(CN) — Maine media outlets along with Courthouse News filed a First Circuit brief Wednesday saying a trial court judge made profound errors in ruling that court clerks can black out new complaints for an unlimited amount of time.
“At the least, the ruling below must be reversed,” said the brief. “The record simply does not support the conclusion that the Media failed to state a plausible claim for violation of its First Amendment right of timely access to newly filed complaints.”
During the summer, Judge Nancy Torresen granted the Maine Attorney General’s motion to dismiss the media’s First Amendment complaint. She concluded that the news organizations failed to state a claim.
“The state court’s new rules are designed to support and promote public access, while balancing privacy concerns and the court’s interests in orderly and efficient administration,” Torresen said in her ruling. “Because the Plaintiffs have alleged nothing more than an indeterminate delay between the receipt of a complaint and the time it becomes accessible to the public, the Plaintiffs fail to state a claim upon which relief can be granted.”
Torresen noted with apparent approval an administrator’s declaration saying the Maine Supreme Court “expects that, except in extraordinary circumstances, the clerk’s office review will be completed within four business hours.”
Her decision is diametrically opposite to a recent ruling by a federal judge in the state next door. U.S. District Judge Christina Reiss in late November enjoined the Vermont court clerks from holding back the new complaints while they process or docket the new complaints. Reiss’ ruling is on track with a line of rulings that came to similar conclusions in Houston, New York, Los Angeles, Chicago and Norfolk, Virginia.
The Maine media plaintiffs — including Bangor Publishing and the parent companies of the Portland Press Herald and Sun Journal — are challenging Torresen’s dismissal on a number of grounds that include failure to correctly apply the federal rule for dismissal and failure to follow appellate law on the First Amendment right of access.
“The court exceeded the scope of Rule 12(b)(6); misread Schaefer, Planet III and Pokaski, among other precedent; applied the wrong level of constitutional scrutiny and misapplied the scrutiny it did use,“ said the media brief filed in the First Circuit Court of Appeals on Wednesday.
Specifically, the media lawyers argued that the judge applied a standard of review that is lower than the “rigorous” standard required by Supreme Court precedent as well as the Fourth Circuit’s Schaefer decision and the Ninth Circuit’s Planet III decision.
The context for the litigation is that Maine is in the process of requiring that lawyers electronically file their documents using the internet rather than sending a runner to the clerk’s office with paper documents. The first court to switch over to mandatory e-filing was Penobscot Superior in Bangor around this time last year.
When e-filing started in that court, and until recently, the Penobscot clerk would send out an automated notice that said the lawyer could expect a delay of 24 business hours before the new filing was docketed. During that time, the new complaints were blacked out.
As a result, the news held in new civil actions grew as stale as old bread.
Under the controlling Supreme Court precedent of Press Enterprise II and its progeny, government officials are required to have an overriding reason in order to restrict access and they must use the least restrictive means possible.
In their brief filed Wednesday, the Maine media argued that a court clerk’s desire to do clerical work before access is not an overriding reason. In addition, a non-restrictive alternative exists that allows the press to see new cases shortly after they are received through a simple software application.
The federal courts and many state courts provide access to new complaints and other documents as soon as they are filed — unlike Maine.
As the case was moving through the federal district court in Bangor, the media lawyers pointed to the 24-business-hour notice as a clear admission of delay. Not long afterwards, the court administrators stopped sending out the notices.
Instead, the director of the administrative office said the Maine Supreme Court’s goal is to limit the time it takes to process new cases to four hours. However, even if that aspirational goal were met, it would mean that all cases filed in the afternoon would be blacked out until the next day.
“Journalists have long had the ability — in Maine and elsewhere — to review and report on nonconfidential civil complaints the day they are submitted to court clerks, regardless of whether clerks have docketed or processed them,” said the media brief. “With the advent of e-filing, that began to change.”
Some state court clerks took the opportunity of the change in technology to hold back the new filings while they docketed or processed the new cases, refusing access until that work, which had no time limit, was finished.
"Because the vice of denying access until clerks find time to process, with no standard to govern when that occurs, is present with every complaint, this Court should ‘have no trouble concluding that the … [processing] requirement is overbroad’ Americans for Prosperity v. Bonta, 141 S. Ct. 2373, 2387 (July 1, 2021)," said the media lawyers addressing the appellate court.
“As the Supreme Court held two weeks before the ruling below, ‘the lack of tailoring to the State’s … goals is categorical — present in every case — as is the weakness of the State’s interest in administrative convenience,'" the brief added.
The Maine media and Courthouse News are represented by Roger Myers and Rachel Matteo-Boehm with Bryan Cave, Jeffrey Pyle with Prince Lobel, Bernie Kubetz with Eaton Peabody and Sigmund Schutz with Preti Flaherty. The state officials are represented by Deputy Attorney General Thomas Knowlton.
In her contrasting decision in Vermont, Judge Reiss rejected the strain of First Amendment jurisprudence coming out of Maine and New Mexico that gives the clerks a certain amount of time during which they can black out the complaints, four hours in Maine and five hours in New Mexico.
She rejected such “bright-line” rules and returned to the main line of constitutional analysis which says that any delay must be justified by an overriding reason combined with the least restrictive alternative.
Reiss wrote: “Although some courts have sought to impose a bright-line rule for permissible delay, here the focus must be on whether any delay is appropriate because any restriction on the First Amendment right of access must have ‘sufficient justification.’ As the Second Circuit has observed, when a governmental entity contends that the ‘limited denial of access’ is insubstantial, it ‘begs the question of whether there was a sufficient factual basis for denying access at all.’"
That ruling represented a slam-dunk defeat for Vermont Assistant Attorney General David Boyd whose reasoning was rejected at one point by the judge as “nonsensical.” He has yet to declare whether he will appeal the ruling to the Second Circuit Court of Appeal. The other states in that circuit, Connecticut and New York, already provide public access to all e-filed complaints as soon as they are received, as do the federal courts.
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