Dallas Morning News v. Fifth Court of Appeals

655 attorney’s in writ of man- attorney’s this issue fees issue awarding fees because these majority the Court. Each of The also refuses was before damus context. reasonably Houston, and most points meritorious explain people the residents of people, particularly minded why the doctrine of law bench and bar City treated of Houston who have been issue, and govern of the case does not majority have to unfairly by this and who recovery attor- why importantly, more majority’s extraordi- foot bill for City ney’s fees from the not barred decision, unprecedented should be nary and immunity. governmental the doctrine outraged. majority cre- concerned and The failing uncertainty by to follow the ates PHILLIPS, C.J., and HECHT regarding standards for issuance of law JJ., CORNYN, opinion. join this the law of the case doc- mandamus and Furthermore, injury, trine. to add insult to why majority explain refuses to attorney’s it

City pay fees when has

was, govern- in a question, acting without capacity.3

mental points City with

All tfie raised exception attorney’s fees issue my pri- adequately have been addressed The DALLAS MORNING NEWS However, opinion. irregular Citizen, Relators, Public illegal manner in which the v. attorney’s requires fees treated the issue further elaboration. APPEALS, The FIFTH COURT OF Respondent. City the trial award of raised court’s attorney’s point as a of error in the fees D-2991. No. appeals The court of Supreme Court of Texas. City acting govern- that the noted City’s capacity mental and held that 21, 1992. Oct. governmental liability immunity from Dissenting Opinion Separate Opinion and attorney’s fees had not been waived. 762 11, Nov. sought S.W.2d 188.4 Relators review application writ /, error Lee we did not on that mention,

point did not Lee award, Thus, attorney’s

much fees. less appeals’ holding

arguably, the court of

attorney’s fees is law the case. See Turcotte, v.

Trevino Robertson,

(Tex.1978); v. 99 Tex. Cobb (1905). Although the

87 S.W. is left to the

application of this doctrine Court, majority of this refus-

discretion it reached explain procedurally how

es Dallas, (Tex.App. gov department S.W.2d operation police 3. The — Dallas City denied). Declaratory Judgment See Burnett v. ernmental function. writ Houston, (Tex.Civ.App.— sovereign explicit S.W.2d waiver Act contains ref'd). Dist.] Houston [14th immunity, in the Tort such as those found Act, Tex.Civ.Prac. 101.- §§ Claims 001-.109, & Rem.Code Ann. attorney's argument fees was 4. Relators’ Act, Whistleblower’s Tex.Rev. sovereign statutory immuni waiver based on Thus, 6252-16a. Civ.Stat.Ann. Art. ty. Legislature State’s to waive the For sovereign immunity correctly held that immunity, sovereign must do so in clear and waived. had not been State, language. unambiguous Duhart (Tex.1980); City Waugh Mosher, Paris, any party requested is silent as to whether Coyt Michael D. Randal Dallas, Budner, Johnston, The trial court ruled Johnston & Ste- continuance.2 Watler, Dallas, Gardner, Su- phen Paul C. be no limitation there would Hull, Bowen, W. Jenkens & san M. James into evidence. any documents introduced Gilchrist, P.C., Dallas, for relators. the of Upjohn sought an order from court protect that court’s to continue to appeals Botts, Josephson, Baker & Hous- Richard appeal. The jurisdiction the rule 76a over ton, Austin, Switzer, Lynn Earl S. Baker & the motion appeals granted of court L.L.P., Dallas, Scheve, Botts, Stephen E. limiting of the an disclosure issued order Shook, Bacon, McCully, Hardy Robert J. & trying the involved documents to those Mo., City, respondent. Kansas court, oral case, (the jury), the and set appeal the for November argument on 76a News, Inc. Morning 1992. The Dallas man- seek a writ of and Public Citizen now to appeals to damus force ORDER OPINION1 ACCOMPANYING the limiting order access of withdraw its OVERRULING MOTION FOR trial exhibits. FILE LEAVE TO PETITION FOR OF MANDAMUS AND MO- WRIT The TION FOR TEMPORARY RELIEF present proceedings to at all be GONZALEZ, Justice. case, report underlying of and to original proceeding derives from a indi they every There is all that observe. R. lawsuit William Freeman and others have availed them cation that relators against Company, alleging that Upjohn right. of do not com selves this Relators Halcion, drug, to Upjohn’s caused Freeman rights. plain any infringement of these acquaintance. shoot and kill close Rather, they have an relators assert that trial, sought protec- Months before physical access right to immediate absolute tion of certain docu- from dissemination all inspect exhibits to during provided plaintiffs dis- ments underlying into evidence in the introduced covery in a “Motion for Rule 166b Protec- They challenge the order trial of the case. or, Alternatively, Rule 76a tive Order Seal- appeals temporarily of the court Pending ap- in the court of Order.” access to these exhibits. denies them of the trial peals appeal is an court’s refus- case, Thus, despite in this focus Upjohn Company’s al to motion elsewhere, is attempt to cast it dissent’s for limitation of disclosure certain docu- its appeals abused whether the court 76a the Texas ments under rule Rules to temporarily staying discretion appeals The court of is- Civil Procedure. it the merits trial exhibits while considers temporary limiting sued a order disclosure dispute rule cur appeal 76a persons to those involved of the documents appeals.3 In rently pending in the court of trial, further preparing the case for until words, this case is wheth other issue appellate court. order from the to appeals er the is authorized court jurisdiction protect an to disposi- trial before the order

