It was after the National Review compared him to a child molester that climate scientist Michael Mann sued for defamation. The suit, in the heart of the conservative media campaign to deny global warming, was news.
But the complaint, filed in 2012, was held within the warren of desks at the District of Columbia courthouse for roughly a week. By the time it came to public light it was old news.
Recently, after more than a decade, a jury awarded the scientist $1 million in punitive damages. The verdict was announced earlier this month on the same day it was returned, and the coverage was extensive. It was fresh news.
The difference between fresh and stale news is at the core of a First Amendment action filed Wednesday by this news service against the clerk in D.C. Superior Court. The complaint says the clerk violates the First Amendment by sealing new cases when they come into court, holding them from public view until clerical work is done.
Going back in time, new filings at both state and federal courts around America were put in a box on the counter where reporters, and anyone else who was interested, could see what new cases were coming into the courthouse. The tradition is often recognized by judges who themselves filed cases when they were practicing lawyers and remember the box on the counter.
Judge Ralph Erickson, for example, described the tradition from the Eighth Circuit bench in another Courthouse News case over access in Missouri. “What we're saying is that, oh, for about 230 years, you can walk into a…courthouse, into the clerk's office, and say, 'Hey, can I see what's been filed today?'”
His fellow judge on the panel, Bobby Shepherd, said, “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.”
In the switch over to electronic filing, the federal courts and many state courts set up an electronic bin — the equivalent of the old wood box on the counter — where new civil complaints could be seen and reported on as they arrived at the courthouse. But D.C. Superior has not set up the electronic bin.
Instead the clerk’s office follows a policy commonly called “no-access-before-process,” which means the clerk holds the new cases back for the clerical work of processing, that is, setting up the new complaints in the court’s docketing system.
As this news service's complaint points out, the e-filing software vendor used by D.C. Superior gives its court customers at least three alternatives so they can give public access at the time of receipt.
A right of access case under the First Amendment case relies on the overarching U.S. Supreme Court precedent in an opinion referred to as Press Enterprise II. The key holding is that, “The presumption of openness may be overcome only by 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 clerk does not have an overriding interest in doing clerical work before public access. It can be done afterwards, as is common in federal and state courts in California, New York, Florida and many more states.
The complaint also points to the many rulings won by Courthouse News in federal courts in California, New York, Texas, Vermont, Ohio and North Carolina.
In the granddaddy of those decisions — a case against the clerk in Ventura, California that took a decade to litigate — the Ninth Circuit Court of Appeals found that a qualified First Amended right of timely access attaches “when new complaints are received by a court, rather than after they are ‘processed.’”
The legal test then moves to the second part of the Press Enterprise test which says the clerk can only deny access if it can justify that withholding based on an overriding interest and a lack of viable alternatives.
“The vast majority of federal courts and many state courts configure their e-filing and case management systems to automatically allow access to civil complaints upon their receipt by the court,” said the Courthouse News complaint. “The systems that provide this access have been developed by at least ten different private and government software creators.”
As a legal and logical consequence, said the complaint, the clerk cannot justify sealing new complaints when they are received.
The action was filed in the U.S. District Court for the District of Columbia by Carol LoCicero, Mark Caramanica and Daniela Abratt-Cohen with the LoCicero & Thomas law firm based in Florida, and Patrick Curran Jr. with Davis Wright firm based in Washington D.C.
In conclusion, they wrote, the clerk “cannot establish that her policy and practice is narrowly tailored because her office already possesses or has access to one of many readily available alternatives capable of meeting court needs while at the same time providing on-receipt public access to newly e-filed complaints.”
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