(CN) — A federal judge in Oregon late on Monday rejected a motion to dismiss a First Amendment action by Courthouse News. Critically, the judge found that the right of access attaches to new court filings when they are received.
Around the nation, state court officials have tried different tactics to knock out actions brought by Courthouse News over access delays. But a recent favorite has been the notion that a new case is not really “filed” until it is “officially” entered into the court docket.
That argument has competed with another favorite that says the federal courts should abstain, or stay out of, a First Amendment battle that involves state courts. The abstention argument was recently rejected by a magistrate judge in Texas in a lengthy and authoritative decision.
Both of those arguments have also been invoked by court officials in Idaho where a motion to dismiss another First Amendment action is also pending.
But Monday evening in Portland, the most recent tactic — attempting to redefine when a case is filed — was emphatically rejected in a 14-page opinion.
In her ruling, U.S. Magistrate Judge Youlee Yim You leaned heavily on a Ninth Circuit decision reached after a decade of litigation between Courthouse News and the California Judicial Council which was backing Ventura’s court clerk, Michael Planet.
The Ninth Circuit said in the 2020 opinion referred to as Planet III that the right of access attaches when a new complaint is filed. The opinion affirmed an injunction against Planet’s policy of blacking out new paper-filed complaints until they were processed.
You wrote, “The Ninth Circuit noted that the ‘right to timely access attaches at the moment of filing, i.e., when the complaint is received by the court.’”
Back in the day, when paper was the filing medium, the state court in Portland provided traditional access to the new civil complaints when they crossed the counter. The federal court in Portland did the same.
But the two courts went in different directions when they moved from paper to electronic records. The federal court continued the tradition of letting the press and public see new cases as soon as they hit the court. While the state court began holding new e-filings for clerical work, which took a day or two.
In other words, the federal courts continued to let the press report on news when it was fresh, and the state courts stifled it.
To illustrate the point, Courthouse News reporter Karina Brown submitted a declaration that pointed to a complaint filed against Pacific Power blaming the utility for Oregon’s catastrophic wild fires in the summer of 2020. The complaint — which was news when it was filed — was held back for five days. By then it was “old news.”
The request for timely access in Oregon was remarkable in that it was sympathetically received by the state Supreme Court. The Courthouse News reporter learned at the time that the chief justice had OK’d creation of a press queue that would give access at the time of receipt, like the federal courts.
Illustrating the power of the court bureaucracy, the decision to provide timely access was, despite approval from the chief justice, deep-sixed. Which resulted in a First Amendment action brought in federal court by Courthouse News.
And illustrating the ease with which access on receipt can be provided, Judge You’s decision itself was filed after hours on Monday and made public promptly at 7:05 p.m. Nevertheless Oregon’s court officials have fought tooth and nail to avoid providing similar access in the courts they oversee.
In her ruling, Judge You turned first to the Ninth Circuit and then to Merriam-Webster.
“In the judicial context, ‘filed’ is defined as ‘to submit documents necessary to initiate a legal proceeding.’ Filed, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/filed (last visited February 7, 2012) (emphasis added). Importantly, the definition only contemplates the submission of the document; it does not consider any review by court personnel,” wrote the judge.
She concluded, “Thus, the plain meaning of ‘filed’ supports the Planet III court’s holding that the moment of filing occurs when the document is received by the court.”
The judge also chased away the argument that Planet III does not apply to Oregon, even though Oregon lies within the Ninth Circuit’s ambit of jurisdiction, because it involved paper.
“The Ninth Circuit found that a First Amendment right of access applies to all newly filed civil complaints; that right is not affected by the method by which the document was submitted,” wrote You. “If anything, the opinion reinforces the importance of this right as society continues to digitize: the Ninth Circuit recognized that ‘the need for immediacy of reporting news is even more vital in the digital age, where timeliness is measured in terms of minutes or seconds.’“
Courthouse News is represented by Jon Fetterly and Katherine Keating with Bryan Cave in San Francisco, and Erik Lansverk with Hillis Clark in Portland. Oregon State Court Administrator Nancy Cozine is represented by Carla Scott and Abigail Fallon with the Oregon Attorney General’s office.
The ruling landed just as a similar — if not identical — case is proceeding against Idaho court administrator Sara Omundson. Idaho uses the same software vendor as Oregon and follows the same no-access-before-process policy.
A hearing before U.S. Chief Judge David Nye in Boise is scheduled for later this week on Idaho’s motion to dismiss, which makes some of the same arguments as were made in Oregon.
Lawyers for Idaho submitted additional briefing last week that highlighted an Idaho average of 4.81 business hours for clerical processing of new complaints. As the Courthouse News lawyers pointed out, that number “means access to new civil complaints filed after 12:30 p.m. on a given day will, on average, be delayed until the next court day.”
In their one-page response, the Courthouse News lawyers invoke controlling Ninth Circuit authority that adopts the overarching Supreme Court standard laid down in Press Enterprise II: “Regardless of how the delays experienced by Courthouse New are characterized, Defendant must demonstrate first that there is a ‘substantial probability’ that its interest in the fair and orderly administration of justice would be impaired by immediate access, and second, that no reasonable alternatives exist to ‘adequately protect’ that government interest.”
The e-filing software vendor paid by Idaho is the same vendor that recently set up a federal court-like system of access for Vermont state courts. That reform followed an injunction handed down last November by U.S. District Judge Christina Reiss against a no-access-before-process policy enforced by Vermont.
Because Idaho’s vendor has just set up on-receipt access in another state, it is clear that Idaho has a “less restrictive alternative.”
In conclusion. the Courthouse News response said: “The Defendant is not likely to succeed on the merits of this case because she cannot justify the delays at issue under this constitutional test.”
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