(CN) — Once upon a time in New Mexico, court clerks let the press go behind the counter to look for news in the stack of filings that had just come in that day. It was fresh news, like fresh bread, good on the day it is made.
When New Mexico filed an environmental complaint against Los Alamos National Laboratory, that was news. Filed earlier this year, that case was also a prime example of why reporters check new filings.
Had it been filed in paper form ten years ago, it would have been spotted on the day it was filed in Santa Fe’s state court by a reporter going behind the counter to check new filings. But it was electronically filed, and as a result access was delayed for a full day.
Had the same case been e-filed in federal court instead of state court, it would have been open to the press and public right away. The only reason why it was held up was because New Mexico state courts follow a no-access-before-process policy, refusing public access until after the clerical work of docketing, also called processing.
It was not so when paper ruled the courts.
“I would signal an intake clerk when I arrived at the court and the clerk would open the door for me to go into the work area of the clerk’s office, a large, open room,” declared Victoria Prieskop, the Courthouse News reporter who covered the New Mexico courts then and covers them now.
“I had access to two sets of newly filed complaints. One set was held in a rolling cart, like a moveable bookshelf. Those cases had been docketed and placed in manila, legal-size case folders. I also had access to a second set of cases kept in a stack of temporary folders in a shallow cardboard container on top of a file cabinet. These cases had not been docketed, and they included cases filed that same day.
“In Santa Fe,” she added, “these complaints were kept in plain manila folders, while in Albuquerque, they were in blue folders.”
In simple terms, what the New Mexico courts did in the move to e-filing was to take away access to those cases in the manila and blue folders — the ones that had not yet been docketed. So now they only allow the press and public to see cases that would have been on the rolling cart that held the docketed cases.
That policy means delay, often a day, sometimes more, and the news goes stale.
First Amendment action filed
And it is a choice. In the federal system and in many states outside New Mexico, the courts carried over into the electronic environment that old paper access to the manila and blue folders. They did that by putting the new filings onto their public access system almost as soon as they cross the electronic counter.
This news service has asked New Mexico officials, many times, to return the access they took away. They have refused.
As a result, Courthouse News filed a First Amendment complaint against the New Mexico Administrative Office of the Courts late Friday afternoon. The declaration by reporter Prieskop describing access then and now is included as an exhibit to the complaint. The complaint is accompanied by a motion for preliminary injunction, and the case has been assigned to U.S. Magistrate Judge John Robbenhaar.
“Since time beyond memory, the press has reviewed new civil complaints when they crossed the intake counter in American courts,” says the introduction to the complaint. “That was true throughout the nation and it was true in New Mexico.”
“During the transition from paper to electronic court records, federal courts and many state courts kept that tradition in place,” it continues. “But a group of state court clerks abandoned the tradition. They withheld new electronically filed complaints until they were entered into the docket, delaying access and damaging the news.
“Courthouse News has been asking New Mexico court officials since 2014 to return the traditional access they took away, but to no avail.”
The Courthouse News complaint and accompanying declarations were sent online into the U.S. courts’ public access system shortly after filing, where they could be downloaded and read. The access is not “immediate,” an unpopular term with judges, but is in fact delayed by the intake software.
The delay tends to run around a minute, sometimes longer, sometimes less. In the old paper systems, the intake clerks took a similar amount of time — about a minute — to bring new cases in across the counter, at which point they became available to the press.
The subsequent clerical work of docketing was then done by different clerks often in a different part of the clerk’s office. They could take their time, generally a day or two, to enter new cases into the court’s docket. The New Mexico policy for e-filings has pushed press and public access behind the docketing clerks when it used to be in front of them.
Memo comes to light
Over the course of roughly six years, Courthouse News tried to get timely access back in New Mexico, moving up through the bureaucracy of the state courts. In 2018, at the top of that heap, administrative director Artie Pepin, wrote a balanced review of the Courthouse News petition.
