(CN) — A federal judge in Vermont late on Friday enjoined local court clerks from withholding access to e-filed complaints. She decided in favor of news outlets contesting an access blackout while clerks review and process new court filings.
The injunction handed down by Judge Christina Clair Reiss became public almost immediately after it was filed late in the afternoon, in stark contrast with state court filings which are regularly held up for a day or more.
As part of a carefully reasoned, 32-page opinion, the judge enjoined Vermont’s court administrator, Patricia Gabel, and four clerks who together run all the local courts in Vermont. She forbade them from withholding access until they had finished their “review process” which includes looking over the new filings as part of clerical tasks.
“Defendants are HEREBY ENJOINED from delaying public access to electronically filed civil complaints until the Vermont Superior Courts' pre-access review process is complete,” she concluded. “SO ORDERED.”
The ruling lands in a First Amendment landscape cratered by a recent decision in Maine that blew up precedent and another in Missouri that dug a hole in the constitutional terrain where a judge can hide. Reiss returned pure, simple reason to a realm of law that was being broken into random pieces.
Her decision spread a rational calm over discussion about the public’s right of access in the electronic age that has at times veered into wild claims of harm and official contortions of the truth. And in the march of her logic, she knocked down a defensive wall erected by clerks and may have turned the tide of conflict on the right of access.
And she did so in a territory where the Second Circuit natives are generally friendly to emissaries of free expression.
In her opinion, Reiss walked through a legal progression that ultimately asks two simple questions: Do you, government official, have a really good reason for interfering with public access and if you do, did you keep the interference to an absolute minimum. In the end, Vermont court officials could answer neither question: they did not have a true reason and as a result no interference was justified.
“Because Defendants have failed to sustain their burden to demonstrate that their pre-access review process is justified by higher interests and narrowly tailored to advance those interests, Defendants have violated the public’s and Plaintiffs’ First Amendment right of access to newly filed complaints,” said the opinion.
The facts, spread like stone markers across the legal landscape, were that public access to newly filed complaints was being blocked by Vermont’s court clerks while they ‘processed’ them, which consisted of supposedly checking for private information and doing clerical work to enter them into the court docket. The blackout turned the news stale and it ran counter to tradition.
Since time beyond memory, reporters and often members of the public looked over new complaints filed in paper form. The complaints were generally put in a box on the counter by the intake clerk. The box was near-universal in big courts, state and federal.
It was usually emptied the next morning by a docketing clerk who began typing basic information, such as parties, lawyers, and nature of the complaint, into a docket which became the record of proceedings as the case wound its way through the courthouse. The press and public had access to the new complaints as soon as they crossed the counter, before they were picked up for docketing.
In the transition to e-filing, a slew of state court clerks took that traditional access away and started holding the new cases until they were docketed, what is now called processing. As a result of those no-access-before-process policies, state court officials are now facing First Amendment complaints all around the country. Using government lawyers, they are fighting against public access in Maine, Virginia, Texas, Missouri, Idaho, Oregon and Ohio.
The Vermont decision is a big and possibly pivotal victory in the press campaign to take back what was taken away.
It came out of a complaint filed in June by the Vermont Press Association, Courthouse News, New England First Amendment Coalition, Gray Media Group, Gannett Vermont Publishing, Sample News Group, Vermont Journalism Trust, Vermont Community Newspaper Group and Da Capo Publishing. They are represented by William Hibsher and Jonathan Ginsberg with the New York office of Bryan Cave, and Robert Hemley with Gravel Shea in Burlington, Vermont.
They moved for a preliminary injunction in July and the Vermont Attorney General countered with a motion to dismiss, all consolidated by the judge into a trial on the merits based on the papers and argument from the lawyers.
With Vermont’s forests full of color, Reiss heard live arguments in her courtroom in Burlington a couple days before Halloween. During the hearing, the judge showed an innate understanding of a simple truth that has lately been absent in federal courtrooms around the country: the only reason for access delays in an e-filing court is the clerk’s intervention in an otherwise automated process
“There would be no delay in an e-filing system,” she said from the bench. “There could be 1,000 complaints; there could be 100,000 complaints. There’s no delay. The only delay that’s going to show up in an e-filing system is when you insert a staff member into it to do something else. Right? Because [e-filers are filing] with all of the document information [the clerks] need, and it’s hitting the docket and there isn’t any step in between there by staff.”
In its reporting on the case, Courthouse News focused on the same quote and the judge returned to it again in her ruling last week. She came to the inescapable conclusion both at the hearing and in her opinion. “So that, by definition, means that the delay is in this review process.”
