An old tradition of public access in New Mexico courts has been restored with an agreement that gives access to electronic court pleadings as soon as they are received.
A proposed judgment filed late Monday night is the result of two years of First Amendment litigation between New Mexico and Courthouse News. The judgment requires development of an inbox on a court website where the public and press can see new pleadings as they cross the virtual counter.
Behind the battle was a tradition that went far back in time, where journalists would check wire baskets on the clerk’s counter for new paper complaints that had just come in. That access was taken away when New Mexico’s courts switched to electronic filing.
The tradition was described from the bench by 8th Circuit Judge Bobby Shepherd last year: “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.”
With the proposed judgment, traditional access will be returned to the press and public of New Mexico. But it will be in the electronic context. When new electronic pleadings cross the virtual counter, they will go into an online in-basket with remote access.
“Administrative Office of the Courts has agreed to develop and implement a system that, once implemented, will provide the press and public access to new nonconfidential civil complaints as they are received by the New Mexico state district courts via New Mexico’s statewide e-filing system, and before processing, review, or acceptance by district court clerks or staff,” said the proposed judgment.
"Specifically, AOC shall develop and implement an electronic queue (“Electronic In-Box”) through which non-confidential civil complaints shall be accessible upon receipt by the New Mexico state district courts on a publicly-accessible website maintained by AOC," the proposed judgment added.
The administrative office has nine months to put the inbox in place. New Mexico also agrees to pay Courthouse News $200,000 for part of the attorney fees the news agency paid its lawyers.
Courthouse News is represented by John Edwards with Jackson Walker, Gregory Williams with Peifer Hanson & Mullins, and Jon Fetterly and Katherine Keating with Bryan Cave. The state is represented by Mark Allen, a deputy division director in the attorney general’s office.
New Mexico’s courts are led by Chief Justice Shannon Bacon who has demonstrated her commitment to public access. Likewise, Missouri’s Chief Justice Mary Rhodes Russell moved decisively to dismantle a series of restrictions on public access in her state after she came into office this summer.
Two cases brought by Courthouse News — one against New Mexico and another against Missouri — are alike in many ways. Both went through preliminary injunction hearings and went to federal courts of appeal. Both appeals resulted in the cases coming back to the lower court for trial.
And as with New Mexico, the Missouri case appears headed toward a friendly resolution, although a final deal has not been reached.
The two cases fall into a national state of affairs where court officials in eight other states are fighting like the devil to oppose traditional public access at the time of receipt. In Idaho, for example, U.S. District Judge David Nye is considering summary judgment motions argued in July.
Court officials in Oregon, Iowa, Minnesota, Maryland and North Carolina are also using a full arsenal of legal tactics to oppose public access. And another two cases involving Virginia and Vermont are pending in federal appellate courts.
In all those legal contests, public officials rely on publicly paid lawyers and publicly funded institutions such as the Conference of State Court Administrators and the National Center for State Courts to help in their legal maneuvers.
The source of the dogged opposition has always been difficult to put a finger on. It seems to be a mix of money, in that courts sell documents, and pride, in that clerks are often local politicians who put their clerical tasks ahead of public access under the First Amendment.
Their general zeitgeist was formed in a series of yearly conferences organized by the Conference of State Court Administrators in Williamsburg over the last decade. The early leadership of COSCA supported the ideal of widespread public access, but control of the organization was later seized by clerks skeptical of remote access.
They developed the mantra of “practical obscurity.”
The theory, profoundly wrongheaded, is that court records were hard to find in paper form — practically obscure — and so it should be in electronic form. In fact, as described by Judge Shepherd, traditional access to paper pleadings was open and immediate.
But the tide may be turning.
As they switched to electronic filing over the last 30 years, the federal courts kept the First Amendment standard of access in place. Through the federal public access system, they give remote access to new pleadings as they are received.
“I mean, things are filed here in this building all night long, and it's immediately accessible to the public,” said U.S. District Judge James Browning in New Mexico, during a hearing in the Courthouse News case.
The nation’s biggest state courts, California, New York and Florida, have also switched to the First Amendment gold standard, remote electronic access to new pleadings on receipt. The exception among the big four is Texas where only the clerk in Austin gives traditional on-receipt access.
Other states also giving remote, on-receipt access are Hawaii, Arizona, Utah, Nevada (in Las Vegas), Ohio (Cleveland and Columbus), Alabama, Georgia (Atlanta metro area), New Jersey, Connecticut, Rhode Island and Vermont.
Vermont however is a highly recalcitrant provider of First Amendment access. Court administrators complied with an injunction ordered by U.S. District Judge Christina Reiss. But they also appealed to the Second Circuit Court of Appeals where a decision is pending.
In her ruling, Reiss wrote: “Because Defendants have failed to sustain their burden to demonstrate that their pre-access review process is justified by higher interests and narrowly tailored to advance those interests, Defendants have violated the public’s and Plaintiffs’ First Amendment right of access to newly filed complaints,” said Reiss’s 2021 opinion.
She used the U.S. Supreme Court standard for restrictions on the First Amendment right of access, set out in the Press Enterprise II decision, which says a restriction must be justified by a higher interest — such as protecting another constitutional right – and must be narrowly tailored by using the least restrictive alternative.
In the world of electronic filing, the number of less restrictive alternatives has continued to increase, leaving the states less and less room to argue that their restrictions are justified.
A great variety of different software systems and different alternatives allow traditional public access in the electronic context. Some state courts like those in California and Florida, give remote access to new pleadings before they are clerically processed into the docket. Others, through their software, automatically place the new cases into the docket and hand-check them afterwards.
Recently, more alternatives have emerged. Some software companies have developed redaction programs that allow the court to require lawyers to check their papers for private identifiers before filing. And in the age of artificial intelligence, some courts are experimenting with robots that do clerical processing for the clerks in the time it takes to snap your fingers.
Overall, Courthouse News has prevailed in its many First Amendment battles, although at great cost. Along the litigation road, judges at times have expressed their skepticism of the obduracy coming from the states.
During the 8th Circuit hearing in the Missouri case where Judge Shepherd described classic access in paper times, another judge basically unloaded on the county lawyer who was arguing that a federal judge had no business looking into a state court’s constitutional violations.
"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?'” said 8th Circuit Judge Ralph Erickson. "And now all of a sudden you can't, right?"
He went on: “You're not immune to violate the constitution that you ratified. You didn't get forced into this here union. You weren’t forced into it, right? I mean, I don't get that.”
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.