He noted that the e-filing contractor for New Mexico had installed a “press review queue” in other states. Those press queues provide access to the new cases as soon as they cross the virtual counter, same as the old paper access described by Prieskop, but in an electronic context.
He also said the press queues had been put in place by the contractor, Texas-based Tyler Technologies, “at no cost.” The memo prepared by Pepin was addressed to the justices of the state Supreme Court in their administrative capacity.
He gave them a stark and accurate choice. “Among the possible responses are (1) the requested access will be granted as soon as we arrange for Tyler to install the press queue, or (2) no. If the latter it seems likely CNS will soon litigate the matter in federal court.”
Pepin attached a set of revealing exhibits. One was a survey by the Conference of State Court Administrators regarding access in the electronic environment. The survey was telling because it was taken to back up an amicus brief filed in the Ninth Circuit to support Ventura clerk Michael Planet’s rule of no-access-before-process.
So the national organization of court administrators took a unified stand in support of no-access-before-process.
But in the seminal Planet decision, the Ninth Circuit Court of Appeals rejected their arguments. The court’s opinion found that a First Amendment right of access attaches to new court filings when they are filed, which is when they are received — before they are docketed or processed.
A subsequent judgment in the case forbade clerk Planet from enforcing his no-access-before-process rule. “The qualified right of access attaches when new complaints are received by the court, rather than after they are processed, i.e. rather than after the administrative tasks that follow the court’s receipt of the new complaint,” wrote U.S. District Court Judge Dolly Gee in concluding ten years of litigation between Courthouse News and the Ventura clerk.
But the clarity and force of those rulings have had little if any impact on state court clerks who continue to follow no-access-before-process policies, even within the Ninth Circuit. And that is the policy currently pursued by New Mexico state courts.
New Mexico, however, lies outside the Ninth Circuit’s ambit of jurisdiction, resting instead within the more untested confines of the Tenth Circuit.
Doctrine of ‘practical obscurity’
The survey attached to Pepin’s memo showed that the Conference of State Court Administrators were taking a position highly consistent with a philosophy developed at COSCA conferences held over the preceding three years in Williamsburg, Virginia. At those conferences, the administrative zeitgeist was expressed by the phrase “practical obscurity.”
The phrase was shorthand for an arcane theory that said paper documents were in practice hard to find, thus protected by practical obscurity. The premise was inaccurate because paper records were not difficult to find. But no matter, the administrators’ logic concluded that access on the internet should be similarly obscured or impeded.
In short, the survey attached to the Pepin memo showed how deeply “practical obscurity” beliefs have penetrated the offices of state court bureaucrats throughout the nation.
Within the survey’s individual answers, however, were a few equally revealing contrasts, where administrators said it was just fine to provide access when the document is filed — in other words, at the time of receipt.
The top court administrator in Utah, for example, said in the survey, “Public documents are available upon filing.” That meant that the new filings can be seen, as they are in federal courts, before docketing.
The COSCA survey then asked about a situation where news reporters were given access before docketing. “What challenges would this pose?”
The answer from Utah administrator Dan Becker was succinct: “None.”
Pepin’s memo also included a second telling exhibit, “Exhibit F,” which was a copy of an email from a Tyler representative. In Exhibit F, Colleen Reilly, the Tyler rep for New Mexico, shows how easy it would be to set up a pre-processing press queue: “We did build a configuration in Clark County, Nevada, to see filings before they are accepted by the court. The configuration is in our database. There is no cost associated with this work.“
The software company has since gotten into the business of selling the public record in Texas and other states, and now has a financial interest in opposing press access. So its tune has changed since 2018 when Pepin wrote his memo.
The memo came to light last year as a part of a request by Courthouse News for public documents. In the meantime, the high court clerk had referred Courthouse News' request to the committee system within the court bureaucracy.
