Texas judge ignored his own rules to try and keep mifepristone case moves hidden from public

The news in The Washington Post's bombshell report conflicts with the principles behind Judge Matthew Kacsmaryk's own court requirements. [Update: After media objection, some transparency.]

U.S. District Judge Matthew Kacsmaryk doesn’t like information about the cases taking place in his court hidden from the public — except for when he wants the information to be hidden from the public.

Kacsmaryk warns people in his court that he “heavily disfavors” sealing matters in cases before him because of the “public’s right to know” — standards that he doesn’t appear to apply to himself.

In that situation, as The Washington Post reported on Saturday night, Kacsmaryk will schedule status conference calls with parties off the public docket, will hold such conferences off the public docket, will schedule hearings but keep the scheduling order off the public docket when the decision is made, and will ask the parties not to share relevant information with the public (again without noting that request on the public docket as an order).

[Update, 2:10 p.m. ET March 13: A group of media organizations — including the Post and the Texas Press Association — filed an objection to Kacsmaryk’s secrecy on Monday, asserting that there was not a sufficient justification for the secrecy, questioning the constitutionality of his actions, and asking that he “immediately docket the hearing scheduled for Wednesday, and rescind any request made to the parties and their counsel not to discuss the hearing schedule in this case publicly.” Additionally, the letter objection noted, “The Media Coalition also strongly urges the Court to promptly docket notice of all future proceedings in this case.”]

[Update, 4:35 p.m. ET March 13: Following the media objections, two items were added to the docket, an entry for the March 10 conference and a order setting Wednesday’s hearing.

Chris “Subscribe to Law Dork!” Geidner @chrisgeidner

Breaking: Following media objection and public outcry, US District Judge Kacsmaryk puts items on the public docket in the mifepristone case, confirming a Wednesday morning injunction hearing. Last Friday's conference also was added to the public docket.

The injunction hearing will be held at 9:00 a.m. CT Wednesday, according to the order, which also details discussions from the March 10 conference about what will be covered at the Wednesday hearing.

As I noted on Twitter, the substantive nature of the discussion makes it all the more clear how inappropriate it was that no public notice was given of the March 10 conference.

The hearing will not be livestreamed and no call-in number will be made available for offsite people to listen in, according to the clerk’s office. Fix the Court had filed a request for livestreaming with the clerk’s office on Sunday, but the clerk’s office told the organization on Monday, in a general statement, that only in-person attendance would be possible.

Both the person I spoke with in the clerk’s office and the response Fix the Court got suggest this is not a case-specific decision and is the court’s general policy. It’s a bad policy that prevents public access to the courts, particularly when a remote court like this one is involved, but it does not appear to be a decision made specifically regarding this case.]

All of those revelations come from the Post’s article about the still-undocketed upcoming Wednesday injunction hearing in the challenge to the FDA’s longstanding mifepristone approval and more recent decision ending the “in-person dispensing requirement” for the drug. The medication abortion challenge has gotten substantial attention in recent months, including here at Law Dork, where it was reported that an injunction hearing was expected. Any time after Wednesday’s hearing, Kacsmaryk could rule on the plaintiffs’ request — although it should be noted that some experts have questioned the extent of Kacsmaryk’s authority in the case.

Despite the substantial public interest in the case, Kacsmaryk has tried to operate what is in effect a secret court to move the case forward for the past several days — moves that have been criticized on their face in the wake of the Post’s reporting.

The moves also run counter to the principles made clear in Kacsmaryk’s own “Judge Specific Requirements,” as detailed on his page on the U.S. District Court for the Northern District of Texas’s website.

“The Court ‘heavily disfavor[s] sealing information placed in the judicial record’ and discourages such requests,” the Kacsmaryk’s requirements state.

Going further, Kacsmaryk’s requirements highlight the U.S. Court of Appeals for the Fifth Circuit’s rulings that recognize “the public’s right to know” about what’s going on in our courts, requiring litigants to explain — with signed declarations — why “the risks of disclosure” would “outweigh” that right of the public to know what’s happening in court. In order to even consider sealing anything on his docket, Kacsmryk requires litigants to “explain that no other viable alternative to sealing exists.”

And yet, when it comes to his own decisions to hide entire portions of cases before him from the public, Kacsmaryk appears to believe that he can do so with no public notice that such hidden proceedings are even taking place.

In this situation, the little information that the public has gotten about why “the risks of disclosure” would justify hiding this information from the public only come by way of anonymous sources to the Post. The Post reported no justification given for the secrecy of the status conference. As to the decision not to post information about Wednesday’s upcoming hearing until Tuesday night, the Post reported that Kacsmaryk was doing so “to try to minimize disruptions and possible protests.”

That itself is in no way a justification for such actions, as Gabriel Malor detailed on Twitter.

Gabriel Malor @gabrielmalor

That's not how this works, Your Honor. If you have security concerns, let the U.S. Marshals know. But you can't just decide to hide a court hearing to stop demonstrators. Hang on, let me check my pocket Constitution, oh, what's this First Amendment business? So weird!!

As of 4:00 p.m. CT Sunday, however, nothing has changed on the docket in the case to provide more information to the public — as part of its “right to know” — about what has been going on in the case or what is scheduled to take place in this case in Amarillo, Texas, on Wednesday.