Tuesday, October 3, 2023 | Back issues
Courthouse News Service Courthouse News Service

Fat Check

I knew we had won, a long time ago. The deal had been done and the county had agreed to pay.

But when I saw the quarter-million-dollar check from the Harris County Treasurer, made out to Courthouse News Service, a certain warmth spread through my entire being. It had been a long and well-fought battle to get that check and the permanent injunction that went with it.

It all started when Houston's state court clerk, Loren Jackson, cut off press access to new filings after a long squeeze by the bureaucrats. They first said we could not go behind the counter anymore to look at the new cases. Instead, the court's staff would get them for us.

A few months later, in a move that was entirely predictable, they said they did not have enough staff and could no longer get the new filings for us. But still, we could not get them ourselves.

The clerk limited our requests at the courthouse to 10 new filings a day in a court where 70 new civil actions are filed on a daily basis. The staff would actually get only half of the 10 we requested.

Then the clerk told us to go online.

But he gave himself two weeks to get the cases onto the court's Web site, by which time they were old news. No coincidence, in my mind, that the court had also gone into the publishing business, charging a buck a page for copies of the documents online.

We drew a federal judge who had been appointed by Bush senior and who by reputation was a staunch conservative. At the preliminary injunction hearing, Judge Melinda Harmon listened dispassionately while taking notes.

She changed that demeanor once during the hearing. Our lawyers asked me if I had conceded to the diminution of access. I answered, "It was imposed on us."

The judge turned and gave me a close look when I said that. A few weeks later, she handed down an opinion, that, in the words of our lawyers, they could not have written better.

Harmon said Courthouse News is entitled under the First Amendment to same-day access to newly filed civil actions.

"None of the justifications for delays presented by defendants were sufficient to constitute a compelling or overriding interest that would overcome plaintiff's First Amendment right of access," she wrote.

In response to the ruling, the clerk hired more staff - after arguing that a staff shortage was the reason for cutting us off - in order to put the cases online quickly. He chose that route rather than return our efficient and non-staff intensive, physical access at the courthouse.

The clerk then went back to the judge and said the case should be dismissed, because he was providing access.

In rejecting that motion, Judge Harmon said clerk Jackson's attitude "can best be described as indifferent, irresponsible and even recalcitrant."

At that point, Jackson and the county threw in the towel. They agreed to a permanent injunction ordering same-day access to new civil actions and they agreed to pay our attorney fees.

Jackson's tactics are unfortunately not that unusual these days. We are running into similar clerks in upstate New York and downstate Florida, with less virulent versions in Detroit and parts of California.

For example, San Francisco Superior Court, while continuing to grant good physical access, is turning over bits and pieces of its electronic filing program to Lexis Nexis. A court's grant of preferential and earlier access to one private publisher is just as destructive to press access as a blanket denial.

The San Francisco court is giving a private publisher, one that is an old hand at using its control of public documents to generate immense profit, a free database and a time advantage over all other publishers, as well as the ability to extract more and more substantial filings fees from lawyers. All for nothing.

The court gets no money out of the arrangement, while courtrooms are going dark and enormous swaths of court staff are being fired.

Yet California's Administrative Office of the Courts, with authority over the local courts, refuses to meet with us to discuss the matter.

The beauty of Judge Harmon's ruling - and the big check - is that is is already having an effect on some of the individual courts that have tried to cut back on access. They are suddenly more willing to work with us.

Plus we now have a war chest.

That quarter-million has a purpose. It will be used to take on the courts that have severely restricted access, with a careful eye on tactics and efficiency in litigation. This dog has barked for so long, it is about time we had some bite.

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