(CN) — Capping three years of litigation in Virginia, a lawyer for the Reporters Committee for Freedom of the Press told a federal appeals court that contemporaneous access to new court filings is essential to an informed public.
“News organizations send their reporters to courthouses on a daily basis so they can report news to the public when it is fresh,” argued Jennifer Nelson for the reporters committee.
Her audience was made up of three judges on the U.S. Fourth District Court of Appeal, Diana Gribbon Motz, James Wynn Jr. and Robert Bruce King.
“The court’s decision today will have a direct impact on the press’s ability to obtain contemporaneous access to civil complaints and therefore on the public’s ability to know what’s happening in the judicial system,” Nelson told the judges.
She represents 28 news organizations, including the Boston Globe, Associated Press and Sinclair Broadcasting, all subscribers to Courthouse News Service, which has carried the load of litigation against Virginia’s elected court clerks.
The case started three years ago after the clerk in the Washington D.C. suburb of Prince William took traditional access away from news reporters, and refused to give it back. The newly elected clerk, Jacqueline Smith, decreed that reporters must first wait for new cases to be brought in across the counter, then indexed, scanned, and transferred to public terminals, a process that took days.
A sign placed above the public terminals in her office informed all users that she gave herself ten days to do those administrative tasks.
Before the change in policy, reporters were able to ask for the new cases filed that day, a traditional aspect of news reporting at courthouses all around the country. The shift to “no-access-before-process” policies has been rampant among state court clerks who in their zeal to adopt electronic technology — either scanning of paper documents or electronic filing — pushed the press behind what is variously called “docketing” or “processing” or in Virginia “indexing.”
Supervisors in the southern Virginia court of Norfolk followed the same no-access-before-process policy as Prince William, refusing access to Courthouse News reporters until the new cases were indexed and scanned.
When clerks around the country have taken away press access, it is almost never negotiable. The press can either accept the loss of access or file a First Amendment action in federal court, an extraordinarily expensive undertaking. That was particularly true in Virginia where the clerks association hired a private law firm to battle the press with scorched earth tactics.
As an example of those tactics, the clerks’ lawyers hid the existence of records that proved the lag time between when a case was filed and when it was scanned, which was the trigger event for the complaint to become public. They concealed the existence of the data over the course of a series of discovery requests, and they were helped by administrators in the Office of the Executive Secretary that functions as the administrative office of the courts of Virginia.
The executive secretary's office even denied the existence of those records in the face of a federal court subpoena. Only toward the end of an hours-long deposition of the office’s IT director did he concede that he did have the data and could indeed generate reports showing the time gap between filing and scanning. Those records then formed the basis for a ruling last year by Judge Henry Coke Morgan Jr. who found that delays in both courts were substantial and violated the First Amendment right of access.
From their perch high above the trial court battlefield, the Fourth Circuit on Tuesday seemed unaware of the intransigence of the clerks and suggested that both sides were waging a war of principle.
“Seems to be there ought to be something you can work out among you,” said Judge Wynn, an active questioner during the nearly hour-long hearing.
William Hibsher, with the Bryan Cave Leighton Paisner law firm, answered: “Prior to filing this lawsuit, Courthouse News reporters asked to see specific complaints that had been filed in the course of the day. They were told by supervisory personnel that they could not see complaints until they were fully processed, indexed and scanned, posted on the public access terminals at the courthouse.”
As the Zoom hearing wore on, the judges settled into questions about the definition for “contemporaneous” and how to define the First Amendment right of contemporaneous access.
In the trial court, Morgan, a widely respected judge in the Eastern District of Virginia, defined “contemporaneous” by first considering the dictionary definition of the word — at or near the time — and he considered the testimony about traditional press access in courts around the country. The tradition was that reporters would check that day’s new filings at the end of the day.
The standard set out by Morgan was that the press should see the new cases on the day they are filed where practicable, giving the clerks a good deal of what the panel called “wiggle room.”
