A blow-by-blow legal fight is underway in Maryland over First Amendment access to the courts.
In the latest smack, Courthouse News lawyers filed a 30-page brief Tuesday night hitting the government’s failure to come up with a good reason for sealing new pleadings when they are received.
The main justification used by Maryland officials is that a lawyer might make a mistake and put private information into a pleading. But that happens very rarely.
“The government is not allowed to use a bazooka to attack a mosquito,” said the Courthouse News brief, pointing out that Maryland is holding back 100 percent of the new pleadings for a minuscule set of mistakes.
In addition, the brief points out, the responsibility for what is contained in the pleadings belongs to the lawyer, not the court staff. Maryland court rules leave no doubt on that point.
A second blow was directed at the failure of Maryland to look into alternatives that would give public access to new pleadings when they are filed — which is when they are news. In the Fourth U.S. Circuit Court of Appeals, past legal opinions require the government to seriously test potential alternatives for access.
The state courts in Maryland rely on e-filing software from Tyler Technologies which offers three options for public access to new pleadings when the court receives them.
The alternatives are: one, an electronic inbox; two, the automatic placement of the new pleading in the public docket; and three, an application that lets the state set up the access itself.
The First Amendment case setting Courthouse News against Maryland court administrators was filed in 2022. It is now before U.S. District Judge Brendan Hurson on dueling summary judgment motions.
The case revolves around a policy followed by Maryland and some other state courts where clerks hold back new pleadings for clerical work which often delays access until the next day. In their opinions on the First Amendment right of access, federal judges have shown that they get the idea that speed is the essence of news and that day-old news is old news.
“Timeliness is not only an essential component of the right to access, but it is also an essential component of a journalist’s line of work,” wrote U.S. Tenth Circuit Judge Mary Beck Briscoe in an opinion involving the same policy of holding back access to new pleadings in New Mexico.
Partly as a result of that ruling, New Mexico settled the case. The state agreed to give public access to the new pleadings when they are received and pay attorney fees.
Maryland on the other hand has gone to the mat in defending its policy of effectively sealing new pleadings until clerical work is finished.
The state’s competing brief was filed last month. Maryland argued that this news service “feigned timeliness concerns” and has revealed “its true motive.” But Maryland Attorney General Anthony Brown, who represents the court administrators, has not revealed that secret motive.
In fact, Courthouse News has challenged the same no-access-before-process policy in Texas, New York, California, Florida and a number of smaller states. Maryland’s brief itself describes that vast field of constitutional battle.
“This case represents the latest piece that CNS is trying to fit into a remarkable nationwide 15-year puzzle it has created by cleverly applying a narrow line of First Amendment precedent,“ said the argument from Attorney General Anthony Brown and assistant AGs Kevin Cox and Kathryn Hummel.
In the Courthouse News cases, the government counter-tactics are simple and few. The first is to say that privacy is threatened, the second is to say delays are not that bad, and the third is to say providing access on receipt would make the clerks less efficient.
The obligation to keep private identifiers out of new pleadings is placed on the lawyers in nearly all state courts, including Maryland. Because they are caused by clerical work, the delays inevitably affect a large volume of cases, particularly the heavier cases that tend to be filed later in the day. And the idea that on-receipt access would render courts less efficient is not supported by anything other than guesswork.
Most federal courts, for example, give press and public access to new pleadings on receipt as well as huge state court systems in California, New York and Florida.
The constitutional standard overarching the Maryland mano a mano was set by the U.S. Supreme Court in a case called Press Enterprise II where the high court said, “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest.”
That standard was interpreted by the Fourth Circuit — which covers Maryland, Virginia, North and South Carolina and West Virginia — in its 2021 Schaefer decision. The appellate court said the First Amendment “requires courts to make new civil complaints available as expeditiously as possible.”
Tuesday’s reply brief from Courthouse News, filed near the midnight deadline, argues that Maryland’s courts have not done that, they have not made the complaints available “as expeditiously as possible.” The brief was written by Katherine Keating with help from Jon Fetterly, both with the Bryan Cave law firm.
“The Fourth Circuit has already decided a challenge to a state court’s policy of restricting access to newly filed civil complaints until after court staff complete administrative processing. Courthouse News Serv. v. Schaefer,” wrote Keating. “That is how we know that ‘[t]he press and public enjoy a First Amendment right of access to newly filed civil complaints’ … which ‘requires courts to make newly filed civil complaints available as expeditiously as possible.’”
She concluded the brief by saying, “Defendants have failed to provide evidence that their no-access-before-processing policy is narrowly tailored and necessary to protect confidentiality or any other overriding interest. Courthouse News seeks not a radical intrusion into court operations, as Defendants imply, but rather a fair application of long-established constitutional principles, including governing Fourth Circuit precedent.”
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