First Amendment action filed against Dayton clerk

(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.

The seminal ruling says the First Amendment right of access can only be curtailed if the state shows the restriction is based on “an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest.”

The Courthouse News complaint says the Dayton clerk has no overriding interest in blocking access to the new e-filed pleadings. In addition, he has an easy alternative for giving access as new pleadings are received across the virtual counter — same as the alternative used by the clerks in Columbus and Cleveland.

Beyond those two big courts in Ohio, the overwhelming majority of federal courts give access at the time of receipt, as well as a growing list of state courts. They include courts in New York, Connecticut, Vermont, Georgia, Florida, Alabama, Texas, Arizona, Utah, Washington, California and Hawaii.

The growing multitude of courts that give on-receipt access defeats the most common defense from clerks who say they must protect privacy. So, using publicly paid lawyer to fight public access, they argue that even if they have no duty to screen for private identifiers — the duty rests entirely on the filing lawyer — they might see something.

But, as trial court judges have pointed out, it is hard for the clerk’s lawyer to argue that, say, Montgomery Court of Common Pleas has an overriding interest in denying access because of privacy concerns when such a great number of courts are capable of providing old-fashioned access upon receipt, even in the electronic era.

For example, at a hearing two years ago in New Mexico, U.S. District Court Judge James Browning said to the state’s lawyer, “But isn't the problem for the state — any state, not just New Mexico — is that, if the federal courts are not doing certain things, it's going to be hard for the state to argue that it's a compelling state interest?”

Translating the comment into its context, the judge was saying New Mexico officials cannot claim they have an overriding interest in checking for privacy if the federal courts and other state courts do not check for privacy. In that case, which remains unresolved, New Mexico officials later conceded they do not check pleadings for privacy despite saying so in federal court.

In fact, the volume of pleadings, exhibits and other documents pouring into state courts does not allow clerks to read through documents checking their content. It would take too long and they would not be able to finish their clerical tasks.

The Courthouse News complaint against the Dayton clerk also points out that he has a number of simple, low-cost alternatives to address any privacy concern: “Many courts also require filers to check a box in the e-filing interface confirming that social security numbers, financial account numbers or other private information has been redacted, which is what the federal courts require.”

Towards the conclusion of the complaint, lawyers point to this year’s First Amendment ruling against the Columbus clerk, Maryellen O’Shaughnessy.

“In the recent case of Courthouse News Service v. O'Shaughnessy, the United States District Court for the Southern District of Ohio issued an injunction requiring the Franklin County Clerk to provide same day access to newly filed civil complaints,” Monday’s complaint said.

“Relying on Tybera software,” it continued, “the Clerk complied with the injunction within two months by putting in place a review queue that gives on-receipt access to new civil complaints based on an application and use of a username and password. The clerk's office continues to review filer entries and process the new civil complaints — after public access has been provided.”

The Dayton clerk uses the same Tybera e-filing software as the Columbus clerk.

In its concluding section, the complaint sums up: “Defendant's no-access-before-process policy withholds new civil complaints until after processing is complete, thereby restricting access after the right of access has already attached. Thus, Defendant's policy restricts Courthouse News' access to new civil complaints in violation of its First Amendment right of access.“

Categories / Civil Rights, Courts, First Amendment, Media

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First Amendment action filed against Dayton clerk

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