Court proceedings take the first slot in the evening newscast on any given night lately. But a hardcore group of court clerks still keep new cases secret when they first cross into court.
The Allegheny Court of Common Pleas in Pittsburgh had in the old days given news reporters a look at the new cases as they came across the counter. That was when court pleadings were paper documents filed across the clerk’s physical counter.
When the path for filing a new complaint changed from the counter to a website on the internet, some clerks shut down the old system where journalists could see the new complaints right away. In effect, the clerks sealed the new complaints when they came across the virtual counter.
That happened in Allegheny County.
The clerk, there called a prothonotary, kept the new pleadings in the dark until his staff did clerical work that stacks up and takes time. Courthouse News challenged that secrecy through a First Amendment complaint filed electronically in the U.S. District Court for Western Pennsylvania.
“The press and public have a constitutional right to access new complaints when the clerk receives them,” said the complaint filed last fall.
The first reaction from the prothonotary’s lawyer was to ask for dismissal, arguing in essence that the case was none of the federal court’s business. The legal word for that position is abstention.
On Friday, U.S. Magistrate Judge Kezia Taylor rejected the motion to abstain, recommending that the First Amendment complaint by Courthouse News be allowed to go forward.
Judge Taylor ended her factual summary of the case by quoting Courthouse News on the two most common alternatives for giving modern-day access the old fashioned way — at the time new pleadings are received across the virtual counter.
She said clerks can set up an online queue where journalists see the new pleadings as they come in, or clerks can push new complaints automatically into the public docket.
Quoting from the Courthouse News complaint, Judge Taylor wrote: “Defendant operates its own e-filing system, so it can configure the software to allow on-receipt access to new filings through either a ‘press queue,’ where newly filed complaints are available to the press prior to case assignment or acceptance, or an ‘autoaccept’ system, which automatically assigns a permanent case number to new complaints and automatically places them into the docket where they can be viewed by the public on receipt.”
The judge concluded that the abstention doctrine did not apply because it has been limited by the U.S. Supreme Court to situations where a federal court is asked to interfere in an ongoing state court case. “The case at bar does not fall into any of those categories because there is no pending state proceeding with which the instant action would interfere,” Judge Taylor concluded.
The Allegheny court officials are represented by assistant county solicitor Frances Liebenguth. Courthouse News is represented by Jack Greiner with the Faruki firm in Cincinnati.
Greiner commented that the ruling serves as a warning to court clerks who fight public access.
“We hope this ruling sends a signal to Allegheny County and elsewhere that timely access to filed pleadings is a constitutional right,” said Greiner. “Stubborn refusals to provide such access have no justification, as an overwhelming number of courts now provide such access.”
However, the stubborn refusals are still coming from clerks in Idaho, Minnesota and Oregon.
The clerks risk nothing by their refusal because it is the public, rather than the clerks, that pays for their intransigence. The public pays the lawyer fees for the clerks. The public also pays Courthouse News attorney fees when they lose — and in a larger sense, when the courts’ work is kept in shade rather than sunlight.
The clerks are also fighting against the current of the law.
They have lost First Amendment battles to Courthouse News in California, New York, Texas and Florida, the four biggest states in the country. They have also lost in New Mexico, Missouri, Ohio, Vermont and Virginia.
Recognizing that trend, a number of states have negotiated settlements this year, agreeing to give access when new complaints cross the virtual counter in Iowa, New Mexico and Missouri.
While all this action has taken place, three cases are waiting on a ruling.
The federal courts of appeal in the Second Circuit and the Fourth Circuits are considering appeals in Courthouse News cases, the former by the state in Vermont and the latter by this news service over access in Virginia. In addition, cross summary judgment motions have been pending in the U.S. District of Idaho for almost a year.
In the Pittsburgh case, Judge Taylor concluded her opinion by finding that the First Amendment complaint brought by Courthouse News properly requests an injunction. She also recommended against dismissal.
Her recommendation is made to U.S. District Court Judge Christy Criswell Wiegand who will make a final ruling on the motion, after the prothonotary has a chance to make objections.
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