(CN) — As All Hallows Eve crept nigh, an old ghost returned to the sixth floor of the federal courthouse in Burlington. As soon as it appeared, however, a diminutive figure with auburn hair and a black robe dispelled it with musing and a truth spell.
The ghost and its motley crew of legal arguments seem whole and lifelike to some but wraith-like and vaporous to those with a penetrating eye. They floated into the Vermont courtroom of U.S. District Judge Christina Clair Reiss earlier this week where a First Amendment preliminary injunction motion was being heard.
Since first conjured, as though by the three witches on Macbeth’s heath, it has been known as the Williamsburg Ghost, named after the colonial town where clerks met during the last decade. Its form shifts but the main emanation is a notion that portrays the press as wanting to take documents from people standing in line at the filing window.
Just so argued Vermont Assistant Attorney General David Boyd, credibly playing the role of State Necromancer dabbling in the black art of deception. “The historical analogy,” he said, is that Courthouse News is asking to documents “as soon as somebody steps in line.”
From the bench, seen through a plastic barrier, the auburn-haired judge with an unworldly hold on youth answered. “No, I think that’s overstating it. If it’s e-filed, there isn’t even the process of stamping it, checking the filing fee, and checking the signature. My understanding is those functions are automated now and that it wouldn’t even get filed without that stuff.”
Thus the Williamsburg Ghost went pop and disappeared from her courtroom, dispelled like a patch of mist on Vermont’s color-filled mountains after the rain on the day of the hearing.
A transcript of the hearing was filed Thursday. The hearing earlier in the week was about a media challenge to the Vermont clerks’ policy of blocking access to new civil actions, which often hold news stories, while clerks do clerical work.
Courthouse News is joined in the litigation by a media tribe: the Vermont Press Association, New England First Amendment Coalition, Gray Media Group, Gannett Vermont Media Publishing, Sample News Group, Vermont Journalism Trust, Vermont Community Newspaper and Da Capo Publishing.
The transcript gave a kind of X-ray image of phantom arguments circling through the room on the brink of Halloween.
Credibly playing the role of Great Wizard casting spells of logic on behalf of the media was William Hibsher with Bryan Cave. He fought illusory points and tricks of argument the whole of the two-hour, afternoon hearing.
The judge quickly saw through one of the big shape-shifters that circled her bench, when she said the e-filing intake software does the same job as the paper-world intake clerk. And thus access can be provided almost immediately after e-filing just as it was upon paper filing.
This was and remains a key point of contention in a related case in New Mexico.
“Because there would be no delay in an e-filing system,” said Judge Reiss. “There could be 1,000 complaints; there could be 100,000 complaints. There’s no delay. The only delay that’s going to show up in an e-filing system is when you insert a staff member into it. Because they are loading it up with all of the document information they need, and it’s hitting the docket, and there isn’t any step in between where there is staff. Correct?
“Yes, that’s the PACER model,” conceded Vermont’s necromancer.
Courthouse News has submitted evidence showing that it is not only the federal PACER model that provides such prompt access but also state courts using the very same e-filing software as Vermont. In addition, two states within the same federal circuit as Vermont — New York and Connecticut — also provide the same access to new e-filings upon receipt.
At the start of the hearing, Reiss walked up to the bench holding in front of her a tall stack of documents and declarations filed in the case. She then set out her initial thoughts — “I call them musings” — which were that the case before her did not call for abstention and that it revolved around just how much delay should be allowed.
That latter thought soon led to discussion of a September hearing in a very similar case before U.S. District Judge James Browning in New Mexico. In that case, a Williamsburg Ghost doppelgänger, who might be called The Bamboozler, entered that courtroom in the form of an argument that says "Ah ha, the press saw paper cases after they crossed the counter and that is a kind and processing and therefore they should not see new e-filings until they are docketed."
Undispelled during the hearing in Albuquerque, The Bamboozler then haunted a 90-page ruling that followed. Judge Browning found that press had never had access before processing whereas, in the non-spirit world, the press in fact had access to paper filings after intake and before docketing.
That position in the filing sequence, post-intake and pre-processing, meant the press saw cases as soon as they crossed the counter.
Back in Burlington, Reiss mused, “I’m looking at the New Mexico decision and the Court said ‘I’m going to give you five hours to do whatever you need to do.’ It seems the jurisprudence is coalescing around how much time.”
Answered the Great Wizard for the media, “Five business hours means that everything filed from about 11:00 in the morning until the end of the court day will be held over until the next day. That is not contemporaneous access.”
He added, “We think the issue is not so much to divine what number of hours is acceptable, rather, for the Court to ask the defendants, ‘How do you justify any delay now that a presumption of access has arisen.’”
Hibsher continued to battle The Bamboozler through much of the hearing.
“Whether it’s one hour, four hours, eight hours, whatever it is, they have to justify,” he argued. “The issue for the Court is not to sort of say, ‘Well, five business hours seems like a good number to me.’ That’s not to the way the press operates. That’s not the way the First Amendment operates.”
