Minnesota hit with First Amendment action over blackout on new court pleadings

(CN) — Once upon a time in America, the courts were open. They were institutions of democracy. So journalists and anyone else who was interested could see what new controversy had just come into the courthouse, could see why the great power of the courts had been invoked.

That open nature has been under sustained attack from local court officials in a broad stretch of America. Because the attack has gone on for so long, it is often the old lawyers who became judges — the men and women in black robes — who remember how it used to be.

“There was a time when — and some in this room may remember it — when you took a pleading to the courthouse and the clerk stamped it physically and it went into different bins and it was available immediately,” said U.S. Eighth Circuit Judge Bobby Shepherd during a hearing in St. Louis last year.

That federal circuit, the eighth, covers a vast chunk of the American heartland, including Iowa, Missouri and Minnesota. As with the judge, it remains within the memory of Courthouse News reporters how those state courts used to work. They were open. When the public power of the courts was summoned, the piece of paper that put that power into play could be seen right away.

But one by one, as they switched to electronic filing, those state courts put a cover over the invocations of the court’s jurisdiction, closing them off from public view. The clerks have the new pleadings. But nobody is allowed to see them. That is, not until days or weeks later, when the news has bled out of them.

Minnesota illustrates that destructive arc from openness to obscurity. At the government center in Minneapolis, where Hennepin County District Court is housed, anybody could ask for the box that held the new pleadings that had just come across the filing counter. Journalists could check that box any time of the day and could also go upstairs to the docketing area and review the stack of new civil complaints that had just come up from the intake counter downstairs.

The pleadings were fresh. They did not yet have official case numbers.

The way of it was different in St. Paul, at the Ramsey County District Court, but the open nature of the court was the same. Reporters could review new pleadings next to docketing clerks as the pleadings arrived in the clerk’s office, either by mail or across the counter.

But all that openness, all that democracy, was shut down by Minnesota’s state court administration when it pushed the local courts over to electronic filing. After that, the local clerks held onto the new pleadings, in effect sealing them, until they ran through a laundry list of tasks that took hours and days, sometimes weeks.

Over the course of years, Courthouse News has asked administrators in Minnesota to return the tradition of access when the new pleadings arrive at the courthouse, when the news in them is fresh, when it is possible to write in essence, “This just happened.”

But those requests have been refused or ignored. A letter to the statewide court administrator in August 2022 was not answered, nor was a second sent in October 2022.

So Courthouse News filed a First Amendment complaint against the statewide administrator and the head clerks in federal court in Minneapolis on Monday.

“The First Amendment to the United States Constitution provides the press and public with a qualified right of access to civil complaints,“ said the complaint. “Whether new civil complaints are paper-filed or e-filed, this right of access attaches on receipt, when a new filing is delivered to, or deposited with, the clerk.”

Government restriction of the First Amendment right of access engages a test laid out by the U.S. Supreme Court in a case called Press Enterprise II. That test says that in order to restrict the right, the government must have an overriding reason and no alternatives.

Monday’s complaint says Minnesota’s restriction cannot pass that test.

“Policies and practices that restrict access to the new civil complaints are subject to constitutional scrutiny, with Defendants bearing the burden of showing that such policies and practices are essential to preserve an overriding governmental interest and narrowly tailored to serve that interest,” said the federal court complaint.

A central weakness in the defense of officials who fight against public access is that so many courts in the U.S. now give access when new pleadings are received. They include almost all federal courts as well as the big state courts of California, Florida and New York and mid-sized and smaller courts like Arizona, Nevada, Utah, Connecticut and Vermont.

For example, the Courthouse News complaint filed Monday in U.S. District Court in Minneapolis became public when it was received.

That means it is hard for Minnesota to carry an argument saying there is no alternative. Minnesota’s e-filing system is run by tech giant Tyler Technologies, which gives its court clients three different ways to provide public and press access at the time of receipt. In other words, Minnesota has at least three alternatives.

As the complaint pointed out, “Courts, like those identified above, that do not withhold public access for processing allow new civil actions to be read and reported when they are received by the court — when the new action is still newsworthy and capable of commanding public attention — as reporters did in the Hennepin County District Court and Ramsey County District Court in the paper past.”

Courthouse News is represented by Herbert Giorgio Jr., Andrea Butler and Aaron Yuratovich with Bryan Cave in St. Louis and by Seth Leventhal from Edina, Minnesota.

In the decades-long switch to e-filing, Minnesota joined Iowa and Missouri in restricting access to new pleadings, and Minnesota now joins the other two in defending First Amendment actions over that restriction.

The case against the Iowa court administrator was filed earlier this year and is still in very early stages of litigation. Missouri battled the same First Amendment litigation up to the Eighth Circuit where it lost last year after the hearing in which Judge Shepherd described the tradition of immediate public access to new pleadings.

Recently the Missouri courts have been in the process of improving public access to court records, as a restriction against remote public access is currently being phased out. But they still restrict access to new pleadings at the time of receipt, and the First Amendment action against them is moving ahead.

When Missouri was defending in the Eighth Circuit last year, a second judge on the panel described in sweeping terms the tradition of access in American courts.

Addressing a rhetorical question to the government lawyer, Judge Ralph Erickson said from the bench: “What we're saying is that, oh, for about 230 years, you can walk into a Missouri Courthouse into the clerk's office and say, ‘Hey, can I see what's been filed today.’ And now, you can’t?”

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit