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New Mexico found to violate First Amendment right of access

A federal judge in New Mexico issued a 90-page ruling Friday that found New Mexico officials had violated the First Amendment right of access held by Courthouse News.

(CN) — A federal judge in Albuquerque found late Friday that New Mexico state court officials had violated Courthouse News’ First Amendment right of access to new civil actions when they are received by the clerk. “The Court concludes that the Defendants have likely violated Courthouse News’ right of timely access,” wrote U.S. Judge James Browning.

The judge whose court is within the Tenth Circuit Court of Appeals also rejected the silver-bullet defense used by state court clerks who argue that federal courts should abstain from such matters as access to state court records.

“The Court determines that Younger abstention is not appropriate in this case under Tenth Circuit precedent. Next, the Court concludes that Courthouse News has a qualified right of timely access to newly filed non-confidential civil complaints, which attaches when a complaint is filed, or submitted, to the State courts.”

Both rulings were critical decisions in the context of arguments raised by clerks in Oregon, Vermont and Missouri, who are also defending First Amendment actions over their no-access-before-process policies and who have argued that the federal courts should not intrude on their affairs.

While the abstention argument was rejected, Browning went on to find that “a limit of five business hours comes the closest to replicating traditional access in the paper filing system.”

The formulation would mean that a case filed at noon was not available in a clerk’s office that closed its doors at four o’clock. It would translate into day-old access for a great majority of cases since most are filed in the afternoon. That is a far cry from traditional access.

The five-hour formulation does not match up with the experience of reporters who saw new paper complaints right up until the clerk’s office closed. Reporters in Los Angeles, Chicago, New York, Portland, Boise, Austin, and indeed in Albuquerque and Santa Fe saw the last cases filed in the day, those filed just before the clerk closed the filing window.

That reality was testified to by witnesses for both plaintiff and defendant as part of the evidence underlying Friday’s ruling. As a result of the tradition, the last cases journalists saw were filed within minutes of the close of business in the clerk's office. The last cases they saw were not those filed five hours earlier.

The 90-page ruling followed an intense, day-long hearing based on the complaint by Courthouse News saying that New Mexico’s court administrators had imposed a policy that required processing, clerical work, before access for journalists or the public. This was in contrast to the federal courts and neighboring state courts such as Utah and Arizona, which provide access on receipt.

As most clerks have done, the New Mexico court officials ran to the fortress of privacy when attacked under the banner of the First Amendment. They needed to check for e-filed cases that should be under seal, they claimed.

But no state rule or statute required it.  And in fact a lawyer cannot e-file a sealed document in New Mexico state courts — it must be brought into the clerk’s office by hand and passed across the counter, the old fashioned way.

On top of that protection, journalists with access to the documents online were required to sign an agreement saying they would not publish information that was protected by court rule upon pain of losing their online access.

The author of this article was working with the lawyers for Courthouse News late as night fell before the hearing and as a last thought, asked the firm’s paralegals how they would go about e-filing a sealed document. They gathered around a computer terminal and checked the state’s e-filing interface. After a while, they turned and said words to the effect, “You can’t do it.”

He went across the street to the stunningly rich and art-filled Andaluz hotel, laughing in the warm Albuquerque night. The other side’s whole defense rested on an act of e-filing that could not be done. And in the morning he testified to that.

In the Vermelho courtroom of the federal courthouse in Albuquerque, John Edwards with Jackson Walker, on behalf of Courthouse News, asked about the safeguards against sealed documents.

Q: Is there a front-end e-filing interface protection safeguard?

A: Yes. The way — from my looking over the shoulder of paralegals who are looking at the filing system, there is no way to e-file a sealed case. The interface does not allow it in New Mexico. New Mexico specifically does not have a button that allows you, any e-filer, to file something — to e-file a nonpublic case or a sealed case online. I believe they have to be filed by hand.

The complaint by Courthouse News asks for a return to traditional access in New Mexico's courts. It asks for a return of access that was taken away in the transition to e-filing. Traditional access takes place when a new complaint is received by the clerk.

Q: And are there courts that currently provide that level of access in the United States?

A: This court we're in right now does. Almost all the federal courts, and a number of state courts, including two neighbors of New Mexico. Those courts are Utah and Arizona; they provide on-receipt access.

The Courthouse News reporter for New Mexico, Victoria Prieskop, then testified to the delays in access as a result of the state’s no-access-before-process policy on new filings, showing that roughly one-third of the state’s new civil complaints were held back for one or two days, while those in the state’s capital, Santa Fe, were delayed about 60% of the time.

She also testified about the speed of access in the federal court where she was testifying.

Q. How is the access different between this court and the state court counties that you cover?

A. I very rarely see a delay of even 24 hours in the federal court. And in fact, I can see cases that are filed outside of business hours; they seem to turn up in PACER right away.

Q. Including nights and weekends?

A. Including nights and weekends.

The legal framework around the First Amendment right of access is that once it attaches — and the state conceded that it attaches to newly filed complaints — then a set of guardrails snap into place. Any deprivation of the access must be based on an overriding state interest and must be narrowly tailored to meet that interest.

The test is referred to as the “Press-Enterprise test” because it was established by the Supreme Court in 1986 when the Riverside Press-Enterprise sued over access to a preliminary hearing in the prosecution of a notorious nurse who had killed a number of patients using overdoses of heart medication.

After a morning and part of an afternoon of testimony last week in the Vermelho courtroom, Judge Browning asked the lawyers to make their arguments. In the colloquy that followed, he asked a key set of questions of the state’s counsel. He wanted to know how it could be an overriding interest for the state courts to hold back access to the complaints when it was not an overriding interest for other courts.

Browning: Let me frame it this way. I mean, you can't have compelling state interest here in New Mexico that's different from a compelling state interest elsewhere. The federal law has to be somewhat consistent from state to state. So one state can't create a bunch of rules, say that's the compelling interest, and another one have a different set of rules, say that's the compelling state interest, and it always overrides the federal interests. Do you agree with that?

Assistant State Attorney General Erin Lecocq: I do agree with that.

Browning: So I have to look — I have to look at your package of rules, to see if those are really compelling; right? I mean, if California doesn't do this or Texas doesn't do this, the fact that New Mexico does it doesn't make it compelling.

Lecocq: Right. But the compelling interest is the trustworthiness and the reliability of the court system. And in order to ensure that interest is consistent in New Mexico, that is the reason that the Supreme Court has adopted these rules that help facilitate that.

Browning: But if you have court systems that are not doing what New Mexico is doing, as far as screening, then these complaints could be available to the press much earlier.

Lecocq: They could. But in both Planet and Schaefer — in fact, Planet says that "the court does not demand immediate preprocessing access to newly filed civil complaints." All of the cases allow —

Browning: But don't you have some problems with your statistics, though? They don't seem to be as good as Virginia's in the Fourth Circuit.

New Mexico’s lawyers move here to a second regular argument from clerks fighting access. Privacy is their first argument, saying they must check for sealed cases, and the second is that the case is not really filed until the clerical work of putting the case into the electronic docket, called “processing,” is completed.

The argument currently being made in Oregon to a federal judge, Youlee Yim You, who has pending before her a motion to dismiss by Oregon’s state lawyers, is the same, that a case is not officially filed until the clerical work. Therefore, Oregon’s lawyers argue, the First Amendment right of access does not attach until after processing.

But Browning in Albuquerque was clearly skeptical of the same argument being advanced by New Mexico. Throughout the discussion, Browning is looking to a recent appellate ruling in the Virginia-based Fourth Circuit that affirmed a ruling in favor of Courthouse News against two Virginia state court clerks who were also holding up access until after processing. The Virginia case, however, involved traditional paper filings.

Lecocq: That's the problem here before the court, is that, Judge Noel stated, that document is not an official court record until the clerk looks at it and accepts it.

Browning: But the Fourth Circuit didn't seem to be focusing on that. It seemed to be focusing not on when the state decided that it was filed. It seemed to focus it on when the Court had the document. Would you agree with that reading of that case?

Lecocq: I think that that term "filed," and the term with the court —

Browning: That's the reason I'm trying not to use it, because the Fourth Circuit doesn't seem to be terribly interested in that either. It seems to be at the time the court gets the document. It seems New Mexico is adding this layer of saying that it has to be processed before they're making it available. And I don't see the Fourth Circuit hinging its constitutional analysis on that.

The questioning of the state lawyer by the judge then moved to the central bulwark of New Mexico’s defense — the claim that clerks needed to review all the filings to see if they should have been sealed. A clerk working in the state court in Santa Fe had testified during the hearing earlier in the day that processing clerks look to see if records, such as medical records, should have been sealed. And, she testified, they might reject a case for that reason.

The judge is clearly dubious of the claim that the clerks review all the documents coming into the court, including the exhibit, and then decide to reject some of them if the clerks think they should be sealed. He described that argument at one point as “a little bit of smoke.”

Browning: I guess I'm sort of astounded that clerks are down there rejecting pleadings because they're making some determination that something in a complaint is confidential. What right, really, does a clerk have to do that?

Lecocq: Number one, they're not rejecting the pleading. They're returning it to the filer to either ask for — again, we have a difference in definition of personal protected information with the Social Security numbers and things, and confidential pleadings which would be like abuse/negligent cases or medical records or something like this. So if the clerk were to see one of those things —

Browning: But they're not really — I don't know, I don't see complaints with Social Security numbers in them. I don't see complaints with medical records in them. So I guess I'm not — I don't know what this screening is going on over there. I don't think it's going on in this building. So it seems to me this is a bit of smoke here, that you can't really justify what's going on with this.

Lecocq: Well, there is a difference, first of all, between the federal court system and the state court system, in that the state has statutes that say you can't have personal protected information posted on a state website, and have court rules that say that certain things need to be —

Browning: We don't allow that sort of stuff either, I mean — but clerks aren't screening that downstairs when it's filed on CM/ECF.

Lecocq: Well, I think the question would be, if you were to file something, a medical malpractice case, for example; that is an open civil case that would be nonconfidential, but it would contain medical records, probably necessarily, in the complaint. But those records would need to be sealed. And that —

Browning: Really?

Lecocq: I would think so. That's when you have —

Browning: Not 'think so.' Is that what's happening over in state court? Somebody files a medical malpractice case, and somebody sits there and reads it and says: Hey, in paragraph 22 there is a confidential medical thing, and we're going to hand the complaint back and not consider it filed?

Lecocq: I don't know that they would read the complaint. I think it would be the attachments. And those attachments, if they contain —

Browning: Really? They're going through attachments in a complaint and handing it back?

Lecocq: Yes. We heard testimony from Ms. Baca that is what they do.

Browning: How many times does that occur?

Lecocq: I don't know if she mentioned that. And I don't know that it's often. But it does happen.

Browning: Well, like, once every 20 years?

Lecocq: No, no, no. I would imagine —

Browning: 10 years?

Lecocq: No. Probably —

Browning: I mean, I've never heard of this. I've never heard of anybody — clerks screening attachments to complaints for medical records.

Lecocq: Well — and that's what Ms. Baca testified about, but she's —

Browning: Well, I know, but I'm finding it a little hard to believe.

Lecocq: But she's required under either —

Browning: She may be required. But I just don't think that's the way the real world works.

Lecocq: And if Ms. Baca says that, that's what it is, I think I have to take her as the clerk —

Browning: I don't.

The silver bullet first used by state court clerks to knock out First Amendment complaints over access is a decision by the federal appellate court in Chicago, the Seventh Circuit Court of Appeals. After a lower court ruling that enjoined clerk Dorothy Brown in Chicago from withholding access to e-filed complaints until after processing, the appellate court decided to abstain based on general principles of comity.

The decision has been widely rejected. The Ninth Circuit based in California and the Fourth Circuit based in Virginia have rejected the Brown ruling, as have U.S. District Court judges in Norfolk, Virginia and now in Albuquerque.

“So I didn't particularly find the Seventh Circuit's reasoning very persuasive,” Browning said in the courtroom last week. “It seemed to me a bit strained.”

In his written ruling on Friday, the judge again rejected the Seventh Circuit ruling.

“As in Brown, Courthouse News seeks an injunction requiring court clerks to release newly filed complaints to the press at the moment they are submitted to the Court, but before the clerks process them and before the New Mexico courts deem them to be ‘accepted.’ Courthouse News’ requested injunction would neither interfere with nor enjoin the substance or merits of any one particular state proceeding; rather, it would speed up press and public access to the documents — civil complaints in particular — through which all state proceedings happen.”

“Because Courthouse News does not seek to interfere with the substance of even a single state court proceeding, an injunction affecting only the speed of the State’s processing of civil complaints would not ‘interfere with an ongoing state judicial proceeding.’”

Back in the courtroom, the judge noted the point made by Courthouse News that many courthouses using the same software vendor as New Mexico provide access upon receipt, just like the federal courts, through a “press review queue.”

In an internal memo, court officials in New Mexico conceded that the press queue could by installed “at no cost.” Browning approached the issue in his back-and-forth with Lecocq by first returning to the Fourth Circuit decision in favor of Courthouse News.

Browning: So it's really — the presumption seems to me to be that it's going to be the same day. Because the paragraph begins by saying that the public and press generally have a contemporaneous right of access to court documents. So they're trying to figure out what contemporaneous means. And they give the state leeway to make it the same day. So that's what contemporaneous means, and they say that themselves: The same day on which the complaint is filed, insofar as is practicable. And when not practicable, on the next court date.

Lecocq: We define contemporaneous in this context to require that the Court act as expeditiously as possible."

Browning: You would be able to if you use this technology; right? It's because you don't use the technology that it's impossible.

Lecocq: Well, no. We don't use the technology, because —

Browning: I mean, things are filed here in this building all night long, and it's immediately accessible to the public.

The judge was correct that cases filed in the federal courthouse in Albuquerque are available on receipt, as soon as they cross the electronic counter. That is the equivalent of traditional access to paper, when the new civil complaints crossed the physical counter.

But that is not within five business hours — it is within a minute or two of crossing the counter.

A spreadsheet submitted by New Mexico officials as evidence in the hearing showed that roughly one-third of the new complaints were held back on the day they were filed during August. In Santa Fe, fully 78% of the new complaints were held back on the day of filing.

Under the five-business-hour formulation in Friday’s opinion, almost all of that delay would be constitutional.

Jimmy Shimabukuro, the Courthouse News business manager, analyzed spreadsheets provided by New Mexico regarding the rate of processing during the month of August. He analyzed them again on Friday based on the five-business-hour rule.

He found that 93% of the cases statewide were processed within the five-hour rule. Even in Santa Fe, 92% of the cases were processed within five hours even though the great majority were withheld on the day of filing.

Thus the injunction issued on Friday would allow nearly all the current delays to stay in place, in black-and-white contrast to traditional access.

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