First Amendment action filed against Texas court clerks

The Texas Supreme Court put in place a public access rule last year that said clerks must put new court pleadings into the public record “the same business day” they are received.

No sooner had the rule been signed by the justices than it was degraded by the court bureaucracy.

The chair of the tech committee told local court clerks: “Things need to be processed in 24 hours.”

The head of IT hammered it home: “One business day.”

And nothing more was said on the matter at the first meeting of the Judicial Committee on Information Technology after the new rule was put in place.

In that quick stroke, the standard had been reinterpreted from same day to next day. Therein lies a First Amendment lawsuit.

“The peculiar value of news is in the spreading of it while it is fresh,” wrote Ninth Circuit Judge Kim Wardlaw as the opening sentence in the seminal Planet III opinion, confirming the right of access to new court pleadings when they are received.

In another access case, Eighth Circuit Judge Bobby Shepherd said, “There was a time when — and some in this room may remember it — when you took a pleading to the courthouse and the clerk stamped it physically and it went into different bins and it was available immediately." Speaking in black robes from the bench, he confirmed the tradition of public access in American courts.

But the elected Texas clerks in Plano and Denton outside of Dallas are not following that tradition. They are instead holding up public access, essentially sealing the new pleadings until clerical work is finished.  A First Amendment complaint filed Friday in federal court in Plano says the clerks have an easy, paid-up alternative that makes the pleadings, as Judge Shepherd described it, “available immediately.”

They have so far refused that option, instead holding back the new pleadings as the news in them drains away.

“Plaintiff Courthouse News brings this action challenging Defendants’ practice of restricting access to new e-filed civil petitions when they are received and withholding access until after the completion of clerical processing by local court staff,” says the opening line of the complaint filed in federal court in Plano.

The federal court itself does what the complaint asks of the state court clerks. It gives public access to new pleadings as soon as they are e-filed into the court, like all federal courts in Texas and throughout the nation.

On the state side, courts of California, Florida and New York now give public access to new pleadings while the news is fresh. The elected district court clerks in Texas, however, have a good deal of political power and are generally united in fighting public access. They almost all rely on e-filing vendor Tyler Technologies, which has a statewide e-filing contract with Texas.

“The Texas e-filing system works off a central component called the Electronic Filing Manager, which receives and houses documents submitted by filers throughout the state,” says the complaint. “District courts can use a separate Tyler product called the Press Review Tool to enable the press and public to view new e-filed petitions while they sit in the EFM awaiting processing. Otherwise, the new e-filed petitions sit in the EFM, effectively sealed, until local court staff are able to log into their computer workstations and process them."

The clerk in Austin has put the vendor’s press review tool, which allows access to the new pleadings when they are received, in place. And the clerk in Dallas has agreed to do the same. But the defendant clerks in Plano and Denton have not answered a request to enable the review site.

In the nationwide legal war over public access in the wake of electronic filing, state court administrators have generally worked together under the umbrella of the Conference of State Courts Court Administrators. They have opposed public access when the news pleadings cross the virtual counter, instead fighting to delay access until clerks finish their clerical work, which can take a day, or it can take ten days.

That practice they defend, withholding access to new pleadings, has been enjoined by federal judges in Houston, Chicago, New York and Columbus. And within the last few months, additional state courts in New Mexico, Missouri and Iowa have agreed to open up new pleadings when they are received. Even so many of the clerks cling to the practice of withholding.

“I think that the point the plaintiff’s making is that it has its news value as soon as it happens. If you don’t get it when it’s fresh, it’s like stale bread," said Judge Henry Coke Morgan Jr. after a trial in Norfolk in 2020 over the same issue. The judge ruled in favor of Courthouse News and that ruling was upheld after the Virginia clerks appealed to the Fourth Circuit Court of Appeals.

Those rulings have not stopped individual court clerks in Pennsylvania, Ohio, Minnesota, Oregon and Idaho from keeping the new pleadings sealed until they are old news.

On the complaint filed Friday, Courthouse News is represented by Matt Dow and John Edwards with Jackson Walker in Texas and Jon Fetterly and Katherine Keating with Bryan Cave Leighton Paisner in California.

The complaint asks for an injunction under the First Amendment:

“Courthouse News seeks a declaratory judgment declaring Defendants’ policies and practices that affect delays in access to newly e-filed civil petitions are unconstitutional, and a preliminary and permanent injunction prohibiting Defendants from continuing those policies and practices.”

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