Texas Voices for Reason and Justice, Inc. v. the City of Argyle, Texas The City of Hickory Creek, Texas The City of Oak Point, Texas And the City of Ponder, Texas

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00052-CV
TEXAS VOICES FOR REASON APPELLANT
AND JUSTICE, INC.
V.
THE CITY OF ARGYLE, TEXAS; APPELLEES
THE CITY OF HICKORY CREEK,
TEXAS; THE CITY OF OAK POINT,
TEXAS; AND THE CITY OF
PONDER, TEXAS
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 15-10761-211
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Texas Voices for Reason and Justice, Inc. (“TVRJ”) filed a
“Motion to Seal Evidentiary Documents and for Protective Order” in the trial court.
1
See Tex. R. App. P. 47.4.
See Tex. R. Civ. P. 76a, 192.6. The trial court denied TVRJ’s motion, and TVRJ
perfected this interlocutory appeal raising two issues challenging the denial of its
motion for a sealing order and the denial of its motion for a protective order,
respectively.2 Because TVRJ’s request for a temporary sealing order was
premature, we will affirm the trial court’s order denying it. And, because TVRJ is
not required to obtain a protective order before identifying its members by
pseudonyms, we will affirm the trial court’s order denying TVRJ’s motion for a
protective order, at this time, based on the record before us.
II. FACTUAL AND PROCEDURAL BACKGROUND
TVRJ filed suit against Appellees The City of Argyle, Texas; The City of
Hickory Creek, Texas; The City of Oak Point, Texas; and The City of Ponder,
Texas, asserting a state-law claim under Article XI, Section 4 of the Texas
constitution challenging the validity of sex-offender, residency-restriction
ordinances (“SORROs”) enacted by each Appellee. TVRJ asserted it possessed
associational standing to sue on behalf of its members for interim equitable relief,
a declaratory judgment, a permanent injunction, and attorney’s fees. All
Appellees filed pleas to the jurisdiction asserting that TVRJ lacked associational
standing to sue on behalf of its members.
TVRJ filed a “Motion to Seal Evidentiary Documents and for Protective
Order” explaining that TVRJ
2
See Tex. R. Civ. P. 76a(8) (authorizing interlocutory appeal from any
order relating to sealing or unsealing of court records).
2
is a domestic, nonprofit organization duly incorporated under Title 2,
Chapter 22, et seq., of the Texas Business Organizations Code. It
has brought this suit on behalf of members of its organization who
are required to register as “sex offenders” under Chapter 62 of the
Texas Code of Criminal Procedure.
TVRJ’s motion further explained that in order to adequately respond to
Appellees’ pleas to jurisdiction challenging TVRJ’s associational standing, TVRJ
would need to file evidence––including but not limited to affidavits from its
members who are required to register under Chapter 62––in opposition to the
allegations made the basis of some or all of Appellees’ pleas to jurisdiction.3
TVRJ’s motion further explained:
[TVRJ] moves the Court to enter an order allowing it to file “under
seal” evidentiary documents in response to the aforementioned plea
to jurisdiction issues raised by Defendants Hickory Creek, Argyle
and Ponder. Secondly, [TVRJ] moves the Court to enter a protective
order prohibiting all Defendant-Parties, and their respective counsel,
from disclosing any identifying information concerning any person
named in the evidentiary documents to be filed by Plaintiff and
shared by Plaintiff with all Defense Counsel, in response to the pleas
to jurisdiction filed by Defendants Hickory Creek, Argyle[,] and
Ponder.4
3
TVRJ filed suit on December 28, 2015, and filed its “Motion to Seal
Evidentiary Documents and for Protective Order” on January 22, 2016. The last
plea to the jurisdiction was filed on February 12, 2016. A hearing on Appellees’
pleas to the jurisdiction was set for February 17, 2016. The trial court conducted
a February 5, 2016 hearing on TVRJ’s motion and denied it on February 10,
2016.
4
Although TVRJ’s motion also sought permanent relief, TVRJ abandoned
its claim for permanent relief at the hearing before the trial court.
3
Appellees filed a joint response to TVRJ’s motion, and TVRJ filed a reply. After a
hearing, the trial court signed an order denying TVRJ’s motion in toto. See Tex.
