School finance judge could be removed from case

State District Judge John Dietz, right, listens to plaintiff attorney Leonard Schwartz's, foreground, closing arguments in the second phase of Texas' school finance trial before , Friday, Feb. 7, 2014, in Austin, Texas. (AP Photo/Eric Gay)
State District Judge John Dietz, right, listens to plaintiff attorney Leonard Schwartz's, foreground, closing arguments in the second phase of Texas' school finance trial before , Friday, Feb. 7, 2014, in Austin, Texas. (AP Photo/Eric Gay)

AUSTIN (AP) — The judge overseeing Texas’ long-running school finance trial should be removed due to favoritism so blatant that he used outside emails to coach attorneys for school districts suing the state, Attorney General Greg Abbott’s office argued during an often tense hearing Friday.

The state wants District Judge John Dietz to recuse himself because of perceived bias, but he has refused — sending the matter to fellow District Judge David Peeples of San Antonio. Attorneys for more than 600 school districts that have sued Texas due to lack of funding argue that Dietz has done nothing wrong and say ousting him will further delay a case that has dragged on for 18-plus months, with funding for more than 5 million public school children hanging in the balance.

The trial grew out of the Legislature’s cuts of $5.4 billion to public education in 2011, prompting the districts to claim that funding was inadequate and unfairly distributed between rich and poor areas. After Dietz ruled last February that the school finance system violated the state constitution, lawmakers restored around $3.4 billion in funding. The judge briefly reopened the case in January to hear new evidence and had planned to issue a final ruling on the matter this spring.

The effort to remove him has delayed that process indefinitely. If Dietz is removed, the case may have to start over.

Peeples heard about five hours of arguments Friday and planned to rule early next week. But Peeples, who traveled to Dietz’s Austin courtroom to consider recusal, made it clear Friday, “The recusal judge doesn’t have any business second-guessing or maybe even changing the rulings Judge Dietz made on the main case.”

Dietz, who oversaw a similar school finance trial in 2004, wasn’t present, and no witnesses were called. Instead, Assistant Attorney General James “Beau” Eccles detailed recent emails Dietz and his staff exchanged with school district attorneys while working on his final ruling. Eccles said they showed bias and that the state wasn’t aware they were sent until much later.

“We really, really don’t want to be here asking for this, but under these circumstances, how could anyone feel confident at his impartiality?” Eccles said.

He pointed to one message in May in which Dietz wrote to a school district attorney, “I’m trying to tread a line where I am coaching and hopefully reaching even greater heights.”

Peeples asked if that wording meant Dietz was “walking a line between coaching and encouraging,” to which Eccles replied: “I’m not sure that I care,” saying the point was the judge was communicating exclusively with the school districts in an effort to improve their case.

Mark Trachtenberg, representing school districts in wealthier areas of Texas, countered that communications between attorneys and the judge are common in civil cases, especially complicated ones — and that both sides and Dietz agreed early on to maintain a running dialogue to better manage a trial that includes more than 15 lawyers, dozens of witnesses and tens of thousands of pages of evidence.

“We think all of these communications reflect well on Judge Dietz and aren’t a basis for recusal,” Trachtenberg said.

Trachtenberg also noted that the messages came after Dietz had already ruled in favor of the school districts once, so it shouldn’t be a surprise that the final ruling he was compiling would side with them. He argued that Dietz reopened the case because he knew his decision would be appealed to the state Supreme Court and wanted the record to be updated, not because he’d changed his mind.

“It was clear from every party, understood that Judge Dietz was sticking with his original ruling finding the system unconstitutional,” Trachtenberg said.

Abbott, a Republican who is running for governor, is not arguing the case personally. But his Democratic opponent, state Sen. Wendy Davis, has accused him of deliberately delaying the proceedings so that Dietz’s final ruling doesn’t come until after the November election.

Still, Eccles said fairness was more important than finishing the case quickly, imploring Peeples “to not rank judicial economy over judicial impartiality.”

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