_Weber.
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