Thousands of Judges Who Broke Laws, Oaths Remained on the Bench
Michael Berens and John Shiffman, Reuters
Excerpt: "Judge Les Hayes once sentenced a single mother to 496 days behind bars for failing to pay traffic tickets. The sentence was so stiff it exceeded the jail time Alabama allows for negligent homicide."
Marquita Johnson, who was locked up in April 2012, says the impact of her time in jail endures today. Johnson’s three children were cast into foster care while she was incarcerated. One daughter was molested, state records show. Another was physically abused.
“Judge Hayes took away my life and didn’t care how my children suffered,” said Johnson, now 36. “My girls will never be the same.”
Fellow inmates found her sentence hard to believe. “They had a nickname for me: The Woman with All the Days,” Johnson said. “That’s what they called me: The Woman with All the Days. There were people who had committed real crimes who got out before me.”
In 2016, the state agency that oversees judges charged Hayes with violating Alabama’s code of judicial conduct. According to the Judicial Inquiry Commission, Hayes broke state and federal laws by jailing Johnson and hundreds of other Montgomery residents too poor to pay fines. Among those jailed: a plumber struggling to make rent, a mother who skipped meals to cover the medical bills of her disabled son, and a hotel housekeeper working her way through college.
Hayes, a judge since 2000, admitted in court documents to violating 10 different parts of the state’s judicial conduct code. One of the counts was a breach of a judge’s most essential duty: failing to “respect and comply with the law.”
Despite the severity of the ruling, Hayes wasn’t barred from serving as a judge. Instead, the judicial commission and Hayes reached a deal. The former Eagle Scout would serve an 11-month unpaid suspension. Then he could return to the bench.
Until he was disciplined, Hayes said in an interview with Reuters, “I never thought I was doing something wrong.”
This week, Hayes is set to retire after 20 years as a judge. In a statement to Reuters, Hayes said he was “very remorseful” for his misdeeds.
Community activists say his departure is long overdue. Yet the decision to leave, they say, should never have been his to make, given his record of misconduct.
“He should have been fired years ago,” said Willie Knight, pastor of North Montgomery Baptist Church. “He broke the law and wanted to get away with it. His sudden retirement is years too late.”
Hayes is among thousands of state and local judges across America who were allowed to keep positions of extraordinary power and prestige after violating judicial ethics rules or breaking laws they pledged to uphold, a Reuters investigation found.
Judges have made racist statements, lied to state officials and forced defendants to languish in jail without a lawyer – and then returned to the bench, sometimes with little more than a rebuke from the state agencies overseeing their conduct.
Recent media reports have documented failures in judicial oversight in South Carolina, Louisiana and Illinois. Reuters went further.
In the first comprehensive accounting of judicial misconduct nationally, Reuters reviewed 1,509 cases from the last dozen years – 2008 through 2019 – in which judges resigned, retired or were publicly disciplined following accusations of misconduct. In addition, reporters identified another 3,613 cases from 2008 through 2018 in which states disciplined wayward judges but kept hidden from the public key details of their offenses – including the identities of the judges themselves.
All told, 9 of every 10 judges were allowed to return to the bench after they were sanctioned for misconduct, Reuters determined. They included a California judge who had sex in his courthouse chambers, once with his former law intern and separately with an attorney; a New York judge who berated domestic violence victims; and a Maryland judge who, after his arrest for driving drunk, was allowed to return to the bench provided he took a Breathalyzer test before each appearance.
The news agency’s findings reveal an “excessively” forgiving judicial disciplinary system, said Stephen Gillers, a law professor at New York University who writes about judicial ethics. Although punishment short of removal from the bench is appropriate for most misconduct cases, Gillers said, the public “would be appalled at some of the lenient treatment judges get” for substantial transgressions.
Among the cases from the past year alone:
In Utah, a judge texted a video of a man’s scrotum to court clerks. He was reprimanded but remains on the bench.
In Indiana, three judges attending a conference last spring got drunk and sparked a 3 a.m. brawl outside a White Castle fast-food restaurant that ended with two of the judges shot. Although the state supreme court found the three judges had “discredited the entire Indiana judiciary,” each returned to the bench after a suspension.
In Texas, a judge burst in on jurors deliberating the case of a woman charged with sex trafficking and declared that God told him the defendant was innocent. The offending judge received a warning and returned to the bench. The defendant was convicted after a new judge took over the case.
“There are certain things where there should be a level of zero tolerance,” the jury foreman, Mark House, told Reuters. The judge should have been fined, House said, and kicked off the bench. “There is no justice, because he is still doing his job.”
Judicial misconduct specialists say such behavior has the potential to erode trust in America’s courts and, absent tough consequences, could give judges license to behave with impunity.
“When you see cases like that, the public starts to wonder about the integrity and honesty of the system,” said Steve Scheckman, a lawyer who directed Louisiana’s oversight agency and served as deputy director of New York’s. “It looks like a good ol’ boys club.”
That’s how local lawyers viewed the case of a longtime Alabama judge who concurrently served on the state’s judicial oversight commission. The judge, Cullman District Court’s Kim Chaney, remained on the bench for three years after being accused of violating the same nepotism rules he was tasked with enforcing on the oversight commission. In at least 200 cases, court records show, Judge Chaney chose his own son to serve as a court-appointed defense lawyer for the indigent, enabling the younger Chaney to earn at least $105,000 in fees over two years.
In February, months after Reuters repeatedly asked Chaney and the state judicial commission about those cases, he retired from the bench as part of a deal with state authorities to end the investigation.
Tommy Drake, the lawyer who first filed a complaint against Chaney in 2016, said he doubts the judge would have been forced from the bench if Reuters hadn’t examined the case.
“You know the only reason they did anything about Chaney is because you guys started asking questions,” Drake said. “Otherwise, he’d still be there.”
BEDROCK OF AMERICAN JUSTICE
State and local judges draw little scrutiny even though their courtrooms are the bedrock of the American criminal justice system, touching the lives of millions of people every year.
The country’s approximately 1,700 federal judges hear 400,000 cases annually. The nearly 30,000 state, county and municipal court judges handle a far bigger docket: more than 100 million new cases each year, from traffic to divorce to murder. Their titles range from justice of the peace to state supreme court justice. Their powers are vast and varied – from determining whether a defendant should be jailed to deciding who deserves custody of a child.
Each U.S. state has an oversight agency that investigates misconduct complaints against judges. The authority of the oversight agencies is distinct from the power held by appellate courts, which can reverse a judge’s legal ruling and order a new trial. Judicial commissions cannot change verdicts. Rather, they can investigate complaints about the behavior of judges and pursue discipline ranging from reprimand to removal.
Few experts dispute that the great majority of judges behave responsibly, respecting the law and those who appear before them. And some contend that, when judges do falter, oversight agencies are effective in identifying and addressing the behavior. “With a few notable exceptions, the commissions generally get it right,” said Keith Swisher, a University of Arizona law professor who specializes in judicial ethics.
Others disagree. They note that the clout of these commissions is limited, and their authority differs from state to state. To remove a judge, all but a handful of states require approval of a panel that includes other judges. And most states seldom exercise the full extent of those disciplinary powers.
As a result, the system tends to err on the side of protecting the rights and reputations of judges while overlooking the impact courtroom wrongdoing has on those most affected by it: people like Marquita Johnson.
Reuters scoured thousands of state investigative files, disciplinary proceedings and court records from the past dozen years to quantify the personal toll of judicial misconduct. The examination found at least 5,206 people who were directly affected by a judge’s misconduct. The victims cited in disciplinary documents ranged from people who were illegally jailed to those subjected to racist, sexist and other abusive comments from judges in ways that tainted the cases.
The number is a conservative estimate. The tally doesn’t include two previously reported incidents that affected thousands of defendants and prompted sweeping reviews of judicial conduct.
In Pennsylvania, the state examined the convictions of more than 3,500 teenagers sentenced by two judges. The judges were convicted of taking kickbacks as part of a scheme to fill a private juvenile detention center. In 2009, the Pennsylvania Supreme Court appointed senior judge Arthur Grim to lead a victim review, and the state later expunged criminal records for 2,251 juveniles. Grim told Reuters that every state should adopt a way to compensate victims of judicial misconduct.
“If we have a system that holds a wrongdoer accountable but we fail to address the victims, then we are really losing sight of what a justice system should be all about,” Grim said.
In another review underway in Ohio, state public defender Tim Young is scrutinizing 2,707 cases handled by a judge who retired in 2018 after being hospitalized for alcoholism. Mike Benza, a law professor at Case Western Reserve University whose students are helping identify victims, compared the work to current investigations into police abuse of power. “You see one case and then you look to see if it’s systemic,” he said.
The review, which has been limited during the coronavirus pandemic, may take a year. But Young said the time-consuming task is essential because “a fundamental injustice may have been levied against hundreds or thousands of people.”
SPECIAL RULES FOR JUDGES
Most states afford judges accused of misconduct a gentle kind of justice. Perhaps no state better illustrates the shortcomings of America’s system for overseeing judges than Alabama.
As in most states, Alabama’s nine-member Judicial Inquiry Commission is a mix of lawyers, judges and lay people. All are appointed. Their deliberations are secret and they operate under some of the most judge-friendly rules in the nation.
Alabama’s rules make even filing a complaint against a judge difficult. The complaint must be notarized, which means that in theory, anyone who makes misstatements about the judge can be prosecuted for perjury. Complaints about wrongdoing must be made in writing; those that arrive by phone, email or without a notary stamp are not investigated, although senders are notified why their complaints have been summarily rejected. Anonymous written complaints are shredded.
These rules can leave lawyers and litigants fearing retaliation, commission director Jenny Garrett noted in response to written questions.
“It’s a ridiculous system that protects judges and makes it easy for them to intimidate anyone with a legitimate complaint,” said Sue Bell Cobb, chief justice of the Alabama Supreme Court from 2007 to 2011. In 2009, she unsuccessfully championed changes to the process and commissioned an American Bar Association report that offered a scathing review of Alabama’s rules.
In most other states, commission staff members can start investigating a judge upon receiving a phone call or email, even anonymous ones, or after learning of questionable conduct from a news report or court filing. In Alabama, staff will not begin an investigation without approval from the commission itself, which convenes about every seven weeks.
By rule, the commission also must keep a judge who is under scrutiny fully informed throughout an investigation. If a subpoena is issued, the judge receives a simultaneous copy, raising fears about witness intimidation. If a witness gives investigators a statement, the judge receives a transcript. In the U.S. justice system, such deference to individuals under investigation is extremely rare.
“Why the need for special rules for judges?” said Michael Levy, a Washington lawyer who has represented clients in high-profile criminal, corporate, congressional and securities investigations. “If judges think it’s fair and appropriate to investigate others for crimes or misconduct without providing those subjects or targets with copies of witness statements and subpoenas, why don’t judges think it’s fair to investigate judges in the same way?”
Alabama judges also are given an opportunity to resolve investigations confidentially. Reuters interviews and a review of Alabama commission records show the commission has met with judges informally at least 19 times since 2011 to offer corrective “guidance.” The identities of those judges remain confidential, as does the conduct that prompted the meetings. “Not every violation warrants discipline,” commission director Garrett said.
Since 2008, the commission has brought 21 public cases against judges, including Hayes, charging two this year.
Two of the best-known cases brought by the commission involved Roy Moore, who was twice forced out as chief justice of the Alabama Supreme Court for defying federal court orders.
Another Alabama justice fared better in challenging a misconduct complaint, however. Tom Parker, first elected to the state’s high court in 2004, pushed back when the commission investigated him in 2015 for comments he made on the radio criticizing the U.S. Supreme Court’s decision legalizing gay marriage.
Parker sued the commission in federal court, arguing the agency was infringing on his First Amendment rights. He won. Although the commission had dropped its investigation before the ruling, it was ordered to cover Parker’s legal fees: $100,000, or about a fifth of the agency’s total annual budget.
In 2018, the people of Alabama elected Parker chief justice.
These days, Parker told Reuters, Alabama judges and the agency that oversees them enjoy “a much better relationship” that’s less politically tinged. “How can I say it? It’s much more respectful between the commission and the judges now.”
“GUT INSTINCT”
Montgomery, Alabama has a deep history of racial conflict, as reflected in the clashing concepts emblazoned on the city’s great seal: “Cradle of the Confederacy” and “Birthplace of the Civil Rights Movement.”
