Judge sues accuser for libel, demands to see accuser’s evidence …

…gets the evidence, drops the case, and asks for the evidentiary record to be sealed. Whoops. From Cortez v. Johnston (Tex. Ct. App. 2012) (an earlier stage in the appeal that was just decided last week, and that I’ll quote below) (some paragraph breaks added):

The conflict had its roots in the filing by [Coyt Randal (Randy)] Johnston of a complaint against [Judge Carlos Cortez, currently a Texas district judge in Dallas,] 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.

Although the contents of such filings are required by law to be held in the strictest confidence, someone apparently ignored the confidential constraints and some of the information contained in the complaint was leaked to at least one member of the press. Cortez was questioned by a reporter about this filing and, in response, Cortez mentioned Johnston as the source of the accusations and labeled each of the charges fabrications. 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 story of the filing of the complaint and Cortez’s public response were published.

At some point after this, Johnston released information to multiple parties (including many attorneys and, presumably, representatives of the press) as to the content of the accusations in his filing. This public revelation by Johnston was followed … by the filing of a defamation suit by Cortez against Johnston. [EV notes: The lawsuit was apparently filed Nov. 1, 2010, shortly before the Nov. 2, 2010 election at which Judge Cortez was reelected by 50.35 percent to 49.65 percent.]

In the course of the ensuing lawsuit, Cortez made a demand on Johnston for disclosure pursuant to Rule 194, et seq. of the Texas Rules of Civil Procedure …. On January 18, 2011, Cortez filed a motion for protective order in which he sought to have the trial court designate virtually all of the discovery and pleadings in the case designated as “confidential information” which would be ordered (in essence) sealed from public view and used only for the purposes of the pending litigation….

On Friday, February 11, 2011, Johnston hand delivered Cortez his response to the request for disclosure, which had been demanded by Cortez. 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.

Immediately after Cortez’s receipt of the response to the request for disclosures that had been requested, 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.

I had to look up “pudeur,” and learned that it means “a sense of shame or embarrassment, especially with regard to matters of a sexual or personal nature.” But I didn’t need a lexicographic weatherman to know what the sentence said about the panel’s view of Judge Cortez’s situation. In any event, a good deal of litigation later, here’s more from the follow-up decision handed down last week, Cortez v. Johnston (Tex. Ct. App. Apr. 16, 2014) (some paragraph breaks added):

[When he dropped his lawsuit, Judge Cortez] asked that the produced documents be sealed. With Cortez’ sealing request pending, The Dallas Morning News and ALM Media LLC d/b/a The Texas Lawyer — and later Judge Marty Lowy — intervened and opposed the request because each desired access to the produced documents….

Cortez suggests that, if the court cannot order documents sealed, then the libeler can file suit, file documents containing scurrilous statements, dismiss the suit and force their unsealing. That hypothetical does not match the facts in this case. Here, Cortez claimed to be defamed, filed suit, demanded proof, and then, when responsive evidence was filed, dismissed his suit and demanded that the evidence be sealed….

[F]ocusing on the language of Rule 76a(1), we look to see if there is a “specific, serious and substantial interest” that outweighs the presumption of openness and any probable adverse effect that sealing will have on general public health or safety. According to Cortez, that interest is his interest in privacy. A protectable privacy interest can include disclosure of a party’s private affairs or concerns that would be highly offensive to a reasonable person, or of embarrassing private facts about himself and unwarranted publication of those facts.

None would argue that these documents are not embarrassing and offensive. Balanced against that, Cortez is clearly a public figure who is, at present, an elected official whose privacy rights are limited by virtue of his public status.

Although a memorandum decision, the case of Nguyen v. Dallas Morning News, L.P., No. 2-06-298-CV, 2008 WL 2511183, at **4-6 (Tex. App.-Fort Worth 2008, no pet.) (mem. op.), is instructive and persuasive. There, the embarrassing details of sexual misconduct of a parochial school official directed at minors were deemed of legitimate public concern and were thus unsealed, using an analogy to the tort of invasion of privacy. The legitimate public concern in Nguyen was arguably not as strong as in this case, which involves a publically elected member of the state judiciary along with allegations of criminal activity….

Johnston personally possesses these same documents and has declined to provide them to the media, first, due to orders by the trial court and, then, following the directives of this Court. The order existed before the first appeal to this Court and provides generally that [Johnston] is not to disseminate the documents pending completion of the appeal. The trial court vacated those orders, but delayed the effect of its order of vacation for fourteen days to give Cortez an opportunity to obtain a similar order from the reviewing court. We issued such an order, and the documents thus remain confidential.

The underlying concept is that, if Johnson reveals the contents of the documents, the appeal becomes moot. That is evident. While these orders did protect the ability of the trial court to address the sealing request and of this Court to address the appeal, the subject matter of this appeal is not the documents in Johnston’s possession. This appeal is from orders concerning the documents in the possession of the district clerk.

The order as entered is in effect an injunction, directing a party to the lawsuit not to release documents in his possession. This is an entirely different problem than the one we have dealt with in two separate appeals. In Johnston’s brief, counsel points out that, even though Cortez has not asked this Court on appeal for injunctive relief and has briefed no argument to support retention of the order, he still seeks to maintain the order on motion to set security.

This, Johnston argues, effectively enjoins Johnston’s First Amendment rights. Johnston points out that Cortez nonsuited his case against Johnston, leaving no pending lawsuit that might provide support for ancillary orders. He finally also points out that, even if Cortez prevailed and the documents were sealed, Johnston would still be able to distribute his copies and would already have done so except for court orders.

Our jurisdiction no longer needs protecting. We withdraw all orders that Johnston not disclose the records.

I will say that the order that Johnston not release the documents himself does strike me as hard to justify — indeed, it sounds to me like an unconstitutional prior restraint. Whether or not Johnston’s release of the documents would have mooted the appeal as to the court clerk’s release of the documents, Johnston has the First Amendment rights to reveal the documents (subject to the theoretical risk of a follow-up libel lawsuit and liability if the documents are proven to be recklessly or knowingly false). The First Amendment rights of a speaker to convey information in his possession are considerably broader than the First Amendment rights of members of the public to access information in the court’s possession.

Still, the panel decision does set aside that order. Judge Cortez lost his 2014 primary, by the way, by a 66 percent-34 percent vote; Judgepedia reports that “his term will expire at the end of 2014.” Texas Lawyer has more on the allegations.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · April 25