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Ohio clerk can’t dodge First Amendment case over delayed access to civil complaints

A First Amendment lawsuit filed by Courthouse News for same-day access to new complaints in Hamilton County will proceed after a federal judge denied the clerk's motion to dismiss.

CINCINNATI (CN) — Courthouse News will continue its fight for same-day access to newly filed complaints in Hamilton County, Ohio, following a ruling Wednesday from a federal judge that denied the court clerk's motion to dismiss on various grounds, including a doctrine that says federal courts should not interfere with state courts.

The decision comes on the heels of a ruling by the Eighth Circuit on Monday to reinstate Courthouse News' lawsuit against the Missouri state court system, whose beleaguered e-filing process creates access delays of up to a week for members of the press.

Courthouse News sued Aftab Pureval, then-Hamilton County clerk of courts, in 2021, following a yearslong battle with the clerk's office for immediate access to new civil complaints. Pureval, now mayor of Cincinnati, was replaced as clerk by Pavan Parikh in January 2022.

The suit seeks a declaratory judgment that the clerk's current policy of delaying access to complaints until after its employees "administratively process" them is unconstitutional and violates the First Amendment.

When the outlet began coverage of Hamilton County in 2003, all lawsuits were paper-filed, meaning attorneys handed complaints over the counter to a clerk, who time-stamped the documents and placed them in a bin to provide immediate access to a reporter.

Things changed when the county implemented an e-filing system that required employees to process cases before images of the complaints were made available through a log-in on the clerk's website.

Access was delayed – sometimes by several days – and the public was denied the opportunity to review lawsuits on the day they were filed.

Courthouse News tracked the availability of new complaints in the year leading up to its suit against the clerk's office, and statistics showed over 41% of newly filed civil lawsuits were withheld from press and public alike for at least one day, while over 11% of cases had a two-day delay.

U.S. District Judge Michael Barrett cited these statistics on Wednesday in his opinion and denied Parikh's motion to dismiss the news organization's First Amendment suit.

Parikh argued the court lacked jurisdiction over the constitutional claims brought by Courthouse News through the application of the Younger abstention doctrine, which prevents federal courts from interfering in ongoing state court proceedings.

The doctrine requires federal courts to abstain in three scenarios: criminal prosecutions, civil enforcement proceedings and cases involving orders that affect a state court's ability to carry out its judicial functions.

While the Chicago-based Seventh Circuit applied the abstention doctrine in a case brought by Courthouse News against the clerk of courts for Cook County, Illinois in 2018, Barrett sided with the news outlet and called that ruling an "outlier."

Both the Fourth and Ninth Circuits have since ruled the abstention doctrine does not apply to delayed-access cases brought by Courthouse News, and Barrett followed their lead in Wednesday's opinion.

He adopted and cited a June 2022 decision out of Florida by Chief U.S. District Judge Mark Walker, who ruled in Courthouse News Service v. Forman the court was not required to abstain from the case, in which "clerical processing of complaints – divorced from judicial functions – are at issue."

"This case does not involve state criminal prosecutions or civil enforcement proceedings," Walker wrote at the time, "thus the first two Younger categories can be readily dismissed. As for the third category, no 'orders' are at issue here.

"Moreover, as shown above, complaint processing is a ministerial, administrative function, not a practice 'uniquely in furtherance of the state courts' ability to perform their judicial functions.' This case thus presents none of the 'exceptional' Younger categories, and ... this court will not invoke 'general principles of federalism, comity, and equity' to force Younger beyond its defined scope."

Parikh had also requested dismissal of the Ohio complaint on the grounds Courthouse News failed to state a claim upon which relief could be granted, but Barrett was not convinced.

The clerk argued his office has no formal policy pertaining to when members of the media or general public can access newly filed complaints, but that he simply follows the Rules of Superintendence for the Courts of Ohio and, locally, the Local Rules of the Hamilton County Court of Common Pleas.

"Defendant's catch-22 argument is unavailing," Barrett said. "Because the Rules of Superintendence and the Local Rules are not referred to in the complaint, they may not be considered in deciding a [motion to dismiss]. Further, assuming (for this limited purpose) the rules in fact underpin defendant's 'no-access-before-process policy,' the constitutional question nevertheless remains."

Attorneys for both sides did not immediately respond to requests for comment Wednesday.

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