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US judge in Austin rejects clerk’s defense in Courthouse News action

On the national battle field over access, the press has won a skirmish against the Austin court clerk who said the federal court should defer to the state of Texas.

(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 in such matters.

It has been widely rejected by federal 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.

(Image by Philippe Ramakers from Pixabay via Courthouse News)

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.

Browning added, “The trend is just everybody is looking at it; but it's one court. And what it requires is the district court in New Mexico, the Tenth Circuit, and the Supreme Court to basically create a new abstention doctrine. Nobody is really getting into this."

Across the country in Vermont, U.S. District Judge Christina Reiss in late November also rejected the abstention argument aggressively pursued by Assistant Vermont Attorney General David Boyd, while calling another of his arguments “nonsensical.”

Reiss then enjoined Vermont state court clerks from denying access to new civil complaints while they are clerically docketed which often takes a day or two.

Vermont complied with the injunction within three weeks and put in place an on-receipt access system through its Odyssey e-filing software.

The same software is used in both Texas and New Mexico where cases are pending over an access blackout by the clerks until clerical work is finished. But, in contrast to the courts in Vermont, the courts in New Mexico have done nothing to comply with an injunction from Browning.

“Isn't the bottom line the State's done nothing? It talked about it, but it hasn't done anything,” said Browning.

The lawyers for the state said that a meeting had been held.

New Mexico has the same opportunity as Vermont to provide First Amendment access. Browning concluded in his earlier injunction ruling that providing timely access would cost nothing: “The Court finds by a preponderance of evidence that the addition of Tyler Technologies’ Press Review Queue will not cost the Defendants anything to purchase.”

But New Mexico has refused to take that opportunity to provide timely access.

Going the other way, U.S. District Judge Nancy Torresen in Bangor, Maine, ruled against the news media on the same issue in a state using the same Odyssey software leased by Tyler Technologies. That ruling is now on appeal in the First Circuit, and on Wednesday a host of national media groups joined the Maine newspapers in the appeal, including the Associated Press, Boston Globe, Gannett, NBCUniversal, Politico and The New York Times.

Back in Texas, the state court administrative office and the clerks have a history of being motivated by money, in particular the discretionary income that comes by selling copies of court records.

In refusing to provide timely access, they have claimed they have a duty to check for privacy when in fact Texas places that duty on the filer. They have also said the software that provides timely access — that Browning said costs nothing — would cost $200,000 a year, which should be paid by the press. And they have said the press must indemnify the courts.

The Courthouse News complaint against clerk Price says those demands are nonsensical.

The complaint referred to the many state courts that provide access as the new complaints are received, including courts in New York, California, Texas, Vermont, Utah, Connecticut, Georgia and Alabama. They have not asked for indemnity, have not claimed a duty to scan for privacy and have not demanded hundreds of thousands of dollars.

“Nor have the federal courts, in giving press and public access upon receipt, claimed to have a duty that does not exist, nor have they asked for indemnity from anyone, nor have they demanded large cash payments in order to provide constitutionally mandated access," said the complaint.

Yeakel’s order on Wednesday gave the Austin clerk and Courthouse News a short deadline to agree on a schedule for proceeding with the First Amendment action.

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