So our news service has been fighting a decades-long campaign, from East to West, North to South, to take back time stolen under the cover of technology. For an audience of judges and clerks, I recently recounted those battles in a normal, as opposed to legal, writing style. It went like this:
The central holding of judicial opinions on the topic has been that the right of access to new court complaints attaches when they are filed. Those opinions have been tempered by a judicial aversion to laying down a red-line rule.
That tension was best resolved by Judge Henry Coke Morgan Jr. in an opinion issued last month in federal court in Norfolk, Virginia.
“Media, in all of its forms, is the instrument through which the public, as well as public and private institutions, receive the information upon which the rely in making well informed everyday decisions,” wrote Morgan. “To efficiently inform the public, the media must have complete and timely access in our increasingly data-driven decision making.”
At the conclusion of his 45-page opinion in Courthouse News v. Schaefer, the judge decreed: “1) That the press and public, including Plaintiff, enjoy a qualified right of access to newly-filed civil complaints contemporaneous with the filing of the complaint. 2) That ‘contemporaneous’ in this context means ‘the same day on which the complaint is filed, insofar as is practicable.”
Applying that language to e-courts around the nation, Morgan’s ruling would call for an electronic inbox much like the wooden inbox that used to sit on the clerk’s counter. The e-inbox, often called a press queue, would provide access “on the same day on which the complaint is filed.”
And the e-inbox is clearly “practicable” because a lot of state courts have put one in place, throughout the state of New York and in a group of California courts in San Jose, Monterey, Fresno, Bakersfield and Los Angeles, the biggest court in the nation.
The Virginia opinion followed on a series of rulings that started with a federal judge in Texas almost ten years ago. In that case, Houston’s clerk, Loren Jackson, had come into office on a Democratic wave. He campaigned on the slogan: “Get Online Not In Line.”
One of his first acts in office was to reverse the media-friendly policy of his Republican predecessor, Charles Bacarisse. The new clerk kicked reporters out from behind the counter and required them to wait until new complaints were processed. Access was delayed by one day or more.
In July 2009, U.S. Judge Melinda Harmon in the Southern District of Texas wrote in Courthouse News v. Jackson: “It is clearly in the public interest to enjoin Defendants’ conduct. There is an important First Amendment interest in providing timely access to new case-initiating documents.”
Harmon then ordered that news reporters “be given access on the same day the petitions are filed except where the filing party is seeking a temporary restraining order or other immediate relief or has properly filed the pleading under seal.”
During the intervening years, a continuum of First Amendment rulings have confirmed that the right of access attaches when new complaints are received by the clerk which is when they are filed.
Years later, that Texas decision was followed in 2016 by another decision in California, Courthouse News v. Planet. Ruling against the clerk in Ventura, California, U.S. Judge James Otero found that Courthouse News “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.” As other judges have done, he tempered that ruling by refusing to establish a bright-line rule, saying he would not declare an “unyielding same-day access requirement.”
The effect of his ruling, however, was that clerk Michael Planet in fact began providing close to 100% same-day access. While complying with the ruling, the clerk also appealed it. In January 2020, a Ninth Circuit panel issued a 45-page opinion that affirmed the injunction against his “process-first” access policy, in Courthouse News v. Planet.
“The First Amendment right of access exists, moreover, to enable free and informed discussion about important issues of the day and governmental affairs. Thus, ‘[t]he news media’s right of access to judicial proceedings is essential not only to its own free expression, but also to the public’s,’” said the opinion. “We conclude that the press has a qualified right of timely access to newly filed civil nonconfidential complaints that attaches when the complaint is filed,” the opinion concluded.
The opinion covered a range of issues. It affirmed the lower court’s injunction against a “process-first” access policy but also reversed another injunction against a policy that excluded reporters from the records room at three o’clock, while court employees kept working for another two hours.
Following the original 2016 injunction against the Ventura clerk, another case on the same issue came up the same year in federal court in Manhattan.
Manhattan’s state court clerk, Milton Tingling, was also requiring that news reporters wait to see new complaints until after they were processed. Tingling was operating in a mandatory e-filing court, like many state courts today.
“In light of the values which the presumption of access endeavors to promote, a necessary corollary to the presumption is that once found to be appropriate, access should be immediate and contemporaneous,” wrote U.S. Judge Edgardo Ramos. “The newsworthiness of a particular story is often fleeting. To delay or postpone disclosure undermines the benefit of public scrutiny and may have the same result as complete suppression. Each passing day may constitute a separate and cognizable infringement of the First Amendment.”
In Courthouse News v. Tingling, Ramos referred to both the California decision in Planet and the Texas decision in Jackson when he enjoined the New York clerk: “As in Planet and Jackson, this Court finds that the clerk has failed to meet its burden of demonstrating that its policy of refusing to provide the public and press access to newly filed complaints until after they are reviewed and logged is either essential to preserve higher values or is narrowly tailored to serve that interest.”
Moving to Illinois in 2018, Chicago’s circuit court had a history of access that fell in line with all the big courts around the country. When new complaints were filed, in paper form, journalists could review them as soon as they crossed the counter, on the day of filing.
But when Chicago’s clerk Dorothy Brown moved over to e-filing, she delayed press access until after the new complaints were processed, a series of clerical tasks that culminate with what is called acceptance.
“Accordingly, the Court concludes that: (1) CNS has demonstrated a likelihood of success on the merits of its claim that Brown’s current policy of withholding new e-filed complaints until after formal acceptance and other administrative processing by the Clerk’s Office violates CNS’s First Amendment right of timely access to those complaints,” wrote U.S. Judge Matthew Kennelly in Courthouse News v. Brown.
Kennelly then enjoined clerk Brown’s policy of delaying access to the new e-filed complaints until after they were accepted, thus enjoining the policy currently followed by many clerks around the nation.
The Seventh Circuit later reversed Kennelly’s injunction on the grounds of abstention, saying the federal courts had no business applying the First Amendment to state courts. But that opinion has not been followed. It was rejected by the Ninth Circuit in California, rejected by Judge Ramos in New York, and rejected by Judge Morgan in Virginia.
There is one exception to the line of decisions saying press and public have a First Amendment right to access on the day of filing. Also in 2018, U.S. Judge Andrew Guilford in federal court in Orange County ruled that delays of one day do not violate the First Amendment.
Last month the Ninth Circuit reversed that ruling in its entirety.
During the course of writing this legal travelogue for state court judges and court officials, I also pointed out all the news outlets that subscribe to our reports on new litigation, reports that do the review that journalists used to do at the counter in the clerk’s office. They include the Boston Globe, Chicago Tribune, Los Angeles Times, Wall Street Journal, Dallas Morning News, CNN, Fox News, a bunch of TV stations and a whole lot more media, law schools and government agencies.
As the judicial opinions lift the fog of pretext, it becomes apparent that court clerks can put in place an electronic inbox that functions precisely as the old wood box on the clerk’s counter used to work, providing access to new complaints when they are received. The campaign to take back time lost in the technological transformation of the courts has not been for Courthouse News alone, it has been just as much for our weakened brethren and for a principle: that America’s courts are open courts.
More stories and columns on the Virginia trial: