Judge brings lev­ity to weighty trial

Di­etz knows schools case could be his­toric, but ‘life will go on.’

Austin American-Statesman - - FRONT PAGE - By Kate Alexan­der kalexan­der@states­man.com

Wig­gling is per­fectly ac­cept­able — in fact, en­cour­aged — in the Travis County court­room of state District Judge John Di­etz.

Di­etz, who is pre­sid­ing over the on­go­ing school fi­nance trial, fre­quently in­ter­jects the dense pro­ceed­ings with mo­ments of lev­ity and the pe­ri­odic “wig­gle break.” And ev­ery­one ac­tu­ally wig­gles.

“We’re all so very, very se­ri­ous that I think from time to time we need to lighten up. Life will go on ir­re­spec­tive of this law­suit. There are things that are just funny,” said Di­etz, who keeps a “Wizard of Oz” Pez dis­penser set in his of­fice, next to his Godzilla para­pher­na­lia.

Courtesy of Di­etz, a small model of the Wicked Witch’s ruby slip­pers sits on the ta­ble of the lawyers from the at­tor­ney gen­eral’s of­fice. Di­etz says it’s a metaphor about the role of the ju­di­ciary, but mostly it makes him giggle.

Not that Di­etz, 65, is tak­ing this case lightly.

He knows full well that the law­suit has the po­ten­tial to re­shape ed­u­ca­tion in Texas. Be­fore the trial, he spent months learn­ing about the fund­ing for­mu­las, test­ing sys­tem and ev­ery­thing else that plays into the case.

More than 600 school dis­tricts, who to­gether serve three-quar­ters of the pub­lic school stu­dents in the state, have signed on to the lit­i­ga­tion. They ar­gue that the Leg­is­la­ture has failed to live up to its con­sti­tu­tional obli­ga­tions to pro­vide an “ef­fi­cient sys­tem of free pub­lic schools.” The state main­tains it is the school dis­tricts that are drop­ping the ball.

Di­etz, who has been on the bench for 22 years, said he has learned that some­times a lit­tle wit can con­vey a mes­sage bet­ter than a stern rep­ri­mand. He will pull out his Godzilla toys from time to time and threaten to stomp Tokyo flat. The lawyers get the mes­sage.

Steve McCon­nico, a top civil lit­i­ga­tor who rep­re­sented former Ped­er­nales Elec­tric Co­op­er­a­tive chief Ben­nie Fuel­berg in a case be­fore Di­etz, said th­ese cases of­ten in­volve huge stakes for both a lawyer and the client.

“That weighs on you,” McCon­nico said. “Hu­mor can some­times pull things back into per­spec­tive.”

Amid the pro­ceed­ings, Di­etz would flash pho­tos on the pro­jec­tion screen of the judge’s cat, Buster, sit­ting atop the le­gal briefs just submitted by lawyers in the case.

“He would tell us what Buster thought of our le­gal briefs,” McCon­nico said.

Di­etz, who is the civil pre­sid­ing judge in Travis County, as­signed the school fi­nance case to him­self though he could have sad­dled an­other judge with it. He had presided over the pre­ced­ing law­suit in 2004 and felt a re­spon­si­bil­ity to pick it up again, how­ever lengthy and te­dious it might be.

“It didn’t seem to me to be really ef­fi­cient to give it to some­body else when I had spent all that time eight years ago and I was con­ver­sant in the con­cepts of ad­e­quacy, ef­fi­ciency and so forth. It just seemed to me to be more of a mat­ter for ju­di­cial ef­fi­ciency,” Di­etz said.

School fi­nance cases, while closely watched, are not sexy. They are com­plex and fraught with dis­cus­sions about tax rates, test scores and de­mo­graph­ics. This one, which be­gan in late Oc­to­ber, is ex­pected to last through Jan­uary. It is cur­rently on hia­tus.

On the first day of trial, one of the lawyers said he had drawn the black bean by hav­ing to go first in open­ing state­ments.

“No, I sus­pect that I drew that black bean,” Di­etz said dryly.

