Open and Shut Case
Morales' Opinion on Judges' Records Seems Self-Serving
No. 657, issued July 24, held that the judiciary's records are subject to public scrutiny under the state Public Information Act. Morales' stunning ruling not only flew in the face of decades' worth of previous AG decisions and legislative intent, but it even went so far as to contradict his own past opinion. And though his office denies the ruling was made for political reasons, it did provide a wedge for pro-Morales forces to pry into the records of two of the political candidates eyeing Morales' job.
Morales endured judicial ridicule for his bold, if legally suspect, opinion when the Supreme court overturned it on August 21, but not before political operatives with ties to Morales attempted to use the ruling to dig up some dirt on two of Morales' challengers -- Morris Overstreet of the Court of Criminal Appeals, who is challenging Morales in the Democratic primary, and Supreme Court Justice John Cornyn, who is seeking the Republican nomination for AG.
The debate over open records and the judiciary started with a request from the Austin office of consulting firm MGT America, Inc., which is run by Greg Hartman, a former top aide to Comptroller John Sharp (and also a member of Todos, a strategic business alliance formed by former Austin Mayor Bruce Todd). In April, a principal in MGT-Austin, Alan Pollock, requested copies of all office, fax, cellular, and mobile phone records from Texas Supreme Court justices and staff over the past four years. Pollock says a "business client" whom he won't name asked him to get the records.
Pollock said that when he filed the request to the General Services Commission, which administers the state phone system, he didn't know that the judiciary had a near-blanket exemption under the Open Records Act. Under the act, the definition of a "governmental body" does not include the judiciary.
Supreme Court justices were already wary that MGT was perhaps fronting for political interests when the consulting firm went after records that had always been clearly protected. The judges grew even more suspicious after Morales ruled on July 24 that Pollock was actually entitled to those records and should refile his request directly with the court. Coincidence or not, it seemed downright alarming that Morales' left-field ruling should include opening the records of Morales' Republican challenger -- Supreme Court Justice John Cornyn. Pollock never refiled the request and in the past month hasn't returned phone calls from this reporter.
MGT declined to take advantage of Morales' friendly ruling, but other political interests did seek records from the high court. Within a week of Morales' ruling, another political challenger of the AG's -- Judge Overstreet -- was hit with a massive open-records request. Austin consultant Patrick Woodson, who used to work for Morales' chief strategist George Shipley, and now does occasional contract work for him, filed a lengthy open-records request with the Court of Criminal Appeals, asking for records of phone calls, travel logs, appointment calendars, and other information pertaining to Overstreet. (Woodson's most recent Austin gig was as a campaign strategist for Travis County District Attorney Ronnie Earle's successful 1996 reelection race.)
But almost as soon as the request hit the court it was gone -- withdrawn by Woodson himself. Court of Criminal Appeals Presiding Judge Michael McCormick says the request was withdrawn shortly after he spoke to Morales about the open-records decision, but he declined to go into detail about his talk with the attorney general.
Woodson says he withdrew the open records request because he found what he was looking for -- mostly, Overstreet's travel records -- through vouchers and other records at the state comptroller's office. (Woodson won't name the political client on whose behalf he filed the request.)
However, a Court of Criminal Appeals judge who says he saw Woodson's request reports that it sought a wide range of records, not just travel. One of Overstreet's campaign strategists in his race for AG, Jason Stanford, concurs. "It was a blanket request... phone records, calendars, everything down to the used Kleenex by Judge Overstreet," says Stanford, who found it "curious" that a Shipley-connected political operative was trying to dig up material on Overstreet so soon after the ruling was released. Shipley didn't return phone calls about the request.
Another political interest with a Morales connection -- the Austin-based advocacy group called Texans for Public Justice -- attempted to take advantage of Morales' new views. The group submitted a request for Supreme Court phone and fax records on Aug. 11. The interest group was formed early this year, and focused on tobacco issues during the legislative session; the group is partially funded by several high-profile law firms that represent injured parties, including the Beaumont firm of Walter Umphrey, whose firm is one of five handling Morales' suit against the tobacco industry.
AG spokesman Ron Dusek downplayed the political overtones of Morales' ruling; he says there is "absolutely not" any connection between the office of the attorney general's open-records decisions and political manueverings in advance of the 1998 election.
The Supreme Court's August 21 opinion put an end to the debate. In unusually blunt language, the court, in an unsigned opinion, said the "exclusion of the judiciary" from the open-records act "could not be plainer, as every Attorney General has confirmed since the Act was passed 24 years ago."
The court noted that Morales not only overruled two Jim Mattox-era opinions that have for years put the judiciary off limits, but that Morales himself had previously ruled, in no uncertain terms, that the judiciary was exempt. Just last year, the AG's office issued an informal letter ruling that the Tarrant County judges were within their rights in refusing to release county clerk records on final adjudication of civil and criminal cases. "ORD-657 not only overrules two prior opinions and contradicts Attorney General Morales' own opinions and statements," the court's opinion said, "it conflicts with opinions by every other Attorney General....
"If the Legislature believed that Attorneys General for more than two decades had misconstrued the judiciary exclusion in the Act, it would likely have amended the Act as it has done in the past.... Despite the Legislature's continued interest in the Act and its application, not once has it attempted to modify the judiciary exclusion in response to its consistent broad construction from the inception," the opinion said.
With that stinging ruling, it appears that at least two of Morales' political challengers won't ever have to hike up their robes to provide dirty laundry for any campaign.
Elder is a senior editor and columnist for Texas Lawyer.
To read Morales' ruling and the Supreme Court opinion, go to the Chronicle Web site.