The case reached pursuant rule appeal to 76a appeal, the rule 76a record over Any request expedited practice opinions party to It usual write the merits. is not our explaining why we overrule motions for leave See Tex. treatment from the court of R.App.P. petition 42(b). writ of mandamus. But for every file is made Even when effort case, opinion opinion dissenting in this dispatch, appeal with the rule 76a to resolve compelled necessary. not be I am would ap- certainly instances when the there will be dissenting does not write because the peal the trial on be resolved before cannot story tell and misstates law the whole merits. respects. several noted, argument previously oral 3.As Undoubtedly, preferable would to resolve away. only weeks appeals three conducting a trial on 76a before rule gives Texas Rules of Civil Procedure. The court dissent no consideration power. For appeals power, necessity, has such the above and indeed the reasons, join appeals protect jurisdic Court’s decision to courts their overrule relators’ motion leave file appeal routinely tion. Courts assert petition See, for writ of mandamus. safeguard jurisdiction. their Axelrad, e.g., Tanner In order to evaluate whether the (Tex.App. [1st Dist.] — Houston discretion, appeals court of abused its dism’d) (issuing protect juris writ to need would to consider what was before diction); Becker, Becker v. court of it issued when (Tex.App. [1st Dist.] — Houston now order before Court. record writ) (“court empowered grant injunc is to appeal from is that not before us the purpose protecting tion relief for the of its parties description differ in their of the jurisdiction appeal over pending and to appeal. issues in that cannot entailed We preserve litiga subject the matter of the say the of appeals precluded that effective”); its so that decree will be taking from notice of the record in its own Norris, Employment Texas v. Comm’n pending appeal when it issued the order (Tex.App. 634 S.W.2d — Beaumont question. bring It is relators’ burden to 1982, writ) (“This no Court is authorized to adequate right an to forward record show may necessary as to such writs be Packer, to v. relief. Walker protect jurisdiction of this to Court and (Tex.1992). Having bring failed to moot”); prevent becoming the case from necessary all is forward that to establish Resources, Mote Inc. v. Railroad Comm’n relief, their claim relators failed to meet for (Tex.Civ. Texas, 618 their burden for issuance of a writ 1981, writ) (“A App. Court mandamus. — Austin Appeals may Civil issue such writs as are provides The Texas Constitution protect jurisdiction by pre to its necessary appeals appel have that courts serving subject matter of the lawsuit original jurisdiction prescribed as late and appeal”). pending hearing V, 6. The law. Tex.Const. art. Gov § power appeals protect to courts provides ernment Code that “court of jurisdiction orderly their is essential for appeals may ... issue a writ of mandamus justice. administration necessary other to enforce the and all writs jurisdiction right Relators claim a of unfettered ac- court.” Tex.Gov’t Code 1988). 22.221(a)(Vernon they A court of cess all exhibits as are introduced to § Ann. prevent right into their of freedom issue such a writ to evidence under appeal becoming press moot. under the United States Con- Madison Mitchell, Martinez, (Tex.Civ. stitution, citing v. United States ref’d). (D.C.Cir.1976), reversed on App. 551 F.2d — Dallas other nom Nixon grounds sub Warner Relators claim that this matter will not Communications, 435 U.S. all become moot not of the docu- because However, (1978). as 55 L.Ed.2d 570 appeal intro- ments involved be Nixon, Supreme noted in Court appears into There to be duced evidence. paramount all right over is dispute the documents intro- that to be rights: other into are a of the docu- duced subset however, uncontested, It record appeal, ments on before us right inspect copy dispute does not show if documents Every supervi- court has offered evidence not absolute. have been into sory its records and power over own plaintiffs or defendants suit. While files, has denied where perhaps appeal will not be moot as to and access been any have a vehicle documents, might moot court files become all it will as example, the improper purposes. For at trial. The document that introduced right inspection only unimportant irrele- common-law power of a court is no at all. bowed before vant documents report- observing proceedings, “used to all and from insure that records are not private spite They merely com- gratify promote their observations. through the of “the publication evidence plain scandal” that the exhibits offered into disgusting details painful sometimes sealed from view. are Similarly, courts a divorce case.” ... Upjohn was Relators contend that permit