Times Herald Printing Co. v. Jones

717 S.W.2d 933, 1986 Tex. App. LEXIS 8939

• Court: Court of Appeals of Texas
• Decided: August 5, 1986
• Docket: 05-85-00301-CV
• Status: Published

Opinions

ON MOTION FOR REHEARING

STEPHENS, Justice.

On motion for rehearing, the court, sitting en banc, withdraws its former opinion and substitutes this one.

The Times Herald Printing Company seeks reversal of a trial court’s judgment sealing the records of a civil suit in which the parties to the suit settled the suit without trial, conditioning their settlement upon the sealing of the records. The Times Herald contends, in numerous points of error, that the sealing order abridges its rights guaranteed under Article 1, Section 8 of The Texas Constitution, violates the First Amendment to the United States Constitution, and denies it the common law right of access to judicial records for the purpose of inspecting and copying. In conjunction with these contentions the Times Herald argues that there was no -evidence, or insufficient evidence to justify the sealing order.

Appellees counter these points, and by way of cross-points contend that this appeal should be dismissed because the trial court had no jurisdiction to grant the relief sought by the Times Herald; first, because the Times Herald was not a party to the original suit; and second, because the trial court had lost its plenary power over the ease before the Times Herald entered the case, seeking an unsealing of the records.

We conclude that we have jurisdiction of this appeal; we disagree with the arguments advanced by the Times Herald. Accordingly, we affirm the judgment of the trial court.

STATEMENT OP PACTS

In the original action an individual sued a physician in his individual capacity and his professional corporation, seeking damages. The physician answered, filed special exceptions, sought a protective order limiting disclosure of the contents of depositions taken, and filed a motion for partial summary judgment. Other matters were filed and heard such as motions to compel answers, pleas in abatement, and motions for continuance. Finally, on November 29, 1983, before trial, an agreed final judgment signed by the parties and their attorneys, providing that “the records of this case be sealed from public access and disclosure” except as to the parties to the suit, was submitted to and entered by the court.

On June 7, 1984, some five months and several days after the entry of the judgment, the Times Herald filed its motion to unseal court records and to remove restrictions on the press. The motion was filed in the original cause seeking access to “pleadings, discovery and other court records” in the case. The contention advanced to the trial judge was essentially that the record contained information of importance to the public. On appeal, the Times Herald has abandoned its quest for access to the depositions and discovery in the case and seeks only access to the “Orders, opinions and non-discovery pleadings” filed with the District Clerk and to remove any restraint upon publication of all or a portion of these public records. Additionally, on appeal, the thrust of the Times Herald’s argument in favor of unsealing the records is so that the public might be more informed, and thus more capable of evaluating the performance of a certain judge, for purposes of re-election.

JURISDICTION

First we address the question of the trial court’s and this court’s jurisdiction in the posture in which the appeal reaches us. Appellees’ argument as to jurisdiction is two-fold: first, the question of the Times Herald’s standing is placed in issue, because it was not a party of record to the original action; and second, the trial court’s plenary power to change or alter the judgment is questioned. Appellees rely on Hubbard v. Lagow, 559 S.W.2d 133 (Tex.Civ.App.—Austin 1977), rev’d on other grounds 567 S.W.2d 489 (1978), on remand, 576 S.W.2d 163 (1979); and Gunn v. Cavanaugh, 391 S.W.2d 723, 724 (Tex.1965). We agree with appellees that generally non-parties of record have no standing to appeal a trial court’s judgment. We also agree that the trial judge had lost plenary power to alter or to change the judgment. However, the part of that judgment sealing the records did affect the rights of Times Herald; therefore, it may attack that portion by direct or collateral proceedings. See Dean v. First National Bank of Athens, 494 S.W.2d 222, 226 (Tex.Civ.App.—Tyler 1973, writ ref’d n.r.e.) (citing Kirby Lumber Cory. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387 (1946)); Standard Oil Co. v. State, 132 S.W.2d 612, 614 (Tex.Civ.App.—Austin 1939, writ dism’d judgmt cor.). See also Meyer v. Wichita County Water Improvement Dist., 265 S.W.2d 660, 665 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n.r.e.); Bussan v. Donald, 244 S.W.2d 271, 273 (Tex.Civ.App. — Port Worth 1951, writ ref’d n.r.e.). We treat Times Herald’s motion to unseal as a new cause of action brought by the Times Herald for the sole purpose of gaining access to the records previously sealed, and not to change or affect the settlement of the parties. All parties to the original suit as well as the Times Herald were before the court, just as though service of citation had been perfected in a new and independent cause.

