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Eighth Circuit pushes lawyers over dismissal of Courthouse News First Amendment case

Missouri’s lawyer was cornered into arguing the Constitution would be powerless against a state court rule saying women could not file civil complaints.

(CN) — In an hourlong argument Thursday over a lawsuit brought by Courthouse News, an Eighth Circuit judge recounted his own experience with the tradition of paper filing, where new complaints were placed into bins when they were filed and the press and anyone else could look them over right away.

“What we’re saying is, ‘Oh for about 230 years you could walk into a Missouri courthouse, into the clerk’s office, and say, ‘Hey, can I see what’s been filed today,’ and now all of a sudden you can’t, right?" U.S. Circuit Judge Ralph Erickson said.

Another panel member, U.S. Circuit Judge David Stras, tested lawyers for both Missouri and Courthouse News during the course of a hearing on the issue of whether federal courts should “abstain,” or voluntarily refuse, from considering the St. Louis County clerk’s blackout of new complaints for one to two weeks.

“Suppose the state court enacted a filing rule that said no women can file complaints, terrible rule, awful rule, would we have to abstain and let that go to state court? Would we not be able to say that is unconstitutional under the Equal Protection Clause?” Stras demanded of the state’s lawyer, Jeff Johnson. “It seems to me like we have to be able to adjudicate cases in federal court that involve the Constitution. There can’t be a blanket rule that we can’t touch that.” 

Missouri “didn’t get forced into this here union,” Erickson reminded Johnson. 

Johnson nevertheless argued that a federal court should abstain from hearing a constitutional challenge to such a rule. “As we know sovereign immunity is the general rule, that the lower federal courts cannot get involved," he said.

But the trio of judges on the Eighth Circuit panel — Stras and Erikson heard the case with U.S. Circuit Judge Bobby Shepherd — also appeared very wary this morning of violating state sovereignty or going too far in telling state courts how to manage their own affairs.

Stras, who was a Minnesota Supreme Court justice before President Trump nominated him to the federal appeals bench, was especially sensitive to this issue. “You might be right legally,” he told Bryan Cave attorney Barbara Smith, who is representing Courthouse News Service in the challenge, “but having sat on a state supreme court, interfering with a state court decision is a 3, but interfering with how we operate a state court system, on a scale of 1 to 10, that’s an 11. From a federalism and comity perspective, this is asking for a huge infringement on the state court system.”

Smith argued that, in another Courthouse News case over the same issue in Virginia, the trial judge declined to enjoin a pair of state court clerks but did issue a declaratory judgment that said their practice of withholding access violated the First Amendment. That option appeared to allay some of Judge Stras’ concerns.

Erickson, also a Trump appointee, worried about “mucking around with state court rules” and wondered, “Are we micromanaging in a way that’s inappropriate?”

The case stems from the Missouri courts’ adoption of electronic filing in 2013, which ironically made it slower, not faster, for the press to access court documents. Prior to that, journalists could access documents that initiated civil lawsuits — known as complaints — as soon as they were presented at the courthouse. With e-filing, however, the courts no longer make them available to the public until the clerks have “processed” them, a routine act of making sure the formalities ave been observed and assigning them a docket number.

While processing is a humdrum matter, cases can sit in an electronic queue for a long time before the clerks get around to them. In 2020 the St. Louis County Court made fewer than 5% of complaints available on the same day they were filed. A majority of cases — 55% — were delayed a week or more.

Courthouse News considers this a violation of the right to a free press under the First Amendment.

This past June, a trial judge found that “delays have become pervasive” in the Missouri courts and that the dawdling is “unnecessary and easily avoidable.” Still the judge dismissed the case under a doctrine called abstention, saying federal courts have no power to regulate internal state-court procedures.

The Seventh Circuit dismissed a similar case under abstention, but the Fourth and Ninth Circuits have rejected the abstention doctrine in very similar cases, and the First and Second Circuits rejected it in somewhat comparable cases years ago.

Just last week, the First Circuit heard arguments in an almost identical case brought by Courthouse News against the court system in Maine. Although abstention was raised as an issue in that case, both the trial court and the appeals judges ignored it.

In the First Circuit case, Courthouse News was supported by an amicus brief signed by The Reporters Committee for Freedom of the Press and signed by 28 media organizations including The Associated Press, NBC, The New York Times and The Boston Globe.

“Access delayed is access denied, for both the press and the public,” the amicus brief states. “Delaying access by even one day may imperil the news media’s ability to provide meaningful reporting on new lawsuits, as the next day’s headlines can eclipse yesterday’s news.”

In its brief, Missouri imagines the parade of horribles that could result from federal court intervention in its docketing procedures. “What would stop the federal court from ordering the purchase of new equipment, hiring more staff, or upgrading to cloud computing? Nothing,” it warns.

Such a decision, the brief continues, “would transform interruptions in service or an errant, unreadable file from nuisances to constitutional violations.”

Courthouse News counters in its brief that requiring electronic access before processing would be easy and wouldn’t “invade any state court proceedings … require continuous federal policing [or] excessively entangle a federal court in the state’s own internal affairs.”

But “I’m not so sure about that,” Stras said Thursday. “What if the delays went from two weeks to one week? Wouldn’t you be running right back to court?” he asked Smith.

Courthouse News had asked for both a declaration that the court’s setup was unconstitutional and an injunction telling the court what to do instead. As the argument went on, the judges seemed inclined to give the news service the former but not the latter.

“This goes to the very heart of what state supreme courts do,” Stras observed. “Suppose we say the case goes forward. I have serious doubts about whether we can enjoin. But what’s wrong with a declaration, and leaving it up to the state court to figure out what the fix is?”

Smith quickly saw the writing on the wall and effectively dropped her demand for an injunction, saying the request for a declaration was enough for the court to send the case back for trial.

Johnson tried one more time to persuade the judges that any attempt to speed up public access would be “sweeping and very invasive.” But Smith accused Missouri of simply blowing smoke in order to cover up the fact that its procedures had resulted in “a constitutional fire.”

In her argument, Smith invoked America’s first chief justice.

“It’s not often I get to quote Chief Justice John Marshall in oral argument. But he said it would be akin to treason for a federal court to decline to hear a case over which it has jurisdiction."

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