refused to their files complete make a rule 76a show required to reservoirs of statements serve as libelous be intro ing for documents that would ..., consumption, or as sources evidence, to the rule duced into in addition might business information currently appeal. First proceedings 76a litigant’s stand- competitive harm a all, cannot evaluate whether omitted, add- emphasis ing_[Citations requirements of rule 76a satisfied the ed.] proceedings appeal. now on Neither The issue U.S. at 98 S.Ct. at 1312. nor the 76a pleadings documents case was whether Commu- Warner event, us, and, appeal are before entitled nications was broadcast over remains jurisdiction those issues tapes and sale certain entered into evidence Second, ar relators’ the court trial. The held that the at a criminal the premised are on the claim that guments press to in right report of the what occurs the only appeal is whether “guaran- not open court does include records, court is con documents are which meaning the teeing] press the ‘access’ to— clusively established since exhibits intro copy publish ma- right to and and —exhibits court duced into evidence are a fortiori open in displayed terials court.” Id. at However, Up records. as understand 98 S.Ct. at argument, seeking protection it is on john’s argue they Relators also are entitled including docu grounds, several that the protection under to the exhibits the broad protected be ments are from disclosure I, press speech and found in article they and confi cause involve trade secrets of the Texas Dav- section 8 Constitution. dential business information. Garcia, (Tex.1992); enport v. S.W.2d Walker, Inc. v. Star-Telegram, Finally, importantly, and it is most (Tex.1992). Assuming test an- the hearing under necessary to not conduct Davenport applicable,4 the nounced is court’s in order to insure the trial rule 76a protect right appeal need to more outstanding from compliance with an order justifies than the order the court of appeals forbidding disclosure. Davenport The test set is: out respect the persons required were All (1) irreparable an imminent and harm to aside or appeals’ order until set judicial process deprive litigants modified, required to was not just dispute, resolution of a of their bring order to anything more than do judicial represents action the least court. the attention to prevent restrictive means that harm. apparently loss of dissent Davenport, 834 S.W.2d at 10. The The is an press public have right appeal clearly an imminent that the view physical access irreparable judicial pro- right harm the to immediate absolute introduced into evidence suggestion There has been no to all exhibits cess. paramount all other keep right right over measure which would that this lesser If this simply true. rights. intact. The relators have not so, exempted all they barred we would not have complained have been were courtroom, arising under filed in an being present action documents DePasquale, 443 applicability Davenport to situa- restraint. Gannett Co. test involving 2911-12 gag & n. order in civil U.S. 391-393 tions not (1978); v. Warner conclusively Nixon proceedings has not estab- & n. 61 L.Ed.2d 608 been 608-09, Communications, Inc., Su- 435 U.S. this Court. The United States lished 1317; Broadcasting Corp. v. recognizes see also Belo preme Court the difference between S.Ct. at Cir.1981). (5th Clark, right access and to be free from 654 F.2d 432-33 mus Family promulgated Brady relief. v. Fourteenth Court Code5 when we (Tex.1990). 76a, Appeals, nor would we have denied rule “A Current request of the television show necessarily dissent then makes surrep requested it Affair” when any way knowing what decision without tape video introduced titiously recorded factors the court Kerr, Boyles v. into evidence6 weighed. Perhaps it ac- deems a (Tex.App — Texarkana absolute, regards and therefore cess to be Also, granted). to records analy- irrelevant. Under that such factors are limited statute. proceedings juvenile sis, rule 76a would be unconstitutional sum, Family 51.14. In See § Texas Code purports allow some its face because Constitution, laws, nothing in there is our sealed, they either because pub procedure gives matters, they family law because involve lic unlimited access to trial exhibits. serious, “specific, and substantial involve pre- clearly outweighs which interest” being trial is conducted Here openness and adverse ef- sumption of underlying ease. No one is trial of the health, general public fect on the which proceedings. being denied access protected by means could not be interest including press, Anyone, can witness sealing the records. less restrictive than any- proceedings, report take notes and If no balance 76a. See Tex.R.Civ.P. thing Thus a contem- he or she observes. court, by a if the could be struck lower public forum is poraneous review in the absolute, there right of access is then being the trial court provided. Just like purpose in this would have been little Liti- re Illinois Securities In Continental tape” denying request for the “sex (7th n. Cir. 732 F.2d gation, shuttling request to the vid- for access 1984), ap- with the case the dissent cites trial court. eotape Boyles appeals here has proval, pending to relators a review stayed access doubt, apply the No the dissent would appeal. 