(CN) — Maine courts had the chance to use the great force that obliterated local newspapers throughout America to instead help Maine papers and at the same time advance the principle of open democratic government. They chose a different path.
As part of a new program to file new court cases through the internet, Maine courts wrote a rule in December that closed off press access to the new filings for weeks and months. Faced with a First Amendment challenge by Maine newspapers, court officials on Monday amended the rule.
Where they had delayed access a lot, they changed the rule to delay it less, 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. But they did neither.
Looking at a complaint pending before U.S. District Judge Nancy Torreson, Maine’s court officials have adopted a “no-access-before-process” policy, in direct contradiction to First Amendment decisions by federal judges in New York, California, Texas, Virginia and Illinois.
“A court record in a civil case is accessible by the public upon entry into the electronic case file,” says the amended rule. Translated, it means the press and public must wait while the clerk processes the new filings which often delays access into the following day and pushes the news out of the news cycle.
The current complaint against Maine’s court administrators was filed by the Portland Press Herald, Maine Sunday Telegram, Kennebec Journal, Morning Sentinel and Courthouse News, joined by the Bangor Daily News. “Lawsuits concerning Medicaid expansion, Central Maine Power Co.’s Clean Energy Connect program and a host of other public policy topics have gone through the Maine civil courts,” wrote Dan MacLeod, managing editor for the Bangor Daily News, in a federal affidavit tied to the case. “These are matters of high concern to the general public. The public deserves prompt information in those and other situations.”
Throughout America, the transmittal of information via the internet has created an unchecked monopoly for the dominant search engine, Google, and wiped out the ad market for local newspapers, taking away the income that paid reporter salaries.
Many courts around the nation have turned that same electronic medium into a means for giving top-level access to those reporters who survived, so they can tell their readers about the new civil controversies that make up the biggest part of the work of the courts.
Federal courts and a raft of state courts now give the press, and often the general public, access to the news stories contained in the complaints as soon as they are received across a virtual counter. As a result, those disputes, involving health care, energy, false advertising, insults, fraud, government policy and many other topics can be reported while they are still fresh.
When the new filings are withheld for processing, or what used to be called docketing, the news they contain becomes stale. “It’s like stale bread, like stale anything,” said Judge Henry Coke Morgan Jr. in the Eastern District of Virginia, before ruling in favor of Courthouse News on a challenge to Norfolk and Prince William's no-access-before-process policy.
The judge then awarded $2 million to Courthouse News as the prevailing party in a First Amendment case.
Meanwhile, Maine is paying $16.9 million to lease e-file software from Texas-based Tyler Technologies — a fast-growing, top-100, U.S. corporation that lives entirely on public funds. Other courts have written or bought their own e-file software for much less.
When a court asks for it, Tyler will set up a “Press Review Queue” that gives the press on-receipt access to new civil filings. A clerk simply puts in a “ticket” and fills out a form designating public case types.
Asked to ask Tyler for a press queue, Maine court officials went silent.
Through Monday’s amended rule, they have spoken, saying in essence “no” to access on receipt. Instead, they put in place a no-access-before-process policy. The processing they insist on involves checking minor aspects of a filing, such as whether the lawyer signed it.
But Tyler’s software automatically checks for those entries as part of e-filing. So the amended rule requires in essence that the clerks check what the software has already checked — while holding up press access.
Relevant to the action now pending before Judge Torreson, Maine’s rule directly contradicts an opinion published by the Ninth Circuit U.S. Court of Appeals last year. The opinion said the right of access to new complaints attaches upon receipt, overturning a no-access-before-process policy in Ventura, California — the same policy that Maine on Monday built into its e-file rules.
The court clerk in Ventura is named Michael Planet and the Ninth Circuit opinion is commonly referred to as “Planet III.” The Ninth Circuit then sent the case back to the trial court in Los Angeles for an amended judgment and a determination of fees.
“There is a qualified First Amendment right of timely access to newly filed civil complaints,” wrote U.S. Judge Dolly Gee in the amended judgment filed late last month. “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.”
Gee added: “Planet’s policy of requiring that newly filed complaints and their associated exhibits be ‘processed’ prior to providing the press and public with access to those complaints violates CNS’s qualified First Amendment right of timely access to newly filed complaints and their associated exhibits for the reasons stated in Planet III.”
Courthouse News has since asked Gee for an attorney fee award of $6.5 million, as the prevailing party after ten years of litigation.
Closer to Maine, Judge Edgardo Ramos in the Southern District of New York enjoined Manhattan’ court clerk in 2016 from holding back the new filings until they are processed — the same policy that Maine has put in place.
“It is the Court's conclusion that plaintiff's motion for preliminary injunction will be granted. I find that the clerk may not prevent the press from accessing newly filed documents because of its review and logging procedures,” said Ramos in ruling from the bench.
Maine’s rule requires that access be withheld until the clerk’s “entry” of a new civil complaint into its case management system, what used to be called “the docket.” The process consists of the clerk looking over a set of details, such as signature, bar number, document format, document size, and fees.
Even if one of those elements is missing, the new complaint keeps its file date while the lawyer fixes the filing.
“We are pleased that the Maine courts will no longer require the press and the public to wait up to 90 days to review newly filed complaints,” said Jeffrey Pyle with the Prince Lobel law firm, who is representing the news organizations with Sigmund Schutz, a longstanding First Amendment lawyer in Maine. “However, the new rule still appears to build in delay for processing by the clerk. The First Amendment right of access attaches upon the court’s receipt of a document. Therefore, this amended rule is still unconstitutional.”
Maine’s courts 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. They have chosen not to.
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