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Thursday, March 28, 2024 | Back issues
Courthouse News Service Courthouse News Service

Press lives to fight another day with First Circuit reversal of lower court dismissal

The Maine Press Corps and Courthouse News challenged the Bangor court clerk’s restriction on access but their case was dismissed. The First Circuit on Monday declared the dismissal was error.

(CN) — The federal court of appeals for New England on Monday reversed a lower court’s dismissal of a case brought by Courthouse News over the Bangor clerk’s policy of withholding new court filings until clerical work is finished. The clerk in Bangor was holding new complaints for up to three days, by which time the news they contained was as stale as old bread.

“We reverse the judgment of the district court and remand for further proceedings consistent with this decision,” said the 15-page opinion issued Monday.

Written by U.S. Circuit Judge Sandra Lynch, the decision was published with remarkable speed, less than three weeks after oral argument.

The issue, which is the same issue in a number of cases around the nation, revolves around a policy that blacks out just-filed civil actions, an age-old source of news, until they are “processed,” which in the old days was called docketing.

Traditionally, before electronic filing came along, news reporters would check the new complaints as soon as they crossed the counter, before they were docketed. 

A string of federal district court and appellate judges in California, New York, Texas, Vermont and Virginia have ruled in favor of Courthouse News on that issue, saying a First Amendment right of access attaches at the time the new cases are received by the clerk — not after the associated clerical work is finished.

In Maine, however, U.S. District Judge Nancy Torresen in essence threw Courthouse News out of her courtroom, saying the news service had failed to state a First Amendment claim. A group of Maine news outlets had joined in the case — the Portland Press Herald, Maine Sunday Telegram, Kennebec Journal, Morning Sentinel, Sun Journal and the Bangor Daily News — and they too were tossed out.

In reversing that decision, Circuit Judge Lynch noted the facts stated by Courthouse News in their complaint and accompanying motion for an injunction. “The plaintiffs expressly allege, based on documents created by the Penobscot County Superior Court, that the court anticipates processing delays of up to ‘24 business hours.’”

That measure of delay, sent by email to every lawyer filing a new civil case in Maine, would translate into three days and longer for cases filed before the weekend. In news terms, that kind of delay would turn any news into seriously old news.

The fundamental issue that has been considered repeatedly by federal judges around the United States — in the face of protracted and intransigent opposition by state court bureaucracies — is whether the delay between when a case crosses the counter and when it becomes public violates the First Amendment right of access.

Lynch said that “quarrel” need not be decided now.

“We need not decide that quarrel here because the defendants concede that some level of First Amendment scrutiny applies to evaluate whether the time from submission of the complaint to when public access is available is contemporaneous enough.

“The question raised by the plaintiffs' first amended complaints thus remains whether the time between submission and provision of public access here passes First Amendment scrutiny,” she found.

Courthouse News is represented on the appeal by Barbara Smith, Rachel Matteo-Boehm and Roger Myers with the Bryan Cave law firm, along with Bangor lawyer Bernard Kubetz. Maine’s administrators were represented by Thomas Knowlton with the Office of the Maine Attorney General.

The Reporters Committee for Freedom of the Press filed an amicus brief signed by 28 media organizations including The Associated Press, NBC, The New York Times and The Boston Globe.

“Access delayed is access denied, for both the press and the public,” the amicus brief states. “Delaying access by even one day may imperil the news media’s ability to provide meaningful reporting on new lawsuits, as the next day’s headlines can eclipse yesterday’s news.”

In addition to Lynch, U.S. Circuit Judge Ojetta Rogeriee Thompson and Chief Judge David Barron were on the panel and apparently concurred in the ruling.

In oral arguments earlier in April, Lynch and Barron were pressing an argument that a complaint was not really a complaint until it had an official blessing by the clerk. But Knowlton forthrightly acknowledged the contrary position his office took in the lower court.

“Are you saying there is no First Amendment scrutiny until you designate it as a complaint,” asked Barron.

Knowlton answered, “What we’re saying is that the time for providing access that would be operative under the First Amendment would be the time from when it is first submitted to the court to when it’s provided to the public."

But the panel ultimately did not decide that issue. Toward the end of her opinion, Lynch appeared to invite the Maine officials to fight the case by saying it should not be in federal court, based on a principal called “abstention.” The abstention argument, saying federal courts should defer to state courts on all constitutional matters, has been rejected in court after court.

Except two.

One three years ago in the Chicago-based Seventh Circuit and another late last year in a federal district court in St. Louis which is within the Eighth Circuit.

(Art by Carlos Ayala/Courthouse News)

An Eighth Circuit panel in St. Louis last week heard the challenge to that St. Louis decision. The lawyer for Missouri’s court bureaucracy argued that even a hypothetical state court rule, saying women cannot file civil complaints, could not be challenged in federal court. The women would need to go to the very court system that said they could not file complaints.

That extreme position was countered by the Courthouse News lawyer with the point that recent Supreme Court decisions make it clear that federal courts cannot duck their power to enforce the Constitution simply because a state agency is involved.

During the argument, U.S. Circuit Judge Ralph Erickson stated the case for traditional access better than any lawyer has.

“What we’re saying is, ‘Oh for about 230 years you could walk into a Missouri courthouse, into the clerk’s office, and say, ‘Hey, can I see what’s been filed today,’ and now all of a sudden you can’t, right?” Erickson said.

A decision in the Eighth Circuit case is pending.

Monday’s ruling by the Boston-based First Circuit raised the abstention issue but did not decide it. The panel also did not decide what legal standard should apply in judging the constitutionality of a court clerk’s restriction on access.

“But at minimum, taking the allegations in the first amended complaint as true, the plaintiffs have stated a claim for violating the qualified public right of access,” said the unanimous opinion. “Dismissing the first amended complaint was therefore error.”

Categories / Appeals, Civil Rights, Courts, Media

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