76a merits rule Thus, if the rule this Court as well. promptly had decided court of the court The dissent concludes that had been appeal, rule and the issue 76a temporary stay of disclosure appeals’ Court, this Court appealed further to this consti appeal violated the relators’ pending if the merits could reach so, necessarily rights, doing and in tutional to trial underlying case went ap the merits and decides reaches doubt, And, purpose little interim. issues, and weighty decides these peal. It on theft by suing based a would served be lacking, with finds the intermediate court privacy be- of trade secrets or invasion acquaintance with the issues out guarantee litigation itself would cause the that confronted that court evidence destroyed. interests be that both would presented this appeal. Relators have not for allowing pseudonym a The statute that was before with the record actually victim, in issue rape which was not matter, or, appeals, for with court of also constitu- Telegram, would be Star the trial court the record that was before init effect limits tionally suspect, since ruling led to the it issued the when the main witness. “access” to Relators, fact, provided appeal. reasons, join in the I For all of these way very little in the exhibits. extraordinary of this of the issuance denial rights and proprietary has stated its writ. issue; it is not clear secrets are trade contrary, argue to the that relators HECHT, COOK, PHILLIPS, C.J., and Upjohn’s contentions raise very least JJ., CORNYN, join opinion. precluding disputed issue of fact manda- 2(a)(3). 6. See 815 S.W.2d 545. Civil Procedure 76a 5. See Texas Rules of sys- judicial the American particular, and SEPARATE OPINION whole, is undeniable. See O’Con- tem as November nor, 837 S.W.2d at 96. PHILLIPS, Chief Justice. not found in a dis- These attributes are 21, 1992, is with- My opinion of October from a court docket sent or concurrence drawn, following is substituted First, order, however, for several reasons. place. to hear a decision to decline this Court’s Opin- Although join I in Justice Gonzalez’ adjudication the merits. is not an on case Overruling Mo- Accompanying Order ion ruling is that the only meaning of the to File Petition for Writ Leave Thus, a dissent to case not be heard. Temporary Re- Mandamus and Motion for ultimately join fails to an order lief, my re- separately express I write legal point. substantive writing, such a gret necessity over the Moreover, from such published dissent solely response to an which was issued meaningful disciplining an order has dissenting from the deci- opinion Court’s opinion. prospect “The effect on a court petition for sion not to leave to file a concurring separate statement a dissent writ of mandamus. opinion’s inaccuracies and pointing out an existence, For most of its this Court has heightens inadequacies ... performed its functions without ” ‘get right.’ Ruth incentive to writer’s published regard- dissents concurrences Ginsburg, Writing Remarks on Bader composition as of its decisions 133, 139 Separately, 65 Wash.L.Rev. docket. believe this tradition served (1990). accepted a case is not When personal, us well. Whatever institutional review, disappears. rationale might gained by or societal benefits Likewise, preliminary outweighed by a dissent from a such utterances are far contempora- currency their deleterious effects on the of order does not benefit from a docket, Thus, orderly development opinion. in addition our neous law, among workings and the harmonious from a failing discipline, it suffers justices. Although mem- discipline. lack of some majority may respond to the bers of the challenge any justice I do not of today, separate opinion, as has been done publish a dissent from action of the inevitably not reflect the opinions do rule, Court. No written court either exter- present considered deliberation a deci- internal, action, prohibits nal or and sion on the merits. no vote taken Court as propriety express opin- of this action. I no benefit, serving a useful such a Far from suppress ion as to whether the Court could significant may It dissent do harm. writing. such a See O’Connor v. First majori- justices, force other whether 94, (1992) Appeals, Court 97 of not, ty their own votes or to disclose C.J., (Phillips, concurring). therefor, the reasons a destruction