Reiss then turned to a two-part analysis required by the grandmother First Amendment opinion in the area of access rights — Press-Enterprise II — which involved pretrial proceedings in a notorious criminal case where a nurse had killed older patients with overdoses of heart medication.
That 1986 Supreme Court decision said an “overriding interest” is required in order to restrict the First Amendment right of access and any restriction needs to be “narrowly tailored.”
In her application of that precedent, Reiss concluded that Vermont’s attorney general had provided “scant evidence” that holding back access to the new complaints was required by an overriding state interest and also found that that the delay was not tailored to fit an actual problem.
“Defendants offer no evidence that staff review of signatures, filing fees, and filing codes is necessary to protect the orderly administration of justice,” she wrote. And in reference to Vermont’s e-filing software which is called Odyssey, she added, “Indeed, Odyssey’s software system performs these same functions.”
She found that pre-access review was near useless, catching private identifiers in only three exhibits out of more than 4.000 complaints filed. “Defendants cite no evidence that they experienced significant confidentiality breaches prior to the implementation of pre-access review, nor do they cite any court in the country that has found a similar process necessary.”
In related cases around the country, clerks have been throwing excuses against the courtroom wall to see what will stick. One frequently flung argument is that a human intake clerk took a minute or so to check paper complaints as they came across the counter, and therefore delay is both traditional and necessary in the electronic context.
It stuck in New Mexico last month. A federal judge said that because a human clerk looked at the filings as they came across the counter, therefore human review was traditional and it was OK to hold up access for a bright-line limit of five work hours.
But it did not stick in Reiss’s courtroom.
“Although some courts have sought to impose a bright-line rule for permissible delay, here the focus must be on whether any delay is appropriate because any restriction on the First Amendment right of access must have ‘sufficient justification,’” she wrote.
Marching through her analysis, the judge destroyed two defensive walls set up by clerks around the country. One was the argument that a federal judge should “abstain” from treading on state court administrative matters.
A federal judge in St. Louis took that path this summer which allows the judge to in essence duck a decision. The path started with a 2018 decision by the Seventh Circuit Court of Appeals to overturn an injunction against Chicago’s court clerk, saying federal courts owed “comity” to the clerk.
Reiss was having none of either decision.
She said they are both “outliers.” Judges in the Fourth and Ninth circuits have said the same, with a cumulative effect that turns the abstention defense into rubble.
The second defensive argument is to claim the media wants “instantaneous” access and suggest there is something terrible about that. The argument is often mixed up with a notion that is referred to in Courthouse News reporting as “The Williamsburg Ghost.”
First conjured up at a clerk conference in Williamsburg in 2013, the illusory argument says the press is trying to grab documents from lawyers standing in line to file documents or trying to open the clerk’s mail. The argument is nonsensical because the press asks to see a new electronic filing after it has been delivered to the clerk, not before. But the Vermont attorney general tried it.
And Reiss sent the Williamsburg Ghost flying.
“Defendants contend that Plaintiffs seek instantaneous access to newly filed complaints akin to allowing a reporter to go behind the clerk’s desk and open a Vermont Superior Court’s mail,” she wrote. “This comparison is nonsensical.”
She explained that with e-filing, there is no opening of envelopes or physical handling that would make access at the time of filing impracticable. “Instead, the only obstacle to newly filed complaints is Defendants’ pre-access review process. In effect, Defendants purposefully withhold immediate access by placing them in a review queue with virtually no guarantee as to when they will become public.”
The judge’s opinion is regarded by this news service as blessed relief after two losses and one mixed win on virtually identical issues. In Maine, a judge ruled this summer that the same blackout of new complaints did not violate the First Amendment, and a judge in Missouri avoided a decision by abstaining. Both decisions are now on appeal.
A third ruling last month in New Mexico enjoined the court administrator but allowed him to hold back more than half the cases until the next day. That decision is also on appeal, but by the state.
The sprawling legal battlefield over the right of access, from New England to the South to the Midwest to the Northwest, can resemble a campaign from a thousand years ago to take back a land lost to an invading army of officials. It is being fought by roving units of lawyers who have been suffering losses as they battle in almost every federal circuit to take back the liberty that was grabbed away.
With the ruling in Vermont, tradition was affirmed, sense prevailed and a couple phantasms of argument conjured by the government were sent spiraling away, so weakened they are unlikely to return. And the river of First Amendment law may be back within its banks.
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