Jefferson Davis was inaugurated here as Confederate president after the South seceded from the Union in 1861, and his birthday is a state holiday. As was common throughout the South, the city was the site of the lynchings of Black men, crimes now commemorated at a national memorial based here. Police arrested civil rights icon Rosa Parks here in 1955 for refusing to give up her seat on a city bus to a white passenger.
Today, about 60% of Montgomery’s 198,000 residents are Black, U.S. census records show. Even so, Black motorists account for about 90% of those charged with unpaid traffic tickets, a Reuters examination of court records found. Much of Judge Hayes’ work in municipal court involved traffic cases and the collection of fines. Hayes, who is white, told Reuters that “the majority of people who come before the court are Black.”
City officials have said that neither race nor economics have played a role in police efforts to enforce outstanding warrants, no matter how minor the offense.
In April 2012, Marquita Johnson was among them. Appearing before Hayes on a Wednesday morning, the 28-year-old single mother pleaded for a break.
Johnson had struggled for eight years to pay dozens of tickets that began with a citation for failing to show proof of insurance. She had insurance, she said. But when she was pulled over, she couldn’t find the card to prove it.
Even a single ticket was a knockout blow on her minimum-wage waitress salary. In addition to fines, the court assessed a $155 fee to every ticket. Court records show that police often issued her multiple tickets for other infractions during every stop – a practice some residents call “stacking.”
Under state law, failing to pay even one ticket can result in the suspension of a driver’s license. Johnson’s decision to keep driving nonetheless – taking her children to school or to doctor visits, getting groceries, going to work – led to more tickets and deeper debt.
“I told Judge Hayes that I had lost my job and needed more time to pay,” she recounted.
By Hayes’ calculation, Johnson owed more than $12,000 in fines. He sentenced Johnson to 496 days in jail. Hayes arrived at that sentence by counting each day in jail as $25 toward the outstanding debt. A different judge later determined that Johnson actually owed half the amount calculated by Hayes, and that Hayes had incorrectly penalized her over fines she had already paid. To shave time off her sentence, Johnson washed police cars and performed other menial labor while jailed.
Hayes told Reuters that he generally found pleas of poverty hard to believe. “With my years of experience, I can tell when someone is being truthful with me,” Hayes said. He called it “gut instinct” - though he added, in a statement this week, that he also consulted “each defendant’s criminal and traffic history as well as their history of warrants and failures to appear in court.”
Of course, the law demands more of a judge than a gut call. In a 1983 landmark decision, Bearden v. Georgia, the U.S. Supreme Court ruled that state judges are obligated to hold a hearing to determine whether a defendant has “willfully” chosen not to pay a fine.
According to the state’s judicial oversight commission, “Judge Hayes did not make any inquiry into Ms. Johnson’s ability to pay, whether her non-payment was willful.”
From jail, “I prayed to return to my daughters,” Johnson said. “I was sure that someone would realize that Hayes had made a mistake.”
She said her worst day in jail was her youngest daughter’s 3rd birthday. From a jail telephone, she tried to sing “Happy Birthday” but slumped to the floor in grief.
“She was choking up and crying,” said Johnson’s mother, Blanche, who was on the call. “She was devastated to be away from her children so long.”
When Johnson was freed after 10 months in jail, she learned that strangers had abused her two older children. One is now a teenager; the other is in middle school.
“My kids will pay a lifetime for what the court system did to me,” Johnson said. “My daughters get frantic when I leave the house. I know they’ve had nightmares that I’m going to disappear again.”
Six months after Johnson’s release, Hayes jailed another single Black mother. Angela McCullough, then 40, had been pulled over driving home from Faulkner University, a local community college where she carried a 3.87 grade point average. As a mother of four children, including a disabled adult son, she had returned to college to pursue her dream of becoming a mental health counselor.
Police ticketed her for failing to turn on her headlights. After a background check, the officer arrested McCullough on a warrant for outstanding traffic tickets. She was later brought before Hayes.
“I can’t go to jail,” McCullough recalled pleading with the judge. “I’m a mother. I have a disabled son who needs me.”
Hayes sentenced McCullough to 100 days in jail to pay off a court debt of $1,350, court records show. Her adult son, diagnosed with schizophrenia, was held in an institution until her release.
McCullough said she cleaned jail cells in return for time off her sentence. One day, she recalled, she had to clean a blood-soaked cell where a female inmate had slit her wrists.
