New Mexico judgment gives public access to court pleadings on receipt

A federal court judgment entered Wednesday requires that New Mexico courts give access to new pleadings as they are received across the virtual counter. The judgment renews a tradition that existed in American courts since time beyond memory.

The New Mexico judgment is based on a settlement between this news service and the court administrative office. It was reached with support from the state’s chief justice, Shannon Bacon, a strong proponent of public access.

“AOC has agreed to develop and implement a system that will provide the press and public access to new non-confidential 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 judgment signed Wednesday by U.S. Judge James Browning.

The underlying agreement says on-receipt access will be put in place within nine months, and the administrative office will pay $200,000 to Courthouse News for some of its attorney fees.

The agreement also says the access will be remote.

The First Amendment fight in New Mexico has been going on since 2021. Litigation included a trip to the Tenth Circuit where a panel of judges ruled in 2022 that the right of access attaches at the time pleadings are received.

The long arc of public access in American courts has stretched across hundreds of years. It was described by Eighth Circuit Judge Bobby Shepherd speaking from the bench during oral arguments in a Courthouse News case against Missouri.

“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 Shepherd.

Another judge on the panel, Ralph Erickson, added, "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?'”

But in the transition to electronic filing and storage of court records, state court bureaucracies with few exceptions did away with that tradition. They sealed new electronic pleadings until they could be reviewed and indexed by court clerks. The result was news-killing delays and the suffocation of one part of America’s open court system.

With Wednesday’s judgment, New Mexico joins the federal courts — which kept the tradition in place as they moved into the electronic age — and states that one by one are switching back to traditional court access on receipt. They include three of the biggest states in the nation, California, Florida and New York, as well as smaller states like Hawaii, Nevada, Utah, Alabama, Connecticut and Vermont.

But some state court bureaucracies are still fighting public access. In Oregon the state’s chief justice OK’d access similar to what New Mexico is now setting up only to be effectively overruled by the court bureaucracy. The Oregon case is scheduled for trial before U.S. Judge Michael Simon in April.

Idaho’s court clerks have also taken a die-hard stance against First Amendment access. Dueling summary judgment motions are currently pending before U.S. Judge David Nye.

Likewise, courts in Maryland have also been down for a First Amendment battle. The first in a series of summary judgment briefs is scheduled for the end of January, before U.S. Judge Brendan Hurson.

In New Mexico, Courthouse News is represented by Gregory Williams with Peifer Hanson Mullins & Baker in Albuquerque, John Edwards with Jackson Walker and Jon Fetterly and Katherine Keating with Bryan Cave. The court administrator is represented by assistant attorney generals Mark Allen, Erica Schiff and Jeffrey Herrera.

A parade of rulings over the last 10 years have addressed the same issue — constitutionality of a no-access-before-process policy — with nearly all coming down against the policy. In one of the more recent decisions, U.S. Judge Sarah Morrison enjoined the identical restriction imposed by Clerk Maryellen O’Shaughnessy in Columbus, Ohio.

“Access and processing are not mutually exclusive,” wrote Morrison. “Certainly there are less restrictive means to accomplish Ms. O’Shaughnessy’s goals than treating all complaints as confidential until accepted by the clerk.”

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