Frank Montalvo and Sealed Court Records

pc_cases_sealedYesterday I pointed out how the local paper reported on two recent complaints filed against Frank Montalvo, the judge presiding over the public corruption cases. What the paper neglected to offer you was a detailed look into the reasons behind the complaints and how they are important to El Paso. Pointing out that complaints were filed without giving you context does nothing to inform the community. I think the context is important for determining whether El Paso is being served by the far-reaching public corruption cases or are they nothing more than a political cleansing.

According to an article in The Federal Lawyer dated March 2012 by Joseph Griffith, Montalvo was born in Bayamon, Puerto Rico. In 1976, Frank Montalvo received a BS degree from the University of Puerto Rico and the following year he received an MS in bioengineering from the University of Michigan. The law article states that Montalvo earned his law degree from Wayne State University while working fulltime for General Motors and Chrysler Corporation.

In 2003, Montalvo was appointed by President George W. Bush to be the US district judge for the Western District of Texas in El Paso. Although Montalvo is best known for the public corruption cases his court handles many federal civil and criminal cases. Montalvo also presided over the controversy about unmarried couples and the city benefits petition referendum initiative.

As some of you already know, Dallas attorney Ty Clevenger filed a complaint of judicial misconduct against Montalvo on January 28, 2014. In the complaint, Clevenger writes that Frank Montalvo “issued a permanent protective order” compelling Clevenger’s client to “remove a video from the Internet”. According to the complaint, Montalvo issued the order “without notice or an opportunity to respond, and purely on the basis of information that he received ex parte.” [emphasis in the original document]

The complaint explains that the video is a deposition of a witness that was played in open court. Clevenger writes that Montalvo, “by his own admission” issued the order to remove the video “based on a letter” the judge had received from the individual who was taped delivery the testimony. The video was played in open court, according to the complaint. The complaint explains that the issue at hand is that the judge issued an order without affording the opposing side an opportunity to be heard. Understanding that the video has already been played in open court and the individual who posted the video posted it as part of a quest for more information in a legal proceeding makes the order to remove the video an issue of free speech.

Ty Clevenger writes in his complaint that Montalvo has refused to share the letter that precipitated the order to remove the video with Clevenger and thus Clevenger feels that the information Montalvo relied on to issue the order “could prove embarrassing” to Montalvo. Because of this Clevenger writes that Montalvo “has created the appearance that he is sealing documents in order to cover something up and to save himself from embarrassment”.

Keep in mind that many of the public corruption court records remain sealed under the order of Frank Montalvo.

In November 2013, Frank Montalvo, in a court order to Clevenger stated that the reason for issuing the order to remove the video through an ex parte communication was based on a Code of Conduct that permits “emergency orders” in response to ex parte communications. According to Montalvo’s response to Clevenger, he based his order because the person requesting the removal of the video through an ex parte letter asserted that the video “may affect her employment prospects or subject her to retaliation”.

It is important to note that the video in question had been on Youtube for over a year and that the deposition had already been played in open court. Montalvo wrote in his response that it was “irrelevant” that the deposition had been online prior to him issuing the order.

On February 5, 2014, Ty Clevenger filed two recusal motions asking that another judge be appointed to hear the two cases. The two cases involve his client who is involved in a lawsuit against two parties. On February 24, 2014, Fred Biery, Chief United States District Judge, ordered that Frank Montalvo should be recused from the case. The order for recusal stated that another judge in the El Paso Division be randomly assigned.

As best as I can understand it, not being a lawyer, the issue revolves around Frank Montalvo, issuing rulings on information that he received from one party without the consideration of the other party. My understanding is that the US legal system requires that all involved parties must be heard equally before any rulings are issued. There are, of course, exceptions for emergencies. As a non-lawyer it is difficult for me to opine on the technical legalese of the filings. However, I notice that Ty Clevenger is alleging that Frank Montalvo may be sealing records to protect his reputation or to “cover something up”.

Remember there are many court documents involving public corruption that continue to remain inaccessible to the public.

The State Bar of Texas lists no public disciplinary history for either Ty Clevenger or Frank Montalvo.

As I had pointed out to you yesterday, Adrian Peña, one of the individuals who pleaded guilty to public corruption before Frank Montalvo has successfully forced Montalvo’s recusal from his case. Peña also had the court of appeals vacate his guilty plea. One of my readers also pointed out that Adrian Peña was successful in unsealing various court records in his case. Peña’s case is still pending before another judge as well as Clevenger’s complaint against the judge. David Escobar has also filed an appeal asking that his guilty plea also be vacated.

These cases center on the judge’s sealing of court files and alleged inappropriate interference. In a city with numerous public corruption cases where the vast majority of the court documents remain sealed, the judge’s actions need to be publicly examined. The allegations do not bode well for the notion of transparency in the judiciary and lends credence to the notion that the corruption cases were nothing more than a political cleansing. It is important that the community remain vigilant as to the outcome of the pending litigation against Montalvo to see how the outcomes could affect the public corruption cases and his handling of them.

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