Moreover, way question “confidentiality especially valuable the validi- [that] dissenting separate of or in the exercise of the kind of discretion ty or wisdom processing the thou- general. employed This issued its must be opinions Court petitions that are reviewed concurring opinion in the ninth case sands of ... first Commissioner, term, year.” Singleton v. in its initial v. each decided Winfried 335, 339, 940, 946, (1840) (Rusk, C.J., 58 Yates, 439 Dallam 364 U.S. (1978) (Stevens, J., Mills, JJ., separate concurring). The first L.Ed.2d 335 Hemphill, term, three It a dissenter with following opinion). recorded the leaves dissent was Poor, 401, (1841) (a) nothing potentially be say choices: v. Dallam 403 Fowler (b) dis- Hutchinson, JJ., majority, join dissenting), and counted with (Baylor, reason- and assent to the dissenter’s accepted practice has been an ever since. sent (c) separately from the first ing, dissent orderly development of or Their value to opinion, thus re- separate workings of this in dissenter with the law and the Court 662 overruling rehearing); his her of

vealing or conference vote and writ- motion for Faust, unnecessary justice A ing opinion. 481, Hicks v. another 109 Tex. S.W. 608 put to a similar election (1919) (Hawkins, J., dissenting from denial having portrayed solely of his or her views application for of error and overrul- of writ dissenting joining justice justices, or v. Scott ing rehearing); of motion for responding opinion, preparing or another Shine, (1918) 109 Tex. 202 S.W. separate writing. practical This has the (Hawkins, J., dissenting overruling of pernicious allowing effect of deter- rehearing application motion for for writ agen- mined dissenter to alter the Court’s of of error and recall from committee da, forcing writings or more on case one Terrell justices appeals); civil courts of has, rules, pursuant to its own Court Middleton, v. Tex. 191 S.W. 1138 decided to decline. Our rule of four votes J., (1917) (Hawkins, concurring in refusal grant application for writ error Beaty v. error); application for writ of to file writ of five votes to leave Missouri, Texas, Ry. K. & T. Co. of a rule of one. mandamus can thus become J., (1916) (Hawkins, Tex. 185 S.W. 298 minority is tyranny particularly dissenting overruling for motion justices unwelcome at a time when some rehearing application denial of for writ timely publicly assert that the is not Court Londe, error); El Co. v. La Paso & S. W. disposing accept. of the cases it does See (Hawkins, (1916) Tex. S.W. 498 Greathouse, Indep. v. Ex’x. Charter Nat’l. J., concurring overruling of motion Bank-Southwest, 35 Tex.S.Ct.J. rehearing application for writ of denial 1, 1992) (July (Dog- 1992 WL 379408 also In re Six error). Subdivision See concurring); Delaney J., Uni- gett, Supreme Court Jurisdiction Act of Houston, 56, 61 versity J., 1917, 201 S.W. 390 (1918) (Hawkins, J., (Doggett, concurring). dissenting).1 opinions These ended2 when history of our Only once before Hawkins lost William Pierson opinions Court have such been issued with becoming the first of our Court member frequency. Between 1916 by the be denied re-election voters. E. Hawkins is- Associate Justice William now relapse It ironic that comes dissenting concurring sued a number greater Legislature restored opinions to decisions of the discretionary jurisdiction to this Court. See, grant application writ of error. 22.001(a)(6); Z. Ted See Tex.Govt.Code Nat. Bank San Antonio e.g., § State Paulsen, Rethink- W. S.A., Robertson & James East Oil Co. 109 Tex. Coast System, Texas Writ Error (1919) (Hawkins, J., dissenting S.W. 621 (1986).3 long- As of error Tex.Tech.L.Rev. 1 application from denial of 315, (1895) contemporary Hayward, S.W. 1049 Hawkins 88 Tex. 1. One scholar called V. J., (Alexander, special justice, upon judges associate dissent- of ablest who has served "one the application of years,” granting of for writ Supreme Texas in from the Court of recent error), examples may by concluding: opinions I assume that other “The numerous written attainments, Londe, superior judicial See El Paso & S.W. Co. La the exist. him disclose research, 68, analysis, painstaking Tex. at 184 S.W. careful and clear forceful, convincing reasoning, and mature 22.001(a)(6) currently reads § 3.Tex.Govt.Code learning judgment have characterized the which juris- supreme appellate part: "The jurists greatest in that of who served the any it other case which diction ... in ... Davenport, History J.A. exalted tribunal.” appears of has been commit- that an error law Supreme State Texas 275 Court the the of of (1917). appeals, is of by and that error ted frequent, sometimes But he authored jurisprudence the importance dissents, see, to the such e.g., lengthy Aran- San Antonio & court, that, supreme 441-555, opinion 434, the Blair, state Ry. sas Pass Co. v. 108 Tex. 1987, to requires ...” From 1927 1153, (1917), it correction and relation- 196 S.W. 1153-1198 jurisdiction See, over “an error accorded the section justices among ships the Pollard, became strained. judgment the 536, 539-40, law” that "affects substantive e.g., 109 Tex. Allen v. 1985), (Vernon 22.001 § Tex.Govt.Code (1919) (Hawkins, J.) ...” S.W. 1; Leg., ch. see Tex.Rev. § 69th Acts (Vernon 1962), 1728(6) Acts art. only Civ.Stat.Ann. one other such have located Leg., 1. From 1917 § 40th ch. Ins. Co. New York Mutual Life of discuss and read aloud from documents primarily er serve to correct errors any courts, open presence court in the atten- justification less lower there is even dee, provi- Upjohn sought prohibit opinions- as those in this issued sion of the themselves to non- documents case.