Thus, we conclude that the trial court had jurisdiction to entertain the Times Herald’s motion to unseal, and that the Times Herald had duly perfected its appeal from the trial court’s action on its motion to this court. Appellees’ cross-points of error are overruled.

COMMON-LAW RIGHT OF ACCESS

The Times Herald argues that it has a common-law right of access to court records. Although no Texas authority is cited for this proposition, and we have found none, we agree generally with this contention.

The United States Supreme Court, in Nixon v. Warner Communications, Inc. 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), recognizes a general common-law right to copy and inspect public records and documents, including judicial records and documents, yet holds that each court has supervisory power over its own records and files, including the right to deny access to the court’s files where such files might become a vehicle for improper purposes. The Court goes on to state that the common-law right of inspection has bowed before the power of a court to insure that its records are not used to gratify spite, promote public scandal, or for the publication of “the painful and sometimes disgusting details of a divorce case.” Warner, 435 U.S. at 598, 98 S.Ct. at 1312 (quoting In re Caswell, 18 R.I. 835, 836, 29 A. 259 (1893)). Perhaps the most significant language to be found in Warner, insofar as this case is concerned, is in the following quote:

It is difficult to distill from the relatively few judicial decisions a comprehensive definition of what is referred to as the common-law right of access or to identify all the factors to be weighed in determining whether access is appropriate. The few cases that have recognized such a right do agree that the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.

Id. 435 U.S. at 599, 98 S.Ct. at 1312 (footnotes omitted). We conclude that, although as a general proposition, a common-law right of inspection and copying judicial records exists, this right is not absolute, and must bow to the discretion of the trial judge in making a decision based upon the facts of a particular case. In this case the trial judge chose to seal the records in compliance with the parties request, and finding no abuse of discretion, we decline to disturb the trial court’s action.

TEXAS CONSTITUTION

Article 1, Section 8

The Times Herald argues Article 1, section 8 of the Texas Constitution is even broader than the First Amendment to the United States Constitution in its treatment of access to court records. Philosophical argument as to the necessity of openness of court proceedings are made, citing general authority extending back to the Virginia Bill of Rights in 1776. The arguments are persuasive as to general canons of law, but are not persuasive in the context of this case. Most of the cases cited address criminal trials; only one addresses a civil trial, and its context is of a criminal nature; i.e. the detention and release of criminals from prison — a subject matter of considerable importance to the public. However, no case, in this or any other jurisdiction, has been offered to address the question of the propriety of unsealing records of a suit in which, before trial on the merits but after certain pre-trial motions have been heard and ruled upon, the parties have reached a settlement conditioned upon the sealing of the records.

Most of the cases cited concern the right of the press to publish information in its possession, cases concerning “freedom of expression” rather than the press’s “right of access” to judicial records. Those cases dealing with the “right of access” concern criminal proceedings. Houston Chronicle Publishing Co. v. Shaver, 630 S.W.2d 927 (Tex.Crim.App.1982); Houston Chronicle Publishing Co. v. McMaster, 598 S.W.2d 864 (Tex.Crim.App.1980). We do not find the historical practice and the intertwining aspects of public policy consideration underlying the recognition of this “right of access” to criminal proceedings to be present in the case before us. Accordingly, we decline to construe Article 1, section 8 of the Texas Constitution as providing a greater right of access than does the First Amendment to the United States Constitution.

