Judge Frank Montalvo

Judge Frank Montalvo

On May 1, 2013, I received a very strange e-mail from the U.S. District Court for the Western District of Texas.  Out of the blue, Judge Frank Montalvo of El Paso issued an order demanding that my client remove a Youtube video that had been online for more than a year.  According to the order, Judge Montalvo received a letter from a third party who accused my client (and me) of harassing her online and, based on that alone, Judge Montalvo suspended my client's First Amendment rights without notice and without a chance to respond to the allegations. Worse, Judge Montalvo sealed the letter, which meant that my client, Sandi Johnson, and I never got to see the "evidence" against us.

As reported in the El Paso Times and the Houston Chronicle, I represented Sandi in a wrongful death lawsuit based on the 2008 murder of her son Hank in Hearne, Texas.  In 2012, a civil jury in Waco entered a $8.65 million verdict against the killers and some of their accomplices. Eight months after the trial, the presiding judge, Walter S. Smith, Jr., recused himself from all of my cases, and Hank's case was ultimately transferred to Judge Montalvo in El Paso.

As part of the trial, I played the videotaped deposition of LaToshia ----------*, who testified that defendant Trae Thompson implicated himself in the strong-arm robbery and beating that caused Hank's death.  After the trial, Sandi wanted to make the video publicly available as part of her online effort to get other witnesses to step forward. I personally disagreed with the decision to post the video on Youtube, but it was perfectly legal, and it was not my decision to make.  After the video was posted, however, LaToshia began sending emails and letters demanding that I take the video off of Youtube. Time and again, I told LaToshia that I had no control over the video, and that she would have to resolve the matter directly with Sandi.

LaToshia began threatening to take "legal action" against me, and I eventually told her not to send me any more letters or e-mails. She filed a bar grievance against me, which was summarily dismissed, then decided to write a letter to Judge Montalvo.  Based on Judge Montalvo's order, it sounds like LaToshia made some pretty wild claims. It is hard to say for certain, however, because the letter remains sealed. Given some of the false statements in her subsequent letters -- and the fact that she appeared to repudiate her former testimony -- I no longer consider her credible.  In any event, Judge Montalvo did not even have jurisdiction to issue the order against Sandi, because the case had been closed for more than a year.
Judge Carl Stewart
On November 12, 2013, I faxed a letter to Judge Montalvo asking him (1) to reconsider his order and (2) let me see the letter from LaToshia.  Normally I would have filed a formal motion asking him to rescind the order, but there wasn't anything normal about the Johnson case, and I did not want to publicly embarrass a judge who appeared to be both unpredictable and incompetent. Unfortunately, Judge Montalvo would have none of it.  Six days later, on November 18, 2013, Judge Montalvo issued a formal, public order denying my request. Attached to his order was another letter from LaToshia, albeit not the one that led him to issue the order in the first place (that letter has never been released).

His legal reasoning was preposterous.  According to Judge Montalvo, the letter that he received from LaToshia constituted an emergency, therefore he was justified in issuing the order after hearing from only one side.
While the federal rules permit a judge to issue a temporary restraining order after hearing from only one side, anything lasting beyond a few days requires an adversarial hearing between the parties. Judge Montalvo's order was a permanent injunction.  And his argument about balancing interests between a federal rule of civil procedure and the First Amendment is downright embarrassing. If a law student made that argument to me, he or she would get an "F".

On January 28, 2014, I filed a judicial complaint against Judge Montalvo because, among other things, he violated Judicial Canon 3(A)(4) by communicating  with LaToshia ex parte, i.e., secretly or outside the presence of the opposing party. The are few rules governing judges or lawyers that are more basic (or more essential) than the rules against ex parte communications. I shared a copy of the complaint with the El Paso Times, which ran a story on its front page. I went public because I had done my background research on Judge Montalvo by that time, and I knew that I was dealing with a loose cannon.  I suspected that at some point he would start retaliating against me, and that I would need to force him off of my cases.  I also knew that the Fifth Circuit had a practice of covering up judicial misconduct, and I suspected publicity was the only way to shame the judicial council into acting against a bad judge. (Unfortunately, it didn't work).

On February 3, 2014, LaToshia sent another letter to Judge Montalvo, and that was the last straw.  Three days later, I formally objected to the letter, and I separately filed a motion to recuse Judge Montalvo. Under federal law, Judge Montalvo could decide for himself whether he had done anything thing wrong that would require his recusal.  To his credit, he referred the motion to Chief Judge Fred Biery in San Antonio, and Judge Biery ordered Judge Montalvo's recusal from the case.

After Judge Montalvo's recusal, Judge Kathleen Cardone was assigned to the case against Trae Thompson, and she vacated Judge Montalvo's order on May 5 2014, but she refused to release the original letter from LaToshia. LaToshia began writing letters to Judge Cardone, but on May 16, 2014 Judge Cardone ordered the clerk to return any future letters from LaToshia without opening them.  Meanwhile, Judge Philip Martinez was assigned to a related case that arose from Hank's murder, and he vacated an earlier order signed by Judge Montalvo based solely on the fact that Judge Montalvo had been communicating ex parte with LaToshia.

To their credit, the other judges in the Western District seemed to realize the seriousness of what Judge Montalvo had done.  Unfortunately, Chief Judge Carl Stewart of the U.S. Court of Appeals for the Fifth Circuit swept the judicial complaint under the rug on April 16, 2014, declaring that the ex parte communications relate directly to the merits of the judge's decisions and are therefore subject to dismissal under 28 U.S.C. 352(b)(1)(A)(ii).
  In other words, ex parte communications with a witness cannot be grounds for judicial discipline so long as the judge uses the information in a subsequent decision.

As I explained in my appeal to the Fifth Circuit Judicial Council, Judge Stewart's ruling had created an exception that swallowed the rule against ex parte communications. The primary purpose of the rule is to prevent a judge from making decisions based on information that he or she obtains secretly, outside the presence of the opposing party. Judge Stewart's new rule not only permitted ex parte communications, it encouraged judges to incorporate the illegally obtained "evidence" into their decisions as a way of bypassing charges of judicial misconduct. It was genuinely perverse.

The El Paso Times ran additional stories about Judge Montalvo's lawlessness on February 24February 28, and May 6, and I forwarded these to the Fifth Circuit to let the judges know that the public was watching. Ultimately, it made no difference. The Fifth Circuit Judicial Council unanimously affirmed Judge Stewart's dismissal order without any explanation. As I wrote elsewhere on this website, that is standard operating procedure when appellate courts want to do something indefensible, i.e., they don't try to defend it.  Instead, the appellate court says, "You lose, but we're not going to tell you why." In any event, the Fifth Circuit seems hellbent on keeping judicial conduct standards as low as possible.

Ironically, all federal anti-corruption cases in El Paso have been assigned to Judge Montalvo, and lately he seems to consider himself an international expert on fighting corruption. I have no doubt that, in Judge Montalvo's mind, he was trying to do the right thing vis-a-vis LaToshia, and I do not believe that Judge Montalvo is the type of man who would take a bribe or do anything remotely like that. Nonetheless, there is a mighty fine line between lawlessness and corruption, if there is any line at all.  And the business of suspending someone's free speech rights on the basis of secret evidence is decidedly Third World.  Maybe someone should remind Judge Montalvo that charity begins at home.

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* I omitted LaToshia's last name from this page because I do not wish to antagonize her or make her life more difficult, and I would rather this page not appear when her name is searched. I tried omitting her name from the attachments, but there just too many references to her name, and most of the attached documents are already public.



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