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Eighth Circuit revives Courthouse News bid for quick access to Missouri cases

Civil complaints routinely languish for a week or more before they’re made public and this violates the First Amendment, the news service alleges.

(CN) — A lawsuit by Courthouse News to force Missouri courts to provide quicker access to civil complaints was revived Monday by the Eighth Circuit, which rejected abstention — joining the Fourth and Ninth circuits in doing so.

U.S. District Judge Henry Autrey had abstained from deciding the case in June, saying it would improperly entangle a federal court in state-court operations.

But “there is no risk that a decision in Courthouse News’s favor would interrupt any state-court proceeding, despite the significant administrative burden it might place on court staff,” U.S. Circuit Judge David Stras wrote in a 10-page ruling.

The lawsuit 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 have 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.

This fact dismayed U.S. Circuit Judge Ralph Erickson, a Donald Trump appointee, at oral arguments in April. “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?" he asked.

Courthouse News considers the delays to be a violation of the right to a free press under the First Amendment. “The right of public access attaches upon receipt,” said Courthouse News attorney Jonathan Fetterly, who practices with Bryan Cave in San Francisco.

“We’re not saying you don’t need to process cases and assign a docket number; we’re just saying you shouldn’t hold up access in the meantime,” Fetterly said. “In an electronic world there is no justification for withholding access.”

Although Autrey rejected the case under the abstention doctrine, he did find that “delays have become pervasive” in the Missouri courts and that the dawdling is “unnecessary and easily avoidable.”

The Seventh Circuit dismissed a similar case with nearly identical facts under abstention, but the Fourth and Ninth Circuits have rejected the abstention doctrine — making the Seventh Circuit's position increasingly tenuous.

The First Circuit heard arguments in April 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 on behalf of The Reporters Committee for Freedom of the Press and 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 stated. “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 addition to its abstention arguments, Missouri also claimed the lawsuit violated its sovereign immunity, but Stras, a Trump appointee, disagreed here as well.

“We understand that this lawsuit toes a fine line between directly interfering with state-court operations and potentially vindicating a litigant’s constitutional rights. It also places the district court in the uncomfortable position of conceivably telling Missouri courts how to implement their own e-filing system,” he wrote.

However, “although we are wary of approving new encroachments on sovereignty, we conclude that, whatever may stand in the way of Courthouse News’s lawsuit, sovereign immunity is not it.”

Stras, a former associate justice on the Minnesota Supreme Court, also said that if Courthouse News wins on the First Amendment issue, Autrey should consider issuing a declaratory judgment and then letting the Missouri court system figure out how to comply with the ruling. The court system should be given “the widest latitude” in order to avoid “excessive interference by federal courts in state-court business,” he wrote.

Nevertheless, an injunction “is still very much on the table” on remand, Fetterly said, noting that the Ninth Circuit upheld an injunction ordering a court system not to withhold access to documents while completing its administrative processing.

The unanimous three-judge panel also included U.S. Circuit Judge Bobby Shepherd, who along with Autrey was appointed to the bench by George W. Bush.

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