But Reiss rose to the defense of Browning.
“I’ve got to stand up for my fellow judge,” she said. “That may have been an attempt to define what does ‘contemporaneous’ mean. So there isn’t necessarily a uniform definition of ‘contemporaneous,’ and that might have been, ‘Look, if you’re within a five-hour window, I’m going to consider that contemporaneous.’”
Answered the wizard for the media, “In an electronic filing court, the filing party does all the work for the court. The filing party inputs all the data in neat little boxes, lots of drop-downs. All the initial intake is done by the software the defendants have in place.
“Our position,” Hibsher added, “is not that in the abstract we are entitled to an instantaneous right of access. But in an e-filing court, we believe that access should be pretty close to immediate unless the defendant can come forward and meet its Press-Enterprise II burden of justifying the delay.”
For those unschooled in the legal arts, the 1986 Press Enterprise opinion by the U.S. Supreme Court sets out the steps for analyzing the First Amendment right of access. Once the right attaches, any delay by the state must be justified by an overriding interest and use of the least restrictive alternative.
Because on-receipt access is seen widely in federal and state courts, it is difficult for Vermont to argue that it must withhold access for an overriding reason and has no less restrictive alternative.
Unseen before, a new illusion came into the courtroom as the hearing continued. While slurring the veracity of Courthouse News, Vermont’s necromancer tried to lead the judge into the House of Error. The new conjuring could be called Le Grand Faux.
He repeatedly argued that the publishing records of Courthouse News were the same as access rates at courts around the country. “There historically has been 42 to 46 percent of complaints are made available to Courthouse News,” said Vermont’s lawyer Boyd.
That argument is false, and based on the ample evidence submitted by Courthouse News, knowingly so.
The published dates of reports were based on a variety of very human factors such as when a reporter could get to a court. And they were tabulated for only the last six years, while state courts have been degrading access for two decades. The publishing data is thus neither historical nor a measure of access.
The judge asked the Great Wizard directly about Le Grand Faux.
“So I heard Mr. Boyd tell me many times your data shows when a court allows same-day access to a complaint,” Reiss asked.
“That is not what it’s showing,” said Hibsher. “There are reporters who have several courts which they cover on a daily basis. They go to one at 3 o'clock, one at 5 o'clock in suburban areas where they're driving from court to court. That does not mean that that is the delay in access from the Court's perspective. That is Courthouse News's reporter's human first publication date, and that can vary enormously.”
The judge agreed: “I would assume that it would vary based on we've got something more important we want you to do and we'll cover that later this week.”
And poof went Boyd’s pet ghost.
Last of the top-rank illusions brought forth by the state was the notion that local rules require that clerks redact private information before press access, an argument also circling in courtrooms in Oregon and New Mexico.
“My point,” Reiss said to Hibsher, “which is kind of making your case, is I just don't see anything in these rules that even authorizes that delay."
“We agree, your Honor.” And that goblin of an argument vaporized.
After all the counter-spells were cast, the remaining spooks, phantasms and wraiths were of lesser strength. The specter of a weakened and bloodless federal court that should abstain from hearing a First Amendment case was early sent away by the judge.
Like The Blob, the abstention argument has bubbled up in courts all around the country. It has been defeated by an incantation that says it’s the job of federal judges to enforce the Bill of Rights, and hand-waiving the enforcement of that fundamental set of American freedoms over to a state court is to shirk their duty.
It was reduced in Burlington this week to a vaporous wraith, trapped within reason’s bonds. “I don't think this is a Younger case,” said the judge, referring to the most common basis for abstention.
Another failed argument by the state of Vermont was that the media had not shown damage because there was no showing that a story had been held up because of access delays.
“It seems to me a very backward way of looking at it.” said the judge, casting a particularly powerful truth spell. “I had a hard time seeing why the plaintiffs would have to show that by getting allegedly late access to a civil filing it delayed their coverage. It kind of is an automatic: If I get something on Day One as opposed to Day Three, I can produce an article faster. I mean, it doesn't seem to me like an easily contested principle.”
But one tough old notion had survived, the oldest, grandest of the shape shifters — old man Time.
So what was the measure of time that the clerk could block access after receipt, since the federal courts and many state courts showed that new filings could be made available within minutes of receipt. The Great Wizard exhausted his spells in controlling that last and most powerful spirit.
He leaned on a 2016 ruling in Courthouse News v. Tingling in the Southern District of New York where U.S. Judge Edgardo Ramos ruled that that Manhattan’s state court clerk could not withhold new complaints for clerical processing. Within six weeks, New York had put in place a queue based on the automated intake software that gave access on receipt.
“Tingling said, ‘You're going to have to make them available without doing any pre-access processing.’ Courthouse News received access electronically the way it is done in federal court via PACER,” Hibsher argued. “And today every single county in the state of New York is doing the same thing. The press has access, and that kind of access really serves the public discourse.”
Just before leaving the bench, the muser and master demystifier said, “I will get you a written decision.”
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