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Flouting appeals court ruling, Maryland clerks withhold access

Despite a federal appellate ruling, Maryland clerks are denying traditional access to the new filings at the courthouse.

(CN) — Courthouse News on Monday asked for an injunction against the court clerks of Maryland who are blocking access to new civil complaints at the time of filing and who operate inside the Fourth Circuit — which has already ruled in favor of this news service on the identical First Amendment issue.

Despite the clarity of the appellate ruling handed down last year in Courthouse News v. Schaefer, the Maryland clerks and state court administrator have dug in their heels.

The officials are represented by the Maryland Attorney General’s office and as a result the public pays for their intransigence.

The tradition of press access was alive and well in Maryland — where reporters looked over the new civil complaints as soon as they crossed the counter — until the clerks took up a new technology. When they moved to e-filing, the clerks tossed the tradition and pushed the press and public behind the clerical work of docketing. 

Ryan Abbott, regional bureau chief for Courthouse News, began covering the Maryland courts nearly two decades ago. For example, he covered state court in Anne Arundel County, which is where the state capitol is located. He found classic traditional access.

“New complaints were filed at the clerk’s intake counter; the clerk would stamp the complaints and almost immediately place them in a wire basket that sat on a table with various trays holding mail and other documents behind the intake counter,” said Abbott in a declaration filed with Monday’s papers. “We were able to retrieve the day’s new complaints from the wire basket and reviewed them at the table. These complaints had yet to be docketed.”

That wire basket, or one made out of wood, used to be on the counter in state and federal courts throughout the county. Any news reporter or anyone else could come and see the latest filings.

U.S. Circuit Judge Ralph Erickson summed up traditional access in an appellate argument last week over the same withholding policy in Missouri: “What we’re saying is, ‘Oh for about 230 years you could walk into a Missouri courthouse, into the clerk’s office, and say, ‘Hey, can I see what’s been filed today,’ and now all of a sudden you can’t, right?”

The papers filed Monday in federal court in Maryland ask for a court order barring the clerks from denying access while clerical work is underway. That clerical work used to be called “docketing” and is now often called “processing,” The clerk policy is referred to as “no-access-before-process.”

It holds the new cases away from public view for days because processing involves routine work that stacks up depending on sick leave, lunch, birthday parties, meetings, training sessions and personal time.

“Since time beyond memory, in courts across the nation the press has reviewed new civil complaints right after they crossed the intake counter — on the day of filing and prior to docketing,” said the memo supporting an injunction.

“Most federal courts and many state courts uphold the tradition of access upon receipt in the modern era of electronic filing,” the memo continued. “But some state courts, like the Maryland Circuit Courts that mandate e-filing, have taken the opportunity of the shift to electronic filing to ensure that the press and public are pushed behind the clerical process of docketing, giving rise to unconstitutional delays.”

It was written by Jon Ginsberg with the Bryan Cave law firm in New York who represents Courthouse News with John Lynch from McNamee Hosea in Maryland. The clerks are represented by Chief Counsel Kevin Cox with the Maryland Office of the Attorney General, and the case has been assigned to U.S. District Judge Ellen Hollander.

Last year, the Fourth Circuit ruled that the First Amendment gives the press and public an access right that runs contemporaneously with the filing of a new complaint. A string of rulings in Texas, California, New York, Illinois and Vermont have come to similar conclusions.

Despite those victories for the press, and the recovery of roughly $6 million in lawyer fees against those government defendants, clerks in Maryland have continued to fight timely access. They are spending public money, represented by the Maryland Attorney General, and racking up potential liability for press attorney fees that will likewise come out of the public purse.

About six months ago, after the Fourth Circuit ruling, this editor wrote a letter to the Maryland State Court Director Pamela Harris: “News has a short shelf life, and late stories either get less coverage or no coverage. Like bread, news quickly turns stale.  With electronic filing, its highly practicable to provide the press with access to new public civil complaints when they are received, when they are fresh.”

The letter added, “Tyler Technologies installs a Press Review Queue for those court clients that request it. The press queue is an application that the company has already developed and is installed without any extra charge. It requires little more than filling out a form that designates public case types. Based on presentations made by Tyler, the Press Review Queue can be installed in two to four weeks.”

An assistant public information officer from Maryland’s court administrative office then replied by email: “This email is to inform you that the Maryland Judiciary’s Major Projects Committee discussed your request and determined that the installation of this configuration would not be in compliance with the Maryland Rules of Procedure, therefore, your request is denied. “

A reply email which asked the public information officer to specify which rule of procedure he was talking about was never answered. In fact, none of the local rules forbid timely access, a point made more than once in the motion for an injunction filed Monday.

In order to prove its case against the powerful bureaucracy of the state courts — one that usually has the preponderance of power within any state court system — Courthouse News must show two main things. It must first show the damage that results from the clerks’ policy, by proving access delays. And it must show the clerks have alternatives that are less restrictive.

In his declaration, bureau chief Abbott noted that reporters under his direction had tracked the delays and found that more than half the cases were held past the day of filing, roughly split between one quarter that were held back one day and another quarter that were held back two days or more.

The second point is that the Maryland courts are using software that gives local clerks an à la carte menu for public access. One is to hold up the new cases for docketing, two is to set up a press queue where reporters can see the new cases as soon as they hit the clerk’s server, three is to send the new cases automatically into the public docket where they can be seen by anyone.

The Maryland clerks and the statewide administrator cling to option number one, holding up access, when they could just as easily choose between options two and three, either of which gives constitutional, timely access.

“Fourth Circuit precedent leaves no question that a First Amendment right of access attaches to newly filed civil complaints upon their receipt by the court rather than after review and docketing by court staff,” concluded the Ginsberg memo. “Although there are easy, less restrictive alternatives available to Defendants’ “no access before processing” policies and practices, Defendants continue to damage the openness and public nature of the courts and thus impede coverage of new filings before they become yesterday’s news. Technology should illuminate the halls of government, not darken them.”

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