She was freed after 20 days, using the money she saved for tuition to pay off her tickets, she said.
Jail was the darkest chapter of her life, McCullough said, a place where “the devil was trying to take my mind.” Today, she has abandoned her pursuit of a degree. “I don’t think I’ll ever be able to afford to go back.”
A clear sign that something was amiss in Montgomery courts came in November 2013, when a federal lawsuit was filed alleging that city judges were unlawfully jailing the poor. A similar suit was filed in 2014, and two more civil rights cases were filed in 2015. Johnson and McCullough were plaintiffs.
The lawsuits detailed practices similar to those that helped fuel protests in Ferguson, Missouri, after a white police officer killed a Black teenager in 2014. In a scathing report on the origins of the unrest, the U.S. Department of Justice exposed how Ferguson had systematically used traffic enforcement to raise revenue through excessive fines, a practice that fell disproportionately hard on Black residents.
“Montgomery is just like Ferguson,” said Karen Jones, a community activist and founder of a local educational nonprofit. Jones has led recent protests in Montgomery in the wake of the killing of George Floyd, the Black man whose death under the knee of a cop in Minneapolis set off worldwide calls for racial justice.
In Montgomery, “everybody knew that the police targeted Black residents. And I sat in Hayes’ court and watched him squeeze poor people for more money, then toss them in jail where they had to work off debts with free labor to the city.”
It was years before the flurry of civil rights lawsuits against Hayes and his fellow judges had much impact on the commission. The oversight agency opened its Hayes case in summer 2015, nearly two years after plaintiffs’ lawyers in the civil rights cases filed a complaint with the body. Hayes spent another year and a half on the bench before accepting the suspension.
Under its own rules, the commission could have filed a complaint and told its staff to investigate Hayes at any time. Commission director Garrett said she is prohibited by law from explaining why the commission didn’t investigate sooner. The investigation went slowly, Garrett said, because it involved reviewing thousands of pages of court records. The commission also was busy with other cases from 2015 to early 2017, Garrett said, issuing charges against five judges, including Moore.
“SLAP IN THE FACE”
A few months after Judge Hayes’ suspension ended, his term as a municipal judge was set to expire. So, the Montgomery City Council took up the question of the judge’s future on March 6, 2018. On the agenda of its meeting: whether to reappoint Hayes to another four-year term.
Hayes wasn’t in the audience that night, but powerful supporters were. The city’s chief judge, Milton Westry, told the council that Hayes and his colleagues have changed how they handled cases involving indigent defendants, “since we learned a better way of doing things.” In the wake of the suits, Westry said, Hayes and his peers complied with reforms that required judges to make audio recordings of court hearings and notify lawyers when clients are jailed for failing to pay fines.
As part of a settlement in the civil case, the city judges agreed to implement changes for at least two years. Those reforms have since been abandoned, Reuters found. Both measures were deemed too expensive, Hayes and city officials confirmed.
Residents who addressed the council were incredulous that the city would consider reappointing Hayes. Jones, the community activist, reminded council members that Hayes had “pleaded guilty to violating the very laws he was sworn to uphold.”
The city council voted to rehire Hayes to a fifth consecutive term.
Marquita Johnson said she can’t understand why a judge whose unlawful rulings changed the lives of hundreds has himself emerged virtually unscathed.
“Hiring Hayes back to the bench was a slap in the face to everyone,” Johnson said. “It was a message that we don’t matter.”
On Thursday, Hayes will retire from the bench. In an earlier interview with Reuters, he declined to discuss the Johnson case. Asked whether he regrets any of the sentences he has handed out, he paused.
“I think, maybe, I could have been more sympathetic at times,” Hayes said. “Sometimes you miss a few.”
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Migrants wake up at a camp near a legal port of entry bridge in Matamoros, Mexico, in October. (photo: Fernando Llano/AP)
A Pipeline Poisons the Wells in Hill Country
Jay Root, The Houston Chronicle
Root writes: "Just as the coronavirus pandemic was beginning to spread throughout Texas, a crew drilling horizontally under the Blanco River hit a void and lost 36,000 gallons of drilling fluid, primarily composed of bentonite clay, into the Trinity Aquifer."
t began without warning on the afternoon of March 29.