R. Civ. P. 76a(4), (6).
III. STANDARD OF REVIEW
We review a trial court’s denial of relief under Texas Rule of Civil
Procedure 76a for an abuse of discretion. See Gen. Tire, Inc. v. Kepple, 970
S.W.2d 520, 526 (Tex. 1998). With respect to factual matters, a trial court
abuses its discretion if, under the record, it reasonably could have reached only
one decision, and it failed to do so. See Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992) (orig. proceeding). With respect to the application of the law, a trial
judge has no discretion in determining what the law is or in applying the law to
the undisputed facts, and a clear failure by the court to correctly analyze or apply
the law will constitute an abuse of discretion. See id.
IV. RULE 76A APPLIES ONLY TO COURT RECORDS
The special procedures of Rule 76a apply only to the sealing of “court
records.” Kepple, 970 S.W.2d at 524. Subject to certain limited exceptions,
“court records” include “all documents of any nature filed in connection with any
matter before any civil court.” Id. at 523 (quoting Tex. R. Civ. P. 76a(2)). The
language of Rule 76a does not authorize trial courts to apply Rule 76a before
making the threshold determination of whether particular documents, like unfiled
discovery, are court records subject to the rule. Id. at 521–22, 524 (“We hold that
the district court erred in invoking Rule 76a’s procedures before determining
4
whether General’s documents were ‘court records[]’ and that the court abused its
discretion in determining that the documents were ‘court records.’”); see also
Roberts v. West, 123 S.W.3d 436, 440 (Tex. App.––San Antonio 2003, pet.
denied) (“Before a trial court decides whether a Rule 76a hearing and order are
necessary, it must determine whether the documents in question are ‘court
records.’”).
The record before us conclusively establishes that TVRJ did not tender to
the trial court either in camera, at the hearing on its motion, or otherwise, the
documents that TVRJ claims constitute “court records.” See In re Coastal Bend
Coll., 276 S.W.3d 83, 87 (Tex. App.––San Antonio 2008, no pet.) (recognizing
that “a party must be allowed to tender a document in camera when necessary
without converting the document to a ‘court record’ . . . . otherwise, trial courts
could not review the documents themselves in determining how to apply Rule
76a without requiring [the party] to relinquish the very relief sought under the
rule”). Instead, TVRJ’s motion requested that the trial court “enter an order
allowing it to file ‘under seal’ evidentiary documents in response to” Appellees’
pleas to the jurisdiction. While the affidavits TVRJ claims it will be required to
attach to its responses to Appellees’ pleas to the jurisdiction would almost
certainly qualify as court records as that term is defined in Rule 76a(2), no
authority exists authorizing a sealing order requiring documents not yet filed or
tendered in camera to the trial court. See Tex. R. Civ. P. 76a(1), (2), (5); Kepple,
970 S.W.2d at 523; Roberts, 123 S.W.3d at 440.
5
Because Rule 76a(5) does not permit the prospective issuance of a
temporary sealing order without a review of and a determination that the actual
records requested to be sealed are in fact court records, we hold that the trial
court did not abuse its discretion by denying TVRJ’s motion to seal evidentiary
records. We overrule TVRJ’s first issue.
V. PROTECTIVE ORDER NOT REQUIRED TO AVOID NAMING TVRJ MEMBERS
If documents are not “court records,” the party seeking protection may
move for a protective order under Rule 192.6. See Tex. R. Civ. P. 192.6;
Roberts, 123 S.W.3d at 440. The trial court may then restrict access to the
documents or information under Rule 192.6, rather than the more rigorous
standards of Rule 76a. Kepple, 970 S.W.2d at 525 (reversing judgment of court
of appeals that upheld trial court order denying sealing and remanding case to
district court “for sole purpose of reinstating protective order”). A protective order
may be used to protect the movant from “harassment, annoyance, or invasion of
personal, constitutional, or property rights.” See Tex. R. Civ. P. 192.6(b). A
protective order may issue on a showing of a particular, specific, and
demonstrable injury. Masinga v. Whittington, 792 S.W.2d 940, 940 (Tex. 1990).