RIGHT OF ACCESS AS PROVIDED BY THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION

We recognize, as the Times Herald argues, that the United States Supreme Court has held that the First Amendment does assure a right of access to criminal trials. Press Enterprises Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 824, 78 L.Ed. 629 (1984) (voir dire proceedings), Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 610-11, 102 S.Ct. 2613, 2622, 73 L.Ed.2d 248 (1982) (minor’s testimony during rape trial); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575, 100 S.Ct. 2814, 2826, 65 L.Ed.2d 973 (1980) (criminal trial).

Thus, the crucial question before us is whether the freedom-of-the-press clause of the First Amendment requires us to apply to the trial court’s order refusing to open its sealed records for inspection the same heightened scrutiny required in the case of an order denying public access to a criminal trial. The standard for this heightened scrutiny was formulated by Chief Justice Burger in Press Enterprises, when he stated:

The presumption of openness may 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. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Press Enterprises, 104 S.Ct. at 824; see also Globe Newspaper 457 U.S. at 606-07, 102 S.Ct. at 2619-20; Richmond Newspapers, 448 U.S. at 580-81, 100 S.Ct. at 2829. In re the Reporter’s Committee for Freedom of the Press, 773 F.2d 1325 (D.C.Cir. 1985), stated that “the precise contours of that right are in the process of being drawn” and the principle underlying these decisions “has not yet been applied to access to civil trials (though the Court has perhaps intimated that it [applies] there), much less to access to records in civil trials —or, for that matter, even records in criminal trials.” In re Reporters Committee, 773 F.2d at 1331 (emphasis in original) (citations omitted). We further note with interest that Justice O’Connor in her concurring opinion in Globe Newspaper, 457 U.S. at 612, 102 S.Ct. at 2623, states, “Thus, I interpret neither Richmond Newspapers nor the Court’s decision today to carry any implications outside the context of criminal trials.” Globe Newspaper, 457 U.S. at 611, 102 S.Ct. at 2622. In that same case, Chief Justice Burger, in his dissenting opinion, joined by Justice Rehnquist wrote the following: “The Court seems to read our decision in Richmond Newspapers as spelling out a First Amendment right of access to all aspects of all criminal trials under all circumstances. That is plainly incorrect.” Globe Newspaper, 457 U.S. at 613, 102 S.Ct. at 2623 (citations omitted).

Perhaps the Supreme Court case most closely dealing with the First Amendment right of access to judicial records is the Court’s decision in Nixon v. Warner, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570. There, the Court rejected a claim by the press that access to the Watergate tapes, previously admitted into evidence in a criminal trial, was mandated by the freedom-of-the-press clause of the First Amendment. The Court also observed with respect to the claimed common-law right of access, that the trial court, as custodian of the tapes obtained by subpoena,

has a responsibility to exercise an informed discretion as to release of the tapes, with a sensitive appreciation of the circumstances that led to their production. This responsibility does not permit copying upon demand. Otherwise, there would exist a danger that the court could became a partner in the use of the subpoenaed material “to gratify private spite or promote public scandal,” In re Caswell, supra, [18 R.I. 835], at 836, 29 A. 259, with no corresponding assurance of public benefit.

Id. 435 U.S. at 603, 98 S.Ct. at 1314.

This holding has not been expressly, or impliedly overruled, nor questioned in subsequent Supreme Court decisions dealing with the First Amendment right of access. See e.g. Richmond Newspaper, 448 U.S. at 581, n. 18, 100 S.Ct. at 2830, n. 18. Moreover, in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 2205, 2207, 81 L.Ed.2d 17 (1984), the Court held that a protective order preserving the confidentiality of information obtained under the Washington civil discovery rules was not subject to heightened First Amendment scrutiny, disapproving contrary holdings in In re Halkin, 598 F.2d 176 (D.C.Cir.1979), and In re San Juan Star, 662 F.2d 108 (1st Cir.1981). In Seattle Times the Court said that the trial court’s discretion in such matters was necessary because the trial court “is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.” 104 S.Ct. at 2209.¹

The sealed records in this case do not contain information already disseminated to the public or even well known to the public as in Warner. Nor do they raise the question of disclosure of information obtained by discovery, as in Seattle Times, since the Times Herald has abandoned its request for the discovered information and now limits its request to nondiscovery pleadings and orders. Our question, therefore, is whether the heightened First Amendment scrutiny standard, as enunciated by Justice Burger in Press-Enterprises, applies to the materials here sought.

