(CN) — Along with federal courts, the Ohio courts have started opening up new electronic pleadings for immediate access. The new policy matches up with centuries-old tradition where paper pleadings could be read as soon as they crossed the clerk’s counter.
But there are holdouts.
Clerks in many parts of the country, including Ohio, are local politicians. They fight to protect their patch of power, which derives from control, and often sale, of the public record.
Ohio has also set up an unusually fragmented court bureaucracy. Each local clerk controls policy on technology and access, unlike the majority of states where court bureaucrats are centrally organized at the state level.
True to common form, the clerk in Columbus initially refused to continue the tradition of access after switching from paper to e-filing. But in March she lost a First Amendment case brought by Courthouse News, and two months later was giving access to e-filed documents the old-fashioned way, when they are received.
Since then, the clerk in Cleveland has followed suit and installed software that gives public access to new pleadings as they hit the court. Other clerks in Ohio have agreed to do the same. But not the clerk in Montgomery County Court of Common Pleas.
As a result, Courthouse News filed a First Amendment action against Clerk Mike Foley on Monday.
The complaint filed in U.S. District Court for the Southern District of Ohio became public immediately after it was submitted electronically by Courthouse News lawyers Jack Greiner and Meghan Savercool. The case is assigned to Senior U.S. District Judge Thomas Rose.
“State and federal courts across the country have historically made new civil lawsuits available to the press and public as the court received them,” said the opening sentence of the Courthouse News complaint.
The paragraph continued, “Judge Bobby Shepherd recently described this traditional access during oral arguments in Courthouse News Service v. Gilmer, a case involving the same issues as here: ‘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.’”
During that same Eighth Circuit hearing, which involved the courts of Missouri, U.S. Circuit Judge Ralph Erickson challenged the state’s lawyer: “What we're saying is that, oh, for about 230 years, you can walk into a courthouse in Missouri, 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?”
The men and women in black robes are often the ones who can best testify to the paper tradition, based on their experience as young lawyers. Their statements stand as sharp rejection of a common tactic used by state clerks who try to deny the very existence of the tradition.
Both Shepherd and Erickson were appointed by George W. Bush. The third panel member, U.S. Circuit Judge David Stras, was appointed by Donald Trump. The panel ruled unanimously last year in favor of Courthouse News, finding the federal courts have jurisdiction to hear a challenge to the bureaucratic procedures of a state court.
Although the Missouri case has not been resolved, the state has moved ahead with reforming public access to court records, under the auspices of the new Chief Justice, Mary Rhodes Russell.
The courts of Ohio, in contrast, are locally controlled by the clerks and not subject to the same central direction from the state’s high court. The complaint filed Monday against the Dayton clerk rests on a central pillar of federal First Amendment law, the U.S. Supreme Court decision in Press Enterprise v Riverside II.