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Federal report in Texas knocks out central defense by clerks fighting First Amendment

With a magistrate’s report on Monday, the accumulating weight of federal opinion says federal courts should keep their jurisdiction over state court clerks who are imposing a blackout on new complaints until they are old news.

(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.

“State officials, although independently elected under their respective state constitutions, are not at liberty to deny rights guaranteed by the federal Constitution,” wrote Morgan, who was in turn quoted by Hightower. “When state officials do so, deny that it occurred, and deny that the federal Constitution even protects a right, a federal court may, under appropriate circumstances present here, declare the rights of the parties.”

Courthouse News is represented in the Texas litigation by John Edwards with the Texas firm of Jackson Walker. Travis County Clerk Velva Price is represented by Tony Nelson and Amy Pollock with the County Attorney’s Office.

"Judge Hightower's opinion rejecting abstention as a ground for dismissal is well reasoned and adds to the growing number of decisions rejecting the Seventh Circuit's expansive view of abstention in the CNS v. Brown decision," Edwards said in an email. "Federal courts are uniquely qualified to address First Amendment court record access challenges, and the rote defense strategy seeking to avoid federal review by arguing abstention is no longer viable."

The background for Monday’s decision is a First Amendment complaint filed by Courthouse News on the last day of last year which says that the clerk’s staff in Austin used to keep a box behind the counter that the held the day’s new paper petitions – commonly called complaints in other courts -- and journalists would ask for the box to review the new business coming into state court in the Texas capital.

When Travis County District Court switched to e-filing in 2014, according to the complaint, access went backwards. That was because the clerk imposed a policy of withholding public and press access until after administrative processing.

“As a direct result,” said a passage quoted by Hightower, “there are regular delays of one to three days or more between the time when a new petition is e-filed and the time a journalist or any member of the public can see it, which turns the petition into old news.”

An important part of the factual landscape in the access cases around the country is that clerks have a ready solution at their fingertips. Federal courts and many state courts have set up their e-filing portals to automatically release non-confidential civil petitions to the press or public when they are received.

“CNS argues that the District Clerk could use her office’s current e-filing software to provide timely, preprocessing access to new civil petitions through a press review queue, as many other state and federal courts do,” wrote Hightower.

In other words, the clerks can provide the access, they just don’t want to.

Monday’s report falls into a national landscape of litigation over the right of access. In addition to the spectacular loss by the Vermont Attorney General just before the Thanksgiving break, lawyers for state and local governments are fighting a series of First Amendment complaints that are nearly identical on the facts — in Maine, Missouri, Ohio, New Mexico, Oregon and Idaho.

In Oregon, for example, the state is arguing that a case is not really filed until it’s processed even if the date stamped on the complaint is from days earlier.

And in Idaho, which is within the Ninth Circuit, the state is arguing — directly against Ninth Circuit precedent — for abstention.

The magistrate in Austin concluded Monday’s report by quoting from a 1945 decision by Judge Murrah sitting with the U.S. District Court in Kansas: “We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum.”

The Travis County lawyers have two weeks to object to the findings in the report and the case then returns to U.S. District Judge Lee Yeakel for a decision on the clerk’s motion to dismiss.

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