After nearly three years of fighting the release of documents related to a defamation lawsuit he filed against a Dallas lawyer — and an appellate court ruling that the information in question are “court records” — 44th District Court Judge Carlos Cortez has again asked a trial court to seal those documents.

While a determination that the documents at issue are “court records” would make them available for public view, attorneys representing Cortez argued during an Oct. 10 hearing before visiting Judge Richard Davis that Cortez is now entitled to a sealing hearing in which he will argue that the public’s right to view the records are outweighed by his privacy interests.

Frank Gilstrap, a partner in Arlington’s Hill Gilstrap who represents Cortez, argued that under Texas Rule of Civil Procedure 76a which governs the sealing of court documents, the process isn’t over.

Gilstrap argued that the Texas Supreme Court contemplated a “bifurcated” proceeding and “said it’s preferable to do it this way.”

“The threshold hearing is, are they court records. And the final hearing is should they be sealed.”

Texas Lawyer and The Dallas Morning News have intervened in the case and have filed a motion to lift a sealing order that prevented the release as the case made its way up the appellate court ladder. On Sept. 4, 2012, Texarkana’s 6th Court of Appeals affirmed the trial court’s decision that the documents at issue were “court records” — a ruling the Texas Supreme Court declined to review earlier this year [See "High Court Won't Hear Judge Cortez's Attempt to Seal Records" Texas Lawyer, June 17, 2013, page 1.]

Cortez did not return a call for comment about the hearing.

Joe Larsen, special counsel in the Houston office of Sedgwick who represents Texas Lawyer and The Dallas Morning News, argued that Davis should vacate the sealing order. He also argued that the Sept. 12 motion filed by Cortez to seal the documents is an attempt to forestall the release of the documents by giving Cortez a new issue to appeal.

“What Judge Cortez wants is to be able to go back up on appeal and run for another two years on appeal. And then, at the end of that two years, come back down and finally then have those records revealed,” Larsen argued.

“The timing is obvious too because of the upcoming elections and an attempt to put this off,” Larsen argued. Cortez must run in the 2014 election cycle to retain his bench.

Cortez originally filed a defamation case against Coyt Randal “Randy” Johnston, a partner in Dallas’ Johnston Tobey in 2010. The dispute, according to the Texarkana’s 6th Court of Appeals “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,” according to the 6th Court’s Sept. 4, 2012 decision in Cortez v. Johnston.

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

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

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, concluding that the deposition and witness statements were court records.

Lawyers for Johnston have joined a motion to vacate filed by Texas Lawyer on Aug. 20 to lift the seal on the documents. Mike Yanof, a partner in Dallas’ Thompson, Coe, Cousins & Irons who represents Johnston, argued that Cortez waived his right to seal the records when he appealed Davis’ determination that the documents were court records. There’s nothing left for the trial court to do but unseal the records, Yanof argued at the hearing.

“And now Judge Cortez wants an on-going, never-ending order that functions like a Rule 76a order so he can repeat this cycle, over and over again, even though that the court has already determined that it would be adverse to the administration of public office and the operation of government to conceal the deposition and witness statements,” Yanof argued. “The court’s already decided the very issue they wanted.”

Marty Lowy, judge of the 101st District Court in Dallas, has also joined in the case as an intervener who also seeks the unsealing of the court records. Lowy was mentioned in Cortez’ original petition that alleged that Johnston repeated rumors allegedly spread by Lowy in order to attract a political opponent to run against Cortez. Johnston and Lowy have both denied those allegations.

“The public interest here is under the category of ‘enough is enough and delay for the sake of delay and political reasons’ needs to come to an end,” argued Ike Vanden Eykel, a partner in Dallas Koons Fuller, who represents Lowy.

At the conclusion of the hour-long hearing, Davis said he would take the lawyers arguments and their motions under advisement and will review the records again.

“I’m going to ask each side to prepare proposed orders,” Davis said from the bench, giving them seven days to file those proposed orders.