parties, press. No particularly evi- support type dence of was offered TO DISSENTING OPINION ORDER this After a unusual motion to seal. hear- MOTION FOR OVERRULING ing, at which the trial court denied the FILE FOR LEAVE TO PETITION motion, Upjohn emergency relief MO- obtained WRIT OF MANDAMUS AND restricting Appeals from the Fifth TEMPORARY TION FOR RELIEF judge, jury exhibit the trial access to 11, 1992. November parties’ attorneys expert witnesses. DOGGETT, Justice. 76a(l), Under court records “are Rule My with- opinion of October 1992 is presumed public.” general to the be drawn, following is and the substituted unquestionably subject Trial exhibits are place. its Texas, presumption. In court records belong people, people may Texas, Dallas, In a a public courtroom a only denied access to them when movant trial, underway. lawyers trial is As in proves: marking are documents as exhibits that are by into evidence for consideration offered (a) specific, in- a serious and substantial trial, jury jury. As no other clearly outweighs: terest which appellate prohibit court has interfered to openness; presumption public seeing A evidence. (2) any effect probable adverse principal extraordinary reason for this in- general upon sealing will have party’s trusion is a desire that evidence in a public safety; health or

public allowed to be published trial “not be (b) sealing no less means than restrictive newspaper].”1 a That newspaper, local [in adequately effectively News, Morning joined Dallas has been protect interest specific asserted. public Citizen, by group, interest Public 76a(1). Totally disregarding Tex.R.Civ.P. emergency plea asking in an this court to requirements, also Upjohn these failed to permit public to see the evidence intro- pretrial schedule a post notice and pro- duced in accord with traditional Texas sealing hearing for mo consideration of cedure.2 provid concerning trial exhibits as began On deter- October 76a(3) (4). by ed Rule drug mine Company, whether Instead, improperly tempo- “a sought manufacturer, warn adequately failed to sealing which is authorized rary order” dangerous product, effects of its only sleep-inducing pharmaceutical, Halcion. need upon showing compelling 7, Upjohn On asked trial court October by affidavit or specific facts shown to bar disclosure to ir- petition that immediate and verified many the trial to be exhibits offered specific reparable to a injury will result parties. Upjohn claimed that the docu- posted interest notice can be ... before question pretrial ments in were included in hearing and a held. already subject discovery and were of a 76a(5). concerning extraordinary pending appeal disclosability. Tex.R.Civ.P. to evade conceding procedure not be used While witnesses should Argument Upjohn Company jurisdiction accorded “an counsel for the section over before the trial court. importance of such to the error of law ... State, jurisprudence of the as in the Freeman, plaintiff underly- 2. William requires Supreme correction....” action, ing subsequently joined request 1728(6) (1925), art. Acts Tex.Rev.Civ.Stat.Ann. the order of relief from for mandamus Leg., ch. 1.§ 35th us, provided justify hearing requirements now before and cannot the veil

notice and ample secrecy majority imposes in the rule circumstances allow when these compliance. Any emergency exist- time for trial exhibits. solely by Upjohn’s here ing was created admitted, candidly Upjohn As it has so is tactics; litigation protec- the failure to seek protecting proprietary not concerned with during for these the last six months interests, solely obstructing news with specific exhibits contradicts the claim of coverage Accordingly, media of the trial. immediacy any harm. The claim today’s implicates the fundamental decision injury irreparable that immediate and guarantee of the constitutional of freedom by would result further belied the fact recently op- we have had an press. Only the courtroom remains and wit- that portunity rights to consider the of free the docu- nesses can read from and discuss I, by expression guaranteed article section Clearly barring ments. an order Davenport of the Texas Constitution. In pro- the documents themselves would not Garcia, (Tex.1992,orig. S.W.2d protection vide further confidential prior proceeding), we that a “affirm[ed] contained in the exhibits. The information presumptively expression restraint on correctly that trial court concluded announced that: unconstitutional” and necessary showing un- failed to make the gag judicial proceedings order civil [A] 76a(5). der Rule scrutiny will withstand constitutional pending appeal rep- Upjohn’s previously specific findings are only where there challenge trial court’s resents a (1) an immi- supported evidence that ruling March 1992 that certain documents irreparable judicial harm to the nent and discovery were produced during pretrial just process deprive litigants of a to which access was court records dispute, of their resolution 76a(2)(c). pro- guaranteed under Rule As the least re- represents action 76a(8), denying that order

vided Rule harm. prevent means to that strictive appealable. final and records closure was Co., 829 Hyundai Motor clearly recognized See Chandler v. that: We Id. (Tex.1992). Pending consid- S.W.2d one, [Ajrticle eight of the Texas section ruling, of that the Fifth Court of eration greater rights of provides Constitution stayed public Appeals temporarily disclo- equiva- expression than its federal free April.3 resulting if a deter- sure Even restraint will lent [and].... nondis- that these materials are mination only this test scrutiny withstand under during discovery, appeal in no closable extraordinary circum- under the most presumptive right way public’s controls with consistent stances. That result is regarding particular docu- of access recogniz- the mandate of our constitution in a are admitted as exhibits ments that expres- right to freedom our broad In re Illi- trial. See Continental rights un- in Texas. An individual’s sion Litigation, 732 F.2d Securities nois do not end der the state constitution Cir.1984) (7th (finding “good door; rather, the court- the courthouse protective pretrial issuance cause” the fortress of those properly house is preclude public disclosure order did rights. introduced into evi- same document after Id. dence). indication that all Nor there Walker, Star-Telegram, In Inc. subject discovery documents pretrial (Tex.1992, orig. proceeding), introduced as trial will be test [Davenport] assertion, declared that Contrary Upjohn’s “[t]his exhibits. reviewing to ensure the courts enables nonparties inspect allowing constitutionally press’ previous preservation not moot its trial exhibits would to the right of access from those sanctioned there differ appeal. The issues ensuing during six months. request ap- act expedite made no 3. appeals has peal, failed on which