There is no requirement, however, that the injury be balanced against the
presumption of open access to court records as required by Rule 76a. See
Roberts, 123 S.W.3d at 440 (citing Texans United Educ. Fund v. Texaco, Inc.,
858 S.W.2d 38, 40 (Tex. App.––Houston [14th Dist.] 1993, writ denied), cert.
denied, 516 U.S. 811 (1995)).
6
TVRJ moved for “a protective order prohibiting all [Appellees and their
counsel] from disclosing any identifying information concerning any person
named in the evidentiary documents to be filed by [TVRJ] and shared by [TVRJ]
with [Appellees and their counsel].” The trial court stated on the record at the
hearing on TVRJ’s motion for a sealing order and protective order that TVRJ’s
attorney “represent[s] the plaintiffs in this case. They brought the lawsuit.
They’re not being compelled in order to provide a defense mechanism to a
lawsuit that someone else brought.” But in fact TVRJ is the plaintiff, not TVRJ’s
individual members; TVRJ asserts associational standing to bring suit on behalf
of its members. An association’s assertion of associational standing does not
preclude a protective order concerning the name of one or more of its members
who individually possess standing in their own right for purposes of establishing
associational standing.5
In fact, even a named plaintiff (as opposed to a member of an association
that is named as a plaintiff under the associational-standing doctrine, like TVRJ
here) may proceed under a pseudonym in certain circumstances. See, e.g.,
Does I Through XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1070 (9th Cir.
5
To establish associational standing, TVRJ must show that (1) at least one
of its members would have standing to sue on their own behalf, (2) the interests it
seeks to safeguard are germane to the organization’s purpose, and (3) neither
the claim asserted nor the requested relief necessitate the participation of
individual members. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S.
333, 343, 97 S. Ct. 2434, 2441 (1977).
7
2000) (“Article III’s standing requirement does not prevent a court from allowing
plaintiffs to proceed anonymously simply because plaintiffs seek to protect
themselves from retaliation by third parties.”); Doe v. United Servs. Life Ins.
Co., 123 F.R.D. 437, 439 (S.D.N.Y. 1988) (recognizing that although lawsuits are
generally public events and the public has a legitimate interest in knowing
pertinent facts, including party names, courts have allowed parties to use
fictitious names under special circumstances, particularly when necessary to
protect privacy); Doe v. Deschamps, 64 F.R.D. 652, 653 (D. Mont. 1974)
(allowing pregnant plaintiffs challenging abortion regulations to proceed under
pseudonyms); Topheavy Studios, Inc. v. Doe, No. 03-05-00022-CV, 2005 WL
1940159, at *7 (Tex. App.––Austin Aug. 11, 2005, no pet.) (mem. op.)
(recognizing trial court order allowing plaintiff Doe to proceed under pseudonym
did not hinder defendant’s ability to prepare a defense because order “specifically
allows for full discovery and states that Doe’s true name may be used in
depositions and in the investigation of the case as long as her name is given only
to those individuals who must know her name in order to fully participate in the
investigation,” thus preventing the disclosure of Doe’s true name only to the
media or in any public forum); Mother & Unborn Baby Care of N. Tex., Inc. v.
Doe, 689 S.W.2d 336, 337 (Tex. App.—Fort Worth 1985, writ dism’d) (explaining
pregnant and unmarried women used pseudonyms in filing suit against entity that
they believed, after consulting Yellow Pages, performed abortions).
8
And finally, authority exists that for the purposes of establishing
associational standing, TVRJ may initially file documents identifying the members
of its organization that possess standing by pseudonyms. 6 See Fla. Action
Comm., Inc. v. Seminole Cty., No. 6:15-cv-1525-Orl-40GJK, 2016 WL 6080988,
at *2–3 (M.D. Fla. Oct. 18, 2016) (order).7 In Florida Action Committee, suit was
brought by an association called the Florida Action Committee (FAC)––a
voluntary membership organization that seeks to reform Florida’s sexual-offender
laws and registry––challenging Seminole County’s SORROs. Id. at *1. FAC
identified its individual members who possessed standing under the first prong of
the Hunt associational-standing test by the names Does #1–4. Id. When
Seminole County sought discovery of the identity of Does #1–4, FAC filed a
6
During oral argument, TVRJ’s counsel clarified for the court that through
TVRJ’s “Motion to Seal Evidentiary Documents and for Protective Order,” it
ultimately sought the ability to file affidavits that used initials to identify its
members with individual standing, to proceed in the litigation by identifying such
members by initials, and to limit disclosure of such members’ names and
personal information to the attorneys involved in this suit.
