Bush Need Not Testify, Judge Rules
Washington Post Staff Writer
Tuesday, August 31, 1999; Page A2
AUSTIN, Aug. 30A Texas judge ruled today that Gov. George W. Bush cannot be forced to testify in a lawsuit by an ousted state regulatory official who contends she was fired for investigating a funeral home company headed by a Bush political supporter.
Sparing Bush what might have been a nagging distraction during his campaign for the Republican presidential nomination, state Judge John K. Dietz said the former official, Eliza May, a Democrat, had not produced enough evidence to show that Bush has "unique and superior personal knowledge" that would aid her case. Dietz threw out a subpoena issued by May's lawyers for Bush to give a deposition in the lawsuit.
Bush's office applauded the decision, which came after a day-long hearing. "This ruling is an important one for Governor Bush and for future governors because it essentially says that the governor should not be used to generate publicity for lawsuits in which he is not involved," spokesman Ray Sullivan said.
Bush, who is not a defendant in the case, has called May's claims "frivolous" and denied knowing about circumstances of her ouster.
May, a former treasurer of the Texas Democratic Executive Committee, was fired last February as staff director for the Texas Funeral Service Commission, which regulates the state's funeral industry. The ouster came amid a long-running dispute between her and Robert L. Waltrip, chairman of Houston-based Service Corporation International (SCI), over May's investigation of alleged licensing violations by the company.
Waltrip is an old friend of Bush's father, former president George Bush, and SCI's political action committee donated $45,000 to the governor's 1994 reelection campaign, according to a spokesman for the company, which owns more than 3,700 funeral homes, cemeteries and crematoriums worldwide.
May, who has sued the commission, Waltrip and SCI, contends she was fired because she resisted pressure from Bush's office to halt her investigation. But the commission said she was ousted because members lost confidence in her and because she allegedly ordered an employee to research SCI's political contributions to Bush and other elected officials.
Texas Attorney General John Cornyn (R), who represented Bush at today's hearing, described the subpoena as a "reckless" attempt to pressure the state into a financial settlement by embarrassing the governor politically.
"The only reasonable conclusion to be drawn is that this is not a search for the truth," Cornyn told the judge. "This is about harassment. This is about politics."
Waltrip, whose company is contesting $450,000 in fines for the alleged licensing violations, has acknowledged complaining to Bush aides. But Waltrip's lawyers said he did not speak with Bush.
Cornyn cited a 1995 case in which the Texas Supreme Court held that an employee suing a corporation could not compel the company's top executive to give a deposition without first showing that the executive had "unique and superior personal knowledge" that would aid the plaintiff's case.
"The standard should be even higher for the governor," Cornyn said, noting that, on average, 10 lawsuits a day are filed against the state.
Seeking to show that Bush was aware of the circumstances surrounding the dispute between May and Waltrip, May's lawyers displayed a recent Newsweek article that quoted Johnnie B. Rogers, an SCI lawyer and lobbyist.
The story cites an April 15, 1998, meeting at which Waltrip and Rogers were complaining about the investigation to Bush's then-chief of staff, Joe Allbaugh. Bush happened to be walking by and poked his head in.
According to Newsweek, Rogers, in an interview, recalled that Bush said to Waltrip, "Hey Bobby, are those people still messing with you?" May's lawyer argued that the remark suggests Bush was aware of the investigation.
But Rogers testified that Newsweek misquoted him, that Bush did not use the word "those." He said the governor made only a general remark, asking, "Are people still messing with you?" He said the question did not imply Bush knew why Waltrip was meeting with Allbaugh, now Bush's presidential campaign manager.
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