A trial court has denied Judge Carlos Cortez’s second attempt to seal records related to a defamation lawsuit Cortez filed against a Dallas lawyer, ordering that those documents be released for public view by Nov. 12.
For nearly three years, Cortez who is judge of Dallas County’s 44th District Court, has fought the release of the records, including Cortez’s deposition and witness statements of two women that were provided during the litigation.
Trial and appellate courts previously have ruled that the documents at issue are “court records” and therefore available for public view. But lawyers for Cortez argued during an Oct. 10 hearing before visiting Judge Richard Davis that Cortez was entitled to a second hearing on whether the records could be sealed. They also argued that the public’s right to view the records is outweighed by Cortez’s privacy interests. [See "Judge Carlos Cortez Asks Court Again to Seal Documents in Defamation Lawsuit Against Lawyer," Texas Lawyer, Oct. 11, 2013, page 1.]
Texas Lawyer and The Dallas Morning News have intervened in the case and filed a motion to lift a sealing order that prevented the release as the case made its way up the appellate court ladder.
In his Oct. 29 order, Davis denied Cortez’ motion to seal “as having been waived through withdrawal of Judge Cortez’ first motion to seal and, even assuming it weren’t waived, also DENIES the motion to seal on the merits that Judge Cortez has offered no admissible evidence in support of the motion, has not shown a specific, serious, and substantial interest, or any interest, that would clearly outweigh the presumption of openness of the court records, and that any privacy interest of Judge Cortez is waived by his having sued for defamation and sought publicity for his lawsuit.”
Davis also lifted the seal of the documents and vacated all other written orders from the bench “that seal the Court Records or that restrict their use and dissemination … ” effective as of Nov. 12.
Long Dispute
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 joined a motion to vacate filed by Texas Lawyer on Aug. 20 to lift the seal on the documents.
Cortez did not return a call for comment. His attorney, Frank Gilstrap of Arlington’s Hill Gilstrap, declines comment.
Joe Larsen, special counsel in the Houston office of Sedgwick who represents Texas Lawyer and The Dallas Morning News, says that Davis has made the proper ruling, which makes the documents available for public view from the Dallas County District Clerk’s Office as of Nov. 12.
“If nothing else happens, they should be available from the clerk on that date. We expect to Judge Cortez to move for relief from the court of appeals,” Larsen says, noting Texas Lawyer and The Dallas Morning News will oppose Cortez’ additional appeals.
“Unless the court of appeals grants Judge Cortez relief of some kind in regards to the sealing, the records are available on the 12th,” Larsen says.
“This lawsuit was never about me,” Johnston says of the litigation. “It was about silencing others, people with first-hand knowledge who have known Judge Cortez a long time. Judge Cortez sued me for reporting their comments to the Judicial Conduct Commission and others. When his attempt to silence them did not work, his efforts changed to sealing his deposition and the witness statements …,” Johnston says. “The public deserves to know what is in the records, and now they will.”
“Two courts have confirmed that the information is court records involving a public official. The public has a right to know and see the documents at issue,” says Mike Yanoff, a partner in Dallas’ Thompson, Coe, Cousins & Irons, who represents Johnston. “And Judge Cortez has run out of legitimate and legal grounds to keep the documents private. Enough is enough is what the court is saying.”
