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Jackson - Response

Jackson - Response

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Harris County District Clerk Loren Jackson's response to lawsuit from Courthouse News Service
Harris County District Clerk Loren Jackson's response to lawsuit from Courthouse News Service

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02/22/2010

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Case 4:09-cv-01844 Document 14

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION COURTHOUSE NEWS SERVICE, Plaintiff, v. LOREN JACKSON, in his official capacity as Harris County District Clerk, and WES MCCOY in his official capacity as Chief Deputy- Services for the Harris County District Clerk’s Office, Defendants. § § § § § § § § § § § § §

CIVIL ACTION NO. 4:09-CV-01844

RESPONSE OF DEFENDANTS LOREN JACKSON IN HIS OFFICIAL CAPACITY AS HARRIS COUNTY DISTRICT CLERK AND WES MCCOY IN HIS OFFICIAL CAPACITY AS CHIEF DEPUTY-SERVICES FOR THE HARRIS COUNTY DISTRICT CLERK’S OFFICE TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION Defendants Loren Jackson in his Official Capacity as Harris County District Clerk and Wes McCoy in his Official Capacity as Chief Deputy—Services for the Harris County District Clerk’s Office (collectively “Defendants”) now file their Response to the Motion for Preliminary Injunction filed by Plaintiff Courthouse News Services (“Plaintiff”) and would respectfully show this Court as follows: PROCEDURAL BACKGROUND 1. Plaintiff filed this lawsuit filed pursuant to 42 U.S.C. Section 1983, federal

common law and the common law of the State of Texas, the Texas Constitution, and Texas statutory law. Plaintiff generally alleges that until October, 2008, it had enjoyed same-day access to virtually all new civil petitions for almost ten years in Harris County. Plaintiff alleges that as of today, due to changes which have been implemented by Harris County District Clerk Loren Jackson, Plaintiff is being given same-day access to only a small percentage of new petitions

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filed in Harris County.

Plaintiff further alleges that under the changes implemented by

Defendants, Plaintiff must wait anywhere from two to five days to access the vast majority of new petitions through a section of the Harris County District Clerk’s web site. See DOCKET NO. 1, page 2. 2. Plaintiff alleges that the Harris County District Clerk’s new procedures violate its

constitutional rights under the First Amendment, as well as its rights under federal common law and the Texas Constitution. Plaintiff alleges that the new procedure violates its rights under Rule 76a, Texas Rules of Civil Procedure. Plaintiff seeks preliminary and permanent injunctive relief from the alleged denial of access, a declaratory judgment, and attorneys’ fees and costs. 3. Defendants deny that any constitutional violation has occurred and assert that its

procedures constitute a reasonable time, place or manner restriction. Defendants further deny that Plaintiff is entitled to the relief it seeks. 4. This Court entered its Order on June 18, 2009, setting a preliminary injunction

hearing for June 25, 2009. The Court further ordered Defendants to file their Response Brief by June 22, 2009. Defendants have filed an Unopposed Motion for Extension of Time. Defendants file this Response pursuant to the Court’s Order. FACTUAL BACKGROUND 5. Attached hereto as Exhibit “A” and incorporated by reference for all purposes

herein is the Affidavit of Loren Jackson (“Jackson Affidavit”). Loren Jackson is the duly elected District Clerk of Harris County, Texas. Mr. Jackson was elected to that office on November 4, 2008 and sworn in to fill the unexpired term on November 18, 2008. In that capacity, he serves as the custodian of records for the Harris County Civil District Courts. Mr. Jackson is

responsible for the care, supervision, custody and control of court records for fifty-nine (59)