Physician Teri Albright was making sun tea at her Hill Country ranch, expecting that when she put the pitcher under the kitchen faucet she’d see her pristine well water bubbling out of it.
Instead, it looked like chocolate milk. She ran to the other faucets. Same thing with the shower, the toilets, the hose outside: sludge.
She and her husband, also a medical doctor, had bought their ranch along the banks of the Blanco River to enjoy the scenery and solitude. It’s where they wanted to grow old together and spoil the grandkids.
When Houston-based energy giant Kinder Morgan announced plans in 2018 to build a natural gas pipeline nearby, Albright said she felt “stomach sick.” Their plans didn’t include watching construction crews cut through limestone and rip out 100-year-old live oak trees. She worried an explosion might kill them all.
Neighbors protested, warning about disturbing the Hill Country’s “karst” features — which include vast underground caves and channels that hold and carry their groundwater.
“We have a very good plan in place to address the uniqueness of the karst features in the Hill Country,” said Kinder Morgan’s Allen Fore, vice president for public affairs, at a Kerrville Rotary Club meeting in January. “We will not be impacting the aquifer.”
But months later, that is precisely what happened.
Just as the coronavirus pandemic was beginning to spread throughout Texas, a crew drilling horizontally under the Blanco River hit a void and lost 36,000 gallons of drilling fluid, primarily composed of bentonite clay, into the Trinity Aquifer.
The spill fouled at least six wells that draw water from it, including Albright’s, records and interviews indicate. The accident also halted the drilling operation under the Blanco, triggered a state violation notice and likely fines, and set the stage for yet another federal lawsuit targeting the project.
Fore said in an interview with the Houston Chronicle that Kinder Morgan was sorry for the accident in Blanco. The company would ensure that the residents whose wells were impacted would be taken care of and compensated for their losses, he said.
“Whatever they need,” he said.
But months after Albright first discovered the sludge in her pipes — and a water sample heavily contaminated with lead — it was still coming out cloudy.
Now Albright and other Blanco County residents in the same boat are wondering if they can ever trust the water from their wells again.
Early opposition
From the moment Kinder Morgan and its business partners announced that their 430-mile Permian Highway Pipeline would cross the Texas Hill Country, landowners, environmentalists, elected officials and groundwater protection agencies along or near the route have fought tooth and nail to move it or stop it.
And they openly warned of the precise danger landowners such as Albright now face: disturbing the “karst” features below their property. Like underground Swiss cheese, they serve as conduits for groundwater that, in a huge swath of Central Texas, millions depend on for household, agricultural and industrial use.
In a single meeting convened in early 2019 in Wimberley, about a half-hour southwest of Austin, one pipeline opponent after another expressed the worry that cutting and drilling in and around the underground caverns and springs to bury miles of pipe measuring 3½ feet in diameter would harm their most precious resource.
Linda Kaye Rogers, board president of the Hays Trinity Groundwater Conservation District, said that if something goes wrong digging into a karst feature, it can be “very, very scary.”
“Any surface disturbance is going to affect our water,” added David Baker, executive director of the Wimberley Valley Watershed Association. “Even the construction of it is going to be very impactful.”
Kinder Morgan pushed back, saying it always put safety first and had a handle on the geology of Central Texas. At that Rotary Club meeting earlier this year, Fore said it had hired a top karst expert and would use “ground penetrating radar” to avoid environmentally sensitive areas and protect their water.
The company later said Fore’s vow not to impact aquifers applied to typical trenching operations that only go to a depth of 9 feet.
Kinder Morgan touts the economic benefits of the 42-inch pipeline, the largest ever to cut through the heart of the Hill Country, saying the $2.1 billion Permian Highway Pipeline will create 2,500 temporary construction jobs and generate an additional $42 million in annual tax revenue for state and local governments.
When it’s fully operational, the pipeline will carry more than 2 billion cubic feet per day of natural gas from West Texas to the outskirts of Houston, which the company notes will reduce environmentally harmful and wasteful flaring, or burning off, of natural gas at well sites in the oil-rich Permian Basin.
The pipeline, now about 65 percent complete, has been a life-changing experience for people whose wells were contaminated.
‘Oh my God’
For Albright, basic hygiene was the first big worry after a seemingly endless supply of sticky brown drilling fluid poured from her family’s water well. She and her husband specialize in geriatric care and work in assisted-living and long-term-care facilities, where the elderly face a particularly high risk of coronavirus infection and death.
