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Courthouse News Service Courthouse News Service
Op-Ed

Rocket docket: Wonder to behold

January 18, 2022

Our bureaucratic opponents have a silent ally, slowness. But the ally is not present in the federal court for eastern Virginia where the rocket docket rolls, producing a ruling in one of our cases the same week it was argued.

Bill Girdner

By Bill Girdner

Editor of Courthouse News Service.

The rocket docket in Virginia’s eastern district rocketed last week, producing with remarkable speed an opinion denying state motions to dismiss a complaint over Virginia’s online records that exclude the press and public.

I had been thinking about this lately because the army of bureaucrats that fight us have time as their ally. The federal dockets are jammed up.

So in Texas, for example, the federal judges in Austin are scheduling trials in the late spring of next year. And then there will be the appeal, which depending on the circuit, can take years.

I remember Judge Morgan also in the Eastern District of Virginia saying early last year, with some amazement in his voice, that our case against the Ventura clerk had been pending in the Ninth Circuit for two years. Although ears may have reddened slightly out in the West because the Planet III ruling came down in late January, just a couple weeks after his remark.

Morgan ruled in our favor after a four-day trial, saying Courthouse News had a First Amendment right of contemporaneous access to new court filings.

But there were two First Amendment issues at stake in Virginia.

One was that a clerk had removed the box where the paper complaints were put as they crossed the counter, and instead told our reporter to look at them after they were docketed and scanned onto her computer system.

A sign over the monitors said it could be ten days before the records showed up for viewing. That was the case before Morgan.

The second issue was that the state courts were giving lawyers statewide, online access to all court records. While the press and public were locked out.

A journalist would have to drive for eight hours to cover the nearly 500 miles from the easternmost to the westernmost court in Virginia in order to see their court records locally.

Those same records are available with a few taps on a keyboard to any lawyer in Virginia.

That is the case before Judge Henry Hudson in federal court in Richmond.

So our point was not that the press and public have a First Amendment right to online access to court records. Our point was that once those records are put online, then the state cannot restrict public access unless it passes the First Amendment test of an overriding reason and a least restrictive alternative.

Virginia failed that test.

Last week, the case came before Hudson on Monday. The government lawyer for the administrator, called the “court executive” in Virginia, argued in essence that it was dangerous to put documents on the internet.

Remarkably, Hudson heard the state motion to dismiss on Monday and published a 14-page opinion rejecting the motion late Friday the same week.

The state online system is called Virginia Officer of the Court Remote Access..

“Here, Plaintiff alleges that OCRA’s non-attorney access restriction is not narrowly tailored to preserve any significant governmental interest. Defendants argue that limiting OCRA access to Virginia attorneys allows them to more easily police misuses of the confidential or private information contained therein,” wrote Hudson. “Yet, as alleged by Plaintiff, OCRA contains identical court records that are already available to the public at physical courthouses.”

In addition, he said, all users of the online system sign must sign a “subscriber agreement” that allows the court administrator to cut access if it is misused.

“These allegations could lead to the reasonable inference that the non-attorney access restriction is not narrowly tailored to preserve a significant governmental interest and thus, could violate the First Amendment,” he concluded.

The ruling took away the key arguments of the defendants but also removed a silent ally of the state — the slow pace of resolution. So I’m now a committed fan of the rocket docket.

Categories / Courts, Op-Ed

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