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District Courts, fifteen (15) County Criminal Courts, and sixteen (16) additional courts. See Exhibit “A”, page 1. 6. In October, 2008, former District Clerk Theresa Chang began to review the

protocol which permitted Plaintiff or any non-deputized clerk of the Harris County District Clerk’s office to secure areas behind the service counters. Previously, Cameron Langford, an employee of Plaintiff, had daily access behind the service counters and roamed about looking at any petitions or case files with little to no known supervision. In accordance with the Harris County Auditor’s cash handling guidelines and recommendations, the Harris County District Clerk’s Office began to prevent access behind service counters for all non-deputized clerks. Only Deputy District Clerks and other authorized persons performing work on behalf of the District Clerk are allowed access behind service counters. See Exhibit “A”, pages 1 and 2. 7. Recently, the Harris County District Clerk’s Office began implementing new

innovations to provide customers with ore access to view and print case filings through its online services and to encourage the use of electronically filed documents (e-filing), rather than the use of paper fillings. Mr. McCoy met with Mr. Langford to explain the Harris County District Clerk’s Office’s technological innovations and encouraged Plaintiff to use its online services to review case filings and print newly filed petitions at Plaintiff’s leisure. Plaintiff was also advised that the Harris County District Clerk’s Office would try to process as many requests as it could on a same-day basis, up to ten (10) average sized requests, depending on the daily total office workload and number of total office requests. This is an estimated average of what a clerk would be able to aggregately process on a same-day basis, and a number which fluctuates depending on clerk workload and total customers requests. See Jackson Affidavit, page 2.

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8.

There are now two options for civil case filings, electronic filing and paper filing.

As the District Clerk, Mr. Jackson is responsible to see that new civil lawsuits filed electronically are properly indexed and verified by a deputy clerk to ensure that the filing is placed within the correct cause number, proper court, accurate title of document and proper category. Upon indexing and verification, the document is then online for all to view, except those exempted by law, local rule or Court order. See Jackson Affidavit, pages 2 and 3. 9. New civil lawsuits filed by paper copy are processed within the Harris County

District Clerk’s Intake Division. After processing, the new paper petition is sent to Central Data Processing for digitizing into electronic form. All digitized filings are verified for correct cause number, proper court, accurate title of document and proper category before the documents are made available for the public, except those exempted by law, local rule or Court Order. See Jackson Affidavit, page 2. 10. As District Clerk, Mr. Jackson’s intent is to provide equal access to all regardless

of status. Mr. Jackson’s office goal is to make available online all new electronically and paperfiled petitions in civil matters, except those those exempted by law, local rule, or Court order, within the guidelines as set forth by the Texas Rules of Judicial Administration. In practice, most electronic filings are available online within twenty-four business hours and most paper filings are available within seventy-two (72) business hours. 11. Mr. Jackson has a deputy to ensure that each document that is filed is verified

before any non-deputized clerk is allowed to access the document and potentially alter the original contents as filed. By ensuring verification, Mr. Jackson is protecting the contents of the original documents filed in the courts, which later affords him the ability to issue certified copies as required by statute. Absent verification, he is unable to verify that the contents of any paper

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document accessed are a true and correct copy of the original, if the contents have been handled by a non-deputized clerk. See Jackson Affidavit, page 3. 12. Attached as Exhibit “B” and incorporated by reference for all purposes herein is a

true and correct copy of the Texas Rules of Judicial Administration, updated with Amendments effective September 1, 2008. Rule 12 of the Texas Rules of Judicial Administration is entitled “Public Access to Judicial Records”. Rule 12.6 of the Texas Rules of Judicial Administration provides the procedures for obtaining access to judicial records. Section 12.6 of the Texas Rules of Judicial Administration provides in pertinent part as follows: “(a) Request. A request to inspect or copy a judicial record must be in writing and must include sufficient information to reasonably identify the record requested. The request must be sent to the records custodian…A requestor need not have detailed knowledge of the records custodian’s filing system or procedures in order to obtain the information. Time for Inspection and Delivery of Copies. As soon as practicable—and not more than 14 days—after actual receipt of a request to inspect or copy a judicial record, if the record is available, the records custodian must either: (1) allow the requestor to inspect the record and provide a copy if one is requested; or send written notice to the requestor stating that the record cannot within the prescribed period be produced or a copy provided, as applicable; and setting a reasonable date and time when the document will be produced or a copy provided, as applicable.”

(b)

(2)

Section 12.6 (h) provides as follows: “(h) Uniform Treatment of Requests. A records custodian must treat all requests for information uniformly without regard to the position or occupation of the requestor or the person on whose behalf a request is made, including whether the requestor or such person is a member of the media.”

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ARGUMENT AND AUTHORITIES 13. It is axiomatic that in determining whether to issue injunctive relief, this Court

must consider the following factors: (1) whether there is substantial likelihood Plaintiff will succeed on the merits; (2) whether there is a substantial threat that Courthouse News will suffer irreparable injury if an injunction is not issued; (3) the balance between such injury and damage an injunction might cause to Defendants; and (4) whether an injunction is in the public interest. See Canal Auth. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974)(en banc). Defendants assert that a preliminary injunction should not be issued, as Plaintiff cannot establish a substantial likelihood of success on the merits. 14. In Richmond Newspapers, Inc., 448 U.S. 555 (1980), the Supreme Court

recognized on behalf of the public and press a qualified First Amendment right of access to criminal trials. In Press-Enterprise Co. v. Superior Court of Cal. (Press I), 464 U.S. 501 (1984), the Court held that the closure of all but three days of a six week voir dire proceeding violated the First Amendment. Press-Enterprise Co. v. Superior Court of Cal., 478 U.S. 1 (1986)

followed. At issue in Press II was a preliminary hearing, a procedure under the California Penal Code designed to determine whether there is probable cause to bind a defendant over for trial. In Press II, the district court closed the proceedings and refused to release transcripts based on a “reasonable likelihood that release might prejudice the defendant’s right to a fair and impartial trial. Id. Holding that the First Amendment right of access to criminal proceedings extends to a preliminary hearing and that total closure of the prolonged hearing was insufficiently justified, the court in Press II restated the two “complementary considerations” for determining whether a First Amendment right of access attaches to the proceedings at issue. The Court in Press II held that the Court must determine (1) “whether the place and the process has historically been open

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to the press and general public,” and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press II. Id.1 15. It is crucial to note, however, that even as it recognized a presumption of

openness regarding criminal trial proceedings, the Supreme Court included the following caveat: We have no occasion here to define the circumstances in which all or parts of a criminal trial may be closed to the public…but our holding today does not mean that the First Amendment rights of the public and representatives of the press are absolute. Just as a government may impose reasonable time, place and manner restrictions…so may a trial judge, in the interest of the fair administration of justice, impose reasonable limitations on access to trial.” See Richmond, Id at 581 n. 18. In Press I, the Court cited this language with approval. 464 U.S. at 509 n.10. See also United States v. Edwards, 823 F. 2d 111 (5th Cir. 1987)(holding that the First Amendment rights of the public and representatives of the press are not absolute.) 16. Applying this precedent to the case at bar, the restrictions, if any, placed on

Plaintiff’s ability to obtain copies of petitions are reasonable restrictions as to time and manner, impose reasonable limitations on access, and are wholly constitutional. First, Plaintiff continues to have access to the public documents it seeks. What Plaintiff complains about is the time period in which it now has access. What has changed is that Defendants are implementing a new system by which a number of the petitions are available electronically. Because of the necessity

The Supreme Court’s decision in the Richmond Newspapers case addressed the closure of a criminal trial. The opinion by Chief Justice Burger expressly left open the question of the public’s right to attend civil trials, but noted that “historically both civil trials and criminal trials have been presumptively open.” 100 S. Ct. at 2829, n.17. As the Plaintiff notes, the Fifth Circuit has held that “First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings. See Doe v. Stegall, 653 F. 2d 180, 185 (5th Cir. 1981), citing Richmond Newspapers, Id. At issue in Doe was the Court’s denial of the Plaintiffs’ Motion for Protective Order by which they sought to proceed anonymously. However, a crucial part of the Fifth Circuit’s decision in Doe is its observation that the equation linking the public’s right to attend trials and the public’s right to know the identity of parties is not “…perfectly symmetrical”. Doe, Id. at 185. Holding that the public right to scrutinize governmental functioning is not so completely impaired by a grant of anonymity to a party as it is by closure of the trial itself, the Court noted that “Party anonymity does not obstruct the public’s view of the issues joined or the court’s performance in resolving them. The assurance of fairness preserved by public presence at a trial is not lost when one party’s cause is pursued under a fictitious name.” Doe, Id. at 185.

