MANHATTAN (CN) — A Second Circuit judge was quick to undercut arguments from Vermont on Monday that the state's duty to safeguard confidential information trounces the First Amendment guarantees of public access to court proceedings.
“It doesn’t seem to be a particularly serious problem,” said U.S. Circuit Judge Denny Chin. Appearing remotely — but drawn into the scene thanks to a background photo of the ornate appellate courtroom — the Obama appointee referenced a lower court's finding that it was in less than a one-hundredth of a percentage of new complaints that confidential information sneaked through the system.
Vermont clerks say even the remote probability that such a breach would occur justifies their use of a lengthy review process for new civil complaints that can result in dayslong access delays, turning fresh lawsuits into old news before the public and press can get a glimpse at them.
Courthouse News Service, which is leading the fight to restore same-day access, pointed out at the argument session Monday that, out of the more than 4,100 cases subject to the review process in U.S. District Court for the District of Vermont, just two contained confidential information.
There is also no evidence that any confidential information has slipped through in the interim, said Roger Myers, an attorney for Courthouse News with the firm Bryan Cave.
U.S. Circuit Judge Richard Sullivan elicited some quiet laughter in the courtroom when he questioned the argument tactic from Vermont Assistant Attorney General David Boyd that the court must consider all civil filings, not just complaints, as within the scope. Courthouse News doesn’t have unique access to complaints, Boyd said.
“I thought your answer was going to be, ‘it’s a small issue unless your personal information is exposed,’” Sullivan remarked. “But you didn’t say that."
Sullivan, a Trump appointee, sought to weigh the risk of exposure against its consequence.
“I assume you don’t want your personal information out there, but what’s acceptable for other people?” he asked Courthouse News' attorney.
U.S. Circuit Judge Pierre Leval asked meanwhile why Vermont's review process would even be necessary given that filing procedures already require attorneys to inspect complaints for confidential material — with penalties in store when those inspections fail.
“Why didn’t that essentially do it for counseled cases?” the Clinton appointee asked, suggesting the state could even add criminal penalties for attorneys who didn't comply. “I understand that uncounseled cases are a wild card.”
Leval posited whether a declaratory judgment from the district court would have sufficed, observing that the injunction seemed to go “much farther than it needed to,” enjoining even a 15-minute delay.
Myers explained that the lawsuit would not have been filed if the delays lasted merely a few minutes. The ruling, he explained, doesn’t in fact prevent clerks from doing any review process.
“The only thing they can’t do is seal everything for as long as it takes to get the complaints processed,” said Myers, whose firm is based in San Francisco. “If something gets through, they can pull it back.”
“Isn’t there a familiar saying about that?" Leval pressed. "Something to do with after a cow has left the barn?” Leval asked.
After the hearing adjourned with the bench reserving judgment, Myers underscored that he is asking for a longtime standard to remain in place.
“The tradition, historically, has always been — across the country — access the day of filing,” Myers said. “You can do all the review you want. You just can’t seal everything until you do that review.”
The Vermont judiciary declined to comment on the case.
Leading news organizations including The Associated Press, The Boston Globe, The New York Times, Politico and The Seattle Times all signed onto an amicus brief in support of Courthouse News in the case.
Something both parties arguing Monday could agree upon, and a point made by Boyd during his arguments, is that Courthouse News has initiated delay-spiking efforts across the county.
In recent arguments at a different circuit court, Courthouse News saw acknowledgment from judges of the instant nature of acquiring documents in the days of analog filings.
“What we're saying is that, oh, for about 230 years, you can walk into a Missouri courthouse into the clerk's office and say, ‘Hey, can I see what's been filed today?’” said U.S. Circuit Judge Ralph Erickson, a Trump appointee, during the Eight Circuit hearing last year.
U.S. Circuit Judge Bobby Shepherd pointed out the instant nature of acquiring documents in the days of analog filings.
“There was a time when — and some in this room may remember it — when you took a pleading to the courthouse and the clerk stamped it physically and it went into different bins and it was available immediately,” said Shepherd, a George W. Bush appointee.
This past March, Courthouse News gained ground in yet another fight for document access in Columbus, Ohio, with a ruling against a county clerk who had been withholding e-filed complaints from public view during a review process. The Franklin County clerk argued unsuccessfully that it’s necessary to hold back new complaints while they’re checked to ensure they comply with court rules.
“A complaint as-filed speaks for itself; if there are misspellings, grammatical errors, unartfully pled allegations, or discrepancies with filer inputs, the complaint as-filed remains a true representation of a party’s pleading,” U.S. District Judge Sarah D. Morrison wrote in the 17-page order.
And in related litigation in 2016, judge Edgardo Ramos in the Southern District of New York enjoined the Manhattan court clerk from withholding access until after processing. The resulting on-receipt access has been in place for the public without incident for six years.Follow @NinaPullano
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