The presumption that court proceedings should be open to the public has been a feature of the American judiciary since around the time Englishmen in funny hats stepped off the Mayflower. It's not directly addressed in the U.S. Constitution but it is enshrined in the founding documents of many states, including Texas, whose open-courts provision can be found in Article 1, Section 13:
All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.
Nor were the founders of Texas plowing any new ground here. The provision is a self-conscious riff on the Magna Carta, which was signed 800 years ago this June.
Apparently, Collin County District Clerk Andrea Stroh Thompson disagrees, since she has put in place a system in which she and her employees get to decide which legal filings the public gets to see.
I encountered this system last Thursday. Collin County, unlike Dallas, doesn't make its legal filings available online, so I had to make the 1.5-hour round trip to the Collin County Courthouse in McKinney to look at various legal filings. The case filed against Texas Horse Park impresario Wayne Kirk by his former employer opened just fine on the bank of public-access computers in the district clerk's office. Not so for another case I wanted to look at, a lawsuit recently filed by a homeowner against his neighbor. There was nothing to suggest that a judge had ordered it sealed, but it was nevertheless locked down, impervious to furious mouse-clicks.
The district clerk employee I inquired with told me this was by design. The suit contained information the filer had flagged as confidential and thus it couldn't be made available to anyone not involved with the lawsuit.
This struck me as bullshit, but arguing with a district-clerk worker bee seemed destined to be fruitless, I couldn't get a hold of the administrator of the court where the suit was filed and the random lawyer I button-holed in the hallway turned out to be an unhelpful asshole, so I headed back to Dallas.
The accuracy of my bullshit detector was subsequently confirmed by three events. First, I Googled "texas rules of civil procedure" on my phone and found Rule 76a, which repeatedly makes clear that lawsuits are open:
Court records may be sealed only upon a party's written motion, which shall be open to public inspection...
A hearing, open to the public, on a motion to seal court records shall be held in open court as soon as practicable...
A motion relating to sealing or unsealing court records shall be decided by written order, open to the public
Secondly, I ran the facts by the attorney for Voice Media Group, the Observer's parent company, who confirmed that this was bullshit. Finally, I called the Texas Supreme Court, which promulgates the rules governing the operation of the Texas state court system. Osler McCarthy, staff attorney for public information, confirmed, without saying the word "bullshit," that district clerk's offices aren't allowed to unilaterally shield documents from public view without a motion, hearing and a judge's order, all of which have to be public.
"They have to follow the rules," McCarthy said. "What I would ask of the Collin County District Clerk [why isn't this] covered by Rule 76a?"
I tried, but when I asked Thompson on Friday morning about the Supreme Court rules, she said she was "not going to get into the legality of it," which is funny because her 2012 campaign for office was centered on reminding people that she is an attorney who knows the law and not just some district clerk functionary. Here's a taste from an Allen Area Patriots campaign forum:
You need somebody who can speak that language at that courthouse, you need somebody that could come in instantly on day one and know their mandamus from their habeas ... There's a significant learning curve there [as a district clerk] if you don't understand the law. It also opens our county up to tremendous liability. We've already had to make some significant shifts and changes in some of the processes that had corners cut under the previous administration and opened our county up to liability and in explanation when I would ask why on earth aren't you doing this critical, legally required step, the answer would be because it took less time to do it. That's not acceptable. We can't open up our county to that kind of liability by having people who don't understand the legal requirements of this job.
As Thompson explained it, Collin County's electronic case management system allows anyone filling a lawsuit to check a box saying that it contains confidential information. The system then automatically shields the entire document from public view. Thompson says these documents aren't "sealed," which can only be done by a judge; they are merely "secured" to protect privacy.
Pure though Thompson's motives may be, they do not change the open-courts provision of the Texas Constitution, nor do they change the rules put forth by the Texas Supreme Court. If a potential plaintiff is concerned about privacy, he can follow established procedures for redacting sensitive information from electronic documents, none of which involve "securing" them completely from public view; alternately, he could simply not file a lawsuit.
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Thompson eventually unsecured the lawsuit I was curious about. She told me she looked through it and saw nothing that appeared to be confidential. Her deputies, she says, are empowered to do the same if a member of the public seeks access to a secured case. (The deputies I encountered were unaware of this; Thompson said she would talk to their supervisor to make sure everyone is on the same page.)
The hubris here is impressive. The Supreme Court has crafted incredibly detailed rules governing how courts are supposed to operate, rules that harken back to a provision of the Texas Constitution that is based on principles contained in the Magna Carta. These rules say that only a judge can remove court documents from public view. But Thompson, a relatively obscure elected official whose handling of court documents is supposed to be purely ministerial, has unilaterally shifted the authority to herself and her employees.
She proved less willing to bend her office's rules on emailing or faxing court documents. Though she admitted that her office should have let me look at the lawsuit on my first visit, she told me I would either have to drive back up to McKinney or file a written request and wait for up to 10 business days to process if I wanted to see it. Transmitting it electronically would be impossible.
Send your story tips to the author, Eric Nicholson.