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for Mr. Jackson’s office to ensure that each document that is filed is verified, there is now a delay in the time period by which these documents are made available to Plaintiff. 17. It is undisputed that the petitions filed with the Harris County District Clerk

remain available to Plaintiff under the new system described in District Clerk Jackson’s Affidavit. It is further undisputed that public access to case-initiating documents plays a

“significant positive role”, the second prong of the Supreme Court analysis in Press II, 478 U.S. at 8. Plaintiff contends, however, that the slight delay in availability occasioned by the new manner in which the Harris County District Clerk functions is the “functional equivalent of access denial [s]” and is thus unconstitutional. See Plaintiff’s Memorandum in Support of Motion for Preliminary Injunction, page 16. 18. The Fifth Circuit addressed a similar argument in United States v. Edwards, 823

F. 2d 111, 118 (5th Cir. 1987). In Edwards, reports of jury misconduct were presented to the trial judge and the jurors involved were questioned in chambers. The in chambers questioning was challenged by the Times Picayune Publishing Company, which sought objected to the nondisclosure of the testimony and to the lack of a preclosure hearing. Several hours later, without a hearing, the court ordered the record sealed and prohibited defense counsel and the prosecutor from making public comments about the issue. See Edwards, Id. at 113. After the verdict was returned, the Times-Picayune filed a motion seeking full and immediate access to the sealed record. Two weeks later, after receiving opposition and reply motions, the district judge issued a final order releasing redacted transcripts and lifting the prohibition on public comment, except as to those matters remaining under seal. Edwards, Id. at 114. The Times-Picayne raised a First Amendment challenge to 1) the closure of the proceedings; 2) the midtrial orders sealing the record and imposing a ban on public comment about the proceedings during the trial; 30 the lack

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of a hearing for the press before closure and before the court issued its midtrial orders; and 4) the post-trail order permanently sealing portions of the records. See Edwards, Id. at 114.

Defendants asserted that neither the court’s orders nor its actions violated the First Amendment. 19. The Fifth Circuit applied the Press I Court’s reasonable alternative to

accommodate all competing interests. In Press I, the Court held that “When limited closure is ordered the constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time.” 464 U.S. at 511 n. 10. Applying this analysis to the case before it, the Edwards court held that the First Amendment guarantees a limited right of access to the record of closed

proceedings concerning potential jury misconduct and raises a presumption that the transcript of such proceedings will be released within a reasonable time. See Edwards at 118. 20. The Times-Picayne, however, argued that the release must be contemporaneous,

relying on Associated Press v. United States District Court, 705 F. 2d 1143 (9th Cir. 1983). Addressing that issue in Edwards, the Fifth Circuit noted: “We recognize the worth of timely news reported on the front page and, by contrast, the diminished value of noteworthy, but untimely, news reported on an inside page. Implicit in that assessment, however, is the fair assumption that significant news will receive the amount of publicity it warrants… The issue, simply stated, reduces to “Better sooner than later”? Given the paramount interest in maintaining an impartial jury and its inherent vulnerability we find no error in the district court’s refusal to release transcripts of closed proceedings before the jury reached its verdict…”. See Edwards, Id. at 119. The Fifth Circuit concluded that the trial court should avoid unnecessary delay in releasing the record of closed proceedings after trial. 21. This analysis applies equally to the case at bar. Plaintiff contends that its First

Amendment right is violated by not having access to all petitions on the day on which they are

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filed, arguing, in effect, “Better sooner than later.” The Jackson Affidavit establishes, however, that the petitions are available to Plaintiff (and others) as soon as they have been processed into the system. Petitions which are filed online are generally available within twenty-four business hours, and most paper filings are available within seventy-two business hours. reasonable restriction on access. This is a

Further, the Texas Rules on Judicial Administration

contemplate that the documents will be available to any requester within fourteen (14) days of the request, thus providing evidence of the time period deemed to be reasonable with regard to public access to court documents. 22. The new method by which District Clerk Jackson’s office is processing case Rather, it is a

initiating documents does not violate Plaintiff’s First Amendment rights.

reasonable time, place or manner restriction which survives First Amendment scrutiny. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). For that reason, Plaintiff cannot establish a substantial likelihood of success on the merits and is thus not entitled to injunctive relief. 23. Plaintiff relies on the order of the United States District Court for the Northern

District of Texas in United States v. Elashi, 2004 WL 2979829 (N.D. Tex.), a copy of which is attached hereto. In Elashi, a reporter requested that he be provided with copies of admitted evidence at the end of each trial day. By letter dated June 10, 2004, the District Court informed Mr. McGonigle, the reporter for the Dallas Morning News, that it would not be able to accommodate his request. The basis for the court’s refusal was that defense counsel had

strenuously objected to the request, and that accommodating the request would place an undue burden on the court’s resources. See Elashi, Id.