Judge Wynn was concerned about a bright-line rule that would be difficult for clerks to meet on an everyday basis. But a similar worry was expressed by Judge James Otero in federal court in Los Angeles when he nevertheless ruled against the clerk in Ventura, California. Otero enjoined the clerk, Michael Planet, from pursuing a policy of “no-access-before-process."
Both cases involved courts that were stuck in the paper past and had yet to come around to the era of electronic filing.
Wynn: Technology has come to play in this. It’s not what the Founders were dealing with on access. We have come to a different day and age. Come again — what are you saying about access on the same day. What does that mean.
Hibsher: Judge Morgan observed that the advent of new technology in courts across the country could have a real impact on this issue. But in both of these courts, we are still dealing with a paper court. And in these paper courts, Judge Morgan concluded that contemporaneous access would mean allowing the press to see what they have seen in courts across the country for decades, see the cases by the end of the day of filing.
Motz: You are talking about immediate access and quoting language that is same day or next day if necessary. So I am confused.
Hibsher: Courthouse News is not asking for immediate access or access at the moment of filing.
The panel appeared to be wrestling with the contemporaneous standard of access as it might apply across two mediums, paper and electronic. The California case against Planet has followed a much longer arc that covers three appellate court rulings over ten years.
It recently culminated in a final judgment, that has not been appealed, in the Central District of California. In that ruling, Judge Dolly Gee simplified and clarified First Amendment access law in a way that straddles both mediums.
“There is a qualified First Amendment right of timely access to newly filed civil complaints,” she wrote. “This qualified right of timely access attaches when new complaints are received by a court, rather than after they are 'processed' — i.e., rather than after the performance of administrative tasks that follow the court’s receipt of a new complaint.”
In a kind of long distance answer to the questions posed by Motz and Wynn in Richmond, the Los Angeles judge added, “This qualified right of timely access attaches on receipt regardless of whether courts use paper filing or e-filing systems.”
On the other side of the Virginia case were the court clerks of Virginia, elected officials who in the past served as political agents for the governor. They banded together through their association to pay for the defense of the Norfolk and Prince William clerks by tapping an insurance fund.
Michael Matheson with the Richmond firm of Thompson McMullan represented the clerks in the Fourth Circuit. He had a rough go of it.
“The harm is there are momentous issues of federalism and there are ramifications of this decision on state court clerk's offices around the country,” Matheson argued.
“Are you litigating this on principle, then,” asked Judge Robert King.
Matheson denied that he was arguing simply on principle and went on to claim that Courthouse News was already getting the access it wanted before taking the clerks to court, an assertion that is not supported by any aspect of the trial record.
“Sir, we really do know the facts,” interjected Motz. “In the beginning, they did not get the access. Then they asked for it. Finally they did. But it was because they came in and started a suit about it.”
As Matheson disputed that account, Motz asked him if his facts were different than the facts on record.
Then Judge King’s voice boomed through the video hearing. “Judge Morgan had a bench trial and he made findings of fact and conclusions of law. His findings of fact are the facts unless they are clearly erroneous. We had a trial. That doesn’t happen very often in these cases. You all litigated this thing and he wrote it all down and wrote a 50-page opinion.”
Matheson tried to argue that the panel should make a de novo review of the facts.
“Stick to the evidence and the legal issues,” King told him.
Wynn then asked: “If we decide that this is a matter in which we must determine whether the First Amendment applies under this experience and logic test, do you lose.”
Matheson said no, arguing that the term contemporaneous should not be measured in hours or days, and that a three-day delay was consistent with the overall concept of contemporaneous.
“Did you have witnesses saying that this was so onerous you couldn’t do it,” asked Motz.
“We didn’t say it was so onerous we couldn’t do it,” Matheson replied.
