Cincinnati Court Clerk Must Defend First Amendment Action Over Access Delays

“It was a classic, auburn, wooden box with half circles cut out of the front and back. As soon as a complaint came in, they stamped it and put it in the box.”

Hamilton County courthouse. (By Nyttend – Own work, Public Domain)

The courts in Cincinnati operated just like the rest of the courts in the Midwest. A box on the counter held the new complaints and reporters walked up to the box, looked through the contents and reported the news.

It was the same in both federal and state courts.

“It was a classic, auburn, wooden box with half circles cut out of the front and back,” said Adam Angione describing the box on the counter in Cincinnati’s federal court. Angione started out as Cincinnati reporter for Courthouse News and now works as the New York City-based bureau chief for the region.

“It was a small room, maybe ten by ten. I would sit at the PACER terminals, and as soon as a complaint came in, they stamped it and put it in the box,” he said. “And I would go get it.”

He described a very similar process at the Hamilton Court of Common Pleas, the state court in Cincinnati.

“The new complaints were in a black plastic bin on top of the intake counter in the clerk’s office. I would go in, go straight to the black plastic bin, get the complaints out of there, and go to a table in the records room and take notes. When I was done with the first group, I would go back, put them back in the bin and take out anything filed since I got there, anything that has been added to the bin, I got that batch.”

He said all the clerk’s office workers lined up by the door at 3:58.

Bureau Chief Adam Angione

“So I had to be out of there by four,” said Angione. “I could make my own copies. So if there was something filed up to the bell, I would make a quick copy and leave.”

Asked to describe the access in the two courts, he said, “It was perfect.”

But along the way to the future of modern electronic technology, the two courts took separate paths. The federal courts in Ohio continued the paper tradition in electronic form and, just like with the paper, give access to efiled complaints as soon as they cross the virtual counter. In other words, on receipt.

The court of common pleas, on the other hand, took access backwards. The clerk began withholding new efiled cases until they were clerically processed, a delay that had not existed with paper filings. So on the way to the future, the court went backwards on access and court transparency.

It has been the same story in many state courts around the country. At the same time, a growing number are returning to traditional access, on receipt, in the modern era.

This news service has been asking the state court clerk in Cincinnati, since roughly 2014, for a return to the traditional timing of access, when the new complaints cross the now-virtual counter, instead of having to wait for docketing or what is now called “processing.” Without success.

The lawyer for Courthouse News in Cincinnati, Jack Greiner with the Graydon law firm, went back to the clerk, an ambitious political figure named Aftab Pureval, after the Ninth Circuit handed down its 2020 opinion Planet III finding that a qualified right of access attached on receipt. The clerk is currently running for Cincinnati mayor.

He tried to push the decision over the court’s judges, even though he is the custodian of the records. So Courthouse News filed a federal court action against Pureval Tuesday afternoon, alleging a single claim under the First Amendment.

The case was filed and will be prosecuted by Greiner and Alexandra Berry also with the Graydon law firm in Cincinnati.

Alexandra Berry

“Defendant in effect seals the new complaints until their news value has diminished or disappeared through his policy of ‘no-access-before-process.’” said their complaint. “Similar no-access-before-process policies have been deemed unconstitutional in a series of cases brought by Courthouse News.”

The complaint reviewed the legal precedents in Houston, New York City and Ventura, where federal courts have overturned policies by state court clerks holding up access for clerical work. That body of law has grown as state courts moved over to access on receipt in Hawaii, California, Washington, Nevada, Utah, Connecticut, New York and Alabama.

It takes the form of an electronic queue where the new complaints are placed automatically as they are filed. The queue is the old wood box or plastic tray on the counter, only in electronic form.

“The complaint is taking access at the courthouse back to what it was prior to efiling, prior to this age of technology, back to when First Amendment rights were as they are supposed to be in terms of on-receipt access to newly filed complaints,” said Berry, 30, a first-year associate at the Graydon firm.

“There is something that can be done about making complaints available as soon as they are submitted,“ she said. “We know it is possible because of what we see in many other courts, state and federal. So this administrative processing should not be seen as a barrier to the access, doesn’t need to be.”

In their complaint, Greiner and Barry walk through the precedent required for a finding of access to new court filings when they are received. The seminal Supreme Court case of Press Enterprise II involved the right of the newspaper in Riverside, California to witness the pretrial proceedings against a nurse accused of overdosing a large number of patients with the heart drug lidocaine.

In that decision, the high court said a pretrial hearing could not be closed unless there was an overriding interest and the closure was narrowly tailored.

“In Press Enterprise II, the principle competing with the right of access was the right to a fair trial. Here the right Defendant seeks to enforce is ‘filing cleanup,’” said the complaint referring to the principal reason given by the clerk for the need to review a new complaint. “Filing cleanup does not override the First Amendment right of access.”

The newly filed complaint by Courthouse News was immediately and automatically made public on the federal court’s electronic PACER system. The complaint added, “Defendant’s no-access-before-process policy, which denies access to all complaints and other judicial records until after processing by the clerk’s office, is the sort of ‘blanket prohibition on the disclosure of records’ that ‘implicates the First Amendment,’” Pokaski, 868 F.2d at 505-06; Planet III at 594.

In 2009, the complaint related, Courthouse News challenged the Houston clerk’s practice of holding back new complaints because he wanted everyone to “get online, not in line.” Enjoining him, U.S. Judge Harmon wrote, “The Court is unpersuaded by Defendants’ argument and finds that the delay in access to the newly filed petitions in this case is not a reasonable limitation on access.”

Aftab Pureval (Hamilton County Clerk of Courts photo via Courthouse News)

In 2016, U.S. Judge Edgardo Ramos in New York enjoined the policy of the Manhattan court clerk who withheld access while new filings were being “reviewed and logged.”  The match that started that litigation was the clerk’s delay in letting the press see a highly newsworthy suit brought by then candidate Donald Trump against the Univision television network after they canceled his beauty pageant because of his anti-Mexican remarks.

In 2018, Judge Matthew Kennelly in Chicago enjoined the clerk there, saying, “What is actually afoot is a system, effectively created by Brown herself, in which all e-filed complaints are treated as having been filed under seal until Brown herself clears them for public access. Brown cannot end-run the First Amendment by creating a system in which hypothetical doubt regarding whether litigants comply with rules about redaction allow her to exclude the public from access to judicial proceedings until she is good and ready to provide it.”

In 2020, U.S. Judge Henry Coke Morgan Jr. struck down a policy in Norfolk and Prince William counties that delayed access to new paper filings so that the court could first docket and scan them.

In  2021, U.S. Judge Dolly Gee in Los Angeles found a constitutional right of access to new civil complaints “This qualified right of timely access attaches when new complaints are received by a court, rather than after they are “processed” — i.e., rather than after the performance of administrative tasks that follow the court’s receipt of a new complaint.”

In its First Amendment actions, the news service argues that new technology should illuminate the halls of government, not darken them.

The case has been assigned to U.S. District Court Judge Michael Barrett in the Southern District of Ohio.

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