De­spite his out­ward ret­i­cence, Di­etz ap­pears to en­joy th­ese con­tro­ver­sial, high-pro­file cases. He re­galed court ob­servers dur­ing an early hear­ing with sto­ries of dif­fer­ent cases, one in­volv­ing gay Repub­li­cans and an­other a grand wizard of the Ku Klux Klan, that ended up be­fore the Texas Supreme Court.

But Di­etz is clearly still strug­gling with the high court’s de­ci­sion in 2005 on the pre­vi­ous school fi­nance case.

The court up­held Di­etz’s find­ing that the state had ef­fec­tively es­tab­lished an un­con­sti­tu­tional statewide prop­erty tax be­cause al­most ev­ery school district had hit the tax rate cap. That rul­ing prompted the Leg­is­la­ture’s 2006 school fi­nance re­form package, which some ar­gue in­jected in­equities into the fund­ing sys­tem.

But the court over­turned Di­etz’s rul­ing that the Leg­is­la­ture had failed to pro­vide ad­e­quate re­sources to meet the Con­sti­tu­tion’s re­quire­ment for a “gen­eral dif­fu­sion of knowl­edge.” The court found that it re­mained to be seen “whether the sys­tem’s pre­dicted drift to­ward con­sti­tu­tional in­ad­e­quacy will be avoided by leg­isla­tive re­ac­tion to wide­spread calls for changes.”

Di­etz has asked a sim­ple ques­tion of ev­ery school su­per­in­ten­dent who has taken the stand to say he or she lacks the fund­ing needed to meet the state stan­dards: “So what?”

He seems to be gen­uinely search­ing for an an­swer to that ques­tion that will sat­isfy the Supreme Court.

He also seems keenly aware that he is pre­sid­ing over a po­ten­tially his­toric piece of lit­i­ga­tion. Just three weeks into the three-month trial, Di­etz took the lawyers on a short field trip.

“Ev­ery­body’s all juiced up the first week. And ev­ery­body’s all juiced up the sec­ond week. Then all of a sud­den, the third or fourth week, ev­ery­body starts sort of flag­ging,” said Di­etz, who was a pros­e­cu­tor and crim­i­nal de­fense at­tor­ney be­fore his elec­tion in 1990.

So one morn­ing, Di­etz sum­moned the lawyers from the six dif­fer­ent plain­tiff groups and the state — who can num­ber 15 on any given day — for a stroll out­side. He wanted them to get to know each other.

Many of the lawyers had been work­ing in­tensely for well over a year be­fore the trial be­gan. The ac­cel­er­ated sched­ule meant that they were de­pos­ing wit­nesses right up to the start of the trial. Even dur­ing the trial, the lawyers are still do­ing de­po­si­tions, pre­par­ing wit­nesses and ready­ing the next de­tailed cross-ex­am­i­na­tion.

“The whole idea here is to get a good cruis­ing speed be­cause if it was knock-down, drag-out, tense ev­ery day, that would be ex­tremely, ex­tremely hard on ev­ery­body,” Di­etz said. “It’s al­ready hard on ev­ery­body. From the first time I vis­ited with th­ese peo­ple in Fe­bru­ary or March un­til now, all of us have been work­ing.”

Stand­ing be­tween Travis County’s sep­a­rate civil and crim­i­nal court­houses, he talked about the drunken driv­ing or di­vorce cases that other lawyers were try­ing in the two build­ings.

In­stead, he said, “we all were very priv­i­leged to be work­ing on a case that was as im­por­tant as this one.”

rALPh bArrerA / AMer­I­CAn-StAteS­MAn

Judge John Di­etz calls for ‘wig­gle breaks’ and rounded up the lawyers for an out­door walk.

As Austin schools Su­per­in­ten­dent Me­ria Carstarphen tes­ti­fied in Novem­ber, Judge John Di­etz joked the pro­ceed­ings were bet­ter than a school board meet­ing. Carstarphen replied she loved the meet­ings.

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