Hulk Hogan invoked
Such systems are properly characterized as byzantine, comprised of a mix of lawyers, judges and clerks operating indeed in practical obscurity. The upshot of the access request was that the clerk sent a second letter to Courthouse News saying the referral to the committee system had been “in error,” and by the way, the request for access had been denied some time back.
Just as the process behind it was shrouded in secrecy, so too the basis for the decision was never made public.
This author then wrote, in July of last year, to the then-chief justice in New Mexico, an elected official, and described the caprice and power of the committee looking at the access request. Noting that Tyler, the software contractor, was now also fighting against press access, the letter invoked Hulk Hogan.
“An old Right Guard commercial with Hulk Hogan came to mind,” said the letter. “He is posing like a French painter on the beach in front of an easel with palette in hand. And with panache, he urges his audience to avoid ‘odiferous emanations.’”
“The teaming up between court officials hostile to the press queue and representatives of a $13 billion corporation with a parallel financial interest — that deal needs a whole lot of Right Guard.”
The 22-page letter to then-chief justice Judith Nakamura questioned how court administrators can with impunity refuse access on the day of filing where it is clearly practicable, as was demonstrated by Pepin’s memo. And it noted the diehard fight against access by state court administrators who acted as if the press were taking away something they owned.
“The entire administrative superstructure of the state courts, all supported by public funds, is battling this one news service over First Amendment access. It does feel at times like a David v. Goliath struggle.
“After many years observing that tenacious opposition,” the letter continued, “I have come to believe it continues because state court clerks and administrators are indeed powerful agents of the state and thus are able to insulate themselves from any repercussions for denying First Amendment access to public records. They can pay for their resistance with a huge bank account, the one that belongs to the public. And in some instances, that is simply how it ends up.”
And then the letter asked for some help in getting a fair shake.
“When that state power is combined with the interests of a mega-rich private software company that has its fingers in so many public pies, the forces on the other side become almost overwhelming,” it said. “So I could use a little help.”
In the full year since the letter was sent, there has been no response.
Founding principles
In addition to the Ninth Circuit rulings, the Fourth Circuit Court of Appeals has affirmed a judgment that declared unconstitutional the no-access-until-process policy of two Virginia court clerks. In addition, federal judges in Houston, Chicago and New York have ruled against those policies. The refusal of state court administrators to abide by the accumulating court decisions that say the right of access attaches on receipt has resulted in a series of First Amendment confrontations between Courthouse News and state court administrators in Maine, Vermont, Oregon, Idaho, Missouri, Ohio, Texas and now New Mexico.
Accompanying the New Mexico complaint on Friday is a declaration by this author. It concludes by attempting to explain why Courthouse News has devoted a great portion of its income to fighting state court administrators who have taken the opportunity of a new technology to go backwards on public access, to cut off access that had been traditional in the courts since beyond when journalists can remember.
“I have pursued these cases over the years, at great expense and as a last resort, driven by a fundamental conviction that our nation’s founding principles form the core of a democratic ideal that is worth fighting for, and should be fought for,” said the declaration. “The public officials I have challenged have used their public position and the public’s power and assets to diminish, chip away at, and undermine those founding principles, and the traditions kept under their aegis.
“Because it is not their money, but instead the public’s money, those public officials have been willing to risk a multi-million-dollar sanction in the form of attorney fees in order to force their claim on public documents over that of the public itself and the journalists who act as the people’s surrogates, their ambassadors. Showing the depth of their intransigence and the strength of their sinecures, court clerks and administrators, clothed in the mantle of the people, have defied the string of federal rulings that directly address and prohibit no-access-before-process policies, and continue to brazenly enforce such policies in violation of the First Amendment.”
The declaration concluded: “That is why I have authorized the prosecution of these cases and spent a great share of our news service’s income in defending the tradition of open courts.”
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Russia rejects US journalist Gershkovich’s detention appeal April 23, 2024 -
-
Minnesota governor appoints two Supreme Court justices April 22, 2024 -
