As you all already know Steve Ortega has filed a challenge to being questioned by Stephanie Townsend Allala under oath about what responsive records he may have in regards to her open records request. You may have also noticed that many people are offering their interpretations of the legal nuances about the ongoing legal battle. I like, many of you, am not a lawyer and although most of us can articulate what we believe the law to be the fact is that we are doing nothing more than arm-chair quarterbacking the process. Most of us do not have the expertise to properly opine on the legal arguments.
So I thought why not ask for legal expertise to opine on them?
The former judge of the 346th District Court, Judge Richard A. Roman who is currently practicing law has graciously accepted to educate me and you on the legal arguments.
I thought that the best way to get a handle on the issue is to lay out Ortega’s legal arguments as I understand them to be and ask Judge Roman to offer us his interpretation of them.
Please note that any question or misunderstanding of the three issues I presented to him is entirely my fault. Judge Roman is offering his opinion on the questions I posed to him and is not opining on the case itself.
Here are the facts as I know them.
1. There is no argument that Steve Ortega has emails in his possession that pertain to city business. He has stated this through numerous news outlets. He has emails that discuss city business in his possession that he is refusing to release.
2. Steve Ortega filed two motions in Travis County on October 13, 2013.
In the first motion “Steve Ortega’s Motion to Quash and Motion for Protective Order”, Steve Ortega argues that Townsend Allala “Seeks documents and information that did not constitute public information as defined by Texas Government Code, section 552.002 when prepared”. He adds that “to require Mr. Ortega to produce said documents and information pursuant to Texas Government Code section 552.002 as amended by the Texas Legislature in 2013 constitutes an ex post facto application of the law in violation of article I, section 16 of the Texas Constitution”. Then Steve Ortega argues in his filing that “said documents and information are protected by the 4th Amendment of the United States Constitution“.
In his second motion “Steve Ortega’s Objections to Subpoena for Oral Deposition and Subpoena for the Production of Documents”, Steve Ortega argues that the request for email etc. is “overbroad, seeks confidential information/private property interests protected by the Texas and United States Constitutions”.
3. There have been various comments on my blog suggesting that Travis County has no jurisdiction over Steve Ortega. Although the fact that Steve Ortega filed motions in response in Travis County and it appears he did not challenge jurisdiction I believe this assertion is now moot. However I asked the judge to address this as well.
Based on these filings I asked Judge Roman to opine on the following three things:
1. Whether the open records request “seeks documents and information that did not constitute public information as defined by Texas Government Code, section 552.002 when prepared” because “to require Mr. Ortega to produce said documents and information pursuant to Texas Government Code section 552.002 as amended by the Texas Legislature in 2013 constitutes an ex post facto application of the law in violation of article I, section 16 of the Texas Constitution”.
2. On whether Steve Ortega’s argument that “said documents and information are protected by the 4th Amendment of the United States Constitution” has any validity under Texas law in relation to the Open Records Act and government business records.
3. Whether Steve Ortega can assert that the Travis County judge does not have jurisdiction over him.
Below is the opinion provided for your benefit by Judge Richard Roman. First of all I want to thank Judge Roman for graciously taking the time to provide us his legal analysis. Second, I encourage all of you to comment on his opinion however I ask you to limit your discussion to the issue at hand and remember that Judge Roman graciously shared his expertise with us.
Judge Roman wrote:
Thank you for asking my opinion in this matter. I believe there is a workable solution to this “evidentiary dispute”. First, some preliminary matters. I am not involved in this litigation, nor have I been consulted by any party. I have agreed to provide you with cursory, limited opinion based upon the facts you’ve given me. This opinion should not be construed as binding, legal advice.
My understanding is this case is in active litigation. The first issue to be resolved by the court is a standard discovery dispute. In and of itself, this is a very common “dispute” in civil litigation. There is also the question of whether the defendant, Mr. Ortega, has waived any objections he may have otherwise had with respect to whether the court has personal jurisdiction over him. In other words, when he filed objections to the document production requests rather than filing what is known under the Texas Rules of Civil Procedure as a “special appearance”, did he waive those objections and, therefore, subject himself to the Travis County court’s jurisdiction?. A special appearance places the court on notice that the defendant contests that the court’s jurisdiction. All other issues are placed on hold pending the determination of this question: Does the court have the power to compel the defendant to do anything, much less produce the documents in question here – until the jurisdiction issue is resolved.
Permissive and mandatory venues provisions (where the case may or must be filed) may indeed dictate that this case must be heard in Travis County (the Texas Attorney General’s Office is located in Travis County).
CONFLICTS OF LAWS
With respect to the actual document dispute, competing court/constitutional/statutory issues are at play here: (1) The Texas Rules of Civil Procedure and Evidence (and other Texas rules) for the civil court issues; (2) US and Texas Constitutions with respect to the “self-incrimination” and “search and seizure” issues; and (3) Texas administrative law for the “Texas Public Information Act” questions.
Inasmuch as the TPIA has a litigation exception against compelling the production of certain, qualifying documents, recent changes to the TPIA (as of September, 2013) may change this outcome. The changes include broadening the scope of what must be produced by a public official or body (i.e., public information that is received or otherwise transmitted via a personal, electronic communication devise).
My view is that these issues all converge into the primary arena for disposition: The Travis County courtroom. The Texas Rules of Evidence rely heavily on an analysis of the “probativeness of evidence”. That is, evidence must and should be viewed as whether it would help or hinder the trier of fact (a jury) to make a fair and reasoned determination in the case. Is the evidence material? Overly prejudicial? Unnecessarily inflammatory? Cumulative and repetitive? The ultimate test for admissibility of evidence should be does it tend to assist the trier of fact to make a determination and reach a fair verdict? Will the evidence assist in reaching a factual conclusion or does it just confuse issues?
Another concern is does the production of the evidence become unduly burdensome? Is the evidence an unnecessary intrusion into personal or private matters? Is it embarrassing?
Finally, this case raises the prospect of whether forced document production invokes or touches upon any constitutional protections against self-incrimination, etc. However, as it stands today, this is a civil, not criminal, matter.
I believe these are all considerations the Travis County Court is best situated to determine. (I understand other disputes are pending regarding similarly situated governmental bodies across Texas).
THE “IN CAMERA” REVIEW
In conclusion, it may be prudent and beneficial for all involved if the court initiates an action to order the defendant to produce the documents in question for an “in camera” inspection. This is in lieu of the court having to hear contentious “Motions to Quash” or “Motions to Compel”.
An “in camera” inspection is where the court receives the documents under seal and conducts a private review in chambers. The court then issues its formal ruling as to admissibility. That is, the evidence is either fully admissible, partial admissibility or inadmissible.
Courts often perform in camera reviews of evidence under seal in case-by-case sensitive matters such as reports prepared in child or sexual abuse cases, or in cases that involve confidential business, financial or proprietary matters.