(CN) — Briefing is complete as of Thursday in the appeal of a federal judge’s ruling in St. Louis that said the First Amendment could not be enforced against state court clerks who are restricting access to new court filings.
“In the end, Defendants’ ask this Court to hold the federal Constitution has no say whatsoever in when state courts make case-initiating documents available, regardless of whether that takes weeks,” said the reply brief filed Thursday in Courthouse News v. Gilmer.
Filed in the Eighth Circuit, the brief is filed as part of a First Amendment case against the state court administrator in Missouri. The administrator made the standard “abstention” argument right off the bat, as have most other clerks sued by news agencies over access to fresh court filings.
In the St. Louis case, the local county court was blocking access to new complaints for one to two weeks while clerks docketed them. That radical withholding far outdoes the day-long and two-day-long blackouts overturned by federal judges in Texas, California, New York, Virginia and Vermont.
Most recently in Texas, a judge rejected an abstention motion by the Austin court clerk who is holding half the new cases back for three days or more. Magistrate Judge Susan Hightower wrote a lengthy opinion knocking out the abstention defense. She ended the main part of her ruling with a quote from a federal judge in Kansas writing in 1945.
“We yet like to believe that wherever the Federal courts sit, human rights under the Federal Constitution are always a proper subject for adjudication, and that we have not the right to decline the exercise of that jurisdiction simply because the rights asserted may be adjudicated in some other forum,” wrote Judge Alfred Murrah at the time.
In Missouri, administrator Kathy Lloyd and St. Louis clerk Joan Gilmer have fought ferociously against public access, arguing that the federal court should keep its legal notions out of their affairs. U.S. District Judge Henry Autrey agreed: “Based on the principles of equity, comity, and federalism, this Court will abstain from exercising jurisdiction.”
But, according to Judge Murrah back in 1945 and the lawyers for Courthouse News today, the Constitution doesn’t work that way. A judge cannot simply duck jurisdiction with a general bromide.
The case must fit within narrow categories defined by the U.S. Supreme Court, and a First Amendment challenge to a court restriction on access does not qualify, mainly because it would not require ongoing supervision by a federal judge. The orders against clerks in other cases brought by Courthouse News on the same issue have been one-shot solutions that do not require revisiting or enforcement.
“As case after case has held, it is not difficult for clerks to satisfy the First Amendment right of access; they simply need to stop withholding access, which impacts no actual proceedings in state court,” concluded the reply brief written by Roger Myers and Katherine Keating with Bryan Cave.
On the other side is the Missouri Attorney General Eric Schmitt and the Deputy Solicitor General Jeff Johnson.
In their earlier brief defending Judge Autrey’s ruling, they summed up their argument by saying, “Courthouse News’ complaint does not and cannot show that a tradition of public access and a positive role that public access would have intake procedures.”
That argument has been directly contradicted and rejected by federal judges in California, New York, New Mexico, Illinois and Vermont.
Referring to those decisions, the opening brief from Courthouse News concluded by saying, “Time and again, federal courts have held First Amendment claims alleging systemic denial of the right of access to state court filings or hearings should be decided ‘in federal court,’ and rejected abstention. The decision below requiring the same federal claims against state court officials to be heard in state court violated the policies and rules limiting abstention to ‘exceptional circumstances’ and should be reversed.”
Oral argument in the Eighth Circuit has not yet been scheduled.
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