A Dallas district court judge has filed a petition for review in the Texas Supreme Court, seeking to overturn a series of lower court rulings that documents related to a defamation suit he filed, and later nonsuited, are "court records" and thus available for public view.

The Jan. 3 petition for review in Judge Carlos Cortez v. Coyt Randal (Randy) Johnston, et al. is the latest turn of events in the judge’s two-year battle to keep his own deposition and two witness statements in that case under wraps.

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

The background to the dispute, according to the Sept. 4, 2012, opinion from Texarkana’s 6th Court of Appeals in the case, is as follows: The conflict between Cortez, judge of Dallas County’s 44th District Court, and Coyt Randal "Randy" Johnston, a partner in Dallas’ Johnston ★ Tobey, "had its roots in the filing by Johnston of a complaint against Cortez with the State Judicial Conduct Commission (Commission), wherein Johnston alleged that Cortez had (among other things) publicly demeaned other judges and was rumored to have consorted with prostitutes and used illicit drugs."

The 6th Court wrote that, while complaints filed with the commission are supposed to be confidential, the complaint against Cortez was leaked to the press. When questioned by a reporter about the filing, "Cortez mentioned Johnston as the source of the accusations and labeled each of the charges fabrications," the appeals court noted. "Cortez also lambasted Johnston and three Dallas County district judges, naming them as willing participants in the complaint and predicting the professional demise of all four," the 6th Court wrote. [See "Judge Carlos Cortez Files Defamation, Extortion Suit Against Dallas Lawyer," Texas Lawyer, Nov. 2, 2010, page 1.]

Johnston and the judges all denied that they defamed Cortez. Then, in December 2010, the commission dismissed the complaint Johnston had filed against Cortez. [See "Conduct Complaint Against Dallas Judge Dismissed," Texas Lawyer, Jan. 17, 2011, page 1.]

Cortez sued Johnston. In his original petition, Cortez alleged he was defamed on Oct. 29, 2009, when Johnston emailed a copy of Johnston’s commission complaint to more than 100 members of the Dallas Chapter of the American Board of Trial Advocates (ABOTA), the 6th Court’s opinion states.

According to the 6th Court’s opinion, during the course of the defamation suit, Cortez made a demand on Johnston for disclosure, and Johnston sought Cortez’s deposition. The parties entered into a Rule 11 agreement on Jan. 14, 2011, which provided that the contents of Cortez’s deposition "would not be published or shared with any non-parties" until the trial court ruled on the issue of whether a protective order should be placed on the use of Cortez’s deposition, the 6th Court wrote. Cortez’s deposition was taken on Jan. 17, 2011, "during which Cortez refused to respond to a number of personal questions posed to him," the 6th Court noted.

On Feb. 11, 2011, Johnston hand-delivered to Cortez his response to Cortez’s request for disclosure. "This response included two witness statements taken by Johnston, the contents of which, if true, at the very least would certainly elicit public disapprobation of Cortez," the 6th Court wrote.

Immediately after Cortez received Johnston’s disclosure, "Cortez was apparently either stricken with a sudden attack of pudeur or he determined that discretion was the better part of valor. Whatever might have prompted Cortez, he demonstrated remarkable alacrity by filing (on the same day) a notice of nonsuit of his claims against Johnston," the 6th Court wrote.

On Feb. 14, 2011, Johnston filed a motion to compel and for sanctions, seeking attorney fees. The motion incorporated as exhibits a copy of the complaint Johnston filed with the commission and the deposition testimony of Cortez. Johnston also filed a copy of his disclosure, which included the two witness statements. The witness statements "were apparently delivered to the clerk by Johnston in an envelope which was sealed by Johnston and marked by him as ‘Sealed Documents,’ " according to the 6th Court. Later that same day, the trial court entered its order of nonsuit.

Three weeks after the nonsuit order, Texas Lawyer and The Dallas Morning News intervened in the suit, asserting a right of access to "court records." Judge Marty Lowy of Dallas County’s 101st District Court "(one of the Dallas County district judges publicly criticized by Cortez)" also filed an intervention, the 6th Court wrote.

During an April 11, 2011, hearing to determine whether the documents were court records, Cortez requested that he be allowed to meet with the court during an in camera review of the documents outside the presence of the intervenors — a request the trial judge rejected, noting that he already had reviewed the documents in camera, the 6th Court wrote.

