For nearly two years, Judge Carlos Cortez has fought the release of records related to a defamation suit he filed, and later nonsuited, against a Dallas attorney. Texarkana’s 6th Court of Appeals, sitting in Dallas, heard arguments in Cortez v. Johnston on Aug. 9. Now the 6th Court is set to decide whether those records — which include two witness statements and Cortez’s deposition — will remain sealed.

Texas Lawyer has intervened in the case in an attempt to gain access to the records.

The background in the long-running dispute is as follows: On Nov. 1, 2010, Cortez of Dallas’ 44th District Court sued Coyt Randal “Randy” Johnston. In his original petition filed in Dallas state district court, Cortez alleged that Johnston had filed a 2009 complaint against Cortez with the State Commission on Judicial Conduct (SCJC) based on rumors that “came from three Dallas County District Judges. . . . To be perfectly clear, Defendant Johnston decided to file a complaint to the SCJC about rumors that he, Judge Craig Smith, Judge Lorraine Raggio and Judge Martin Lowy created themselves about Judge Carlos Cortez and moreover, did so admittedly with not one of them having any personal knowledge of the truth of these self-created rumors.”

In the 2009 SCJC complaint, Johnston alleged, among other things, that Cortez “berates, belittles and ridicules his fellow judges both to the public and to other judges.” Johnston attached copies of a series of emails between Cortez and several Dallas judges and lawyers to his SCJC complaint. [See "Judge Files Defamation and Extortion Suit Against Dallas Attorney," Texas Lawyer, Nov. 8, 2010, page 1.]

In his original petition, Cortez alleged he was defamed on Oct. 29, 2009, when Johnston emailed a copy of his SCJC complaint to more than 100 members of the Dallas Chapter of the American Board of Trial Advocates (ABOTA).

Johnston, a partner in Dallas’ 
Johnston u Tobey who was the only defendant named in the suit, denied the allegations, as did Smith, Raggio and Lowy.

In December 2010, the SCJC dismissed the complaint Johnston filed against Cortez. [See "Conduct Complaint Against Dallas Judge Dismissed," Texas Lawyer, Jan. 17, 2011, page 1.]

In February 2011, Cortez nonsuited the case and sought a protective order to seal documents related to that case. Johnston filed a motion to compel under seal. Attached to the motion were Cortez’s deposition in the defamation suit and the sworn statements of two witnesses. Johnston opposed Cortez’s request for a protective order. [See "Judge Seeks to Seal Deposition He Gave in Defamation Suit Against Lawyer," Texas Lawyer, Feb. 15, 2011, page 1.]

In addition to Texas Lawyer, The Dallas Morning News and Lowy intervened, asserting that the documents are “court records” and should not be sealed.

On April 11, 2011, visiting Judge Richard Davis ruled that the records Cortez was attempting to keep sealed were “court records” under Texas Rule of Civil Procedure 76a and were public documents. Cortez appealed the ruling to Dallas’ 5th Court of Appeals, which recused itself. The case was then reassigned to Texarkana’s 6th Court.

In his Jan. 20 appellate brief to the 6th Court, Cortez alleges Davis “abused his discretion” by ruling that the documents were court records under Rule 76a, in part because Davis allegedly did not review the records in camera before making his decision.

“Information does not — and should not — become a ‘court record’ subject to Rule 76a merely because one party attaches the information to a discovery motion and files it — particularly when the discovery motion is filed after the case is concluded,” Cortez writes.

Among other things, Cortez alleges in his brief that the documents include “personal information” and “embarrassing and humiliating testimony” that infringe on his right to privacy.

Cortez also alleges, “The trial court abused its discretion by failing to treat its order declaring the documents in issue to be ‘court record’ as an appealable order, and by refusing to allow Judge Cortez to supersede the order.” The trial court further abused its discretion by failing to rule on Cortez’s motion for protection, Cortez alleges.

R. Michael Northrup, a shareholder in Dallas’ Cowles & Thompson who represents Cortez, says in a pre-argument interview that Davis erred by not determining whether the documents were discoverable before finding that they were court records under Rule 76a.

“This case may be the first case I am aware of in which the discoverability of documents hadn’t been determined at the time of a Rule 76a motion,” Northrup says. “And the case ended before the discoverability issue could be decided.”

In a March 22 appellees’ brief, Texas Lawyer, The Dallas Morning News, Johnston and Lowy argue, among other things, that Davis did not abuse his discretion in finding that the documents are court records and that Davis did not have an obligation to review the records in camera.

The appellees argue that Cortez waived his right to privacy when he gave an interview to Texas Lawyer about his defamation suit against Johnston in which Cortez predicted that the careers of Johnston and Lowy were “over.” The appellees also allege that the documents Cortez wants to seal “go to the ability of Judge Cortez to administer his office.”

“At least some of Judge Cortez’s colleagues on the bench are of the opinion that the information at issue, in fact, does go to the ability of Judge Cortez to administer his office. . . .” the appellees allege in their brief. “Of course, how a public official conducts his private affairs may well reveal a great deal concerning matters that have a probable adverse effect on the administration of public office and the operation of government.”

In a pre-argument interview, Joseph Larsen, special counsel in the Houston office of Sedgwick who represents Texas Lawyer and The Dallas Morning News, says the question is whether Cortez has “shown a legitimate privacy interest or any other interest that could justify sealing the records if they are court records, or to prevent Johnston from giving them to Texas Lawyer, and he hasn’t.”

Lowy’s lawyer Ike Vanden Eykel, CEO and managing partner of KoonsFuller in Dallas, did not return a telephone call seeking comment.

Appellate Arguments

At the Aug. 9 arguments in Cortez v. Johnston, Craig Enoch, a partner in Austin’s Enoch Kever who represents Cortez, argued that the documents at issue were filed in an effort to “harass” his client. They are not court records because the trial court did not follow the proper procedure in making that determination, he said.

“What happens if the evidence is proffered and has no business being admitted?” Enoch asked the three-justice panel, which included 6th Court Chief Justice Josh R. Morriss III and justices Jack Carter and Bailey Moseley.

When a litigant files a suit claiming his reputation has been harmed, “isn’t this to be expected?” Carter asked Enoch, referring to the documents Cortez wants to remain sealed.

“Yes, your honor,” Enoch replied. “But you have the right to say, ‘This trash has no right to be filed.’ “

“If they are not court records, what is it?” asked Moseley.

“Your honor, it’s evidence,” Enoch replied.

Carter asked Larsen, “Does the trial court have any discretion in . . . what he can release under 76a?”

“If it’s filed, it’s a court record,” Larsen replied.

“How can it be part of the case if there is no case?” Carter asked.

“If someone comes in and files something for no other purpose than harassment . . . it is still a court record,” Larsen said.

Bob Wellenberger, a partner in Dallas’ Thompson Coe Cousins & Irons who represents Johnston, also told the court, “If it’s filed, it’s a court record.”

After the argument, Larsen said the court focused on important points including whether the documents fell under any special privilege.

The court seemed to be concerned with the idea that, once the records are filed, why doesn’t the trial court have the discretion to “unfile” them? Wellenberger said.

Noted Enoch, “I think the argument went well because the justices focused on the issues.”