In Addition, It Seems That There's An Errant Belief Down In Del Rio... That The US Constitution... Just Amounts To Some... "Guidelines" -- Texas Is Free To Ignore...?

Last week, we mentioned in passing that we noticed Judge Moses has marked a scheduling companion order, for today's quite newsworthy hearing, as available exclusively to "parties, and lawyers with appearances on file".

I guess down in West Texas. . . some federal judges (including the Chief one) see the First Amendment as. . . just a. . . suggestion.

As we intoned last week, here's why this matters. [Though I suspect Judge Moses will hear from the Fifth Circuit -- where this will be decided, likely after today -- if she doesn't lift her TRO against the CBP.]

. . .Absent a documented showing of unreasonable administrative burdens (and a separate two page order -- No. 43 -- published at the same moment, makes it plain that this is no administrative burden case), the public’s right to contemporaneous access to judicial records cannot be overcome. See, e.g., Courthouse News Serv. v. Planet, No. CV 11-08083 SJO (FFMx), 2016 U.S. Dist. LEXIS 105197, at *62 (C.D. Cal. May 26, 2016) (“to the extent Planet might argue that such a practice would have been cost-prohibitive or unduly labor intensive, she has not quantified the cost. . . nor has she detailed the additional labor that would have been required). . . .

Absent such evidence, the Court cannot ‘articulate facts demonstrating an administrative burden sufficient to deny access.’”) (citation omitted), aff’ in part rev’d in part, 947 F.3d 581, 597 (9th Cir. 2020) (holding that “Ventura County’s no-access-before-process policy bears no real relationship to the County’s legitimate administrative concerns about. . . efficient court administration”); see also United States v. Valenti, 987 F.2d 708, 715 (11th Cir. 1993) (holding unconstitutional the district court’s maintenance of a dual-docketing system, where certain docket entries were visible only to the parties, and expressly rejecting the argument that unsealing would bind the court to a “formal procedure that is unduly burdensome”).

Specifically, a pre-trial scheduling order in this matter has entered by the court just now (ECF Doc. No. 44, 11/21/2023) but remains entirely invisible to the public. Of course, while redactions for trade or governmental secrets (and sensitive, personally identifying information) would be normal, there has been no such effort made, on the part of the court. It seems court staff sua sponte designated ECF Document No. 44 “attorneys’ eyes” only.

Based on my now comprehensive review of the ECF record in this matter, it is clear that no public court order -- whether in writing or issued orally from your bench -- has set forth the findings required by the First Amendment, prior to the removal of this judicial document from the record. See, e.g., Oregonian Publ’g Co. v. U.S. Dist. Ct., 920 F.2d 1462 (9th Cir. 1990). . . .

Onward, grinning. Will she do the right thing? We shall see. . . as early as later this evening.

नमस्ते