| 
A lawyer and a judge say they each have filed complaints with the State Commission on Judicial Conduct against 44th District Judge Carlos Cortez of Dallas alleging that he has engaged in abusive behavior toward some of his judicial colleagues.
In a lengthy complaint sent to the commission on May 13, Randy Johnston of Dallas' Johnston u Tobey alleges, among other things, that Cortez "berates, belittles and ridicules his fellow judges both to the public and to other judges."
Johnston details 14 examples of Cortez's alleged behavior that "do not involve me directly, but have been reported to me by numerous sources. I am but a messenger here. I could not testify to these events from first hand knowledge. The shear volume of complaints that I have heard and the support of the complaints as evidenced by the attached documents have convinced me that this letter needs to be sent." Attached to the complaint are copies of a series of e-mails between Cortez and several Dallas judges and lawyers.
On June 17, Marty Lowy, judge of Dallas' 101st District Court, filed a complaint against Cortez with the judicial conduct commission alleging that Cortez engaged in "abusive behavior towards his colleagues" as "evidenced in numerous e-mails that have been or will be made available to the commission."
Cortez declines comment about the complaints. But in a three-page written statement, his attorneys maintain that the commission "has never and is not presently conducting a formal investigation regarding Judge Cortez."
"The private and confidential communications whereby Judge Cortez expressed valid concerns and criticisms about colleagues were made though proper channels . . .," according to the statement by Dallas solo Larry Finstrom and Greg Gray of Dallas' The Gray Law Firm.
"It is unfortunate that Mr. Johnston and Judge Marty Lowy have leaked private and confidential matters to the media in an attempt to circumvent due process and the rule of law. It is not a secret that Judge Cortez expresses some views in a frank and direct manner, which are to the point . . .," Finstrom and Gray write.
"The undisputed fact of the matter is that Judge Cortez works well with his colleagues on the bench. This is evidenced by Judge Cortez being asked time and time again by his fellow judges to speak on their behalf regarding important matters facing the judiciary and the legal community," Finstrom and Gray note.
"To put it bluntly, Mr. Johnston's 'complaint' is conflicting in that it is also complimentary: he states that Judge Cortez is a Judge of energy and intellect ; that Judge Cortez is a man of considerable skill and talent; and most importantly that, he has heard no complaints about Judge Cortez' courtroom rulings or conduct," Finstrom and Gray write in the statement.
Complaints filed with the judicial conduct commission usually are not disclosed to the public until the commission takes formal public action against a judge. Seana Willing, executive director of the State Commission on Judicial Conduct, declines to say whether a complaint has been filed against Cortez. Willing also says any member of the public has standing to file a judicial conduct complaint.
Johnston, who often represents clients in legal malpractice suits, says he decided to disclose that he filed the complaint because rumors have been flying around the Dallas legal community about whether he had done so.
"I'd rather the truth be known," says Johnston, who provided a copy of his complaint to Texas Lawyer ,in which he redacted some names. Johnston's name is not visible on the complaint.
"It's one of the hardest decisions I've ever made as a lawyer and one of the things as a lawyer I least like doing, but I felt like I had no choice," Johnston says of filing the complaint.
"He's one of the brightest young men I know and has the potential for good. And people look up to him. And this conduct is very disappointing," Johnston alleges.
Johnston declines to say who gave him copies of the e-mails between Cortez, the judges and lawyers. He says he did not file the complaint at the behest of any of Dallas' civil judges, many of whom are his friends.
"I did not ask any of their permission or if it was a good idea," Johnston says. "It was my decision alone."
In a follow-up e-mail response, Finstrom and Gray write, "Attorney Randy Johnston invoked the process of the State Commission on Judicial Conduct to begin a confidential inquiry as to alleged conduct by the Hon. Carlos Cortez. Further evidence of his intention that the information be confidential is his choice to make the complaint anonymously pursuant to the provisions of the Commission found in Texas Government Code Chapter 33.0321. Prior to the filing of formal charges by the Commission all papers filed with and proceedings before the Commission are confidential and protected by Texas Government Code Chapter 33.032. No formal charges have been filed by the Commission.
"Mr. Johnston now is making an unethical and unfair attempt to influence the actions of the Judicial Commission through the publication of his confidential complaint in Texas Lawyer. Although Mr. Johnston professes expertise in ethics, this is a clear breach of and clear violation of Rules 3.04, 3.05, 3.07, and 8.02 of the Texas Disciplinary Rules of Professional Conduct."
Johnston denies that his actions are unethical. "I certainly didn't release it to the press in an attempt to influence the commission. That actually shows a lack of understanding of the commission because releasing it would probably have the opposite effect," he says.
Lowy says he disclosed that he filed a complaint with the commission only after Johnston went public with his complaint.
"I did not want to interfere with the commission's process, which as you know is confidential," says Lowy, who also provided a copy of his complaint to Texas Lawyer . However, in the complaint Lowy redacted the names of state district court judges who he says have been on the receiving end of Cortez's "abusive behavior."
While Johnston and Lowy are close friends, Lowy says he was not aware of Johnston's complaint until he was interviewed by and gave statements to officials from the judicial conduct commission about the e-mails.
"And after concluding the statement, I thought it was appropriate to make a complaint. So that's why I filed it," Lowy says.
E-mail Concerns
Most of the e-mails are about Cortez's fellow Democratic judges.
In an Aug. 20, 2008, e-mail to Dallas County Assistant District Attorney Bob Schell concerning a meeting about county court reporters' Fair Labor Standards Act status, Cortez accuses Lowy of falling asleep at the meeting, "which he is often prone to do at meetings and also on the bench apparently."
Lowy says of the e-mail: "I disagree with that characterization." He denies that he falls asleep on the bench or in meetings. Schell did not return a telephone call seeking comment.
In a July 16, 2008, e-mail regarding a bailiff matter, Cortez wrote to 162nd District Judge Lorraine Raggio: "I DON'T NEED YOUR F-ING PERMISSION to do anything." He also wrote in the same e-mail: "The judges are a f-ing joke."
Raggio says the e-mail was inappropriate. "It just shows a lack of respect for his colleagues," she says.
"I can't speak for everyone," Raggio says of the e-mail. "Let's just say that there are tensions where there really shouldn't be."
Raggio says Cortez has not apologized to her directly for the e-mail.
According to a statement Cortez's lawyers e-mailed to Texas Lawyer , "Judge Cortez's response to Judge Raggio was in line with what other judges did in response to an administrative matter being addressed by all the judges. Judge Cortez was not the only judge to strongly disagree with her."
In a Feb. 17 e-mail to Jim Flegle, president of the Dallas chapter of the American Board of Trial Advocates (ABOTA), Cortez wrote that he would no longer attend ABOTA chapter events. ABOTA is a professional organization comprised of plaintiffs lawyers and defense lawyers whose purpose is the preservation of the right to a trial by jury in civil matters. (Editor's note: Texas Lawyer was informed that senior reporter John Council would be receiving ABOTA's Dallas chapter Legal Journalist of the Year Award, which Council has declined to accept because of the nature of this article.)
On Feb. 18, Flegle responded to Cortez's e-mail saying that he was disappointed the judge would no longer attend ABOTA events. Flegle added, "If circumstances change, please understand that Your Honor is always welcome to our judicial events."
On Feb. 23, Cortez wrote Flegle that he would no longer attend ABOTA events because the organization named Craig Smith, judge of Dallas County's 192nd District Court, as Trial Judge of the Year. "All my best to you and your firm but 'Car Wreck Craig' Smith being named Trial Judge of the Year is an absolute joke," Cortez wrote in the e-mail.
Flegle, a partner in Dallas' Loewinsohn Flegle Deary, declines comment on the allegations in Johnston's complaint but says that "ABOTA had nothing to do with filing the complaint."
Smith says the e-mail regarding his ABOTA award was "a very sad occurrence, but I have to consider the source, and I can't take it personally."
"I'm going to have to let the e-mail speak for themselves," says Smith, who adds that he was unaware that complaints had been filed with the judicial conduct commission against Cortez. "And I don't want to dignify those e-mails with any further comment."
Darlene Ewing, chairwoman of the Dallas County Democratic Party who also is a solo family law attorney, is aware of the e-mails and says they have hurt the collegiality between Cortez and some of his Democratic colleagues.
"In full disclosure, I have been the target of one of his e-mails. Carlos has a tendency to run off at the mouth before his brain is in gear. And as a result, sometimes his e-mails are caustic," Ewing says. "Do I think they are appropriate? No."
Ewing says she has no opinion as to whether those e-mails warrant discipline by the judicial conduct commission.
She says that Democratic Party officials, who she declinesto name, have approached Cortez about the e-mails. "And as of today, these e-mails have either decreased in their frequency or animosity," Ewing says. "And Carlos has apologized for causing offense to his fellow judges."
Conduct v. Free Speech
Two judicial ethics experts say complaints about a judge's alleged abusive language put the judicial conduct commission in an interesting position because it must weigh the judge's conduct against his or her right to free speech.
Houston solo Lillian Hardwick, author of "The Handbook of Texas Lawyer and Judicial Ethics," believes judges can be disciplined by the commission for abusive language.
"It's lamentable to hear about something like that; it's very sad. No one benefits from something like that," Hardwick says of the allegations against Cortez.
Hardwick says Canon 3b(4) of the Code of Judicial Conduct allows the commission to discipline judges for abusive language. That canon states: "A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control."
Chip Babcock, a partner in the Houston office of Jackson Walker who has represented Texas Supreme Court Justice Nathan Hecht and currently represents Court of Criminal Appeals Presiding Judge Sharon Keller before the commission, says Cortez has a good defense to the complaints.
"There are state laws that might cover this conduct. The question is whether those laws can be applied consistently with the federal Constitution, and that is the First Amendment and the due process clause," Babcock says.
"And there would be a federal constitutional argument that the judge could raise regarding his speech here. The factors would be, one: Is it an opinion? And two: If it's not an opinion, is it true? And three: Is it on a matter of public concern?" Babcock says. "It's a very interesting issue."
Related stories:
Judge Recuses Himself Citing Jurist's "Unsolicited Conversations"
Are you ready to rumble? Judge Eric Moyé v. Judge Carlos Cortez
Recusal Motion Opens Old Wounds Between Judge and DBA President
DBA Smoothes Over Campaign Rift With Democratic Judges
