Back to Virginia

The door was dark wood and brass, clearly worn but smooth and quiet on its hinges. Inside was a vast chamber of dark wood columns and a long semicircle bench: the en banc room of the Fourth Circuit.

With two bureau chiefs, I accompanied our lawyers who were arguing over a restriction imposed by Virginia on access to court records, one that I thought a state would never fight because it was so blatant.

Virginia has already paid Courthouse News $2.4 million in attorney fees over the policy of two court clerks who restricted access to new pleadings for as long as ten days — based on a sign in the public area of one clerk’s office — after the pleadings were received.

The brother First Amendment violation, from our viewpoint, was that the statewide court administrator in Virginia pursues a policy that gives lawyers and government officials remote access — from mobile phones, office computers, tablets — to court records. But denies the same remote access to journalists or the state’s citizens.

They must go to the courthouse even if it is hundreds of miles away.

New Mexico and Missouri also had such two-class access systems, but voluntarily opened them up to regular folks. Missouri just last year.

Illinois, the only state I can think of worse than Virginia on public access, said it would end the two-class system, but hasn’t done it yet. Only Virginia has decided to employ the public’s attorney general to defend the privileged form of access in federal court.

An opinion from our panel is not expected in the case for another two or three months. Long before the arguments last month, I had traveled with the same two bureau chiefs who attended the arguments, Ryan Abbott and Adam Angione, on what we called “the backwoods tour,” visiting Virginia courthouses running alongside the Appalachians. The name wasn’t really fair because the counties we visited were often remarkably lovely and economically resurgent.

Along the 1000-mile way, we met a set of local “working clerks,” as they called themselves proudly, to distinguish from the  “administrators” in Richmond and counties along the Atlantic coast.

The working clerks formed a colorful cast. In Roanoke a tall, stately, Black woman came striding around the corner to confront the three of us, sitting in row, backs to the wall.

“Are you officers of the court!” she demanded.

In rough unison, we said, “We’re journalists.”

“I can’t give it to y’all. Sorry Harry. Too big a weight to carry!”

She meant she could not give us access to the remote system because the rules, enforced by the administrators,  would not allow it.

In Salem City nearby, we were ushered into the office of Clerk Chance Crawford who had been severely injured long ago in a high school football game. “I been waitin’ on ya,” he said.

When we asked him for remote access to the records in his court, said, “Not yet. I’m not saying I totally disagree with you. I can’t allow it unless we get something from the federal court with regards to your lawsuit that it’s OK.”

In Smythe County, Clerk Mo Musser said in a sing-song, “Why won’t they let you have it?” He described the overarching control imposed by the Richmond administrator’s software: “It’s like the Wizard of Oz. It controls everything.”

Before we left, he told us stories about running for the office of clerk. He had gone onto a man’s farm to ask about planting a sign when he heard the sound of a rooster — “like a helicopter” — attacking him about the head. He fought it off with his cowboy hat while the farmer looked out from an upstairs window and “laughed his ass off.” But the farmer later told him he could come back and put up his sign.

We published the report of that trip on the Courthouse News website under the title, “Report: Access to public records in Virginia courts,” and later submitted it as evidence in the appeal.

But our report had come after the lower court hearing, so, just before argument, the appeals court judges rejected it as evidence. The report remains, however, in the appellate record.

At the hearing, our lawyer, Roger Myers with Bryan Cave argued that the restriction where a reporter must travel hundreds of miles to see court records that a lawyer can see from a mobile phone, could not be justified under the First Amendment.

While the lawyer representing the state court clerk argued that if the state were defeated, Virginia would probably need to remove online access altogether. But the lawyer, John Altmiller, did himself no favors with that argument.

The presiding judge on the panel, Roger Gregory, has a strong background in civil rights, and recalled the reaction from segregationists who would rather have closed a swimming pool than integrate it.

After the argument, the three judges walked along the long bench and down to shake hands with the lawyers, a tradition unique to the Fourth Circuit.

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