(CN) — A federal magistrate in Texas on Monday knocked down a defensive wall that state court clerks have been hiding behind while they resist the First Amendment right of access.
The report issued by Magistrate Susan Hightower came in the context of the local court clerk’s motion to dismiss a complaint attacking her blackout of new complaints for one to three days while they are entered into the docket.
In court papers filed around the country on this same issue, news is often compared to bread, fresh on the day it’s made, stale the next day and fit for croutons after three.
When challenged, clerks have commonly used the doctrine of abstention as their silver bullet. The doctrine calls for a federal court to refuse to hear a case — to abstain — even if the court has jurisdiction. But only in narrow circumstances.
“The undersigned concludes that abstention would be improper because it is not appropriate to refer a litigant in a §1983 civil rights suit to a State forum for adjudication of his Federal rights except in the most extraordinary circumstances,” wrote Hightower. “This case does not present the extraordinary circumstances necessary for the Court to exercise its discretion to decline to exercise jurisdiction.”
Her findings come on the heels of an overarching decision by U.S. District Judge Christina Reiss in Vermont who also rejected abstention before going on to enjoin Vermont’s clerks from withholding access to new complaints until after “processing,” clerical work tied to getting the new case into the docket.
The accumulating weight of federal opinion suggests that in First Amendment cases the defense of abstention is now dead.
It was first given strength and credence by Seventh Circuit Judge David Hamilton who in 2018 said federal courts owed “comity” or deference to the local clerk in Chicago, Dorothy Brown. The “Brown” decision has been followed once, by a federal judge in St. Louis in a ruling that is now on appeal to the Eighth Circuit.
But it has been rejected by two appellate panels in the Fourth and Ninth Circuit Court of Appeals, and a total of seven judges and magistrates in the federal trial courts.
“Brown’s broad interpretation of Younger and its progeny conflict with Supreme Court and Fifth Circuit precedent,” wrote Hightower, whose court lies within that circuit. “While the Fifth Circuit has not addressed the precise abstention issues raised in Brown and in this case, the majority of courts that have addressed similar facts have reached conclusions opposite to the Seventh Circuit.”
In the course of her 20-page opinion, Hightower quoted extensively from rulings by Judge Henry Coke Morgan Jr., a highly respected and now senior federal judge in Norfolk.
Morgan rejected abstention and, after a four-day trial last year, ruled in favor of Courthouse News against two Virginia court clerks who were holding up access to new civil actions.





