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First Amendment battle in Oregon moves to final stage

The powerful hand of Oregon’s court bureaucracy was revealed in its ability to derail a return of traditional access to journalists reporting on a long-time source of news.

When a reporter for this news service asked a top court administrator in Oregon to return old-fashioned access to new civil complaints, he agreed after checking with the chief justice.

With the OK from on high, things moved quickly. A test “press queue,” giving on-receipt access to e-filed civil complaints, was soon put in place.

But that was before the powerful bureaucratic machinery of the courts frowned on the idea. The press queue project froze in place.

Those events took place two years ago. The press queue was never opened up to reporters and instead legal warfare ensued with a steady flow of briefs, arguments, declarations, document discovery and depositions.

On Friday evening, lawyers for Courthouse News filed what is expected to be the parties' last trial court brief in the tale of the press queue that was until it wasn’t. The brief was in reply to Oregon’s answer to the news service’s motion for summary judgment, all of which will now be considered by U.S. Magistrate Judge Youlee Yim You.

Within the brief, one phrase in particular sums up the power of the court bureaucracy to stall, use state funds and state lawyers, maneuver and mislead — employ virtually any tactic and any argument — to fight public access.

“The record shows that the primary reason Defendant rebuffed Courthouse News’ requests to change the policy of withholding access for processing was a proprietary view among Oregon Judicial Department personnel that e-filed civil complaints are not ‘a record of the court’ until court staff has time to review and ‘accept’ them,” said wrote Katherine Keating with the Bryan Cave law firm.

The word “proprietary” is the key to describing a common attitude from court clerks about the public record of the courts.

This proprietary view is sometimes directly expressed in open court as it was by a assistant attorney general in Texas this summer — “they're essentially the clerk's documents” — but more often it can be seen in the willingness of the clerks to throw every possible legal argument and factual assertion against the courtroom wall to see if something sticks.

In Oregon, the tactics include declarations by three different clerks using identical language to say lawyers make mistakes when filing confidential documents. The three declarations were offered up in support of an argument saying trial court administrators, called clerks elsewhere, need to look over new civil complaints before journalists can see them.

“Three trial court administrators offer virtually identical declaration testimony on this point,” said the Courthouse News brief, which then quoted the identical phrasing: “It has been the experience at the … Court that filers regularly make mistakes and fail to designate confidential information. In my role as TCA, I receive consistent reports from my supervisor team about e-filing issues that arise. One ongoing issue is that filers fail to designate confidential documents as confidential.”

Human speech varies greatly, as does the individual manner of writing. Identical language used by three different clerks tells any reader that the language is rote testimony, not in fact the expression of individual witnesses.

It also does not match the evidence.

“The vague, conclusory and boilerplate statements from the administrators are insufficient to meet Defendant’s burden of opposing summary judgment because they do not say how often filers ‘fail to designate confidential information,’ let alone how often — if ever — such failures occur in case-initiating documents filed within the civil case category,” wrote Keating. “The administrators do not offer up a single example of a confidential case-initiating document filed in the civil case category that would have been released as public absent court staff changing a filer designation.”

That wrestling match down in the evidentiary mud represents the state’s best hope for justifying a blackout on access to new civil cases while clerks do clerical work. The same defense tactic has failed repeatedly in other states based on a lack of evidence showing lawyers often mess up when filing confidential documents.

A nearly identical argument was made, for example, in a case decided last year in Vermont, where U.S. District Judge Christina Reiss concluded that a minute number of mistakes does not justify abridging the First Amendment. “This is a minute fraction of the total complaints filed and demonstrates that the pre-access review process is not ‘essential to preserve higher values,’” wrote Reiss in last year’s opinion.

Her reference to “higher values” is based on the U.S. Supreme Court test for access restrictions laid down in a decision known as Press Enterprise II. In that seminal decision, the court said any restriction on the First Amendment right of access must be essential to preserve higher values and must use the least restrictive alternative.

The confidentiality argument revolves around the state’s attempt to invoke a “higher value” in order to override the First Amendment right of access. The lack of any evidence on that point, other than rote and unsupported declarations, would normally doom the defense.

(Art by Carlos Ayala)

But it is also the case that the director of Oregon’s court administration, Nancy Cozine, has less restrictive alternatives available that would satisfy the First Amendment.

One of them is the press queue that her staff set up two years ago in test mode. It requires registration by members of the news media and allows them to report on new civil cases as they cross the electronic threshold into court.

The threshold is electronic because lawyers in Oregon are required to e-file new cases, just as they are in federal courts and many state courts. In the past, when lawyers walked a paper complaint down to the courthouse, Oregon honored a tradition of access where journalists could look over the new filing as soon it crossed the court’s physical threshold.

Karina Brown, the former Oregon correspondent for Courthouse News, submitted a declaration, full of very specific facts, testifying to the way traditional access worked in the state’s biggest court, Multnomah County Circuit Court, in Portland.

