Comments from the judge

What I have seen in the hearings over access to new pleadings is that judges freelance a little bit and apply their own experience. Sometimes they get it right, and sometimes they get it wrong.

The tradition of access that I have witnessed over three decades was that a wooden press box — sometimes metal or cardboard — stood at the clerk’s counter. It held the new civil pleadings that had just come in.

So journalists checked the box every day unless they were on deadline for another story. They could check it at any point during the day, and did so when they were hunting for a specific filing. But, for the most part, they checked late in the afternoon because they wanted to see the whole day’s filings, and they were still in time to make that night’s print run.

I testified about that pattern in the Schaefer trial in 2020 where we won a First Amendment case against the Virginia clerks. So here is where the freelancing comes in. In Albuquerque, in 2021, Judge James Browning is discussing a motion with John Edwards from Jackson Walker.

Browning had earlier ruled in Courthouse News v. New Mexico that clerks could have five hours to docket cases before public access was required. In other words, the clerks could withhold access for five work hours, which meant they could deny access to more than half the new pleadings until the next day. Edwards was asking him to reconsider.

….

Browning: Mr. Girdner testified in another case, Schaefer, that he did the rounds at 4:30 p.m., and testified that traditionally — and I’m quoting here from Schaefer — “Traditionally members of the press covered new litigation in metropolitan areas around the country by sending reporters to the courthouse towards the end of each day.”  That’s what he said in Schaefer. So I think that makes sense. You know, I hung around a lot, as a younger associate, around courthouses, and I would see what was happening at the end of the day, because that’s the way they did it in the old days, send the young associates to all the courthouses to get to know everybody. So I stood right there and watched exactly what Mr. Girdner was talking about. But if that’s the case, doesn’t that have to be built into the right as well? Yes, the court clerk would thumb through it, turn around and throw it in a pile. But the reality is nobody is looking at that pile until close to closing. I have to build that in.

Edwards: Well, no, because it’s not the frequency by which the reporter goes to the courthouse, it’s what they saw when they got there.

Browning:  But see, you and I are disagreeing. I’m saying: Here’s the history; here’s the access; here’s what the press was getting, and I built it into what I thought the right was. You’re saying, Oh, no, we’re just going to look at this little bitty thing about they [the filers] handed it to them [the intake clerks], thumbed through it, threw it in a stack; bingo, there’s the historical access.

Edwards: I think that’s too narrow.

Browning: Well, but that’s your point, you want the modern technology to overtake the historical right.

Edwards. That’s not true, Your Honor. We want exactly what existed that has been taken away, which was pre-docketing access.

Browning: Well, but you’re really wanting the reporters to sit in their offices and see it at 1:00, 10:00, 9:00, rather than going over to the courthouse and going through a stack.

….

So where Browning got it wrong — and I strongly believe we could convince him of this — is that I and the other reporters saw the stuff that had just come across the counter. The local court did not limit the time when we could check the press box, it was there all day. So the intake clerk took a minute, if that, to pull in the pleading and put in the box. And then we saw it. Access was “immediate” for practical purposes.

Because of that truth — that the access was immediate — the best electronic parallel is immediate electronic access, whether through a virtual press box at the courthouse or through a site online.

Browning’s point that we were also seeing pleadings filed five hours earlier is true for the end-of-day run. But under his five-hour rule, we would only see cases filed five hours earlier, and not those filed a minute earlier. So his formulation did not mimic tradition.

As for the ancillary point that journalists want to sit in their office and check any time, the substantive answer is that lawyers can sit in their office and electronically file any time. The more gritty answer is that some clerks continue to restrict access to late-filed pleadings by limiting press review to courthouse terminals.

The discussion in Browning’s court continued, and it will continue here in the next column.

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