United States District Court, W.D. Texas, San Antonio DivisionSep 30, 2005
CAUSE NO. SA-03-CA-0038-OG (W.D. Tex. Sep. 30, 2005)

CAUSE NO. SA-03-CA-0038-OG.

September 30, 2005


ORLANDO GARCIA, District Judge

Before the Court is defendants' motion to dismiss. (Docket no. 6.) Plaintiffs have also filed a motion to strike defendants' reply argument to the effect that plaintiffs do not have a claim under federal common law. (Docket no. 18.) The motion to strike will be addressed below. The Court has reviewed the briefs of the parties and the applicable law, and has heard oral argument. For the reasons stated below, the motion to dismiss will be granted.

In this suit, plaintiffs seek to require the Texas Supreme Court to disclose how its justices vote on whether to grant or deny petitions for review. The plaintiffs are five registered voters (including one who ran for the Supreme Court in the general election held before this suit was filed, and one who planned to run in the succeeding general election), four nonprofit organizations, and a weekly newspaper. Members of the Supreme Court of Texas are selected by the voters of Texas in partisan elections. The Supreme Court accepts review of only a small proportion of cases submitted to it. Between 1994 and 1998, the Court accepted review of approximately eleven percent of the cases submitted. The nine justices vote on whether to accept petitions for review, with four votes needed to grant a petition. These votes are recorded, but Court policy prohibits public access to the votes. Rule of Judicial Administration 12(d), Tex. Gov't Code, Title 2, Subtitle F — Appendix. While a justice may choose to reveal his or her vote, this happens rarely.

Plaintiffs contend that the voters of Texas are entitled to know how sitting justices have cast their votes on petitions for review so that they will know how these elected public officials have discharged their duties. Plaintiffs argue that while Texas election laws require that candidates for judicial office disclose their campaign contributions in excess of $50, the Court's policy of secrecy prevents the voters from observing how individual justices vote on petitions for review submitted by the justices' campaign contributors.

Plaintiffs assert that the policy of not disclosing these votes violates their right of access to this information as guaranteed by the First and Fourteenth Amendments to the United States Constitution and under federal common law. They bring this suit pursuant to 42 U.S.C. § 1983.

Defendants seek dismissal pursuant to FED. R. CIV. P. 12(b)(1) and 12(b)(6). When considering motions to dismiss pursuant to Rules 12(b)(1) and 12(b)(6), the Court will accept the well-pleaded allegations in the compliant as true, and will construe those allegations in the light most favorable to the plaintiff. Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994). The cause will not be dismissed unless it appears beyond doubt that no relief could be granted under any set of facts that could be proven consistent with the allegations. Id.

First Amendment

In 1980, the Supreme Court recognized a constitutional right of public access to criminal trials. The Court stated: "We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (footnote and internal quotation marks omitted). The Court reaffirmed Richmond Newspapers, in Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982), where it struck a state statute barring the press from trials involving the rape of a minor. In subsequent cases, the Court extended the concept of "criminal trial" to related criminal proceedings. See Press-Enterprises Co. v. Superior Court, 464 U.S. 501 (1984) ("Press-Enterprises I") (public right of access extends to voir dire in criminal trials because "[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system."); Press-Enterprises Co. v. Superior Court, 478 U.S. 1 (1986) ("Press-Enterprises II") (public right of access to transcripts and preliminary hearings in criminal trials).

Lower courts have expanded this First Amendment right of access to include nearly all criminal and quasi-civil proceedings. See e.g., United States v. Valenti, 987 F.2d 708 (11th Cir. 1993) (bench conferences); Charlotte Observer v. Bakker, 882 F.2d 850 (4th Cir. 1989) (change of venue hearings); Storer Communications v. Presser, 828 F.2d 330 (6th Cir. 1987) (pre-trial ex parte recusal hearings and closure proceedings);Washington Post Co. v. Soussoudis, 807 F.2d 383 (4th Cir. 1986) (plea hearings); United States v. Smith, 787 F.2d 111 (3d Cir. 1986) (chambers conferences); CBS, Inc. v. United States Dist. Court, 765 F.2d 823 (9th Cir. 1985) (post-conviction proceedings); Herald Co. v. Klepfer, 734 F.2d 93 (2nd Cir. 1984) (suppression hearings); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984) (civil case proceedings); United States v. Chagra, 701 F.2d 354 (5th Cir. 1983) (bail hearings);In re Iowa Freedom of Info. Council, 724 F.2d 658 (8th Cir. 1983) (contempt proceedings); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983) (parole release hearings); Stanley Works v. Newell Co., 21 Media L. Rep. (BNA) 1120 (D. Conn. 1993) (preliminary injunction proceedings).

