Keep an eye on this.
Attorney General Greg Abbott’s office on Monday sought to remove the judge presiding over the public school finance case, contending that his impartiality is in question due to email exchanges with lawyers that filed the lawsuit.
A lawyer for one group of the school districts that sued over the funding system, David Thompson, said state District Judge John Dietz has been impartial and that state lawyers have had the same opportunity to communicate with the judge. Abbott’s office said the state wasn’t notified of the communications with plaintiffs or given a chance to respond.
The attorney general’s motion cited a series of e-mails between the judge or his staff and lawyers for those who sued regarding the merits of the litigation, particularly the judgment, findings of fact and conclusions of law.
The exchange occurred between March 19 and mid-May, said the motion, contending that “some of the emails’ content suggest that the judge is coaching the plaintiffs’ counsel in order to improve their case.”
That raises a question about his impartiality, the motion said.
The motion asks that Dietz recuse from the case or that the matter be referred to the regional presiding judge for consideration.
Thompson said plaintiffs will be filing a response soon.
“We don’t think there is a solid basis for it,” Thompson said of the state’s motion. “Certainly nothing has been done that the state was in the dark about.”
The DMN fills in a few blanks.
On May 14, Dietz invited all the attorneys from both sides to meet privately in his chambers to discuss his final ruling, which is expected to be issued later this summer. The session, which was closed to the public, included lawyers from Abbott’s office who have been defending the state in the case.
“That the record in this matter is still open, that defendants’ counsel was not notified of the communications or given an opportunity to respond, and that some of the emails’ content suggest that the judge is coaching the plaintiffs’ counsel in order to improve their case, raise a reasonable question regarding the judge’s impartiality,” state attorneys said in the motion.
The motion will be ruled on by a separate judge in the 3rd Administrative Judicial Region of Texas. The presiding judge for the region is Billy Ray Stubblefield of Georgetown.
Houston attorney David Thompson, who represents one group of plaintiffs that includes the Dallas school district, disputed the state’s allegations and said the plaintiffs will vigorously contest the motion.
“We very strongly believe all the communications that have occurred in the case have been appropriate and consistent with the rules of procedure for Texas courts,” Thompson said.
He pointed out that state attorneys previously agreed that each side would submit proposed findings of fact to the judge that would not be shared — at least initially — with the opposing side.
“We hope this motion will be considered and ruled on expeditiously so that a final judgment can be entered and process moved forward,” Thompson said. “We believe Judge Dietz has conducted a very thorough and very fair trial on an issue of extreme importance to all citizens of Texas.”
Engaging in ex parte communication is a serious accusation, and if substantiated then recusal is a suitable remedy. As the facts are in dispute here, it’s too early to say if anything untoward happened. I look forward to the Thompson plaintiffs’ response – I wonder what if anything other plaintiff groups will have to say about this as well – and to Judge Stubblefield’s ruling.