Courthouse News Wins First Amendment Injunction Against New York Clerk

By JOSH RUSSELL

MANHATTAN (CN) – After extensive argument Friday afternoon, a federal judge in Manhattan ruled from the bench in favor of Courthouse News on its First Amendment motion to enjoin the state court clerk from continuing his practice of withholding press access to newly filed civil complaints until after clerical processing.

Over the course of a 90-minute hearing in a yellow-walled, sixth-floor courtroom in the old courthouse in New York’s Southern District, Judge Edgardo Ramos heard Courthouse News’ argument that New York Supreme Court Clerk Milton Tingling’s denial of timely access to new civil complaints deprived Courthouse News, its subscribers and the public of their First Amendment right of access to court records.

In their written arguments, Courthouse News attorneys stressed the importance of New York City as the media capital of the nation, where highly newsworthy complaints are regularly filed. Those cases include, for example, an action by the president-elect against Univision over cancellation of a beauty pageant and another by a female newscaster against the Fox network. The clerk withheld both of those cases until the following day while the documents were simultaneously leaked to news organizations that were given an exclusive while the rest of the press corps was frozen out.

Clerk Tingling offered various reasons for withholding the new complaints, saying he was required to review them for mistakes while also acknowledging he could provide the press with access upon receipt if he so chose.

In the Courthouse News reply memorandum, its lawyers said, “New York Supreme is the forum for some of the nation’s most important litigation, and the fleeting nature of news requires timely access to complaints received for filing. The reasons Defendant has offered to justify his practice of withholding press access to newsworthy court filings while his staff performs clerical tasks do not satisfy First Amendment scrutiny under the standards observed by the Second Circuit.”

Ramos rocked in his chair as he heard argument from Courthouse News’ attorney William Hibsher, who pointed out that before the advent of electronic filing, reporters had access to all newly-filed paper complaints by the end of each day.

Hibsher, with the Bryan Cave law firm, emphasized the “fleeting nature of news” in the intense and fast-paced environment of New York City where a one-day delay translates into the loss of a news cycle and makes for stale news.

Courthouse News provided the judge with data compiled by bureau chief Adam Angione showing that roughly one out of every three newly filed civil complaints at New York State Supreme Court were being withheld for one or more days while the clerk’s employees finished their clerical tasks.

That delay contrasts sharply with press access in New York Supreme prior to e-filing where journalists went down into the clerk’s office at the end of the day and looked over a stack that held every new complaint filed that day. The complaints are a traditional source of news on the courthouse beat.

It also contrasts with current press access in all the federal courts in New York and a host of additional state courts that also provide journalists with access to newly filed complaints immediately upon receipt and prior to clerical processing.

Tingling sat in cool observance for most of the hearing, only once breaking his calm to urge his attorney Lee Adlerstein, deputy counsel for New York’s Office of Court Administration, to object to the judge’s comment that “a significant number” of complaints are not accessible in a timely manner.

Adlerstein argued that New York State follows “sensible policies,” including the New York Civil Practice Law provision of offering documents by the  end of the next business day, which Adlerstein described as “immediate enough.”

During the defense argument, Ramos told Adlerstein that case law presented by Courthouse News was “fairly unanimously against” his position. Ramos then asked the defense lawyer, “What’s the danger of providing immediate access? What’s the damage?”

“The risk is relatively minuscule,” Ramos later concluded.

Various clerks in other states have attempted to redefine “same-day access” or “access by the end of the day” to mean access within 24 hours. The judge rejected that argument when it was likewise made by the New York clerk’s lawyer.

Ramos said that to him “the end of the day” for a complaint filed on a Monday at 3:30 would be on that same Monday and not at the end of the following day.

Following a 10-minute break, the judge dictated his ruling from the bench.  “It is the Court’s conclusion that plaintiff’s motion for preliminary injunction will be granted,” he said. “I find that the clerk may not prevent the press from accessing newly filed documents because of his review and logging procedures.”

The judge’s decision is consistent with two earlier federal rulings, a preliminary injunction against the Houston state court clerk and a summary judgment ruling against the state court clerk in Ventura, California. In both cases, Courthouse News prevailed in battles over First Amendment access to new court filings.

In last year’s ruling against the Ventura clerk, U.S. District Judge James Otero wrote, “The Court concludes that CNS has succeeded in establishing a qualified First Amendment right of timely access to such complaints that attaches when new complaints are received by a court.”

The state court administrators in California have fought a protracted, die-hard battle against the press over prompt access to court documents, and they have appealed Otero’s ruling to the Ninth Circuit Court of Appeals.

In the old federal courthouse in Manhattan, the clerk’s lawyer prevaricated over the date by which the clerk could comply with the judge’s injunction, and Ramos ordered the lawyers for both sides to meet and confer in early January to establish a schedule for compliance with his ruling.