Yet, just washing their hands suddenly got complicated. Taking a bath was impossible. Even getting appliances safely repaired became difficult.
She couldn’t go to a hotel. Couldn’t stay with her kids in Austin. Couldn’t wash the dishes or their clothes. All the while she was trying to conduct telehealth appointments, do patients visits and help those in her workplace navigate the intensifying pandemic.
“It takes a lot of bottled water to wash your hands for two minutes,” Albright said.
She did her best to make do with sponge baths, but after going six days without clean running water Albright was desperate for a shower; so she decided to try the bathroom in their barn. With any luck, she thought, it would be far enough away from the gunk in her well that she could steal a quick bath. Seeing clear water coming out of the sink faucet enticed her to go for it, and for a few glorious minutes she got what felt like the best shower of her life. Then she started to rinse off.
“I looked down and it’s just brown water coming out,” she said. “And I was like ‘oh my God it’s all in my hair. And I mean you can’t like rinse it some more to get it out. It was getting worse by the second.” She was literally showering in mud — and it was caked in her hair like lacquer.
It soon dried hard — like a “mud pack” on her head, Albright recalled. And even after her husband rinsed it repeatedly with bottled water while she tilted her head back on their porch, they just couldn’t get it all out. She felt like she was covered from head to toe in a greasy film. After two days she finally broke down and went to her son’s house in Austin, making sure to enter and exit the back door to minimize potential virus exposure. Finally, she got all the mud off.
That was one week after her well was contaminated. She hasn’t had a sip of it or bathed in it since. Water samples drawn from her well a few days after her water turned brown showed arsenic and metal contamination well beyond what’s considered safe, according to tests conducted by the Lower Colorado River Authority.
The lead content alone in those early samples hit 0.168 parts per million, comparable to some of the worst samples first taken in Flint, Mich., and more than 10 times the maximum allowable concentration in public drinking water supplies.
No easy fixes
Albright isn’t the only Blanco County resident reeling from the spill. Katherine McClure, who rents a house about a half mile from the now-abandoned drilling site, has been using bottled water delivered by Kinder Morgan for all her household needs — including baths — since early April.
Her well got tested after her water went cloudy and then turned brown, and she said initial results also showed high concentrations of heavy metals in water from the well.
“It costs me a great deal of time out of each day,” McClure said. “I’m sure not going to be showering in water with lead in it.” She said the water used to be “some of the most pristine, perfect, beautiful tasting, crystal clear water in the whole county.”
“And once you’ve ruined it, you can’t undo it,” she said. “I don’t really know how this can be fixed.”
Subsequent test results of samples of the affected wells, conducted by the local groundwater district and others, have shown heavy metals in allowable ranges, and Kinder Morgan said in a written statement that these metals “naturally exist” in the earth the wells are sitting in.
Max and Paula Fowler, a retired couple, found brown water suddenly shooting out of their faucets two days after Albright did.
Paula Fowler, 70, a retired speech therapist from Dallas, said their well service company and the local groundwater district told her not to drink it until the sediment cleared up but downplayed the risk of it for household use.
So she took a quick bath — and instantly regretted it.
“A day and a half later I ended up with a bladder infection,” she said. “I haven’t had one in 50 years.” A subsequent test of her water showed she had total coliform and E. coli bacteria in her well.
“If that’s attributable to us, and I can’t say whether that is or isn’t,” Fore said, “we’re going to be responsible for things that are attributable to our project.”
On the day the Chronicle visited the Fowlers, the local congressman, U.S. Rep. Chip Roy, R-Austin, showed up. He was making the rounds of affected well owners in his district — in part to find out what Kinder Morgan representatives were doing to fix what they broke.
“You and anybody else impacted by this need to be made whole and then some,” Roy told the couple. “If I put my lawyer hat on I’d be beating the living snot out of them on what being made whole is.”
The bills have been adding up: Both Albright and the Fowlers spent thousands to install a giant tank outside their homes and about $800 a month for water to be trucked in. So did another neighbor whose water suddenly turned cloudy about five weeks after the spill.
Now both Albright and the Fowlers say Kinder Morgan is offering to install a rainwater collection system — which cost about $50,000 each — to ensure they have a permanent and reliable source of water for their property.
