Letter to Maine Courts: Do the Right Thing

Art by Carlos Ayala

Imagine if the courts of Maine saw that they could use the great force that has obliterated local newspapers throughout America to instead help the papers of their state, while also advancing the greater principle of open democratic government. Alas.

As part of a new program to file court cases through the internet, Maine’s court officials wrote a rule in December that closed off press access to new civil complaints until they were served. Faced with a First Amendment challenge filed by Maine newspapers and this news service, court officials amended the rule.

Where they had delayed access a lot, they changed the rule to delay it a little, just enough to make the news stale and keep a shroud over the courts’ new business.

They did that knowing that with the curl of an administrative finger, they could summon up press access that brought the old news source back to life — by not delaying access at all. And by making that small effort, they could also have complied with the First Amendment. Alas.

Staring at a federal First Amendment action currently pending before U.S. Judge Nancy Torreson, Maine’s court administrators chose instead to put in place a no-access-before-process policy.  It flew in the face of First Amendment decisions by federal judges in California, New York, Texas, Virginia and Illinois.

Over the last 20 years, the transmittal of information via the internet has created an unchecked monopoly for the dominant search engine, Google, and wiped out newspaper ad revenue that paid reporter salaries.

Many courts around the nation have done their bit to use that same electronic medium to provide top-level access to the reporters who survive, so they can tell their readers about new civil controversies coming into the courts, disputes that make up the biggest part of the courts’ work.

Federal courts and a raft of state courts, in their switch to filing through the internet, have given the press, with some controls in place, the ability to mine that seam of news as soon as it is created, when received by the clerk.

As a result, the news can be reported when it’s hot and fresh at the legal boulangerie of the courthouse. The next day, the news is, as Judge Henry  Coke Morgan Jr. put it, “like stale bread, stale anything.”

Maine’s court administrators were asked to provide that increasingly common on-receipt access through the new software system from Tyler Technologies — a fast-growing, top-100 U.S. corporation that lives entirely on public funds — which they have leased for $16 million. Other courts, like San Francisco Superior, have bought their own software for a fraction of that.

Tyler sets up a “Press Review Queue” for any client court that asks for it, and has it up and running within two to four weeks. The clerk does little more than fill out a form designating public cases types.

Asked to ask Tyler for a press queue, Maine’s court administrators went silent. But through their amended rule they have spoken, denying access upon receipt and instead delaying access until after docketing — which the clerks give themselves three days to achieve.

The amended rule directly contradicts a decision by the Ninth Circuit last year, saying the right of access attaches on receipt. A judgment by Judge Dorothy Gee in the Central District of California applied that ruling to the clerk in Ventura who, aided and abetted by the Judicial Council, has used public funds to fight public access for ten years.

“There is a qualified First Amendment right of timely access to newly filed civil complaints,” wrote Gee. “This qualified right of timely access attaches when new complaints are received by a court, rather than after they are ‘processed.’”

Closer to Maine, Judge Edgardo Ramos in the Southern District of New York enjoined Manhattan’s state court clerk from holding back the new filings until they were “reviewed and logged” into the docket — prohibiting exactly the policy that Maine’s amended rule put in place last week.

The amended rule runs counter to those opinions as well as rulings in Chicago, Houston and Norfolk, all overturning  no-access-before-process policies.

Back in Maine, the new rule can be seen as a legal legerdemain. Administrators have taken away one First Amendment offense and slipped in another.

But they could easily have complied with First Amendment rulings around the nation and given their newspapers first-class constitutional access to the new public filings in the courts of Maine. Alas.

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