King’s voice then came back into the fray: “You sound like the First Amendment doesn’t apply to the state of Virginia. It’s the law of the land. It’s written in the Constitution. Virginia helped write it. It’s the supreme law of the land, the Constitution is.”
With 28 news groups at its back, the reporters committee was given a short time slot as amicus curiae. Committee lawyer Nelson emphasized the importance of speedy access in new reporting and the tradition throughout American courts where the clerks kept the newly filed complaints at the front counter, in a tray or box or bin, for reporters to look through.
“The Supreme Court has recognized timeliness as a fundamental aspect of the news,” Nelson told the panel. “Freshness and speed are key aspects of reporting, especially in today’s fast paced digital environment Civil complaints are most newsworthy when they are filed.”
“How are you defining contemporaneous,” interjected Wynn.
“Contemporaneous is same-day access, as the District Court found, on the same day of filing, in so far as practicable,” she answered.
“How do you define access,” Wynn asked.
“It would depend on how it was filed. In the courts at issue in the case where paper filing is still the practice, it involves going to the courthouse and seeing the complaint at the end of the day. As reporters have traditionally gone to clerk’s offices all over the country,” Nelson said.
“Is it required to be on the internet?” Wynn asked.
“That is not before the court. But internet access is an extreme benefit and has greatly increased access to judicial records around the country in the past decade,” Nelson answered. “The public also benefits tremendously in terms of accurate reporting when reporters have access to original source documents.”
“That is a good policy argument,” said Wynn. “How are you tying it into the legal issue that’s before us.”
Nelson concluded by zeroing in on the issue that had been the focus of the hearing. “This court held that where the right of access attaches access must be contemporaneous. We have been grappling with what that term means here today.”
The amici are: ALM Media, The Associated Press, Atlantic Media, Boston Globe Media Partners, California News Publishers Association, The E.W. Scripps Company, First Look Media Works, Inc., Gannett, International Documentary Assn., Investigative Reporting Workshop at American University, Investigative Studios, The Media Institute, MPA – The Association of Magazine Media, National Association of Broadcasters, National Freedom of Information Coalition, National Press Club Journalism Institute, The National Press Club, National Press Photographers Association, The New York Times, The News Leaders Association, The NewsGuild - CWA, POLITICO, Radio Television Digital News Association, Sinclair Broadcast Group, Society of Environmental Journalists, Society of Professional Journalists, the Virginia Coalition for Open Government, and the Virginia Press Association.
By the end of the afternoon on Tuesday, the panel had been hearing arguments in four different cases for nearly three hours. They veered into a side eddy of concern over the cases brought by Courthouse News around the nation, where it has fought to protect traditional access under attack by clerks in places as far flung as New Mexico, Missouri, Minnesota, Illinois, Ohio, Texas and Florida.
Judge Motz: Is there a request for attorney fees in this case?
Judge King: $1.9 million, right. And your firm was counsel in both the Seventh Circuit and the Ninth Circuit.
Motz: And you got great big awards there. This is like a gold mine, you just go around the country suing small courthouses.
As a point of fact, Courthouse News received no fee award at all in the Seventh Circuit litigation. It has received no fee award to date in ten years of Ninth Circuit litigation in the Planet case, although an application is pending. Courthouse News has filed against clerks in Houston, Chicago and New York City, three of the biggest courts in the nation, and it has settled four lawsuits walking away with no fees.
Hibsher: Your honor, we were very interested in settling this before we went to trial in this action. And before 18 months of litigation. there were efforts to settle the case right up to the beginning the case and they did not go anywhere. And quite frankly, my client is proud to bring actions in several courts across the country asserting its First Amendment rights which few media outlets are able to do at this time. So I don’t think that Courthouse News, or counsel, quite frankly, should be criticized for bringing cases that have merit and assert rights under the First Amendment of the Constitution.
Motz: I wasn’t criticizing. I was trying to find out why you wouldn’t settle the case.
She then instructed the clerk to conclude the Zoom broadcast of the hearing.
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