HOUSTON (CN) – A $253,000 check from Houston Court Clerk Loren Jackson and Harris County, defendants in a First Amendment case brought by Courthouse News Service, was received Tuesday by the news service’s lawyer at the Houston firm of Jackson Walker. The check represents payment for attorney fees incurred by the news agency in a Federal Court challenge to the clerk’s decision cutting off traditional press access to new filings at the courthouse.
Clerk Jackson cut off journalists’ access to new filings at the courthouse last year, wrecking a system of press review that’s been in place for decades and that provided efficient and prompt review of the court’s new matters. The clerk instead required that journalists review the new filings online and gave himself two weeks to post them on the court’s Web site.
Courthouse News then challenged Jackson and the county in Federal Court. Ruling in the news agency’s favor, U.S. District Judge Melinda Harmon wrote, “There is an important First Amendment interest in providing timely access to new case-initiating documents.”
She also rejected the clerk’s various justifications for the new procedure, writing that, “None of the justifications for delays presented by defendants during the course of these proceedings were sufficient to constitute a compelling or overriding interest that would overcome plaintiff’s First Amendment right of access.”
In rejecting the clerk’s subsequent motion to dismiss the action, Harmon said the clerk’s attitude “can best be described as indifferent, irresponsible and even recalcitrant.”
Courthouse News Service publishes reports on new civil litigation that are subscribed to by most national law firms, as well as television stations and newspapers, including the The Houston Chronicle, The Dallas Morning News, The Atlanta Constitutional Journal, The Los Angeles Times, Newsday, The Salt Lake Tribune, The San Antonio Express News, The San Jose Mercury News, The Boston Globe, The Detroit Free Press, ProPublica, Fox Group and Warner Brothers.
Similar Courthouse News reports across the nation, as well as trial coverage and reports on appellate rulings, feed into the Courthouse News Web page, which receives a half-million individual visitors per month.
The timeliness and accuracy of the reports on new litigation depend on access to the publicly filed complaints. Review of those petitions is a traditional task of a news reporter covering a courthouse beat, and reporters from Los Angeles to Chicago to New York check the new filings at the end of the day.
That traditional access has been under siege in some courts, as local newspapers have pulled back on daily court coverage as a result of diminished competition and fewer reporters, while at the same time, courts have cut into the access under a range of pretexts that include conversion of documents to digital images.
At oral argument, the Harris County lawyer representing the recently elected Democratic clerk argued that it took more work to provide journalists physical access and that the court’s business was complicated. She concluded her points by reiterating Jackson’s campaign slogan, “Get online not in line.”
Courthouse News is represented by Rachel Matteo-Boehm with Holme Roberts & Owen in San Francisco and John Edwards with Jackson Walker in Houston. In declarations accompanying their request for an injunction, Courthouse News reporter Cameron Langford said he is currently limited by the clerk’s office to same-day review of about five newly filed petitions, out of 70 to 100 new civil petitions filed on a daily basis in Harris County District Court.
Judge Harmon, who was appointed by President George H.W. Bush, began her analysis by saying, “The First Amendment to the United States Constitution prohibits use of any law `abridging the freedom … of the press.’ It requires a presumption of openness of both the courtroom and court files.”
Quoting from appellate rulings, Harmon wrote, “Public access serves important interests, such as `to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial process, including a better perception of its fairness.'”
In addressing the central issue of delay in access, the judge said, “Defendants argue that the ‘slight delay’ in availability is a reasonable time, place or manner restriction. The court disagrees with Defendants’ contention and instead finds that the 24- to 72-hour delay in access is effectively an access denial and is, therefore, unconstitutional.”
Harmon found that the key elements required for an injunction are present in the case.
“The threatened injury to plaintiff outweighs any damage the injunction could cause defendants,” said the judge’s nine-page ruling. “Plaintiff will be denied its First Amendment right of acces to new case-initiating documents unless the court issues this preliminary injunction, while defendants have alternative, constitutional ways to achieve their goals and address their administrative concerns.”
“It is clearly in the public interest to enjoin defendants’ conduct. There is an important First Amendment interest in providing timely access to new case-initiating documents. Defendants attempt to argue that providing Plaintiff with same day access interferes with their important objective of ‘getting online and not in line.’ The court acknowledges that defendants’ goal is also in the public interest. However, as ;plaintiff argues, same-day access and online access are not mutually exclusive. Defendants may provide plaintiff with same-day access to newly filed petitions while working in furtherance of their goal to make documents available online.”
“Accordingly, it is hereby ORDERED that plaintiff CNS’s motion for injunctive relief is GRANTED. It is further ORDERED that CNS’s employee assigned to the Harris County District court be given access on the same day the petitions are filed except where the filing party is seeking a temporary restraining order or other immediate relief or has properly filed the pleading under seal.”
Subsequent to that order, Clerk Jackson and Harris County moved to have the case dismissed, arguing that the clerk was providing prompt access online.
Harmon rejected that argument, saying, “In the context of the Defendants’ past stubbornness, their verbal assurances that they have complied with the preliminary injunction and that the case is moot are not persuasive, nor are their representations enforceable.”
The clerk’s office has in the meantime gone into the publishing business, by summarizing the documents through posting docket entries and then selling the attached documents at the price of one dollar per page. Clerk Jackson also said in an interview with a local newspaper that he is considering notifying attorneys when their clients are sued, a service that is not offered by any other court in the nation and one that clearly competes directly with services offered by Courthouse News and other legal publishers.
Obligated to satisfy the judge’s preliminary injunction, the clerk chose to hire extra workers to scan and post new filings online before midnight rather than return physical, same-day access at the courthouse, which would not have required additional work and money from the court. The judge noted in her order rejecting dismissal that the clerk’s office could easily roll back on that electronic access provided to journalists.
“Without declaratory and permanent injunctive relief, plaintiff would have no protection from future access delays because they might occur not simply from an outright change in policy,” said the judge, “but surreptitiously from a mere relaxation of effort by court personnel and the piling up of newly filed petitions.”
Therefore, said the judge, the matter is capable of repetition while evading review and it is also reasonable to expect that the delays would come back.
Faced with discovery obligations and trial preparation as a result of the judge’s rejection of their dismissal motion, the clerk and the county agreed to a permanent injunction and agreed to pay all of Courthouse News’ attorney fees in the matter.