Federal judge orders Columbus court to stop delaying access to new complaints

COLUMBUS, Ohio (CN) — Courthouse News gained ground on Tuesday in its fight to quash delays in access to court filings, winning a preliminary injunction that will require a Franklin County court to stop withholding e-filed complaints from public view during a clerk review process. 

The order refutes the court clerk’s argument that it’s necessary to hold back new complaints while they’re checked to ensure they comply with court rules. But the essence of a claim won’t be altered by that office, U.S. District Judge Sarah D. Morrison ruled.

“A complaint as-filed speaks for itself; if there are misspellings, grammatical errors, unartfully pled allegations, or discrepancies with filer inputs, the complaint as-filed remains a true representation of a party’s pleading,” Morrison wrote in her 17-page order.

“The errors defendant proposes to correct are administrative errors — discrepancies between the complaint and the FCCCP [Franklin County Court of Common Pleas] system, discrepancies between the complaint and the FCCCP categorization — the clerk does not change the complaint itself.”

In the old days, before electronic filing became commonplace in the court, there was little trouble getting immediate access, a former Cincinnati reporter for Courthouse News explained in a declaration. 

“When a complaint was paper-filed over the counter in FCCCP’s clerk’s office, an intake clerk performed a cursory check of the document, looking for certain information (e.g. court division, case type and subtype, and a signature), and collected the filing fee,” said Adam Angione, who now works as the outlet’s Midwest and Northeast bureau chief. “That quick check typically took less than one minute.”

The process in place from 2005 to 2011 ensured timely access, Angione said. Then, Maryellen O’Shaughnessy, clerk of the Franklin County Court of Common Pleas, switched over to electronic filing, and delays began to plague Courthouse News reporters interested in covering the court’s happenings. 

Holdups could last a day or two as the clerk’s office completed its review. By then, a complaint is no longer news. “It is stale like day-old bread,” Angione said. 

Beyond that, the access delay keeps public filings under lock and key, said Bill Girdner, who founded Courthouse News Service in 1990 and continues to head up its operations.

“When courts withhold access to a new complaint for hours and days, during processing, it is as good as sealed,” Girdner said in a declaration. 

“The ability of lawyers, professors, law students, news reporters, and readers of our web site to know about and freely discuss a new legal contest pending in a public court of law is suppressed when a new case is withheld. A lawyer's ability to advise clients about new litigation in a timely manner is impaired. A news organization's ability to follow the story is hampered. And the practical ability of the public to comment on events in an important public institution is impeded or eliminated altogether.”

The June 2022 First Amendment complaint names O’Shaughnessy in her official capacity. That clerk’s process, Judge Morrison ruled, is not the only way to keep complaints in check. 

“Access and processing are not mutually exclusive,” the Donald Trump appointee wrote. “Certainly there are less restrictive means to accomplish Ms. O’Shaughnessy’s goals than treating all complaints as confidential until accepted by the clerk.”

Cincinnati-based Jack Greiner is one of the attorneys representing Courthouse News in the matter. 

“We think that there’s no reason to delay access to newly filed civil complaints,” Greiner said after the ruling. “Courthouse News and other media outlets should have the ability to report on a complaint when it’s filed — not two or three or several days later.”

Echoing Angione, Greiner said publishing fresh news relied on having early access. 

“The filing of a complaint is news, and news needs to be reported promptly and timely,” Greiner said. “And if courts are permitted to essentially make them available at the court’s convenience, then that slows down the news process, and renders the information a little stale by the time it's actually published.” 

If an appeal to the Sixth Circuit is forthcoming, Greiner is confident about Courthouse News’ chance to keep the ruling in place. 

“The quality of the decision that the court issued in its order and opinion is so strong that I think it’s unlikely that they’re going to be successful on the appeal,” Greiner said.  

Attorneys representing the Franklin County clerk did not return a request for comment on Tuesday afternoon. 

Courthouse News continues to push for better document access in other courts as well. During arguments at the Eighth Circuit in 2022, U.S. Circuit Judge Bobby Shepherd pointed out the instant nature of acquiring documents in the days of analog filings. 

“There was a time when — and some in this room may remember it — when you took a pleading to the courthouse and the clerk stamped it physically and it went into different bins and it was available immediately,” said Shepherd, a George W. Bush appointee. 

U.S. Circuit Judge Ralph Erickson, a Trump appointee, remembered those days as well. 

“What we're saying is that, oh, for about 230 years, you can walk into a Missouri Courthouse into the clerk's office and say, ‘Hey, can I see what's been filed today?’” Erickson said. 

In another action in the District of Vermont, a federal judge enjoined local court clerks from holding back access to e-filed complaints, ruling in favor of Courthouse News and a slew of other publications and news organizations, including the Vermont Press Association, New England First Amendment Coalition, and Burlington Free Press.

“Because Defendants have failed to sustain their burden to demonstrate that their pre-access review process is justified by higher interests and narrowly tailored to advance those interests, Defendants have violated the public’s and Plaintiffs’ First Amendment right of access to newly filed complaints,” said the 32-page opinion by U.S. District Judge Christina Reiss.

Morrison cited Reiss' opinion as well as those in other Courthouse News victories in Virginia and New York.

Follow @NinaPullano

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