(CN) — Courthouse News asked a federal judge Monday for an injunction against Idaho’s court administrator over her policy of blocking access to new court records when they are received.
The motion for a preliminary injunction was electronically filed in federal court in Idaho where it could be seen and read by the public within a couple minutes of receipt by the U.S. court. In contrast, a new civil action filed in Idaho state courts must wait on clerical work which takes a day or two.
The delay renders the news stale.
A federal judge in a similar case compared the news to bread. “If you don't get it when it's fresh, it's like stale bread or stale anything else,” said Judge Henry Coke Morgan Jr. in the Eastern District of Virginia. “So I think the plaintiff's point on that is well-taken.”
That basic idea of getting the news while it’s fresh is also a central theme in Monday’s request for an order that would enjoin the Idaho administrator from holding up access to new filings.
“News about complaints has a short shelf life. Indeed, the first line of the Ninth Circuit’s controlling opinion in this case, Planet III, states: ‘The peculiar value of news is in the spreading of it while it is fresh,’” said the Courthouse News memorandum.
Two years ago, the Ninth Circuit opinion called Planet III turned on the same issue, where a clerk in Ventura was blocking access to new civil actions until long past the day they were received. After ten years of pitched legal battle, the federal appeals court that covers most of the western states ruled against Clerk Michael Planet.
That opinion by Judge Kim Wardlaw affirmed an injunction against a policy that has come to be called “no-access-before-process.” In other words, the opinion said that under the First Amendment the clerk could not block access to the new complaints for a day or more while they were being processed into the docket.
Both Idaho and Oregon are within the territory of the Ninth Circuit and the Planet opinion is therefore controlling authority. Yet administrators in both states have refused to abide by that authority.
Both courts also use “Odyssey” software for e-filing, sold by Tyler Technologies. The software gives the clerks three options for public access. The default version holds back the new filings while the clerks process them.
A second version includes a “press review queue” that allows the press to see the new filings a couple minutes after the new case is received by the court.
And a third version automatically processes the new cases into the public docket shortly after receipt, just like the federal courts.
The point made by the lawyers representing Courthouse News, John Fetterly and Katherine Keating with the Bryan Cave firm in San Francisco and Debora Kristensen Grasham with the Givens Pursley firm in Boise, is that the Idaho administrator has a choice between three Odyssey options.
Two of the options comply with the First Amendment. And one does not.
The Idaho court administrator has chosen and continues to defend the one that does not.
“Despite the availability of the press review queue or auto-accept configurations of Odyssey, Defendant and the Administrative Office of the Courts have retained the default Odyssey configuration, resulting in pervasive delays in access to new e-filed civil complaints,” said the memo in favor of an injunction.
The case was assigned last Friday to Chief Judge David Nye in the U.S. District Court for Idaho.
A decade past, when paper was the medium of court documents, journalists checked the new civil cases at the clerk’s counter at end of each day, a little like a fisherman checking his nets. They were fishing for news.
In those days, new cases were traditionally set aside by the intake clerk so reporters could see what new controversies had just crossed the counter into court. The next day a docketing clerk picked up the new paper complaints and took a day or two to enter them into the court’s record-keeping system, the docket.
But in the transition to the electronic medium for court documents, state court clerks often took it upon themselves to do away with traditional access. Using their power over the records, the clerks, in some courts civil servants and in others local politicians, pushed the press back behind processing, the modern equivalent of docketing.
That takeaway led to access delays and to a series of First Amendment actions around the nation.
Odyssey e-filing software is used widely in the state courts. And a good number of clerks have picked one of the two constitutional public access options within the Odyssey software. In California and Georgia, for example, clerks include a press review queue, allowing the press to see the cases as they come into the court — like it was when paper ruled.
The clerk in Las Vegas picked the third Odyssey variation, referred to as “auto-accept,” which automatically puts the new cases into the public docket.
The Courthouse News lawyers argue that with such obvious and painless alternatives, the Idaho administrator cannot satisfy First Amendment law. That law says that where the right of access exists — which is clear with court records — then clerks must have an overriding reason for restraining access and must use the least restrictive alternative.
Because the two software options that satisfy the First Amendment are easily available to the administrator — through a simple request to the software vendor — she cannot justify no-access-before-process, the Bryan Cave lawyers point out. In addition to the fact that the Ninth Circuit has essentially outlawed the policy.
But the Idaho administrator, Sara Omundson, differs. She says her situation is not the same.
Omundson is represented by Keely Duke with Duke Evett in Boise, who argued that the federal court should “abstain,” not hear the case, because it intrudes on state court policy.
“The Court should find that CNS’s request for the overexpansive federal adjudication of the issue in this lawsuit, which implicates the administration of the entire state judiciary in Idaho’s state courts, calls for its abstention,” argued Duke in her papers.
A difficulty with her argument is that the Ninth Circuit, in the Planet decision, specifically rejected abstention in matters that involve interpretation of the First Amendment.
As her second main point, Duke also tried to distinguish the Planet opinion by saying it involved a mere clerk while the Idaho case involves a full-on administrator.
“CNS asks the Court to issue declaratory and injunctive relief that would apply to Director Omundson, her agents, assistants, successors, employees, and all persons acting in concert or cooperation with her, or at her direction or under her control in Idaho’s state judicial system,“ wrote Keely. “This request is materially different from that in Planet, where CNS asked the court for relief against one single county clerk.”
The lawyers for Courthouse News answered that the different official titles are a distinction without a substantive difference. They are both court officials, one who is, the other who was, withholding public access to court records in violation of the U.S. Constitution.
“The Tyler Odyssey e-filing system used by the Idaho Courts can provide timely access to new civil complaints,” they argued in their preliminary injunction request. “Defendant nevertheless adheres to the practice of withholding access until after clerical processing, resulting in persistent delays."
“Technology should illuminate the halls of government, not darken them,” they concluded, “and Defendant should not be allowed to maintain her practice of withholding access to new complaints until after processing given the existence of less restrictive alternatives.”
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