(CN) — In federal court in Austin on Wednesday, U.S. District Judge Lee Yeakel rejected the Austin court clerk’s motion to dismiss, on the grounds of “abstention,” a First Amendment complaint brought by Courthouse News.
The motion by Clerk Angela Price has been tried in other cases where clerks were looking for a silver bullet to stop a constitutional action aimed at state court policy. The abstention theory says federal courts should defer to state courts.
It has been widely rejected by federal court judges around the nation.
In denying the clerk's motion Wednesday, Judge Yeakel relied on a long report from Magistrate Judge Susan Hightower handed down at the end of November, advising against abstention.
The clerk, represented by county counsel, failed to object to the magistrate’s report and thereby lost her ability to appeal the ruling to the Fifth Circuit Court of Appeals.
“A party's failure to timely file written objections to the proposed findings, conclusions, and recommendations bars that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court,” wrote Yeakel.
He said he found no plain error and adopted the magistrate’s report.
In her 20-page report, Hightower quoted from a key point made by Courthouse News in its complaint: “The District Clerk withholds the petitions until after court staff have docketed them. As a direct result, 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.”
She quoted extensively from a ruling by U.S. District Judge Henry Coke Morgan Jr. in Virginia, who also rejected the abstention defense, and compared the news to bread, fresh on the day it’s made and stale the next.

Wednesday's ruling by Yeakel falls into a national battlefield over First Amendment access to newly filed court complaints — which often serve up news stories. The abstention argument could be considered the first cannon shot from each clerk who is sued. But it keeps falling short.
In a transcript received this week, U.S. District Judge James Browning in New Mexico rejects the same opening gambit in plain-speaking terms. “Isn't the reality that other than the Missouri District Court case and the Seventh Circuit, nobody is buying into abstentions?” said the judge, talking to the New Mexico Attorney General’s appellate chief Nicholas Sydow.





