We at Courthouse News have long been confronted with a court records system in Colorado that is unusual, in that no other state in the nation has turned over its civil court records to a private publisher on an exclusive and statewide basis.
The monopoly thus held by Lexis Nexis was challenged this month by the state's Judical Department.
The Colorado Judicial Department had obtained approval in the state Senate for funding for a project to take back its public records system and generate millions for the state through sale of the information.
It will serve as an object lesson on the pitfalls of dealing with Lexis Nexis that the publisher fought tooth and nail to protect the gold mine handed to it some years ago. Lexis Nexis successfully lobbied Republicans in the Colorado House of Representatives to withdraw funding for the Judicial Department's project.
The House Republicans made that one issue -- in a time of dire statewide budget crisis -- their cause celebre, and forced an amendment withdrawing the money onto an omnibus budget bill as a condition for Republican approval. And the Democrats caved.
A gut churning aspect of the matter is that one of the horses sent forth into battle by Lexis Nexis was a hit piece, a media press release, casting doubt on the competence of the Judicial Department. That hit piece was picked up with little examination by the Denver Post, and the resulting article was relied upon by Lexis Nexis lobbyists to sway the Republicans.
Thus the media was used to retain a rival publisher's monopoly on the public record, something no newspaper that knew what it was doing would tolerate.
But dying is a lazy business for newspapers.
In picking up the hit piece, the Post interviewed only legislators -- who were in the minority -- who opposed the Judicial Deparment's effort to return the public record to public control.
I swear it is stuff like that, relying on press releases for news and doing no work to challenge or even examine the story, that makes me only kinda sad as one bad newspaper after another bites the dust.
The Republican rallying cry was private business versus government. They too are lazy in the dying and, for a moribund party, make no effort to get past a knee-jerk "we like private business" philosophy.
"It's just madness," said Republican representative Jim Kerr, referring to the Judicial Department's plan. He told the Post. "We have a private sector that is suffering."
There is no sign that either the Post or the Republicans knew that Lexis Nexis is simply a division of the English-Dutch publishing conglomerate Reed Elsevier, and no sign either that they knew Reed Elsevier had a net operating profit of 1.1 billion euros last year, and thus cannot by any stretch be said to be suffering.
While the constituents of Colorado's Republican representatives are indeed suffering as is the rest of Colorado's economy and indeed that of the nation, there was no sign either that the Post or the Republicans understood the rich irony in sending millions of dollars derived from Colorado's public record off to England.
The fees operate much like a tax in that they have little to do with the cost of the product which is served up to Lexis Nexis on a platter by the state's lawyers. It is as though the American Revolution never happened and the Colorado legislators think American states should still send a stiff tax over to the colonial power.
Unfortunately, it was the state's judiciary that set up the monopoly in the first place -- in fact mandated it -- when the state Supreme Court first issued an order requiring lawyers in Colorado to file documents electronically.
The Judicial Department then awarded an exclusive contract to Reed Elsevier's division Lexis Nexis to provide the only means through which the lawyers could file documents in civil cases.
But that wasn't all.
There was still the matter of the docket, the historical record of past cases as well as the small minority of cases that were still filed in paper, by pro pers, for example, or filed in rural counties. Under pressure from the giant publisher, the Judicial Department then also awarded an exclusive contract to Lexis Nexis for sole control of the state's docket information.
As a result, all other publishers, newspapers, and individuals have no choice, they must kiss the ring of the prince in order to get public information from the courts.To have another media entity run a hit piece in favor of that system is, well, it's hard to find the right word.
The determination of the Judicial Department to take back control of the public record is plainly right. The public record should be under public control and should not be a profit generating line item on the balance sheet of a European publishing giant.
The Republicans in the Colorado House are doing what Republicans do best, using false pretenses to increase the slice of American pie going to the rich and powerful. But the Post, the Post just got played.
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