The discussion with the congressman outside the Fowler residence highlighted a political fault line the spill has exposed: While conservatives such as Roy generally support the oil and gas industry, they also back landowners’ private property rights — including the right to use and enjoy the water under the ground.
“You know oil is king out west,” Roy said. “Water is a big deal around here.”
Unchecked power?
But lawmakers also have given pipeline companies immense power. The for-profit companies are entrusted with an authority normally associated with the government: eminent domain, or the power to condemn land for public use — in this case energy infrastructure.
When government uses eminent domain for utility lines or a transportation project, there are typically several layers of oversight and planning, mandatory public hearings and notification. Not so for pipeline projects in Texas.
While Kinder Morgan has to obey state and federal environmental regulations and permitting rules, the company decides the route. The law allows it to take the land it needs, as long as people are fairly compensated for it.
State District Judge Lora Livingston, a Travis County Democrat, said last summer that she was “concerned with a power that, when exercised by a governmental entity, must be done in the harsh light of public scrutiny of open meetings and public notices, but, when exercised by a private entity, may be determined without public notice by a select few driven primarily by their financial gain.”
But she sided with Kinder Morgan in a lawsuit waged by landowners who tried to stop the pipeline on the grounds it was an unconstitutional power grab. Livingston found the Texas Legislature and court precedent clearly gave the company that power and tossed out the lawsuit.
“These landowner relationships are important to us and, and it’s really, really important to get off on the right foot,” Fore said. “We feel good about our efforts to communicate and be available and respond.”
After trying without success to restrict pipeline powers last year, state Rep. Erin Zwiener, D-Driftwood, who represents Blanco County at the Capitol, said she will “fight like hell” in the next session of the Texas Legislature, which gets underway in January of next year, to require more oversight of pipeline routes.
“It’s absolutely wrong that a company can take this many people’s land and that these people have no elected official or accountability process or opportunity for public comment,” Zwiener said. “A private company that wields (eminent domain powers) should have the exact same oversight and accountability that the government has when they use it.”
Any reforms will come too late for constituents such as Albright, the Fowlers and others whose wells were contaminated. Albright and her husband, the Fowlers, and the Trinity Edwards Springs Protection Association are suing in federal court in Austin, saying the company violated the Safe Drinking Water Act by injecting contaminants, including a “cocktail of carcinogens,” into the aquifer that feeds their wells.
Kinder Morgan says its drilling mud, known as AMC gel, is “nontoxic,” but the safety data sheet it provided to state regulators, which cites chemical additives acrylamide and silica, says “the material is regarded as carcinogenic to humans.”
Tests of the AMC gel requested by the plaintiffs’ attorney, Jeff Mundy, also showed contamination from metals and arsenic, a known carcinogen, in concentrations similar to that found in their wells. The plaintiffs are seeking fines (payable to the government) of up to $57,000 for every day that the company fails to clean up the plume of drilling fluid suspended in their aquifer.
They’re also asking Kinder Morgan to stop using AMC gel anywhere it might get into the drinking water supply.
“This stuff is still down there in the aquifer and there’s been no attempt to clean it up,” Mundy said. “Until it’s cleaned up it’s going to keep drifting down and affecting other well owners.”
In a written statement released after the lawsuit was filed, the company said the lawsuit was “unfounded and without merit.”
“The same metals in question naturally exist in the very earth that this groundwater is flowing through, and they are naturally present there at levels that are orders of magnitude higher than the concentrations present in the drilling mud used at the Blanco River site,” the company said.
Kinder Morgan also said the same drilling mud is certified as safe to use when drilling water wells.
For Albright, nothing will restore the serenity she had before this whole mess began. She’s not the jittery type. She had three babies while she went to medical school, after all, she said. But now she feels worn down by “nonstop anxiety.”
She worries she’ll never be able to use her well again. That her rainwater system will fail in a drought. That her dream home has lost its luster.
“We were trespassed,” Albright said. “They harmed the value of our home, the safety of our property — all of that. I feel violated.”
But the pipeline is still cutting through Hill Country. People who live close to the Pedernales River near Fredericksburg fear they’ll be next. Drilling under the river was set to get underway this weekend, Kinder Morgan officials said. The company planned to use the same drilling fluid.
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