(CN) — A federal judge in Idaho made a series of key findings late Thursday that advance a Courthouse News attack on a statewide policy of denying access to new complaints until they are no longer news.
The Idaho courts director, Sara Omundson, had moved to dismiss the case. She argued that the federal courts should defer to the state courts even on First Amendment issues. At the same time, Courthouse News moved for an injunction.
U.S. Chief Judge David Nye denied both motions.
But he also laid out a road map and suggested a speeded-up schedule for getting to a decision. In a sense he set the scenery in place with a small garden of legal holdings.
The legal environment for his opinion is the Planet III decision two years ago by the Ninth Circuit, which has jurisdiction over Idaho. In that mother of all access battles, which lasted a decade, a panel of Ninth Circuit judges ruled in favor of Courthouse News and affirmed an injunction against the Ventura clerk’s withholding policy — which was the same as the withholding policy now followed by the Idaho director.
That policy is often called “no-access-before-process” and it means the press and public are not allowed to see new filings until the clerical has done clerical work called processing.
“Like the parties in Planet III, the parties in this case do not dispute the materials in question have historically been available to the public in Idaho and both agree that public access to these types of documents is important,” wrote Nye in a 29-page ruling.
“Also like the parties in Planet III, however, the parties here dispute when this right attaches and whether any delays in ‘processing’ are acceptable,” Nye continued.
These two observations set the table for application of the Planet III test of an access restriction, a test based on the 1983 Supreme Court holding called Press Enterprise II. In that case, brought by a Riverside, California, newspaper, the high court set out a method of analysis that has held fast over four decades.
A court must first decide if the access in question is traditional and serves a public purpose, often referred to as “history and logic.” Once that is established, the government has a problem — it must show an “overriding interest” supporting the restriction and the restriction must also be “narrowly tailored.”
By ruling that the complaints have been historically available and that access is important, Nye’s opinion pushed the Idaho access battle into the terrain of the second part of the test: overriding interest and narrow tailoring. Courthouse has prevailed in cases with nearly identical facts against other state courts because the restriction — the blackout for processing — is not narrowly tailored.
There are alternatives less restrictive than a blackout.
The clerks can, for example, give public access while they do their clerical work. In essence, the clerks can do their thing while the press does its thing.
The vendor used by Idaho for its e-filing software, Tyler Technologies, gives the clerk an option to give access at the time a new complaint is submitted rather than after it is processed. Courts in California, Nevada and Georgia use that option. Given that à la carte option within Tyler’s software, the Idaho director cannot argue she has no less restrictive alternatives.
A repeated line of attack from the clerks when defending a no-access-before-process policy is that nothing in the law requires “immediate” access to the newly filed records, a point conceded by the lawyers for this news service. Judge Nye said he agrees with that point.
“The Court also agrees that CNS is not actually asking for immediate access; it is asking for undelayed access. Thus, the relevant question is whether any delay is occurring in Idaho and, if so, whether that delay is justifiable.”
“Could the Court make a ruling now? Maybe. But it would rather adjudicate the pending motions first and then allow more tailored briefing on the merits of the second question under Press-Enterprise II.“
The judge moved on to the director’s argument for “abstention,” a legal theory that says the federal court should defer to the state court even on a matter of First Amendment interpretation.
In support of their attack, lawyer Keely Duke argued that a 2019 decision in another Courthouse News case, Courthouse News v. Brown, required abstention. That case against the court clerk in Chicago was won by the news service at the trial court level. But the victory was reversed by the Seventh Circuit on the grounds of abstention.
Nye pointed out that a large number of federal decisions have rejected Brown. “Not only have many more courts not found abstention appropriate in these types of cases,” wrote Nye, “but the Ninth Circuit has already soundly rejected the holding in Brown Omundson relies on.”
The Idaho director also pursued an argument often advanced by court administrators, who tend to all sing from the same hymn book. She said she is powerless to stop her blackout policy because local county clerks are the real powers within the court system.
The judge was not buying it.
“The Court disagrees. While Idaho’s county clerks are the ‘boots on the ground’ with these issues, Omundson is, in her official capacity, responsible for the administration of Idaho’s e-filing system. Even were this not the case, the Court would allow amendment (as CNS offers to do) in order to join all 44 of Idaho’s county clerks. This seems hardly necessary.
“In short, abstention is not applicable here and does not warrant dismissal,” Nye concluded. “The Court declines to decline jurisdiction over this matter.”
He then moved to the dueling motion brought by Courthouse News, asking for an injunction against the director’s no-access-before-process policy. One of the critical issues to decide in a First Amendment access case is when the right of access attaches, which is normally thought to be when the complaint is “filed.”
Singing from another page in the common book of song, the Idaho director argued that new complaints are not really filed until the clerical work is done. That theory runs into a factual rock which is that the statute of limitations – the time limit between when a wrong occurs and a complaint is filed — tolls when the complaint is submitted to the clerk. Not when it is later processed.
The issue was discussed in late February at oral argument where Duke said the complaint is not really filed until it is processed.
Nye: Tell me how it works if a plaintiff’s lawyer on Friday afternoon files a complaint — well, submits a complaint under your argument, and that’s the last day of the statute of limitations, but the case isn’t actually filed until Monday when it’s reviewed. Have they lost their statute of limitations argument?
Duke: No. I don’t believe anything in the rules provides that, Your Honor.
Nye: So it is filed when it’s submitted?
Duke: Well, it’s been provided to the court, and we have the specific provision that indicates that it’s effectively accepted with a three-day window for corrections to be made.
Nye: I guess my real question is, is that so for some purposes, the complaint is deemed filed when it is submitted to the court? But for other purposes, including today’s argument, you’re saying it’s not filed until it’s been reviewed and accepted?
That dialogue foreshadowed the judge’s opinion on Thursday. “The Court thus finds that ‘filed’ is equivalent to submission,” Nye wrote in his opinion, thus sending the director’s argument spiraling out of the legal picture.
But he demurred as to the rest of the factual findings needed to conclude in favor of Courthouse News: “The outcome of Press Enterprise II’s critical second question — regarding the constitutionality of any delay — cannot be determined at this early stage, even preliminarily.”
In his order, the chief judge said this case should not need the typical 9-12 months of discovery before it is decided. He recommended a few months of discovery and then briefing for summary judgment.
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