665 day ability of The Dallas Morn- passing an “or we concluded that process.” There inform the and Public Citizen to publish ing News prohibit newspaper from der to they are intro- open public about documents as already disclosed in ing information “ ‘contempora- It is the public duced is reduced.5 part made of a trial court’s court and neous review public opinion in the forum of prior re represented “an invalid record” pos- I, an effective restraint on section Star-Telegram’s article straint on [that assures] ” judicial power.’ Richmond abuse of right public disseminate information.” sible 8 Newspapers, Virginia, Inc. v. Id. 448 U.S. recognized at 58. In Texas we have 2814, 2835, L.Ed.2d 100 S.Ct. 65 right of access to this constitutional J., (em- (1980) (Brennan, concurring) right 973 judicial process encompasses See omitted). phasis supplied; citations as well as of access to court documents In re Illinois Securities also Continental fundamental proceedings.4 court fully Litigation, 732 F.2d at 1309 n. 1310 guarantee that courts will remain our contemporaneous (applying “tradition today unjustly abandoned open to all is of evidence to mandate disclosure secrecy privileged for few. access” favor of action). introduced civil action, majority placed has By its “an majority’s objection to un- As for the introduced trial exhibits “unlim- to immediate”6 and key. hostility This toward absolute der lock and exhibits,” Maj. op. at to trial displayed is further ited access freedom of information seeking public to exclude the to ac- when one by majority’s conscious refusal interest, proves “paramount” urgency emergency to this cord a sense absolute; unlimited.7 access is temporary relief. With each request cess;” Nor, (Gonza meaningful represents majority suggests, substitute at 4. as the 659 lez, J.), today. required by is denied the access that are we to do otherwise writing justices DePasq four in Gannett Co. v. uale, U.S. 99 S.Ct. 61 L.Ed.2d 608 Certainly affording public access the trial (1979) (interpreting conflicting federal constitu precautions to avoid take reasonable court can concerning however, interests the effect of That, tional disruption is in no of a trial. suppression hearing pretrial on a access to a apparently way Judge here. Marshall at issue right to a fair trial in a criminal defendant’s appropriate the trial control of had full proceeding). recognized, As that decision any disruption proceedings. The source of specific provision guar charter lacks a federal appellate courts. not the media but anteeing to the courts such as those access many state constitutions. 443 U.S. at found in majori specific explanation offered nn. & S.Ct. at 2908-09 & nn. 386-87 & is, ty ever, limiting of information how freedom unquestion The Texas Constitution 15 & 17. Maj. op. unpersuasive. at 659. "[D]ocu Const, I, right. ably provides art. such a Tex. originally arising under an action ments filed in ("All open_”). courts shall be More 13§ Family in Rule Code” are excluded over, justices in Gannett would 76a(2)(a)(3) "court rec the definition of from showing only upon deny public subject therefore Rule’s ords” and are not irreparable harm and that no less restrictive they procedural requisites, neither are abso prevent available. 443 means to that harm is Rather, Rule lutely "exempt” disclosure. J., 400-01, (Powell, at U.S. at 76a(9) clearly provides to docu that "[a]ccess 441-42, concurring) S.Ct. at 2936-37 & defined as court records in court files not ments Brennan, White, J., (Blackmun, joined by existing governed by law." rule remains Marshall, JJ., dissenting). concurring and looking to Rule well benefit from A court considering principles in procedures and 76a formally today’s excluded implication failure to even those documents 5. The Doggett Lloyd & Mi "only definition. See emergency three weeks” of the Rule's relief means Mucchetti, to Public Access argument delay in the Fifth Court of chael J. until oral Afterword Discouraging Secrecy in the Pub misleading. Maj. op. By n. 3. Public Courts: Appeals is Interest, ended; Litigation then, Reader Texas atten- lic will have the trial eds., (A.F. Gregory S. Coleman substantially Brooke II and dimin- focused on this matter 1992). determination did we make of a final reso- Nor there a likelihood ished. Nor is denying access to with our order disclosability Half of a the merits videotape at that time. lution as to Kerr, Boyles filing exhibit in transpired year between the 76a(7), There, (Tex.1991). relying on Rule argument. presentation of oral simply "referred the movant Certainly pass months will before additional modify continuing authority to prospect appellate opinion. court which issuance Afterword, supra, at 204. sealing "contemporaneous orders.” hardly ac- be viewed as can 666 substantially in differed

