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In First Amendment win, Texas court opens first on-receipt queue

The main court in Austin became the first Texas state court to open a review queue Monday, allowing journalists to see new cases as they come in across the virtual counter and bringing traditional access into the electronic era.

(CN) — After more than a year of litigation, Austin’s state court opened a review queue Monday that allows journalists to report on e-filed civil complaints as they are received.

“Yeah, it’s cool. It’s shocking. It’s hard to process that we have it after all this time,” said Courthouse News bureau chief Madison Venza. “It’s everything that’s coming in. It’s all from today. Travis County is the first court I ever covered. I started in 2005. It seems extra special to me because it’s my home court. And it’s a big win."  

The on-receipt standard of public access now provided in Austin’s main state court, Travis County District Court, reflects the old standard for paper-filed complaints in Texas where journalists checked the stack of new complaints in a box on or behind the counter.

It is also the standard of access in the U.S. District Court in Austin where First Amendment litigation against the Texas director of court administration is on hold.

During an August hearing in that case, U.S. District Judge Lee Yeakel described how filing used to work. “I feel with absolute certainty, when I first started practicing law the district clerk in Travis County didn't review a plaintiff's petition for anything,” he said from the bench.

Clerks and administrators fighting for delays in access often claim they need to review filings for confidential information. But, as Yeakel pointed out, that responsibility lies with the filing lawyer.

Referring to civil complaints, called petitions in Texas, Yeakel said: “It came in, it was pushed across the counter, it got file-marked with a hand stamp. And if a member of the press happened to be standing there and said ‘I really want a copy of that,’ they'd make that copy right away. Nobody looked at it to see if there was a problem or anything. That was the lawyer's problem.”

Those comments from the bench reflect a widespread understanding among the men and women in black robes as to how traditional access used to work when they were litigators.

In oral arguments in another case over access, Eighth Circuit Judge Bobby Shepherd, who had a general practice in Arkansas before he went on the bench, commented: “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.”

On the same panel, Judge Ralph Erickson, who had a private practice in West Fargo, North Dakota, expressed the same understanding: “What we’re saying is, ‘Oh, for about 230 years you could walk into a Missouri courthouse, into the clerk’s office, and say, ‘Hey, can I see what’s been filed today.’”

The significance of the review queue in Austin is twofold. Texas courts all run on the same e-filing system. Secondly, Texas is the home base for Tyler Technologies which makes the most popular e-filing software in the nation.

Those two factors suggest that the rest of the Texas state courts have the means for also providing access on receipt. Texas, with a population of 30 million, is the second largest state in the country. The remaining states in the top four have already made the move from delayed to on-receipt access or they are in the process of doing so. 

E-filing courts in California, the biggest state in the nation with a population of nearly 40 million, are either giving on-receipt access or soon will be. Florida, the third largest state with a population of 22 million, is in the process of switching all its courts over to on-receipt public access. And New York, the fourth biggest with a population of 20 million, has been giving on-receipt public access to e-filed civil complaints since five years ago.

In addition, Tyler also runs statewide e-filing systems for smaller states such as Idaho, Maryland, New Mexico and Oregon, all of which are currently facing First Amendment actions over delays in access. The clerks in all those states have the option of providing on-receipt access — Tyler makes it free and easy — but they have so far refused.

The landscape of the e-filing world is commonly misunderstood. While the resistance of clerks to providing on-receipt access is often undecipherable.

For example, last week, in a 10th Circuit hearing over public access to court records in New Mexico, Judge Mary Beck Briscoe said, “There are places that are very small, very understaffed and to slam in a rule that's going to apply across the state, shouldn't there be some leeway?”

But the clerks in New Mexico are not being oppressed. They are being stubborn. They pay for Tyler’s software but refuse to flip the switch that gives on-receipt access, insisting instead on blacking out new complaints until clerical work is finished.

The way press access used to be in those courts is innately understood by litigators who themselves went to the clerk’s office to file papers. For example, U.S. District Judge Sarah Morrison in the Southern District of Ohio formerly worked as a civil litigator at a Columbus law firm.

Referring to journalists who reviewed the stack of new paper complaints, she commented during a status conference in June: “When they were going down and looking at them in a stack, I mean, I remember those days, when they had them there, some sitting in the little cubicle. They were there, and that's — that's what they did.”

As a result of the review queue opened Monday, journalists covering Travis County District Court can again do as they once did. They can see the new complaints as they come across the virtual counter. What was old is now new in the capital of Texas.

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