Fourth Circuit Affirms First Amendment Right of Access to Civil Complaints

(CN) --- The Fourth Circuit Court of Appeals ruled in favor of the press Thursday, affirming the principle that the right of access to new civil complaints runs contemporaneously with their filing.

The ruling affirmed a trial court opinion that found two Virginia court clerks had violated the media’s First Amendment right of access to new complaints on the day they are filed. U.S. District Judge Henry Coke Morgan Jr. ordered the clerks to provide that access where “practicable.”

The federal courts and many state courts have shown that it is practicable to provide access to new civil complaints within a few minutes of filing. The Fourth Circuit ruling itself became public almost immediately with its filing.

But many state court clerks, in the switch to electronic filing, have imposed delay while they go through clerical tasks generally referred to as “processing.” That can --- and does in some courts --- take weeks.

When challenged, the clerks have increasingly relied on the doctrine of “abstention,” saying the federal courts should abstain from deciding how state courts go about their administrative business.

The Fourth Circuit ruling handed down Thursday in Courthouse News v. Schaefer rejected that argument. U.S. Circuit Judge Diana Gribbon Motz, a Bill Clinton appointee, wrote the opinion that distinguished a Seventh Circuit ruling exempting the Chicago court clerk from her First Amendment obligations based on abstention.

Motz said the Seventh Circuit ruling ran contrary to Supreme Court instruction. “It based its ‘decision on the more general principles of federalism,'" wrote Motz. “Such an approach is inconsistent with our precedent and Supreme Court guidance.“

Her rejection of the Seventh Circuit decision parallels a similar rejection by the Ninth Circuit, which covers much of the western United States.

On a second crucial argument often made by state clerks, the appellate judge also rejected the notion that Supreme Court precedent does not require contemporaneous access under the First Amendment. In other words, the clerks say, they should be allowed to delay access while the process complaints.

Rejecting that idea, Motz forcefully explained the immediacy of the effect from the filing of a civil lawsuit and the importance of prompt public understanding of its contents. She described “the immediate consequences precipitated by filing a complaint, consequences the public must promptly understand.”

In her clearly written opinion, the judge came back to that point in her last paragraph: “The press and public enjoy a First Amendment right of access to newly filed civil complaints. This right requires courts to make newly filed civil complaints available as expeditiously as possible.”

U.S. Circuit Judges Robert King, also a Clinton appointee, and Barack Obama appointee James Wynn Jr. joined Motz's opinion.

The consequential 19-page opinion came on an appeal by Virginia’s elected court clerks, who fought and lost a four-day trial last year before Judge Morgan, a George H.W. Bush appointee. He issued a lengthy written opinion confirming the principle that the First Amendment right of access to civil complaints attaches contemporaneously with their filing.

Courthouse News was represented in that action and on appeal by William Hibsher, Heather Goldman and Bryan Harrison with the Bryan Cave law firm. Hibsher handled the arguments before the Fourth Circuit.

As part of the appeal, a long roster of media entities submitted a brief in support of the right of access. They were represented by Jennifer Nelson with the Reporters Committee for Freedom of the Press. Representing the clerks was Michael Matheson with the Richmond firm of Thompson McMullan.

The right of access at the core of the legal slug fest, which included attempts by the clerks to hide evidence of delay, is a tradition that goes far back in time. When cases were filed in paper form, news reporters traditionally checked the new civil complaints at the clerk’s counter where they were usually gathered in a box or tray.

That stack of new complaints regularly contained news about major legal disputes in the community covered by the court, ranging from financial wrongdoing to environmental disputes to accidents and disasters.

The intake clerk placed new paper cases in the box when they crossed the counter --- in other words, contemporaneously with their filing.

That tradition was carried forward into the electronic age by federal courts and a long list of state courts in Hawaii, California, Nevada, Utah, Georgia, Alabama, New York and Connecticut.

But a similar list of courts broke with tradition. They took advantage of the switch to e-filing and pushed the press and public behind clerical functions that, in St. Louis for example, took between a week and two weeks to complete. Those delayers include courts in Maine, Vermont, Oregon, North Carolina and Texas.

Many of them are now defending the delay in federal lawsuits, using arguments similar to those made in Virginia, including abstention and the claim that a right of access does not even apply to new complaints.

“It would be impossible for the public to perform this role adequately without access to nonconfidential civil complaints.” Judge Motz wrote, and quoted from appellate precedent. “A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court’s decision.”

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More stories and columns on the Virginia trial:

US Judge Slaps Virginia Clerks With $2 Million Fee Award in First Amendment Case * E-Filing and the First Amendment  *  Matter of Choice   * The Dicta: Guesswork About Press Access  *  Presumption and Fact: The Ask for Access  *  ‘CNS’s View’ Accurately Told  *  Access Solution: The E-Inbox  *  Access Law in the Electronic Age  *   Bread and News  *   Flip Side of Court Tech  *   First Amendment Right to See Court Documents on Day of Filing  *   Tradition of Same-Day Access  *   The News Cycle

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