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Idaho courts flout First Amendment law in Ninth Circuit

Since time beyond memory, reporters on the court beat looked through a box on the clerk’s counter that held the new civil complaints filed that day. They were panning for nuggets of news.

Courthouse News late Friday filed a First Amendment action against Idaho’s court administrator over her refusal to provide access to new court documents when they are received, contrary to Ninth Circuit law.

The Idaho courts have thereby joined the Oregon courts in refusing to abide by the Ninth Circuit ruling that says the First Amendment right of access attaches when the new court documents are filed — which is when they are received.

The refusal also runs counter to a tradition of press and public access in Idaho, Oregon, Washington, California and Arizona, all states within the jurisdiction of the Ninth Circuit Court of Appeals.

“Since time beyond memory, the press has reviewed new civil complaints when they crossed the intake counter in American courts,” said the Courthouse News complaint filed Friday afternoon in U.S. District Court in Boise.

“During the transition from paper to electronic court records, federal courts and many state courts kept that tradition in place,” the complaint added. “But a group of state court clerks and administrators abandoned it. They withheld new electronically filed complaints until entry into the docket, delaying access and damaging the news.”

That group includes the Administrative Office of Idaho Courts.

In its seminal 2020 Planet III ruling, the Ninth Circuit panel wrote, “Applying Press-Enterprise Co. v. Superior Court, we conclude that the press has a qualified right of timely access to newly filed civil nonconfidential complaints that attaches when the complaint is filed.”

A follow-on judgment by U.S. District Court Judge Dolly Gee earlier this year said, “This qualified right of timely access attaches when new complaints are received by a court, rather than after they are 'processed' — i.e., rather than after the performance of administrative tasks that follow the court’s receipt of a new complaint.”

Despite that unambiguous statement of First Amendment law, Idaho’s court administrator is enforcing a policy directly contrary to it, insisting that court filings be “processed” — a substantial set of clerical tasks that often run into the next day — before they can be seen by reporters.

Idaho operates its e-filing systems using the same software used in a number of California courts, such as Monterey and Santa Barbara, where the clerks provide access that complies with Ninth Circuit law. They do that through a “Press Review Queue,” an application within the Odyssey e-filing software used by those courts.

“The Press Review Queue provides news reporters with traditional access to new e-filed complaints when they are received by the court, while they sit in an electronic queue waiting for manual docket entry and processing by court staff,” said the complaint.

Traditional access to paper complaints was provided at the counter in Seattle, Boise, Portland, San Francisco, Los Angeles, Phoenix and Honolulu where new paper complaints were set aside for review by the press and public as they crossed the counter. In L.A. Superior, the highest volume court in the nation, the new cases were kept in a set of metal shelves on wheels, famous among journalists covering the court as “the cart.”

The complaint filed Friday notes that the electronic Press Review Queue takes the virtual place of the cart.

“It works very much like the box or cart at the clerk’s intake counter that historically held new paper-filed complaints,” said the complaint. “The Press Review Queue software is readily available to any court clerk or administrator who requests it.”

In the switch to e-filing, a large number of state courts as well as almost all federal courts have continued the paper tradition of access at the time of receipt. They give press and public access to new filings shortly after they are received. But a hard core group of state court clerks have refused, insisting on completion of clerical tasks called “docketing” or “processing.”

“Defendant could use the Press Review Queue as a means of providing access to new nonconfidential civil complaints e-filed with Idaho Courts, but Defendant instead enforces a no-access-before-processing policy, which keeps the existence of new lawsuits secret until Idaho Courts choose to disclose them,” said the action filed by Debora Kristensen Grasham with Givens Pursley in Boise and Jon Fetterly and Katherine Keating with Bryan Cave in San Francisco.

In 2016, in Ada County District Court in Boise, Clerk Christopher Rich gave journalists traditional access to the new cases the day they came across the counter. When his court switched to e-filing, the clerk lost control of the access.

So he passed along to state court administrators the press request for electronic access equivalent to the old paper access.

“CNS is seeking same day access to the digital record even if it has not yet been officially ‘accepted,’” Rich wrote. “This would be accomplished via a public terminal that would have access to a queue specifically designed for this purpose. Hence this introduction to the parties that can resolve the matter. Please do not hesitate to contact me, and good luck.”

The Twin Falls County courthouse, built in 1911, is the seat of Idaho’s 5th Judicial District. (Courthouse News / Bill Girdner)

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