While the right of access to criminal proceedings is not absolute, circumstances permitting denial of the right are limited. Globe Newspaper Co., 457 U.S. at 606. The Court inPress-Enterprises II recapitulated the two "complementary considerations" for determining whether a First Amendment right of access attaches to the proceedings at issue: the court must determine (1) "whether the place and the process has historically been open to the press and general public" [the "experience" prong], and (2) "whether public access plays a significant positive role in the functioning of the particular process in question" [the "logic" prong]. 478 U.S. at 8. Once the right to access attaches to a proceeding, the presumption of openness can be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.Id. at 13-14.

Plaintiffs argue that the First Amendment entitles them to access to the justices' votes on petitions for review. In support of their argument, they attempt to apply the Supreme Court's two-prong test.

The experience prong.

As to the first prong, which considers the tradition of public access, plaintiffs posit that votes on petitions for review constitute judicial decisions. They contend that votes to deny review have the effect of establishing law and that votes to refuse review have the force of Supreme Court precedent. Judicial decisions, as the plaintiffs note, have traditionally been regarded as public information and have been attributed to the judges making those decisions.

The Texas Supreme Court's decision not to hear a case, however, is not an adjudication on the merits, and cannot therefore constitute a "judicial decision." See Dallas Morning News v. Fifth Court of Appeals, 842 S.W.2d 655, 661 (Tex. 1992) (Phillips, C.J., separate opinion) ("this Court's decision to decline to hear a case is not an adjudication on the merits. The only meaning of the ruling is that the case will not be heard");Alamo Community College Dist. v. Obayashi Corp., 980 S.W.2d 745, 749 (Tex.App.-San Antonio 1998, review denied) ("First and foremost, the court's denial of an application for a writ of error does not necessarily reflect the court's approval or even its consideration of the merits of the case"). Stated another way, by denying a petition for review the supreme court makes no adjudication on the merits, but merely lets stand the adjudication of the lower courts, which have considered and ruled on the merits of the case. The only implication to be derived from a denial of review is that there were not four justices who felt that the errors in the lower court's opinion, if any, were "of such importance to the jurisprudence of the state as to require correction." In re Estate of Chavana, 993 S.W.2d 311, 316 (Tex.App.-San Antonio 1999, no pet.).

Nor is there a tradition that either appellate judicial deliberations or docket control measures are open to the public. These matters have historically taken place in chambers and not in the courtroom. See Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. Unit A 1981) ("there remains a clear and strong First Amendment interest in ensuring that what transpires in the courtroom is public property") (emphasis added, brackets and internal quotation marks omitted). Indeed, the limited right of access depends in large part on the places where the proceedings occur or the records are generated. When courts have extended the right of access to particular documents, it has been to documents connected to proceedings open to the public. See e.g., In re Grand Jury Proceedings, 983 F.2d 74 (7th Cir. 1992) (appellate briefs); In re Globe Newspaper Co. v. Hurley, 920 F.2d 88 (1st Cir. 1990) (jury lists); United States v. Suarez, 880 F.2d 626 (2nd Cir. 1989) (submitted Criminal Justice Administration forms); United States v. Haller, 837 F.2d 84 (2nd Cir. 1988) (sealed plea agreements); In re Search Warrant, 855 F.2d 569 (8th Cir. 1988) (affidavits of already-executed search warrants);Seattle Times Co. v. United States Dist. Court, 845 F.2d 1513 (9th Cir. 1988) (bail hearing documents); New York Times v. Biaggi, 828 F.2d 110 (2nd Cir. 1987) (all motion documents);Storer Communications, Inc. v. Presser, 828 F.2d 330 (6th Cir. 1987) (recusal motion documents); In re Washington Post Co., 807 F.2d 383 (4th Cir. 1986) (plea hearing documents); United States v. Smith, 776 F.2d 1104 (3rd Cir. 1985) (indictments);CBS v. United States Dist. Court, 765 F.2d 823 (9th Cir. 1985) (post-trial documents); United States v. Peters, 754 F.2d 753 (7th Cir. 1985) (trial exhibits); Associated Press v. United States Dist. Court (DeLorean), 705 F.2d 1143 (9th Cir. 1983) (all pretrial documents); Globe Newspaper Co. v. Fenton, 819 F.Supp. 89 (D. Mass. 1993) (closed criminal case files); United States v. George, 20 Media L. Rep. (BNA) 1511 (D.D.C. 1992) (juror questionnaires). Plaintiffs can cite no authority to support the proposition that deliberations and docket control measures conducted in chambers are traditionally open to the public.

