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First Amendment Challenge to Court’s No-Access-Before-Process Policy Heard in Maine

Federal Judge Nancy Torresen on Wednesday heard opposing arguments from lawyers for newspapers and for the state on whether the First Amendment allows a court clerk to hold up access to new civil complaints in order to run through a list of clerical tasks that take time and hurt the news.

(CN) --- A Maine rule forbidding on-receipt access to new court complaints was tested Wednesday by U.S. District Judge Nancy Torresen, who questioned how quickly new complaints need to be seen and whether the state might be applying a content-based restriction.

The federal courthouse in Portland is opening back up this month, after more than a year of Covid closure, with live hearings underway and civil trials beginning next month. But the case where Maine newspapers are challenging access restrictions was heard by Torresen via video.

At issue is a court rule that requires press and public to wait to see just-filed civil actions --- which are a traditional source of news on the court beat --- until docket work is finished. The defending court administrator says it should take no more than four hours for that work, except in unusual circumstances.

The new court rule says “A court record in a civil case is accessible by the public upon entry into the electronic case file.” But the plaintiffs in the case, the Portland Press Herald, Sun Journal, Bangor Daily News and Courthouse News, argued the First Amendment right of access attaches when new complaints are filed. Based on Maine court rules, the documents are filed when they are electronically submitted.

Representing the news media, attorney Jeffrey Pyle started off saying the Maine rule has in effect “sealed” the new cases until clerical work is completed.

The judge stopped him one sentence into his argument and said she could not agree that the cases were being sealed.

Pyle then pointed to the previous Maine rule saying press and public could not see new complaints until they were served on the defendants, which can take 90 days.

“I’m down with that,” said the judge as part of a lively exchange with the lawyers on both sides. But the new rule, she pointed out, only forbids access up until complaints are entered into the docket, a process that, according to the defending administrators, takes four hours in most situations.

The judge said she had looked at Ninth Circuit precedent and the seminal Planet III case that found an identical court policy in Ventura, California --- called “no-access-before-process” --- violated the First Amendment. Torresen suggested that the opinion allowed court clerks to hold back cases until the next day.

The Ninth Circuit ruling in fact severely pigeonholes that exception to a situation where a paper-filing court was giving access to 97% of the news cases on the day of filing, where late-filed cases are scanned the next morning, and where the court was in a budget bind.

It is common for clerks who are facing First Amendment litigation to speed up their clerical work in order to undercut evidence of delay. In Maine, even with litigation pending, the only e-filing court in the state is still holding back almost a quarter of the cases on the day they are filed.

In her questions to the newspapers' lawyer, the judge also wanted to know if he thought a reporter could walk up to the intake clerk in a paper court and demand to see a new complaint just pushed across the counter. Wouldn't the clerk say, “Excuse me!”

Pyle, with the Boston-based law firm of Prince Lobel, said Courthouse News would never do such a thing and then pointed out that Maine’s e-filing program does the intake clerk’s job itself, by requiring that the lawyer pay with a credit card, fill in case type and identify the court.

In a paper court, all those items are checked by the intake clerk in a review that generally takes less than a minute --- which is about the time it takes for the software to run through a new e-filing before dropping it into the clerk’s docketing queue.

One issue that was not argued but was used as an excuse by the court administrator was that the court’s vendor, Tyler Technologies, has begun demanding large sums --- referred to by some lawyers as “vendor ransom” --- to install press access software that it has already developed and freely installed in the past.

Torresen then turned to Assistant Attorney General Thomas Knowlton, representing the Maine administrators, to ask if there was not a hint of “content-based” restriction in his argument which said clerks need to review new complaints for “privacy.” In his written argument, Knowlton had said the new complaints need to be checked because somebody might file one simply to “gratify private spite or promote public scandal.”

He denied that a review for scandalous content was content-based. He also decried the “mass confusion” that would ensue where the public saw a filing that was rejected and the lawyer abandoned the effort to file --- a hypothetical of which the judge was deeply skeptical.

On the key point of delay, the state’s lawyer said clerks were expected to complete their clerical tasks within four hours. Torresen pressed him on whether those were “business hours” and he said they were.

She then asked him what “unusual circumstances” might cause delays to run over four hours. Knowlton listed a series of common circumstances in clerks’ offices --- personnel out sick, computer problems and a surge of new cases.

The judge also questioned Bernard Kubetz with Eaton Peabody whose office looks over the local courthouse in Bangor where the clerk is a defendant in the case. Kubetz represents the Bangor Daily News, which has joined in the press challenge to Maine's rule delaying access.

In answer to the judge's question, Kubetz said that when the Maine courts were based on a paper filing system, a reporter could go to the courthouse and obtain a copy of a new complaint as soon as it crossed the clerk's physical counter. In their First Amendment case, the newspapers are asking for the same timely access to new e-filed complaints.

Torresen noted the newspapers are asking for a bit of Tyler software called a “press queue.” The press queue gives reporters access to new complaints as soon as they are filed, rather than after the docketing process is completed.

Torresen asked Kubetz if he had any objection to the press queue being a “public queue,” open to press and public alike. In fact, the courts of Connecticut and New York already provide both press and public with on-receipt access to the new civil complaints.

The lawyer for the Bangor newspaper answered that he would have no objection to the queue being open to the public.

One of the principal points of inquiry from the judge was how long is too long to hold up access to the new filings. Must access be immediate, or is two hours acceptable, or four hours?

Knowlton argued that four hours was “reasonably contemporaneous.”

For the newspapers and Courthouse News, Pyle argued that the filing of the complaints engages the “machinery” of the courthouse, the gears of a public process that resolves a public dispute, and it should be open and accessible as soon as the machinery is engaged.

A delay of four business hours, he argued, pushes at least half the new cases over to the next day --- when the news they contain is already stale.

In answer to Judge Torresen’s question, lawyer Kubetz for the Bangor newspaper objected to the idea that the contents of a court filing should be read by clerks to prevent the promotion of scandal. He said the courts were not “the litigants courts.” They are “the public's courts.”

Early in the roughly 90-minute colloquy between judge and counsel, Torresen said she could “sua sponte” abstain from hearing the case --- decide, in other words, that the matter should be left to state courts to sort out. She pressed Knowlton on why he had not moved to dismiss based on abstention. The lawyer for the state said his office had considered the argument but opted to instead move to dismiss based on his argument that the newspapers’ claims had “no merit.”

Torresen returned to the point as the hearing wound up, questioning her role in deciding how state courts handle their records. But she concluded that since the state had not brought the issue forward, and even during the argument had declined to advance it, she would probably not consider abstention.

The judge ended the hearing by saying she had already read much of the material submitted, but would continue reading and then consider all the issues raised by the dueling motions to dismiss from the state and for a preliminary injunction from the newspapers.

Categories / Civil Rights, Courts, Media

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