Legal experts take aim at gag order in water lawsuit

Legal experts say a civil lawsuit about water rights being fought in secret between eight different Bowie County cities violates the principles of open courts.

"The public has an absolute right to know; it gets as basic as it separates us from the Third World countries; it's what separates us from Iraq. It is fundamental to a free society," said Charles Daughtry, a First Amendment expert with the law firm Daughtry and Jordan in Houston.

But the visiting judge who implemented the lawsuit's gag order said it is simply a matter of finding an untainted jury in Bowie County.

When local judges were excused from hearing the case between Wake Village, Maud, Hooks, New Boston, Avery, Annona and DeKalb against the city of Texarkana, Texas, for alleged overcharging of water as part of a contract between the cities, the case was assigned to 96th District Judge Jimmy L. White of Mount Pleasant.

White issued a gag order as well as an additional order sealing the entire case file, including the docket sheet, which is a listing of motions and orders that have been filed in the case. This means only lawyers involved in the case can look at what is in the case file in Bowie County District Court.

Case files are generally open to the public for people to review, take notes from or make photo copies of.

In a recent interview with the Gazette, White would not say which motions or rulings are pending in the case. White said he issued the gag order on his own initiative. The order was filed on Dec. 11, 2002. The lawsuit was filed in March 2002.

"I held a hearing in Mount Pleasant early on when I (was) assigned the case," White said.

That hearing, said White, was part of several issues that were argued in the case.

But many legal experts have contrary beliefs to White's about the case.

"The courts are supposed to be open, there's no doubt about it," said Professor Gerald Powell, an expert in court procedure and practice at Baylor Law School.

Cases that usually are sealed in their totality are those involving juveniles or mental commitments and some aspects of sexual assault cases.

Other cases, especially those with patents, trade secrets or issues of unfair competition often have documents or motions that require sealing.

However, in those instances, the specific documents are removed from the case file and are placed into a vault, still allowing the public access to review the file.

Daughtry said judges are "extremely limited" in their ability to do this.

"It's not unheard of, but it hardly ever happens," said Charles "Chip" Babcock, a lawyer specializing in the First Amendment at the Jackson Walker law firm in Dallas.

Babcock, a former director of the Freedom of Information Foundation of Texas Inc., helped author part of the Texas Freedom of Information Handbook.

Babcock has represented clients like Oprah Winfrey and 20th Century Fox in Constitutional issues.

"He (the judge) absolutely cannot do what he's doing," Babcock said. "... the public interest is certainly enhanced when you're dealing with a public entity like a city that is embroiled in litigation."

Powell agrees.

"There's a presumption against sealing records, it has to be done for very good reason, that's probably not a good reason," Powell said.

Daughtry said he has never seen a docket sheet that has been sealed and cannot see a legitimate purpose for excluding that from the public.

But White said there's a reason the docket sheet is sealed.

"The reason I've sealed it is that I've got some notations on the docket sheet that I don't want revealed, but it's taken under advisement ... if I rule and make a notation on the docket sheet ... and that's the reason," White said. "I've got it sealed for a purpose, I've not made some rulings; I'm not at liberty to reveal it right now."

But Powell said, " A judge has to tailor his order to the least restrictive manner order."

Daughtry said, "This is a way over broad gag order, I can't for the life of me understand why that sort of litigation is operating in secrecy."

But White says his biggest concern about the case is pretrial publicity, which he believes would impair the ability to pick a Bowie County jury.

However, when asked if the potential jurors from Texarkana, Maud, New Boston, Wake Village, Hooks, Avery, Annona or De Kalb are already "rooting for their home team," White conceded that it could be a possibility.

"I'm also trying to protect my jury, the potential jury in the future, by the fact that there has been some questions if a jury can be selected in Bowie County," White said.

White would not say if it is Texarkana, Texas, or if it is the smaller cities that want the case tried in Bowie County.

"I'm not going to make some statements that y'all can print that a potential jury pool out there can misinterpret; that would disqualify the jury panel," White said in interview with the Gazette.

But Babcock says there are serious problems with White's conduct.

"I don't care what significance there is a showing of problems selecting a jury ... There is no concrete evidence that there's going to be problems selecting a jury, even in the most contested and highly charged criminal case, you can't seal the pleadings and you can't close the courtrooms. With respect to the pleadings, the orders and judgments of the court, it violates (Texas law). To have a wholesale sealing of that, violates (Texas law) ... to close the courtroom violates the First Amendment to the U.S. Constitution, and Article 1, Section 8 of the Texas Constitution," Babcock said.

White said the case file will be available to any member of the public once the lawsuit is resolved. He said he is aware that cities, by law, cannot enter into confidential settlements.