Missouri returns First Amendment access to court records

Missouri courts are now committed to giving First Amendment access to new electronic pleadings as they are received, bringing back a tradition from the days of paper.

The plan for public access was filed in federal court as part of a motion to stay proceedings in a case over Missouri’s restrictions on the right of access, a motion that was granted Friday afternoon. Following the plan, Missouri state courts will place new electronically filed pleadings automatically onto a public website when they cross the virtual counter into the clerk’s office.

The deal will return public access that was common throughout America in the days of paper.

“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.

The judge’s statement came from the bench during oral arguments two years ago in the Courthouse News case against Missouri.

A second judge on the appellate panel, Ralph Erickson, hammered the point home. "What we're saying is that, oh, for about 230 years, you can walk into a courthouse, into the clerk's office, and say, 'Hey, can I see what's been filed today?”

Both judges are Republican appointees. Remarkably, 16 out of 17 judges on the Eighth Circuit have been appointed by either George or H.W. Bush or Ronald Reagan. The sole Democratic appointment was made by Barack Obama.

Ruling in favor of Courthouse News, the panel reversed a lower court judge who dismissed the case based on “abstention,” which roughly translates as saying the federal courts should abstain from hearing the case and leave it to the state courts.

The Eight Circuit opinion was followed by negotiations and ultimately a commitment to provide public access to new pleadings when the court receives them. That commitment is the second in a pair of reforms initiated by Missouri Chief Justice Mary Russell, who came into office last summer and is a strong proponent of public access to the court system.

The first part of the reform took place last year and it gave remote public access to court pleadings. Before that, remote access had been limited to lawyers and government officials.

But giving remote access to all Missouri citizens removed only one barrier to public access.

The second barrier was that new pleadings were being sealed when they first arrived in the clerk’s office. Press and public were required to wait until the pleadings were clerically processed, work that stacked up and delayed access for periods that ran from one day to two weeks.

By then, any news contained in the new pleadings was old news.

The fleeting nature of news was confirmed in a seminal Ninth Circuit case on the First Amendment right of access, generally referred to as Planet III, where the opening sentence states: “The peculiar value of news is in the spreading of it while it is fresh.”

That principle underlies the Missouri agreement which says in the key paragraph: “The clerk acceptance process will be eliminated and replaced with an automated process that will not require review and acceptance by local staff of new e-filed civil petitions, which will result in public access to new non-confidential e-filed civil petitions upon receipt.”

The switch to automated processing will take a full year for the biggest Missouri court in St. Louis County and another year for the rest of the state. The unusually slow timetable is due to court IT staff’s limited capacity.

A comparable settlement between Courthouse News and New Mexico calls for a statewide system of remote, on-receipt access to be up and running within nine months.

Courthouse News is represented by Jon Fetterly and Katherine Keating with the Bryan Cave law firm, while Barbara Smith from the same firm argued the case before the Eighth Circuit. Missouri is represented by Assistant Attorney General Jason Lewis.

A similar case over the same restriction on the First Amendment right of access is currently pending in Idaho where a summary judgment motion has been under consideration by U.S. District Judge David Nye since last July. And another case over the same restriction in Oregon is scheduled for trial before U.S. District Judge Michael Simon later this year.

The Missouri agreement was filed as an exhibit to a motion asking for a stay in proceedings before U.S. District Judge Henry Autrey, which the judge granted Friday afternoon. The stay would last until the summer of next year when the initial pilot program for automated processing is completed by the court IT staff.

The state will also pay $200,000 to Courthouse News reimbursing a portion of the attorney fees paid out during the three-year First Amendment battle.

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