I had flown into Boston from LAX and our bureau chief for the region was soon to pick me up on a sunny, crisp, lovely morning late last month. Across from the hotel was the graveyard where Paul Revere was buried and a family tomb for the Franklins was placed, about a block from Boston Common.
I had a bit of time to kill so I walked around the graveyard but did not take a lecture tour from the various guides in period dress. By the stone for Sam Adams, however, I heard one of them noting the Adams had inherited a beer business but preferred to give away beer while practicing revolutionary politics.
And soon the business failed. A small historical fact I would never have known.
Our bureau chief then swung by the hotel in a rented, black Cadillac, which happened to be what the New York City rental agency gave him, and we took off through the back roads of New England. The foliage was a little faded by that time, but the mix of tones on the hillsides still looked like a Renoir painting, nature’s impressionism.
We stopped at the Poor People’s Pub which was technically in a town but really was on a big dirt lot by the side of the highway. Since it was Sunday afternoon, the Patriots were playing on a big screen and large group of friendly New Englanders, mostly in plaid shirts, were having lunch, drinking beers and participating in what I took to be the main weekend social event in the area.
The waitress was quick and friendly and the food and atmosphere were good. And we were back on the road to Burlington.
We arrived at the Vermont Hotel, which had a real, wood fire burning in the lobby and, fitting the region, was nearly everywhere paneled in maple. With a good bar and restaurant.
But the evening was not a long one. A hearing on our First Amendment challenge to access delays in Vermont courts was being heard by U.S. Judge Christina Reiss the following afternoon.
It was gray and rainy when I went for a walk the next morning. A historical sign stood outside what had been the town’s cathedral built in 1867. A sign described a past American ideal of immigrants who came to work in the region’s mills, raised families and met their friends at church on Sunday morning, to be invited over to visit by other parishioners in the afternoon.
The cathedral had burned down, by arson, and been rebuilt. But in the gray drizzle, I noticed a cyclone fence all around the church and its grounds. Our local counsel later confirmed that it was for sale.
The federal courthouse was certainly modest, dominated at the lower level by a post office lobby. But the courtroom fit the gravity of the events that took place there, set out in dark, massive wood with royal blue on the walls and around the counsel tables.
Once the judge walked up to the bench, carrying a large stack of documents in front of her, the hearing ran in an intense passage of time for nearly two hours. We ordered a transcript and later I could slowly read the words and points that had flown by quickly at the hearing.
There were two main things I came away with. The judge well understood that the intake software in an e-filing system does the job of the old intake clerk in a paper system, and that access follows almost immediately upon receipt when access is not waiting on staff.
The second main thing that struck me was the skill and preparation of our lawyer, Bill Hibsher with Bryan Cave in New York, making his final argument before retirement.
As the judge noted, “There would be no delay in an e-filing system. There could be 1,000 complaints; there could be 100,000 complaints. There’s no delay. The only delay that’s going to show up in an e-filing system is when you insert a staff member into it. Because they are loading it up with all of the document information they need, and it’s hitting the docket, and there isn’t any step in between where there is staff.”
Although there were many, many points made during the hearing, one argument by Hibsher stood out to me as the refined synthesis of the points we have been making in federal courts all around the nation. He was explaining why Judge James Browning’s recent ruling in New Mexico, that gave state court clerks five hours to block access, fell well wide of the constitutional mark.
“Five business hours means that everything filed from about 11:00 in the morning until the end of the court day will be held over until the next day,” Hibsher argued. “That is not contemporaneous access. And so we think that the issue is not so much for the Court to divine the number of hours’ delay that is acceptable but, rather, for the Court to ask the defendant: 'How do you justify any delay now that a presumption of access has arisen, because I have determined that complaints are entitled to a First Amendment right.'”
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