The of access asserted here situation Warner presented today: that Morning News no more or less Dallas is by the “absolute” than that advanced Port however, case, In the there is no instant Telegram, Telegram in Worth Star Star precluded from press claim that the was Inc., 834 54. Freedom of informa- utilizing publishing or as it saw fit the dependent upon is vacillates—that in testimony and filed evidence. exhibits helps upon not much freedom. This simply whom no There were restrictions —is to, publication principle a vital that should not be de- press is access per- public to fended adverse an individual information domain.... when question of There is no a truncated flow injury plaintiff Telegram as in sonal Star public. of information to the challenged by a surrendered cor- when porate defendant here. Nor should this Here, S.Ct. at 1318. there is Id. at 98 relief rec- emergency accord to seal court question press that the is barred from ords, Marshall, Lilly see Eli & Co. exhibits, utilizing publishing and the trial (Tex.1992, orig. proceeding) S.W.2d 156 the result that the flow of information with J., dissenting granting of a (Doggett, to public seriously impaired. to the drug temporary manufacturer’s motion opin- Although majority’s joining day to within one relief conceal documents ion, Phillips objects to Chief Justice deny receipt), prompt attention to writing grounds here on that "this Court’s public here. records decline to hear a case is not an decision to (Phil- At adjudication on the merits.” majority’s reliance on v. War The Nixon C.J., “Separate Opin- lips, concurring with Communications, Inc., 435 U.S. ner ion”). question is whether a When the (1978), to S.Ct. 55 L.Ed.2d ability lower court obstruct proscribe public trial exhibits is access to complete a provide public to misplaced. At there was whether trial, public at a statement of evidence prohibiting copying court erred in trial this court to intervene consti- the refusal of transcript full Watergate tapes when a adjudication. the ex- tutes an Without publicly already available. Rather here, occurring pub- change opinions asserts, holding, as the than led parties simply would to lic and the right of to materials there is no access speculate why as to open court,8 the Court stated: considered When this exhibits has been denied. coun- It is clear that the courts this denial of ac- of last resort concurs inspect try recognize general cess, explanation appropriate. documents, implication opinion of his The docu- including judicial records and suppress empowered to majority would be necessary interest ments .... trou as most writings such this dissent compelling support the issuance of a writ type of this 666. Dissents bling. Id. at found, example, in access has been court,9 see id. at occurred both keep desire to a watchful the citizen’s Su 1 & and in the United States nn. workings public agencies, eye on the Stevens, upon whom preme Court. Justice publisher's intention newspaper questioning Phillips relies Chief Justice concerning op- publish information opinions, see id. at desirability of such government. eration right. See has himself exercised — U.S. -, Kessler, (citations S.Ct. Benten U.S. 98 S.Ct. at at (Stevens, J., clear, 2929, 120 L.Ed.2d 926 omitted). As makes procedural when rately context by majority in an identical language quoted from 435 holding temporary Del Valle at as the is in relief. 1317 as this court denied U.S. Dibrell, (Tex. argument scope party’s Indep. fact Sch. Dist. v. Hecht, JJ., dissenting 1992) decision. (Cornyn stay temporary request relief denial Phillips con voiced similar 9. Chief Justice election). suspend court-ordered Cornyn sepa wrote as and Hecht cern Justices dissenting). Nor do the vast country justi courts across this feel

state silencing their own members.10 fied JONES, Relator, B.H. Moreover, previously this court has noted implication the constitutional associated judge’s right STRAUSS, with a to dissent. See O’Con J. Honorable Gus Schraub, Appeals, nor v. First Court of the Honorable B.B. Respondents. (1992). Judges, of our 96-97 Public awareness signifi differing views on issues of such No. C-9877. strengthens rather than our cance weakens Supreme Court of Texas. system justice. Nov. 1992. among Freedom information democracy. most critical liberties for our it, the deci-

Without citizens cannot make ORDER necessary functioning proper sions for the supplemental transcript submitted government. Certainly applies of our by the Honorable Oliver S. Kitzman is ac- to these documents hidden from cepted as filed to demonstrate the trial majority solely the action of view compliance court’s with this court’s publication newspaper. prevent their scope accounting limiting orders previously urged: As proceeding. The trial court shall resolve Public court records are rich with democ- any questions of fact and law and render a racy’s indispensable mation_ material: infor- raw judgment accounting proceed- final Information’s free flow al- ing, parties may oppor- so that the have the govern citizens lows their fate and tunity separate judgment. passage fortune. When its is arrested or Strauss, Jones v. 845 n. trickle, reduced to a control over our (Tex.1990). lives is wrested from our hands. If the intelligent is to make decisions courts, our our and the effec- about laws

tiveness of those officials that enforce

them, presumption openness should govern.11 CANTU, Jr., Domingo Appellant, judiciary, In gov- our third branch of ernment, freedom of information should Texas, Appellee. The STATE of tolerated, merely not be restricted or No. 70739. encouraged. should be Texas, Appeals of Court of Criminal

MAUZY, HIGHTOWER and En Banc. GAMMAGE,JJ., join dissenting in this opinion. June 1992. Sept.

Rehearing Denied Tennessee, Texas, Utah, Washington, judge apparently prohibited Virginia, 10. A dissenting Wisconsin, making judge’s Virginia, Wyoming. known that view to Re- West thirty-eight Willis, such an order in at least ka, Arizona, states: Alas- survey by sponses Execu- William L. Arkansas, California, Colorado, Assistant, Supreme tive Court of Texas. Florida, Illinois, Indiana, Connecticut, Georgia, Louisiana, Minnesota, Michigan, Kentucky, Mis- Mucchetti, Lloyd Doggett & Michael J. Public Missouri, Montana, Nevada, sissippi, New Secrecy Discouraging Access to Public Courts: Mexico, Jersey, Hampshire, Dakota, Ohio, New North New 643, 653, Interest, Public 69 Texas L.Rev. the (1991) (footnotes omitted). Oklahoma, Pennsylvania, Oregon, Carolina, Dakota, Island, South Rhode South

Case Details

Case Name: Dallas Morning News v. Fifth Court of Appeals

Court Name: Texas Supreme Court

Date Published: Nov 11, 1992

Citation: 842 S.W.2d 655

Docket Number: D-2991

Court Abbreviation: Tex.