The logic prong.

Plaintiffs argue, as to the second prong of the test, that a First Amendment right of access need not depend on historical practice if a strong functional interest in disclosure exists.See United States v. Chagra, 701 F.2d 354, 363 (5th Cir. 1983) (lack of historic tradition of open bail reduction hearings does not bar First Amendment right of access, which is "founded in part on the societal interests in public awareness of, and its understanding and confidence in, the judicial system."). Plaintiffs argue that under the partisan election system in Texas, supreme court justices often vote on petitions for review submitted by their own campaign contributors. Therefore, public disclosure of these votes is necessary to check the potential for unfair influence because voters will be able to make more informed choices and to hold the justices accountable for their decisions. In addition, according to plaintiffs, candidates for the court will be able to question any appearances of impropriety.

As defendants correctly point out, however, Chagra found a right of access to bail reduction hearings because "the relative importance of pretrial procedure to that of trial has grown immensely in the last two hundred years." Id. (emphasis added, internal quotation marks omitted). The court went on to hold that while the public and press may request access to bail hearings held in court or in other places traditionally open to the public, its opinion would not require access to the more informal bail determinations not made in open court. Id. at 364. Thus, Chagra is not persuasive authority for plaintiffs' argument.

Further, the fact that a denial of review is not an adjudication on the merits undercuts plaintiffs' argument that disclosure of the justices' votes is necessary for informed decision-making on the part of the voters. A vote to grant or deny review may be made for a variety of reasons having nothing to do with the individual justice's opinion regarding the merits of the case. This was made clear by Justice Frankfurter in speaking of denials of petitions for writ of certiorari to the United States Supreme Court.

A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result. . . . Narrowly technical reasons may lead to denials. Review may be sought too late; the judgment of the lower court may not be final; it may not be the judgment of a State court of last resort; the decision may be supportable as a matter of State law, not subject to review by this Court, even though the State court also passed on issues of federal law. A decision may satisfy all these technical requirements and yet may commend itself for review to fewer than four members of the Court. Pertinent considerations of judicial policy here come into play. A case may raise an important question but the record may be cloudy. It may be desirable to have different aspects of an issue further illumined by the lower courts. Wise adjudication has its own time for ripening. Since there are these conflicting and, to the uninformed, even confusing reasons for denying petitions for certiorari, it has been suggested from time to time that the Court indicate its reasons for denial. Practical considerations preclude. . . . Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.
State of Md. v. Baltimore Radio Show, 338 U.S. 912, 917-19 (1950) (opinion of Frankfurter, J. respecting denial of certiorari). The Texas Supreme Court, like the United States Supreme Court, properly exercises broad discretion in the administration of its docket, and therefore denial of review is often based on jurisdictional or prudential reasons rather than any opinion regarding the merits of the case. See Singleton v. Commissioner of Internal Revenue, 439 U.S. 940, 942-46 (1978) (Stevens, J., opinion respecting denial of certiorari). Indeed, in considering petitions for review, the supreme court does not review the record at all. See James A. Vaught R. Darin Darby, Internal Procedures in the Texas Supreme Court Revisited: The Impact of the Petition for Review and Other Changes, 31 TEX. TECH L. REV. 63, 69-71 (2000).

Because plaintiffs have failed to show a First Amendment right to access to the information they seek, the defendants are not required to show that the supreme court's policy is narrowly tailored to serve a compelling state interest.

Federal Common Law

Plaintiffs have moved to strike an argument they assert defendants raised for the first time in their reply brief. (Docket no. 18.) The argument they cite is defendants' assertion that the right of access has not been recognized by federal common law, but is rather a matter of general common law judicially created by the states. Defendants go on to argue that the Eleventh Amendment bars a state common law claim in federal court against state officials in their official capacities.

