Tuesday, February 7, 2023 | Back issues
Courthouse News Service Courthouse News Service

Courthouse News files First Amendment action against Maryland clerks

Despite federal rulings against the practice, Maryland continues to block access to new court filings until clerical work is finished. During the blackout, the news goes stale.

(CN) — Courthouse News filed a First Amendment complaint late Monday against court clerks in Maryland over their blackout of new civil complaints until administrative work is finished and the news has gone stale.

The complaint is directed against the statewide administrator for the Maryland courts, Pamela Harris, as well as the individual clerks. In contrast to the restrictions they impose, the federal complaint by Courthouse News could be reviewed online as soon as it was filed, through the federal courts’ public access system.

The new case was assigned to U.S. District Judge Ellen Hollander, a graduate of Georgetown Law Center and former federal prosecutor in Maryland.

“This case seeks to address Defendants’ policy and practice of blocking access to newly electronically filed civil complaints until Defendants have completed docketing of those complaints, in violation of the First Amendment right of access,” said the introductory paragraph of the complaint.

“This restriction is not justified by an overriding or significant interest and does not employ the least restrictive alternative,” the complaint added, immediately engaging the Supreme Court precedent referred to as Press Enterprise II.

That seminal opinion sets out the test for a government restriction of access. Where there is a First Amendment right, the government must overcome a presumption in favor of access. 

“The presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest,” said the Supreme Court ruling in Press Enterprise II.

Courthouse News argues in its complaint that the lack of any similar blackout in federal courts and many state courts shows that the key test of an “overriding interest” cannot be met by the Maryland courts. In other words, it cannot be an “overriding” interest for one court but not for others.

In addition, the e-filing software used by Maryland is leased from Tyler Technologies which offers courts two options to provide public access at the time of receipt. One is a “press queue,” which allows journalists to sign in and see the cases as they hit the clerk’s office.

The other option is automatic docketing of the new complaints, like the federal courts.

Because of those two options, the complaint says, the clerks will have a hard time showing that the restriction is “narrowly tailored,” as required by the Press Enterprise test, even if clerical work were seen as an overriding interest.

Ryan Abbott, regional bureau chief for Courthouse News said, “The clerks in Maryland, with impunity, are sitting on newly e-filed complaints for days before making them public. That not only defies the First Amendment, it defies common sense.”

A public information officer for the Maryland judiciary rejected a request for on-receipt access this past October, saying the local rules would not allow it.

He wrote, “This email is to inform you that the Maryland Judiciary’s Major Projects Committee discussed your request and determined that the installation of this configuration would not be in compliance with the Maryland Rules of Procedure, therefore, your request is denied."

Monday’s action attacks a practice that is fairly common with state court administrators. In the conversion to electronic filing, they abandoned a tradition that went way back in American courts. Intake clerks would put new filings into a press box as soon as they crossed the counter, and reporters on the courthouse beat would regularly check the box for news.

“Since time beyond memory, the press has reviewed new civil complaints minutes after they crossed the intake counter on the day of filing prior to docketing in courts across the country,” said the complaint. “Journalists reviewed the new complaints because they often contained news of controversies with local and national import. That news was reported as soon as the complaints were received, because, like fresh bread, news grows stale quickly.”

Courthouse News is represented by Jon Ginsberg with Bryan Cave in New York and John Lynch with McNamee Hosea in Greenbelt.

Clerks who have taken away traditional access in Oregon, Idaho, Maine, Missouri, New Mexico, have fought with all the resources of the state against giving timely access back to the press and the public. At the same time, giving it back has been shown to be easy.

Demonstrating the speed with which a state court system can flip back to traditional access, Vermont’s courts recently used the same Tyler software as Maryland to set up automatic docketing of the new complaints. It took them only three weeks.

The switch back to constitutional access was caused by a ruling handed down by U.S. District Judge Christina Reiss. She concluded her November 19, 2021, opinion with an order: “Defendants are HEREBY ENJOINED from delaying public access to electronically filed civil complaints until the Vermont Superior Courts' pre-access review process is complete.”

Maryland lies within the Fourth Circuit, where Courthouse News has already litigated and won a judgment against the Virginia courts based on the same basic allegations — clerks were blocking access until clerical work was completed. U.S. District Judge Henry Coke Morgan Jr. ruled the practice unconstitutional, and that ruling was upheld by the Fourth Circuit last year.

In the process, this news service recovered $2.4 million in attorney fees.

A host of rulings over the last decade have come to the same conclusion, condemning the same blackout policy followed by the Maryland clerks. Those rulings in Texas, California, New York, Illinois and now Vermont have had no effect on clerks currently defending against First Amendment actions.

In the first of that series of opinions, U.S. District Judge Melinda Harmon in Texas issued an injunction against Houston’s state court clerk who had just won a campaign with the slogan “get online not in line.” Once in office, the clerk kicked journalists out from behind the counter and sent them to his online site which served as his publishing arm, generating extra money for his office through the sale of court records.

“Assuming, arguendo, that Defendants have an overriding interest, the Court finds that they have failed to demonstrate that the 24- to 72-hour delay in access is narrowly tailored to serve such an interest and that no less restrictive means of achieving that interest exists,” said Harmon.

Those words are directly applicable to the situation in Maryland and many other state courts. But Harmon ruled over a decade ago in 2009. To this day, court clerks in Oregon, Idaho, Maine, Missouri, New Mexico, and Maryland continue to block access with, as bureau chief Abbott put it, “impunity.”

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...