For the very limited decision to be rendered in this case, we assume, without deciding, that the presumption of a public right of access to judicial records applies to civil cases as well as criminal cases. See Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1068-069 (3rd Cir.1984); In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir.1984); Brown & Williamson Tobacco Corp. v. Federal Trade Commission, 710 F.2d 1165, 1178-79 (6th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d 127 (1984).

It has long been recognized that every court has supervisory powers over its own records and files and may deny access when court files may be used for improper purposes. Warner, 435 U.S. at 598, 98 S.Ct. at 1312; In re Reporters Committee, 773 F.2d at 1333. Among the competing interests that may be recognized as supporting denial of access are private rights of participants or third parties, trade secrets, and national security. Brown & Williamson, 710 F.2d at 1180; see Seattle Times, 104 S.Ct. at 2208 (privacy interest of prospective jurors balanced against public interest in open trials); United States v. Hickey, 767 F.2d 705, 708 (10th Cir.1985) (sealed plea bargain).

We also recognize that an agreement of the parties to deny public access is not binding on the court. Brown & Williamson, 710 F.2d at 1180. Nevertheless, once a confidentiality order has been entered by the court and relied upon by the parties, it should be modified only in extraordinary circumstances, or to meet a compelling need. Federal Deposit Insurance Corp. v. Ernst & Ernst, 677 F.2d 230, 232 (2nd Cir.1982) (challenge based on Freedom of Information Act); see Martindell v. International Telephone & Telegraph, 594 F.2d 291, 296 (2nd Cir.1979) (reliance by witness on protective order sealing deposition).

An agreement may justify denial of public access, when, as in the present case, there is a binding contractual obligation between the parties to disclose certain information which to the court seems innocuous, yet may be newsworthy, and unbridled disclosure of the nature of the controversy would deprive a litigant of his right to enforce a legal obligation. Publicker Industries, 733 F.2d at 1073.

After balancing the interests at stake, we conclude that notwithstanding the arguments advanced by the Times Herald, absent a showing of some extraordinary circumstances or compelling need, neither of which appear here, the limited right of access to judicial records afforded by the First Amendment to the United States Constitution does not mandate the opening of the records in this case.

STATE’S INTEREST IN SETTLEMENT OF LITIGATION

There is yet another compelling reason for upholding the trial court’s sealing order; the State has a substantial interest in the settlement of litigation. The Times Herald’s counsel agreed with this premise during oral argument. The State’s interest in promoting settlements, when weighed against the right of access, may prevail. In our litigious society, for us to take the position that private litigants, who have settled their dispute before calling upon a court or jury to find true the facts alleged in the pleadings, and who have settled in reliance upon the court’s agreement to seal the record from public disclosure, have no right to expect the confidentiality to which they agreed and to which they were assured, would seriously impair the settlement process and would increase the trial overload which presently exists in our judicial system.

Although no cases in this jurisdiction have addressed this precise concern, the United State Supreme Court, in Seattle Times, 104 S.Ct. 2199, affirmed a decision of the Supreme Court of Washington approving an order of the trial court sealing certain information obtained under the State discovery rules. The United States Supreme Court commented that the Supreme Court of Washington had properly emphasized the importance of ensuring potential litigants unimpeded access to the courts, and quoted from that court’s opinion as follows:

[A]s the trial court rightly observed, rather than expose themselves to unwanted publicity, individuals may well forego the pursuit of their just claims. The judicial system will thus have made the utilization of its remedies so onerous that the people will be reluctant or unwilling to use it, resulting in frustration of a right as valuable as that of speech itself. [Rhinehart v. Seattle Times Co., 98 Wash.2d 226] 654 P.2d at [673] 689.

Id. at 2209 n. 22.