Defendants' argument concerning general common law is a jurisdictional one. It goes without saying that a jurisdictional argument may be raised and considered at any time. Further, the rule that a court will not consider an argument raised for the first time in a reply is designed to prevent prejudice to the opposing party, which is unable to respond. Knighten v. C.I.R., 702 F.2d 59, 60 n. 1 (5th Cir. 1983). Plaintiffs have not been prejudiced because they have used the bulk of their motion to respond to defendants' arguments. The Court will therefore consider the argument.

Both sides recognize that there exists a general right of access to governmental records under the common law. Defendants' attempt to raise a distinction between federal and state common law in this area, however, is unavailing. As the Supreme Court has recognized, " the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (footnote omitted, emphasis supplied). The Court made no distinction between federal and state common law, and the cases it cited in support of the proposition are from both state and federal courts. Id. at nn. 7, 8. Rather, the Supreme Court was articulating a federal common law rule embodied in federal and state court decisions. Therefore, this Court rejects the notion that the federal common law does not create a right of access to judicial records and that this Court lacks jurisdiction to apply the common law right of access to the facts of this case. See e.g., SEC v. Van Waeyenberghe, 990 F.2d 845, 848-49 (5th Cir. 1993) (common law right of access applies to settlement documents, final order, and transcript in SEC civil enforcement proceedings).

The common law right of access is not absolute, however.Nixon, 435 U.S. at 598; Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 430 (5th Cir. 1981). "[T]he district court's discretion to seal the record of judicial proceedings is to be exercised charily." Federal Sav. Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987). In exercising its discretion to seal judicial records, a court must balance the public's common law right of access against the interests favoring nondisclosure.See Nixon, 435 U.S. at 599 (court must consider "relevant facts and circumstances of the particular case"); Belo, 654 F.2d at 434.

Again, the primary interest asserted by the plaintiffs is the accountability of elected judges to the voters. As we have seen, however, the release of the justices' votes on petitions for review has only a minimal educational value for voters since those votes tell nothing of the individual justice's reasons for his or her vote. Against this interest must be weighed the very real benefit that confidentiality brings to the full and frank discussion of petitions for review among the justices in chambers. Justice Stevens articulated the benefits of confidentiality particularly well:

There are those who believe that these Conferences should be conducted entirely in public or, at the very least, that the votes on all Conference matters should be publicly recorded. The traditional view, which I happen to share, is that confidentiality makes a valuable contribution to the full and frank exchange of views during the decisional process; such confidentiality is especially valuable in the exercise of the kind of discretion that must be employed in processing the thousands of certiorari petitions that are reviewed each year. In my judgment, the importance of preserving the tradition of confidentiality outweighs the minimal educational value of these opinions.
Singleton, 439 U.S. at 946 (Stevens, J., opinion respecting denial of certiorari).

In this Court's view, the reasons articulated by plaintiffs in support of the right of access to the justices' votes on petitions for review do not outweigh the Texas Supreme Court's interest in nondisclosure.


In summary, the law does not afford the remedy plaintiffs seek. Without doubt, a vote to deny review is not an adjudication of a case. A justice may deny review of a case for a reason or for a variety of reasons. Each justice may have the same, similar, or different reasons for his or her vote. Each justice may issue his or her own opinion on the vote to review a case. Plaintiffs, or any concerned citizen, may speculate on the reasons for the court's grant or denial of review in a particular case and attempt to establish a causal relationship between the court's vote and some outside influence or interest group. The leap from the unknown reason or reasons for the vote to the belief in an inappropriate outside influence can be the subject of debate along the campaign trail to the Texas Supreme Court.

Moreover, history reveals that appellate proceedings, other than oral argument and documents filed in the official record, have never been subject to public access or view. Unlike trial court proceedings, actions, or records which are subject to access and public scrutiny, the deliberative process leading to a court decision or opinion is not. The opinion is made public, not the deliberative process. Secrecy and silence are repugnant and foreign concepts when associated with courtroom proceedings and records. The institution of the appellate process in order to have a full and frank exchange of differing viewpoints and considerations yielding to an opinion is not subject to the same analysis as applied to a trial courtroom.

Whether the members of the Texas Supreme Court should reveal their vote on a petition for review ultimately rests with each individual justice. Only the Supreme Court in its rule-making authority or the Texas Legislature may dictate otherwise.

Plaintiffs' motion to strike defendants' argument (docket no. 18) is DENIED. Defendants' motion to dismiss (docket no. 6) is GRANTED. Plaintiffs' cause is DISMISSED in its entirety, and the Clerk is instructed to close this case.