Reach of First Amendment at Issue in Fed Circuit Split

(CN) – In the first decision since a major fault line opened in the legal landscape around the First Amendment, a federal judge in Virginia has ruled that its powerful writ reaches past the state courthouse door.

The split emerged late last year when a panel of judges in the Chicago-based Seventh Circuit ruled that general respect for state courts, or comity, meant that a First Amendment suit against Dorothy Brown, Chicago’s elected court clerk, had no place in federal court.

That opinion runs directly contrary to an opinion five years earlier by the Ninth Circuit, which covers California and much of the West, saying the federal court’s power to decide on constitutional matters does extend to the policy of a state court functionary.

The idea of comity for the state courts is wrapped in a doctrine called “abstention.”

In saying federal courts should abstain from applying the Bill of Rights to state court officials, the Seventh Circuit also split with the Second Circuit which covers district courts in New York, Connecticut and Vermont.

The first hearing to address the split was held last week before U.S. Judge Henry Coke Morgan Jr. in the Eastern District of Virginia. He heard a motion to dismiss an action brought by Courthouse News against two court clerks in Norfolk and Prince William counties.

The news service was represented by William Hibsher, Heather Goldman and Bryan Harrison with Bryan Cave and Conrad Shumadine with Willcox Savage.

“The Supreme Court has never allowed abstention to be a license for freeform, ad hoc balancing of state and federal interests, and we believe that what Brown did and what the defendants urged was incorrect and is incorrect,” argued Hibsher over the course of a two-hour hearing last week.

The clerks are represented by William Prince IV and Michael Matheson with the Thompson McMullan firm in Richmond. In his oral argument, Matheson conceded that Courthouse News had shown harm based on delays in access, but he said tables illustrating the delays were not accurate.

“They’ve shown harm, and harm is not a policy. Delay is not a policy,” argued Matheson. “What these tables show is harm. What they do not show is how the clerks are responsible for that, what policy or procedure the clerks are employing that are causing these alleged delays.”

This week, Morgan handed down an 18-page opinion that with clear and precise reasoning rejected the Brown holding. The judge cited the U.S. Supreme Court and wrote, “Federal courts have a virtually unflagging obligation to exercise the jurisdiction given to them.”

He noted that the news service “contends that Defendants employ common policies and practices of withholding complaints from the press and the public until after administrative processing.”

He also noted the delays alleged by Courthouse News saying a tiny portion of the new complaints could be reviewed on the day of filing while the lion’s share was withheld for two and three days and more. In laying out the underlying allegations, the judge also summarized the news service’s claim that “such a delay violates Plaintiffs rights under the First Amendment of freedom of the press.”

He then squarely addressed and rejected the Brown decision.

Morgan said he was not convinced that comity and federalism require deference to the state courts in cases brought under the Civil Rights Act of 1871, codified in section 1983 of the federal statutes.

The judge noted that his own Fourth Circuit, with jurisdiction over Virginia and the Carolinas, has observed that, “Abstention is not ‘a license for free-form ad hoc balancing of state and federal interests.’”

“When Congress enacted 42 U.S.C. § 1983, it gave federal courts jurisdiction to issue relief against persons who, under color of state law, deprive another of a right secured by the federal Constitution,” Morgan wrote in the meat of his ruling.

“Plaintiff asks for a single injunction to remedy an alleged First Amendment violation,” he concluded. “While the Court is not at this time prepared to comment on the merits of such a request in this case, the Court need not altogether abstain from addressing the merits of such a request.”

The Brown case would substantially extend the law of abstention. And it would close off federal courts as a forum for relief under the federal civil rights law against politicians and civil servants who work within the state court system.

Foreseeably, it has prompted extensive activity from lawyers representing state court clerks.

In California, lawyers for Orange County’s clerk – who also withholds new cases while they were being processed – made a special filing to bring the Brown opinion to the attention of the Ninth Circuit.

Hearing the cases in the Ninth Circuit’s historic Pasadena courthouse, U.S. Circuit Judges Kim Wardlaw, Mary Murguia and Randy Smith are considering two appeals, one from a ruling in favor of Courthouse News against Ventura’s court clerk, and a second from a ruling in favor of Orange County’s court clerk on the same issue.

The briefs on those appeals should be completed by next month. An amicus brief from a wide coalition of media, under the umbrella of the Reporters Committee for Freedom of the Press, has also been submitted.

Besides prompting a great deal of legal activity around the nation, the Brown ruling has had the direct result of a petition for certiorari filed in the U.S. Supreme Court last week.

“The decision below is wrong, and acknowledges that it creates a square split of authority with the Ninth Circuit. It also splits with the Second Circuit,” said the petition written by Rachel Matteo-Boehm, Lee Marshall and Barbara Smith with Bryan Cave.

“A split of authority over a question of federal jurisdiction merits this Court’s prompt review. The fact that the underlying merits of this claim implicate an important constitutional interest only magnifies the importance of resolving this question now.”

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