| On Oct. 26, Judge Carlos Cortez of Dallas County's 44th District Court voluntarily recused himself from hearing a wrongful-termination suit after another jurist, who is a witness in the litigation, had an "unsolicited conversation" with him regarding the case.
In his recusal order in Cayce Coskey v. Dallas County, Cortez wrote that Judge Sally Montgomery of Dallas County Court-at-Law No. 3 approached him on Oct. 24 at a "law association function" and spoke with him regarding matters involving the case.
Plaintiff Coskey, who is Montgomery's former court reporter, alleges in her July 25, 2006, petition that Montgomery wrongfully terminated her employment in violation of the Texas Whistleblower Act, §554.001 of the Texas Government Code, after Coskey had a dispute with the judge. As alleged by Coskey, the dispute concerned whether Montgomery had accurately disclosed to the lawyers representing the parties in Bostic, et al. v. Georgia-Pacific Corp., et al. contact the judge's bailiff had with jurors in that asbestos wrongful-death suit. Coskey alleges she was fired after she reported the bailiff's contact with jurors to defense lawyers in Bostic. [See "Court Reporter Sues Dallas County Alleging Wrongful Termination," Texas Lawyer, July 31, 2006, page 5.]
Montgomery is not a defendant in Coskey.
In his recusal order, Cortez wrote that on Oct. 24, Montgomery approached him at a bar function and made comments including "we can't talk for a week" and "although I disagree with your past rulings I'm still glad it's in front of you." Cortez noted that Montgomery also commented about Cortez's clerk's alleged failure to set rehearings on past rulings Cortez made in Coskey.
However, Cortez wrote in the order that "[t]here were no ex-parte communications on issues involving the upcoming trial by either Judge Montgomery or myself."
Cortez also wrote that on Oct. 26, the day before Coskey was set for trial, Montgomery approached his court reporter and bailiff and spoke about his clerk's alleged failure to set rehearings on past rulings made by Cortez in Coskey but "there were no communications on issues involving the upcoming trial of this case by either Judge Montgomery or my staff.
"However, as a result of Judge Montgomery's unsolicited conversations with both me and my staff on October 24, 2009 and October 26, 2009 respectively, impartiality might be reasonably questioned . . .," Cortez wrote. He forwarded his order to Judge Robert Burns of Dallas County Criminal Court No. 1, the presiding judge of the county's district courts.
On Oct. 26, Burns assigned Coskey to 298th District Judge Emily Tobolowsky. A new trial date has not yet been set.
Montgomery did not return a telephone call seeking comment. Neither did Dallas County Assistant District Attorney Bob Schell, who represents the county in Coskey. Cortez declines comment.
Sean McCaffity, a partner in Dallas' Rochelle McCullough who represents Coskey, questions Montgomery's alleged actions.
"She's a lawyer, a judge and a witness under subpoena," McCaffity says of Montgomery. "And under what circumstance would you think that's a good idea? I mean, I wouldn't even say hello to the guy [Cortez]. . . . The bad thing is that I had to come back to the office and tell a client that now lives out of town and took vacation that she can't go to trial this week. And tactically maybe she [Montgomery] did us a favor, but the look of the loss of faith on my client's face doesn't justify it."
McCaffity says he vigorously objected to Cortez's recusal in Coskey, a suit that has been pending for more than three years, "because we wanted to go to trial. We think he's a fair guy."
