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Sunday, July 7, 2024 | Back issues
Courthouse News Service Courthouse News Service

Federal judge puts kibosh on common tactic by clerks fighting access

First Amendment rulings are sweeping past restrictions put up by local court officials, with the latest decision coming out of federal court in Pittsburgh.

While state courts keep putting up roadblocks to press access, they have not been able stop the force of the First Amendment. A ruling in Pittsburgh on Monday continued the roll of decisions knocking down access restrictions.

The Allegheny Court of Common Pleas in Pittsburgh had in the old days given news reporters a look at the new cases as they came across the counter. That was when court pleadings were paper documents filed across the clerk’s physical counter.

But when the entryway for a new pleading moved from the clerk’s counter to a website on the internet, Allegheny officials blocked press access until clerical work was done, work that stacked up and took time.

Meanwhile, the news about cases rolling into the courthouse deteriorated, hour by hour, day by day.

The same set of events played out in IdahoMinnesota and Oregon — all courts that have been challenged by this news service. The public officials in those courts risk nothing by their intransigence, because it is the public that pays for their lawyer fees, and, when they lose, for the Courthouse News lawyer fees. And it is ultimately the public that pays when the work of the courts is kept in the shade.

But the tide of First Amendment battle has swung against the anti-access clerks.

They have lost in CaliforniaNew YorkTexas and Florida, the four biggest states in the country. They have also lost in New Mexico, Missouri, Ohio, Vermont and Virginia. Recognizing the force of that tide, a number of states have recently settled First Amendment cases by agreeing to give press access when new complaints cross the virtual counter in IowaNew Mexico and Missouri.

Back in Pittsburgh, after the Courthouse News complaint was filed last fall, the first counter-move by court officials was to say the case should not be in federal court. They based their argument on a theory called “abstention” where federal courts defer to state courts in a few specific circumstances.

But on Monday, U.S. Judge Christy Criswell Wiegand in the Western District of Pennsylvania rejected that argument and said the case can go forward: “It hereby is ORDERED that the Motion to Dismiss is DENIED.

The judge said she first reviewed pleadings and documents filed in the case, plus an 11-page recommendation by U.S. Magistrate Judge Kezia Taylor. That recommendation, made exactly one month ago, discussed two alternatives that give modern-day access the old fashioned way — at the time new pleadings are received across the virtual counter.

Magistrate Judge Taylor said clerks can set up an online queue where journalists see the new pleadings as they come in, or the clerks can push new complaints automatically into the public docket, like the federal courts do.

Quoting from the Courthouse News complaint, Taylor wrote: “Defendant operates its own e-filing system, so it can configure the software to allow on-receipt access to new filings through either a ‘press queue,’ where newly filed complaints are available to the press prior to case assignment or acceptance, or an ‘autoaccept’ system, which automatically assigns a permanent case number to new complaints and automatically places them into the docket where they can be viewed by the public on receipt.”

Taylor concluded that the abstention doctrine did not apply because it has been limited by the U.S. Supreme Court to situations where a federal court is asked to interfere in an ongoing state court case.

Only one federal court, the Chicago-based 7th Circuit Court of Appeals, has adopted the abstention doctrine on a First Amendment case, reversing a federal judge in the Northern District of Illinois who had ruled in favor of this news service. That lone ruling by the 7th Circuit has now been rejected by judges within eight different federal circuits, some at the appellate level and some at the district court level.

As the case moves forward, the Allegheny court officials are being represented by Assistant Allegheny County Solicitor Frances Liebenguth. Courthouse News is represented by Jack Greiner with the Faruki firm in Cincinnati.

In his First Amendment complaint, Greiner wrote: “The press and public have a constitutional right to access new complaints when the clerk receives them.”

He also quoted from one of the best possible testifiers on how things used to work, a figure in black robes speaking from the bench.

“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 8th Circuit Judge Bobby Shepherd in a hearing on a Courthouse News case in 2022.

Another one of the men in black robes, U.S. Circuit Judge Ralph Erickson, added: "What we're saying is that, oh, for about 230 years, you can walk into a 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?"

Categories / Courts, First Amendment, Media

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