7
Further authority for this proposition stems from the Supreme Court’s
recognition that compelled disclosure of membership lists of groups engaged in
advocacy may constitute a restraint on freedom of association. See NAACP v.
Alabama, 357 U.S. 449, 462, 78 S. Ct. 1163, 1171 (1958); see also Centro De La
Comunidad Hispana De Locust Valley v. Town of Oyster Bay, 954 F. Supp. 2d
127, 139–40 (E.D.N.Y. 2013) (explaining that in considering whether to compel
disclosure, the relevant inquiry is whether the party seeking to limit disclosure
has made a prima facie showing that articulates “some resulting encroachment
on their liberties,” shifting the burden to the other side “to demonstrate the
necessary compelling interest in having discovery”) (quoting N.Y. State Nat’l Org.
for Women v. Terry, 886 F.2d 1339, 1355 (2d Cir. 1989), cert. denied, 495 U.S.
947 (1990)).
9
motion for protective order8 to prohibit the public disclosure of the Does’
identities, and the magistrate judge denied it. Id. The case came before the
district court on FAC’s objections to the magistrate judge’s order. The district
court noted that different standards apply in determining whether a party, as
opposed to a nonparty witness (like the Does), may proceed under pseudonyms.
Id. at *2. Ultimately, because FAC did not come forward with evidence at the
hearing on its motion for protective order that the Does themselves faced a threat
of violence, the district court upheld the magistrate judge’s ruling denying FAC’s
motion for a protective order. Id. at *3 (“FAC produced no evidence indicating
that the Does themselves faced a threat of violence.”).
Applying this law to the present facts, TVRJ may identify its members as
necessary for the purposes of establishing associational standing by
pseudonyms, initials, or fictitious names. See id. at *2–3 (voluntary membership
organization that sought to reform Florida’s sexual offender laws and registry
brought suit in its name under doctrine of associational standing and identified
individual members with standing as Does #1–4); see also, e.g., Topheavy
Studios, Inc., 2005 WL 1940159, at *7 (allowing adult plaintiff to proceed under
8
FAC’s motion for a protective order was filed pursuant to Federal Rule of
Civil Procedure 26, which permits a district court to “issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden
or expense.” Fed. R. Civ. P. 26(c)(1). Texas Rule of Civil Procedure 192.6(b)
contains a provision virtually identical to Federal Rule of Civil Procedure 26(c)(1).
Tex. R. Civ. P. 192.6(b) (authorizing trial court to issue a protective order to
“protect the movant from undue burden, unnecessary expense, harassment,
annoyance, or invasion of personal, constitutional, or property rights”).
10
pseudonym to enjoin video game manufacturer from using topless video of her
obtained when she was a minor); Mother & Unborn Baby Care, 689 S.W.2d at
337 (allowing pregnant and unmarried women to proceed under pseudonyms in
suit against entity that they believed, after consulting Yellow Pages, performed
abortions). If or when Appellees seek discovery of the identity of such members,
consideration of a motion for protective order will be ripe for disposition by the
trial court.9 But based on the record before us—and as the issue was presented
to the trial court—we cannot say that the trial court abused its discretion by
denying TVRJ’s motion for a protective order at the present time. We overrule
TVRJ’s second issue.
VI. CONCLUSION
Having overruled TVRJ’s two issues, we affirm the trial court’s February
10, 2016 “Order Denying Plaintiff’s Motion to Seal Evidentiary Documents and for
Protective Order.”
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: March 30, 2017
9
In fact, the trial court astutely limited its ruling denying TVRJ’s motion for
protective order to the specific facts presented. The trial court stated on the
record, “So without prejudice to any other hearing in regard[] to a protective order
[with] regards to the relief requested today . . ., I will deny the protective order
requested in this matter.” [Emphasis added.]
11