Cortez then told the trial court that he was withdrawing his request that the documents be sealed and he sought a determination as to whether the documents were court records as defined by Rule 76a of the Texas Rules of Civil Procedure. Rule 76a governs the sealing of documents and defines what "court records" are available to the public, the 6th Court wrote.

On April 15, 2011, the trial court decided the documents were "court records." Cortez appealed to Dallas’ 5th Court of Appeals, which recused itself. The case was reassigned to the 6th Court.

In its opinion, the 6th Court affirmed the trial court’s decision that the documents were court records. The appeals court first addressed whether the trial court had jurisdiction to rule that the documents were court records even though Cortez filed his nonsuit motion. The 6th Court found that the trial court did have jurisdiction when it made that ruling. Among other things, 6th Court Justice Bailey C. Moseley wrote that "Johnston did file the documents between the time Cortez filed his notice of nonsuit and the entry of the order granting the nonsuit, well within the plenary power of the trial court." Sixth Court Chief Justice Josh R. Morriss III and Justice Jack Carter joined Moseley in the opinion.

With respect to the two witness statements, "Rule 76a(2)(c) specifically incorporates within the definition of ‘court records’ such unfiled discovery which concerns ‘matters that have a probable adverse effect upon the general public health or safety, or the administration of public office, or the operation of government . . .,’ " Moseley wrote.

"The trial court found that the contents of the documents include information that concern matters that have a probable adverse effect upon the administration of public office or the operation of government because undisclosed information may be used by litigants attempting to gain an unfair advantage before Cortez acting in his official capacity as a district judge and because the papers contain allegations which could impact the public reputations of four judges and an attorney, as well as calling in questions of disrepute to the operations of civil district courts in Dallas County, the State Bar of Texas, and the Texas Judicial Conduct Commission . . .," Moseley wrote.

"We find that the trial court, having reviewed the documents, had sufficient evidence to make the findings that they were, indeed, court records and did not abuse its discretion in making that finding," Moseley concluded. "We affirm the judgment of the trial court in its determination that the documents are court records."

Petition for Review

Cortez raises three issues in his petition to the Supreme Court.

First, Cortez makes a number of arguments as to why both the trial and appellate courts erred in determining the documents were court records under Rule 76a. Cortez’s main arguments include: The trial court erred in refusing to address discoverability under Rule 192 before proceeding to the court records determination under Rule 76a; the mere filing of documents after the "case or controversy" is over does not trigger a Rule 76a(2) review; Rule 76a does not trump privileges and other laws’ protections; and the trial court has a duty to enforce the Rule 11 agreement.

Second, he argues that the 6th Court erred in failing to address all issues raised and necessary to dispose of his appeal.

Third, he alleges that the 6th Court "erred in issuing an opinion setting out ‘facts’ to which Cortez never had an opportunity to respond to and about which the trial court prohibited Cortez from offering evidence that would have negated the court of appeals’ assumptions. (unbriefed)."

Michael Northrup, a shareholder in Dallas’ Cowles & Thompson who represents Cortez and filed the petition for review, says Cortez sought high court review "primarily because we feel like the court of appeals did not address everything that was raised and did not acknowledge everything that was raised."

"What’s interesting about it, from the standpoint of future cases, is the issue of whether somebody can wait until the litigation is concluded to file documents and trigger a Rule 76a-type review?" says Northrup of a question contained in Cortez’s appeal to the Supreme Court.

"I don’t think anybody has disputed that the documents that everyone’s fighting over contain information that is privileged," Northrup adds. "And yet not one of the courts, neither the trial nor the appellate court, has acknowledged that."

Cortez did not return a call for comment.

Tom Melsheimer, managing principal of the Dallas office of Fish & Richardson who represents Johnston, says there’s no need for the Supreme Court to grant the case review.

"We feel the same way about this that we have always felt, and that is that the trial court got it right, and the court of appeals got it right. We are confident that the Supreme Court will see it the same way," Melsheimer says.

Johnston says the petition is "absurd."

Joe Larsen, special counsel in the Houston office of Sedgwick who represents Texas Lawyer and The Dallas Morning News, also believes the trial and appellate courts correctly ruled the documents were court records.

"We believe all issues raised by Judge Cortez in his petition for review were properly addressed by the lower courts," Larsen says.

Lowy declines comment. His attorney, Ike Vanden Eykel, a partner in Dallas’ Koons Fuller, did not return a call seeking comment.