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24.

The Court granted Mr. McGonigle’s request for access to the evidence introduced

at trial on a daily basis, and for copying exhibits as necessary. The Court permitted Mr. McGonigle thirty minutes at the end of each trial day for inspection and copying said exhibits, determining that this arrangement strikes a proper balance between the First Amendment right of the press, the right of the accused to receive a fair trial, and the court’s duty to ensure the integrity of court records and documents. See Elashi. 25. There are several differences between the case at bar and Elashi, and the analogy

is inapposite. Plaintiff articulates in its pleadings the arguments with regard to the newsworthy nature of case-initiating documents. See Memorandum in Support of Motion for Preliminary Injunction, page 17. The newsworthy nature of a case actually in trial, however, is different from that of a case which has just been initiated. In the trial situation, there may be heightened public interest and attention which is not always the case in the situation in which a case has just been filed. 26. Elashi involved access to documents which were being introduced into evidence

in connection with an active, on-going trial. This case does not. This case addresses case initiating documents, or petitions. Further, as the order in Elashi makes clear, at the time of the order, the fact that Mr. McGonigle had offered to bring a portable copier to court for him to personally make copies of the exhibits at the end of each trial day had never been made known to the Court. Finally, defense counsel, who had previously strenuously objected to the request had “…essentially retreated from those objections at the time of the hearing.” See Elashi, Id. Elashi, thus, is not instructive to the Court for these reasons, and Plaintiff’s reliance on it is misplaced.

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CONCLUSION 27. As the Fifth Circuit has held, while the news media are entitled to receive,

investigate and report on all public proceedings involved in a trial, the right to gather news, much like other First Amendment rights, is not absolute. See In Re Express News Corp., 695 F. 2d 807, 809 (5th Cir. 1982)(citing Zemel v. Rusk, 381 U.S. 1 (1965). The slight delay in access which is occasioned by the development of an electronic filing system is a reasonable time, place or manner restriction and thus does not violate the First Amendment. Injunctive relief therefore should not issue. WHEREFORE, PREMISES CONSIDERED, Defendants Loren Jackson in his Official Capacity as Harris County District Clerk and Wes McCoy in his Official Capacity as Chief Deputy—Services for the Harris County District Clerk’s Office respectfully request that this Court deny Plaintiff’s Motion for Preliminary Injunction and for such other and further relief to which they shall show themselves entitled.

Respectfully submitted,

OF COUNSEL: VINCE RYAN HARRIS COUNTY ATTORNEY

/S/ Mary E. Baker MARY E. BAKER Assistant County Attorney Federal I.D. No. 7647 State Bar No. 08534000 1019 Congress, 15th Floo0072 Houston, Texas 77002 Telephone: (713) 755-7166 Facsimile: (713) 755-8924 mary.baker@cao.hctx.net ATTORNEY FOR DEFENDANTS LOREN JACKSON AND WES MCCOY

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CERTIFICATE OF SERVICE I hereby certify that on June 23, 2009, a true and correct copy of RESPONSE OF DEFENDANTS LOREN JACKSON IN HIS OFFICIAL CAPACITY AS HARRIS COUNTY DISTRICT CLERK AND WES MCCOY IN HIS OFFICIAL CAPACITY AS CHIEF DEPUTY-SERVICES FOR THE HARRIS COUNTY DISTRICT CLERK’S OFFICE TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION was served by electronic notice to: John Kiley Edwards JACKSON WALKER, L.L.P. 1401 McKinney, Suite 1900 Houston, Texas 77010 Rachel Matteo-Boehm Katherine Keating Laurie J. Rust HOLME, ROBERTS & OWEN, L.L.P. 560 Mission Street, Suite 25th Floor San Francisco, California 94105 /S/ Mary E. Baker MARY E. BAKER Assistant County Attorney

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