Furthermore, a commentator has pointed out that the public interest in encouraging settlement of litigation is a legitimate ground for an agreed order sealing confidential information without requiring detailed findings with respect to each item suppressed. Marcus, Myth and Reality in Protective Order Litigation, 69 CORNELL L.REV. 1, 27-28 (1983). This same commentator also observes that the reasons supporting access to evidentiary material on which judicial decisions are based have little weight when a motion for summary judgment has been denied and suggests that access on this ground be limited to material forming the basis for a decision on the merits. Id. at 49.

This approach is consistent with the rationale usually given for public access to judicial proceedings, whether based on common-law or the First Amendment, which is said to be the enhancement of the basic fairness of the trial and the appearance of fairness essential to public confidence in the system. Press-Enterprise, 104 S.Ct. at 823. This rationale was stated long ago by Justice Holmes in Cowley v. Pulsifer, 137 Mass. 392, 394 (1884), as a basis for the privilege of reporting judicial proceedings in the press, but Justice Holmes went on to hold that no such privilege existed with respect to pleadings that had never come before the court for a ruling:

[I]t is clear that [these grounds] have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. Cowley, 137 Mass, at 394.

In re Reporters Committee, 773 F.2d at 1335; cf. Express Publishing Co. v. Gonzalez, 326 S.W.2d 544, 547-48 (Tex.Civ.App.—San Antonio 1959, writ dismissed) (Barrow, J., concurring) (abandoned petition in fraud suit was “no part of the proceedings had in the trial court”).

In light of these authorities, we conclude that the circumstances of the present case do not require that the trial court’s order refusing to open its previously sealed records be subjected to the heightened First Amendment scrutiny required in the case of closure of public trials. We hold, rather, that the order is properly reviewed for abuse of discretion in accordance with the less rigorous standard recognized in Nixon v. Warner and Seattle Times.

Applying this less rigorous standard, we find no abuse of discretion. None of the materials is relevant to a decision on the merits of the underlying litigation except, perhaps, the order denying the motion for summary judgment, which was only a preliminary ruling that a fact issue existed. The parties to that litigation agreed to an order sealing the records, and they settled their dispute in reliance on that order. Months later, when the Times Herald brought this proceeding to unseal the records, the trial judge heard evidence and argument of counsel and made a careful statement of his findings concerning the various factors he considered, including the parties’ reliance on the closure order in making their settlement. The detailed findings in the trial court’s written order are consistent with Justice Burger’s mandate for “articulated findings” in Press-Enterprise.2 The trial judge included his findings in a written opinion discussing both the facts and the law, which he ordered sealed so as not to nullify the confidentiality required by his original closure order.

After reviewing the evidence at the hearing, the records ordered sealed, the trial court’s findings, and its opinion, we conclude that the trial court’s action in sealing the records was within his discretionary authority, that there was a substantial basis for the court’s refusal to unseal the records, and no abuse of discretion is shown.

The judgment of the trial court is affirmed, and appellant’s motion for rehearing is denied.

GUITTARD, C.J., and VANCE, DEVA-NY, HOLLINGSWORTH, McCLUNG and STEWART, JJ., join in this opinion. WHITHAM, J., files a concurring opinion. HOWELL, J., files a dissenting opinion. McCRAW, J., files a dissenting opinion in which AKIN, HOWELL and SCALES JJ., join.

ON MOTION FOR REHEARING

1 . The Court also observed that pretrial depositions and interrogatories are not public components of a civil trial and noted that both state and federal discovery rules authorize the trial court to order that discovery materials not be filed, or be filed under seal, and "[t]hus to the extent that courthouse records could serve as a source of public information, access to that source customarily is subject to the control of the trial court.” 467 U.S. 20, 104 S.Ct. at 2207, n. 19.

2 . We recognize that the Court in Press-Enterprises was addressing the question of closure of criminal proceedings, and was not addressing the propriety of sealing pre-trial pleadings in a civil suit, yet we believe that the Court’s statement that "[t]he interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered”, is a proper guideline to be followed by the trial court so that an appellate court may properly review the trial court’s action for abuse of discretion, even though other requirements of heightened First Amendment scrutiny may not apply. We do not decide, however, whether such findings are required in this kind of case.