The First Amendment and Texas

OFF THE WIRE
Bill Girdner
Unlike California, Texas has preserved excellent press access to the courts as it went through a technology transformation. But not without a little help.
     Courthouse News filed a First Amendment action against the Houston state court clerk in 2010 over delays in press access to the new actions. The clerk, Loren Jackson, thought e-filing was the greatest thing since sliced bread.
     On the website for Harris County District Court, the clerk's name was set out in a much larger font size than the name of the court itself. Jackson's slogan was "Get on line, not in line."
     It did not save him from getting trounced in the next election, when Texas turned out nearly every local Democrat.
     But that was not before U.S. District Court Judge Melinda Harmon gave Jackson some guidance on the First Amendment, ordering him to provide access to any new action filed from midnight until the court closed for business, on the same day the case was filed.
     She rejected the arguments trotted out by Jackson then, and now by some clerks in California, that the volume of filings was overwhelming and the court was short on staff.
     Judge Harmon characterized Jackson's attitude during negotiations over press access as "indifferent, irresponsible and even recalcitrant."
     It is revelatory to read the order after the intervening years and see how fresh and relevant it remains, describing to a "T" the attitude we have run into from the clerks in the CCMS courts, such as Ventura and Orange County.
     The judge's words also fit the leaders of the California Judicial Council's Technology Committee who proposed e-filing rules that built-in access delays and then summarily waved off objections from the press.
     As part of her ruling, Harmon tacked on what the French call "la douleureuse," the thing that hurts, the bill. She awarded CNS a quarter-million dollars in attorney fees.
     The clerk of course obeyed the order. He paid the sum and gave the press same-day access. I have a framed copy of the check hanging on the wall.
     In the years since the order, the press has seen very close to 100% of the new actions on the day they were filed, whether they were filed in paper form or e-filed, as is now mandatory in the big Texas jurisdictions. Her order also served as a powerful motivator in the rest of the Texas courts.
     The key ingredient to top-notch access, as we have found over the course of these battles, is not the volume of filings, or the staff levels, or the technology. It is the will of the court's leaders. As Judge Harmon put it, "the attitude."
     Courts that had a good attitude on press access to paper records tend to remain good on press access in the transition to electronic records. Courts with a bad attitude have used technology to roll backwards on access, such as Orange County where California's pernicious e-filing rules were incubated.
     Oddly enough, Orange was once, a long, long time ago, an excellent court for press access. Somewhere along the line, the attitude changed.
     There is also a good example in the other direction. Sacramento Superior, an old CCMS court, was long a very bad court on transparency. But it is no longer. The attitude recently improved, quite dramatically.
     But the two standard bearers for e-filing in California, Orange and San Diego, continue to delay press access to new actions by an average of two to three calendar days -- just as the Houston clerk did.
     The effect of Harmon's ruling was to adjust the attitude of not only the clerk in Houston but those in all the Texas courts. As they moved to mandatory e-filing, the big courts in Austin, Dallas, Houston and Fort Worth all preserved same-day press access to the vast majority of new actions.
     "While defendants admit that plaintiff has a right of access to newly filed petitions, they maintain that the new method by which the Clerk's Office is processing case initiating documents is a reasonable time, place, or manner restriction and, as such, survive First Amendment scrutiny," wrote Harmon.
     "The Court disagrees with defendants' contention and finds that the 24 to 72 hour delay in access is effectively an access denial and is, therefore, unconstitutional," she concluded in her preliminary injunction order.
     In making the injunction permanent, she wrote, "In the context of defendants' past stubbornness, their verbal assurances that they have complied with the preliminary injunction and the case is moot are not persuasive, nor are their representations enforceable."
     "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, but surreptitiously from a mere relaxation of effort by court personnel and the piling up of newly filed petitions," wrote Harmon.
     Her ruling enforced the First Amendment and has had a powerful and lasting effect throughout Texas.