(CN) — In Austin’s state court, half of the new electronically complaints are held back for three days or more. By that time, the news they contain is “old news.”
Challenging the practice of blacking out the public record of the courts while clerical work is underway, Courthouse News filed for a preliminary injunction Thursday against both the Austin clerk and the director of the state court administrative office.
“This case boils down to a simple question: does Defendants’ policy and practice of withholding new civil petitions until completion of processing, that causes extensive delays in access, pass constitutional scrutiny,” said the memorandum of law filed Thursday.
“It does not.”
The memo along with declarations and an amended complaint ask for an injunction against the blackout. The case is assigned to U.S. District Judge Lee Yeakel.
Representing Courthouse News, John Edwards with the Texas firm of Jackson Walker said, “The excuses for delaying public and press access to new petitions in Texas must end. The First Amendment requires timely access once a new petition is e-filed, and administrative processing tasks cannot justify denying that access.”
The defendants in the action are court clerk Velva Price in Austin and statewide director Megan Lavoie with the Office of Court Administration. They are following a policy widely labeled as “no access before process."
That means that the clerks will not let press or public see new cases — a longtime source of news — until they are docketed. That administrative work can and does take days. In Travis County District Court, Austin’s state court, the clerk blocks access for 85% of the cases past the day of filing and 48% for three days or more, while similar delays are encountered in other Texas courts.
One of the exhibits filed with Thursday’s motion for an injunction is a section of the transcript from a federal trial in Virginia where Judge Henry Coke Morgan Jr. said, “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 or stale anything else. So I think the plaintiff's point on that is well-taken.”
Case law in Texas, as well as other states, has established the basic principle that there is a First Amendment right of access to new petitions, as complaints are called in Texas. Once the right of access is established, the government cannot restrict access unless it has a really good reason and no good alternatives.
The Press Enterprise II test, where clerks need “an overriding interest” and lack of any “reasonable alternative,” has been failed repeatedly by court clerks in Texas, New York, Virginia, California, Illinois and most recently in Vermont.
“The core of those rulings is embodied in a tradition in American courts that goes back in time beyond memory,“ said the memo. “Reporters visited the clerk’s office to review and report on the new civil complaints, and intake clerks put newly filed civil complaints into a media box, bin or cart as soon as they were filed.”
But a swath of state court clerks have fought a form of trench warfare against any public access before they do their administrative work – which in federal courts is done afterwards. Those clerks enforce delays despite alternatives that provide pristine and timely access to new e-filed cases.
Texas, for example, has set up a statewide portal for electronic filing of court documents using software by Texas-based Tyler Technologies. That software gives clerks three public access options. One is the blackout option that holds back the new cases for however long the clerical work takes.
The second is a “press review queue” that Tyler promotes as a way to provide press access at, or very close to, the time of filing. And the third option is what is called “auto-accept” where the new cases go straight into the public docket automatically.
Because she can summon up either of those options, Lavoie, the state administrator, has “less restrictive alternatives” to the withholding policy she is enforcing. Access delays are not unique to Austin.
The state court in Dallas, for example, currently takes from one to three days to docket new cases but then continues to block access to about half the cases even after docketing. The reason for that secondary blockade have so far been impossible to obtain from the clerk’s office.
Over time, it has become clear that the power that fights the First Amendment is the local clerks, not the state judiciary. The clerks are so strong that that they can challenge the will of their own high courts as they have done, for example, in Texas, Florida and other states.
Texas Chief Justice Nathan Hecht has endorsed the use of technology to open up the courts. He is quoted on the landing page for the e-filing portal as saying, “Every branch of Texas government, particularly the judiciary, is committed to applying technology that enables everyone access to our justice system.”
But those views have not filtered down to the local clerks and the bureaucratic machinery of the courts. In recounting the efforts of Courthouse News to remedy the delays in access, the memo told of a visit to Austin by the news service editor and his lawyer, asking the Judicial Committee on Information Technology to put in place a press review queue.
“The editor answered questions as part of a discussion that lasted about one hour,” said the memo. “At the end of the discussion, the committee decided to form a subcommittee to consider the press queue proposal. But no one wanted to be the chair. A chair was never appointed and the subcommittee never met. “
Across the nation, local clerks have been fighting access like the press was taking away something that belonged to them. In their opposition, they summon a familiar menagerie of defenses: that privacy is at risk, that the software costs money, and that the cases are not really filed until they are docketed.
But by local rules in Texas the lawyers are responsible for cleaning up their documents to make sure they don’t include private identifiers.
On the money front, Tyler is trying to set up a new profit stream when it sets up the press queues. But no clerk who has put one in place has been charged, and it appears that once a federal court enjoins the local clerk, the vendor then backs off any request for additional payment.
The third and most recently popular defense — that court documents are not really filed until they are docketed — was recently rejected in Oregon by a federal magistrate who wrote a long and careful analysis of what it means to “file” a record at the courthouse.
The same argument was also looked upon with some apparent doubt last month in a hearing in federal court in Idaho.
Chief Judge David Nye: Tell me how it works if a plaintiff's lawyer on Friday afternoon files a complaint — well, submits a complaint — under your argument, and that's the last day of the statute of limitations, but the case isn't actually filed until Monday when it's reviewed. Have they lost their statute of limitations argument?
Lawyer for the Idaho administrator: No. I don't believe anything in the rules provides that, Your Honor.
So it is filed when it's submitted?
Well, it's been provided to the court…..
Nye: I guess my real question is, is that so for some purposes, the complaint is deemed filed when it is submitted to the court? But for other purposes, including today's argument, you're saying it's not filed until it's been reviewed and accepted?
That exchange was attached to Thursday’s memo, as well as a recent decision by a federal judge in Vermont. Judge Christina Reiss enjoined the Vermont clerks last November from delaying access until their pre-access review was completed, in other words until they docketed the new cases.
In her opinion, she zeroed in on the simple basic fact that the only reason for any hold up in access is the work of the clerks: “There would be no delay in an e-filing system. There could be 1,000 complaints; there could be 100,000 complaints. There's no delay,” said the judge at the hearing and in her written opinion.
“The only delay that's going to show up in e-filing is when you insert a staff member into it to do something else,” she continued. “Right? Because [e-filers are filing] with all of the document information that they need, and it's hitting the docket, and there isn't any step in between there by staff. ... So that, by definition, means that the delay is in this review process.”
In Austin on Thursday, Courthouse News lawyer Edwards invoked her ruling and those that preceded it.
“In the course of the ruling on Vermont’s no-access-before-process policy, Judge Reiss looked back to Jackson, Tingling and Planet, and applied the Press Enterprise II test: ‘Because Defendants have failed to sustain their burden to demonstrate that their pre-access review process is justified by higher interests and narrowly tailored to advance those interests, Defendants have violated the public's and Plaintiffs' First Amendment right of access to newly filed complaints.’”
In conclusion, the lawyer for Courthouse News argued that the Tyler e-filing system is quite capable of providing timely access.
“Defendants nevertheless adhere to the practice of withholding access until manual processing is completed, resulting in persistent delays,” he wrote. “Technology should illuminate the halls of government, not darken them, and Defendants should not be allowed to maintain the practice of withholding access to new petitions until after processing, given the existence of less restrictive alternatives. The Court should grant the preliminary injunction.”
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