On the public record, this afternoon, she has set the next injunction hearing for Monday afternoon, November 27, 2023. But she has entered another order, also this afternoon, from the same hearing -- which is labeled as "scheduling matters" -- but only counsel for the parties to the litigation may view it. [Even if it is only the associated Zoom access links, Monday is the preliminary injunction HEARING in a very newsworthy case -- and clearly as a matter of law -- the public must be allowed to petition for "listen in" only access. C'mon, man!]
But I must say, honestly -- given what we've already seen, I'm not terribly surprised. . . that she runs her chambers in this fashion. It seems "We, the People's" right to contemporaneous public access -- to we, the people's federal court records. . . isn't something she much fancies -- down there in dusty West Texas. But to be certain, it is bedrock 75 year federal Constitutional law: we are entitled to see the courts work, in real time -- absent a national security issue.
And do recall, she is demanding up to a billion pages of governmental deliberative documents, all be given to her, so it would be ironic indeed, if she were to claim to be unaware of the guaranteed public access issue (and decisions construing it). My hunch is that she's simply choosing to ignore the law (again!) -- to avoid an embarrassing MSM accounting of her actions here. [Yeh. I think I'll pitch this lack of access / process story to the Houston and Austin papers. It is certainly. . . newsworthy.] In any event, here is a bit of what I'll send to her chambers as a non-party, shortly, to encourage her to unseal that last order. . . before the real press writes about her dual docket / purported "local practice rules":
. . .My [entirely pro bono] clients recognize that the court has myriad other demands on its time and limited staffing resources, but absent a documented showing of unreasonable administrative burdens (and a two page order, published at the same moment, makes it plain that this is no administrative burden!), 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 review of the ECF record in this matter, it would seem 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).
However, rather than waste more of the court’s resources and time, I have chosen (as a non-party member of the public, and at this point, non-intervenor) to simply write to you directly, and copy counsel for both sides on this. I am hopeful the lawyers will prepare and file a redacted version, as required by long-standing, uncontroverted black letter First Amendment law (which applies, even -- perhaps surprisingly to you -- in the Western District of Texas).
To be clear, this need not (and perhaps should not) require my filing as an intervenor, in your courtroom -- to be placed on any public docket, as it sensibly ought to be resolved without need for appearances in the record, on my clients’ behalf. . . .
Please prepare and publish a redacted version of Document No. 44, before Monday, November 27, 2023. Kind regards. . . . /s/
Well. . . we shall see if her staff sees this -- and handles it quietly and promptly. We shall see.
नमस्ते
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