“I and the other journalists worked in an empty cubicle next to the docketing clerk. When any of the journalists arrived, we were recognized by the civil operations supervisor, Brandon Logan, who then brought a stack of newly filed complaints from the intake counter to the cubicle where we worked. Between 4:30 and 5:00 p.m., Mr. Logan would bring another batch of complaints, and any additional complaints filed shortly before the office closed at 5:00 p.m. were also brought over individually.”

That tradition, where new cases were seen by journalists as they came across the counter, was in effect throughout the nation. News reporters covering courts from Los Angeles to New York, Chicago to Dallas, and cities in between, checked the just-filed complaints because they are a potent source of local and sometimes national news.

In Portland, reporters for the Oregonian, Willamette Weekly and the Portland Mercury looked over the new cases alongside the Courthouse News reporter. They also checked new complaints filed in U.S. District Court nearby as part of a daily routine also described in Brown’s declaration.

“New complaints were placed in a shallow rectangular wooden box, with half-moon shapes cut out of the short ends, as soon as they crossed the intake counter — i.e., when they were received. I looked at complaints directly from that box, and I did not have to wait for them to be entered into the docket or otherwise processed by court staff,” Brown wrote. “Before and after the switch to e-filing, I reported on the new civil complaints in the U.S. District of Oregon when they are received. The access did not vary. It was steady.”

The contrasting proprietary view, prevalent among many state court clerks, is that public documents are theirs to sell back to the public. This is blatantly true in some states where clerks are elected and use income from document copies to pay for projects outside their state-approved budgets.

But it did not seem so in Oregon where trial court administrators are not elected. As a result, the amount of income Oregon brings in from the sale of access to court records came as a surprise.

The Oregon Attorney General’s Office had argued that a press queue would cost money and that was a reason for not putting it in place. E-file vendor Tyler Technologies quoted $108,000 per year as the price for a press queue. The argument did not have much in the way of legs because Tyler also offers other alternatives that provide public access on receipt for free.

But it also turned out to be small potatoes.

“To begin with, this figure should be understood in the context of the Oregon Judicial Department’s revenue streams and what it already pays Tyler,” said the brief for Courthouse News. “Under Oregon’s statewide e-filing agreement, the OJD pays Tyler $2,779,500 each year. Meanwhile, the OJD generates substantial revenue from providing access to court records through its subscription-based OJCIN service. During 2017-2019, user fee revenues from OJCIN subscriptions were $5.9 million.”

While court administrators throughout the nation have fought almost reflexively against a return to traditional public access, there have been exceptions and there have been abrupt and startling sea changes.

Arizona and Utah granted public access on receipt with no more than a request. Vermont administrators, even as they appealed Judge Reiss’s injunction against them, switched over to on-receipt public access easily and quickly, in the space of three weeks.

In the fourth biggest state in the nation, New York’s court officials made the argument six years ago — very similar to the one currently advanced in Oregon — that a lawyer might mistakenly e-file a confidential matrimonial action even though the matrimonial category of cases was grayed out on the e-filing interface.

U.S. District Judge Edgardo Ramos rejected that excuse and enjoined the Manhattan clerk from withholding new complaints. All public civil cases e-filed in New York now become public on receipt.

In the third biggest state, Florida’s clerks fought public access tooth and nail for six years but this summer agreed to provide access on receipt and are now pushing ahead to implement the access within roughly one week.

In the second largest state, Austin’s court clerk finished installing a press queue earlier this month, while the access issue remains on hold in the rest of the state pending a policy review.

And in California, the biggest state in the nation, where the mother of all access battles against Ventura’s clerk raged for a decade, there are now 27 superior courts that provide access on receipt or have promised to in the near future. That brings public access in California courts full circle to where it was when paper was the medium.

Many of those California courts, where each court makes its own decisions about e-filing, switched to on-receipt access based on a simple request by letter.

In contrast, the Oregon case has been a knock-down, drag-out affair.

Last year, Oregon Assistant Attorney General Carla Scott moved for summary judgment. In February of this year, Magistrate Judge You handed down a lengthy ruling that denied her motion, and U.S. District Judge Michael Simon adopted that decision six weeks later.

The time since then has been taken up by discovery consisting of interrogatories, requests for documents, and depositions. All of that work culminated in the Courthouse News motion for summary judgment and the final reply brief filed Friday. 

In conclusion, the Keating brief invoked two dominant precedents hovering over the Oregon litigation, the Ninth Circuit’s final ruling in the Planet case, referred to as Planet III, and the U.S. Supreme Court ruling in Press Enterprise II.

“Because Defendant has not carried her burden of demonstrating genuine disputes of material fact as to whether she can establish ‘a substantial probability’ that important government ‘would be impaired by immediate access’ and ‘that no reasonable alternatives exist to ‘adequately protect’ that government interest,’ Planet III, 496 F.3d at 596 (quoting Press-Enterprise II, 478 U.S. at 14), Courthouse News is entitled to summary judgment.” 

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