More plaintiffs respond to Abbott’s recusal motion

I think it’s fair to say that the plaintiffs are strongly opposed to Greg Abbott’s attempt to get Judge Dietz recused in the school finance trial.

Lawyers representing hundreds of school districts pushed back Thursday against Texas Attorney General Greg Abbott’s effort to remove a judge who is weighing the constitutionality of the school finance system.

The attorney general accused District Judge John Dietz of “coaching the plaintiffs’ counsel in order to improve their case,” and cited a series of emails this year among the judge, his staff and plaintiff’s lawyers from mid-March to mid-May. Those emails have not been publicly released.

Plaintiff’s lawyers responded Thursday with a 49-page motion that says state attorneys have failed to prove that Dietz showed partiality.

“One would think that, under the circumstances, the state would have taken great pains to provide a full and accurate account of the relevant facts, in fairness to the trial judge accused of partiality,” the motion states. “But the state did not do so.”


School district lawyers disputed the state’s allegation that Dietz coached them on how to present their findings, arguing that Dietz’s communications were “nothing more than the judge giving guidance as to how he wants the findings revised to reflect his view of the law and the evidence.”

They also refuted the notion posed by the state that Dietz should not have a stance on the issue.

“Having heard all the evidence, and having already announced his oral ruling from the bench in the first phase of the case, it is not only unsurprising but expected that Judge Dietz would have developed opinions about the facts and the parties’ claims,” the motion says.

See here and here for the background. The plaintiffs that filed this particular motion are the Texas Taxpayer & Student Fairness Coalition, and yesterday their attorney Mark Trachtenberg sent me a (slightly redacted) copy of the motion, which you can see here. You don’t need to read the whole thing, but the brief introduction is well worth your time. Here’s a bit from the end of it:

Another glaring omission in the motion is the State’s failure to acknowledge that it has participated in numerous hearings when exactly these same topics were discussed, in much the same way they are discussed in the communications the State challenges. All parties took part in hearings in which Judge Dietz provided instructions on how he wanted the findings to be revised, making clear that he was asking the ISD Plaintiffs to modify them in certain ways to better conform to his views of the law and the evidence, as considered and weighed by the judge during sixteen weeks of trial. (See generally, e.g., Ex. 26, 8/20/13 Tr.; Ex. 34, 3/19/14 Tr.; Ex. 36, 5/14/14 Tr.) Not once did the State or Intervenors ever object to the guidance provided during these hearings. In addition, the State and Intervenors have had—and continue to have—every opportunity to be heard on all of the factual and legal issues in this case.


Finally, the State’s motion does not account for the unique challenges posed by this case which made the agreed-upon submissions of proposed findings not only appropriate but necessary. This case involves six sets of parties bringing seven different affirmative constitutional claims, as well as the State, which is defending against these claims. These parties collectively submitted seven different sets of proposed findings to the Court without service to the other parties, pursuant to the scheduling orders agreed to by all parties at the beginning of the case. Some of these submissions were hundreds of pages long. The parties agreed to this procedure to facilitate the judge’s review of the findings and to contextualize the evidence presented at trial, without having to disclose their internal work product and trial strategy. All were fully aware that the judge would need to direct counsel for the prevailing parties to integrate the separate submissions into one document (which now runs hundreds of single-spaced pages), and to modify the proposed findings to his liking, a task that his staff did not have the capacity or technical capability to accomplish alone. Understanding these challenges, neither the State nor the Intervenors ever raised an objection to these procedures. The State’s untimely and improperly verified recusal motion—which noticeably was not signed or verified by any of the State’s primary attorneys who appeared at trial—should be promptly rejected.

Emphasis in the original. If there’s an equivalent to bench-slapping by opposing counsel, this motion is a pretty good example of it. If you do continue reading all the way through the document, you will notice how some variation of “neither the State nor the Intervenors ever raised an objection” is repeated over and over and over again. Those of you that read the recusal motion as a delaying tactic, such as the Wendy Davis campaign, these plaintiffs at least would appear to agree with you. Bexar County District Judge David Peeples will hear the arguments on June 20, and will hopefully rule in short order to dismiss the state’s motion. Stay tuned.

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