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Tenth Circuit hears Courthouse News First Amendment argument

Even as the blizzard rages, a lawyer can file a new complaint electronically and it can be made public when it is received. That was the point made by the lawyer for this news service, as the Tenth Circuit panel grilled him on what might limit the First Amendment right of access.

(CN) — In the august setting of the historic Tenth Circuit courthouse in Denver, a trio of judges challenged a Courthouse News lawyer on three main fronts during a First Amendment hearing over New Mexico’s policy of delaying access to court records.

In short form, they asked: was Courthouse News callous to the difficulties faced by local court clerks; should the clerks review new filings before they become public; wasn’t the news service demanding “immediate” access.

The Tenth Circuit panel hearing arguments Thursday was composed of Chief Judge Timothy Tymkovich, a George W. Bush appointee from Colorado, Bill Clinton appointee Judge Mary Beck Briscoe from Kansas and Judge Gregory Phillips, a Barack Obama appointee from Wyoming.

During the hearing, crews of youthful law clerks from other chambers came into the hearing in groups of three and four, each quietly sitting down apart from the others, with nothing more than an occasional wave to a competing crew. At one point, there were 13 law clerks, evident by their youth and formal attire, in the public seats.

The case involved a policy by New Mexico’s courts that denies public access to new civil complaints, which are a longstanding source of news, until after local clerks have finished their clerical work. That work of checking entries made by the filing lawyers often pushes public access past the day the complaints are filed, turning them into stale news.

In the federal courts and a growing number of state courts, the public and the press can see new complaints as soon as they hit the court, and the clerks do their checking and correcting afterwards. New Mexico insisted the clerical work come first.

So Courthouse News filed a First Amendment action.

In the lower court, U.S. District Judge James Browning refused to “abstain,” meaning he did not need to defer to the state courts, and he found that the public right of access attached the moment a new case was received by the court. But then he undercut his ruling by coming up with a bright-line “five-hour rule” that gave the clerks five work hours during which they could deny public access.

The practical effect of the five-hour rule was that any case filed after noon could be blacked out until the next day when it is as stale as day-old bread.

The Byron White Federal Courthouse in Denver, home of the 10th Circuit. (Amanda Pampuro/Courthouse News)

New Mexico appealed Browning’s decision because he refused to abstain and because he said the right of access attached on receipt. New Mexico also challenged the five-business-hour rule because clerks saw it as too strict. Courthouse News agreed with that challenge for essentially opposite reasons, because it was a rule made up by the judge that allowed a majority of the new complaints to be blacked out on the day they were filed.

New Mexico Assistant Attorney General Erin LeCocq argued that delay should be measured not from the time when a new complaint is received but instead from the time clerical work is done.

LeCocq: What should be allowed is the access to the indelible document upon which the court relies, which is a court record.

Chief Judge Tymkovich: Under your argument would it be, would it be permissible for the clerk to hold back civil complaints for a week if they're a super slow court or whatever. Is there any time limit that would not evade Press Enterprise?

LeCocq: I don't think it would be very often.

But most of the hearing’s heat was directed at Courthouse News lawyer Jon Fetterly with the Bryan Cave law firm. About midway through the hearing, the chief judge aimed his first salvo.

"Well, you would agree that some delay would be appropriate for the court to look at confidential information or make a determination that a complaint may or may not be subject to public scrutiny right away," Tymkovich said.

The question goes to the nut of the local clerks’ most common defense in suits over access, that they need to check for confidential cases because the filer might make a mistake. A string of district court judges in cases with virtually identical facts have rejected that argument, pointing out that the duty to correctly label a confidential case falls on the filing lawyer and not the clerk.

During the hearing, Fetterly repeatedly pointed to a decision last year by U.S. District Judge Christina Reiss in Vermont who concluded that placing the duty on the lawyer had been “overwhelmingly effective.”

Trying to defend the delays, a New Mexico clerk had testified in last year’s hearing in Albuquerque that a lawyer had once intentionally attempted to e-file a confidential complaint. But New Mexico’s court officials presented no statistical evidence of lawyers e-filing confidential complaints during that hearing, largely because a New Mexico rule requires that they must file confidential cases the old fashioned way, by walking them into the clerk’s office in paper form. 

Fetterly: Not necessarily. The e-filing systems we've seen in other courts is that there are alternative ways of safeguarding that concern.

Tymkovich: What's the best way to do that and how would you fashion the injunction?

Fetterly: So the injunction is problematic because it allows this five-hour grace period. It's a de facto —

Briscoe: And you wouldn't even allow that. It would be instant access. Is that what you want?

Fetterly: I think instant access is on the table. It's not —

Briscoe with light laughter: We want to know what you want.

Fetterly: We want undelayed access.

Briscoe: That’s what I thought.

Fetterly went on to explain why undelayed access — which is the same as access on receipt — is required under the main U.S. Supreme Court holding on the right of access, Press Enterprise II, which involved the Riverside, California, newspaper’s challenge to exclusion from pretrial proceedings in a notorious murder case.

The test set out by the nation’s high court in that case requires first an analysis of whether the right of access attaches, a question that has been answered by the many judges who have found it attaches to civil complaints. The second part of the test looks at whether the state has a compelling reason for restricting access and whether there are any less restrictive alternatives.

The Ninth Circuit has adopted a “rigorous” standard of reviewing access denials based on Press Enterprise II. The Fourth Circuit has used a related test which looks at the “time, place and manner” of the restriction.

Referring to those precedents, Tymkovich asked, "It's a qualified right here under the cases. So time, place, manner, what's a substantial justification — whatever rule we apply here, you want undelayed access. If we disagree with undelayed access, between that and five hours, is there a sweet spot?"

That was the money question.

Judge Reiss in Vermont considered the same question of whether there was some middle ground between a five-hour rule and access on receipt. She ultimately rejected the five hours as a “bright-line rule” and found there was no justification for any delay. Within three weeks of that ruling, Vermont converted all its courts to automatic public access on receipt.

 Fetterly: That will hinge on the defendant's ability to satisfy their burden under constitutional scrutiny. That's the second part of the test and that's where the district court erred, quite frankly. The district court attempted to define timely access as access within five hours. He rewrote the test to insert the five-hour grace period, meaning that there's a five-hour window where complaints are not subject to any scrutiny at all. And a court clerk can withhold access for any reason or no reason at all.

The lawyer for Courthouse News emphasized the fact that New Mexico does not allow confidential complaints to be e-filed. They must be walked into the clerk’s office.

Briscoe: But they could be, but they could be. I mean, it's crazy idea I know, but sometimes counsel don't follow the rules.

Fetterly: I don't think the record has sufficient examples of this being a pervasive enough problem that would warrant suspending the First Amendment and restricting access to the vast majority —

Briscoe: But it does, but it does give fuel to the argument that there is a purpose for the clerk review of the document.

Fetterly: I think that purpose is best analyzed under the second part of the Press Enterprise II test, which really lies at the heart of this case. And it's a two-part test. The first part asks if there's a right of access that attaches to the particular document and when it attaches. The second part is constitutional scrutiny. Are the delay-causing practices justifiable under the constitutional scrutiny. Can they justify their practices?

He went on to direct the panel’s attention to the situation in Vermont where the same e-filing system as the one used in New Mexico is now giving public access ahead of the clerical work by the clerks. That shows that the New Mexico clerks have a “less restrictive alternative” to their policy of blacking out the new complaints until they have been checked and corrected.

U.S. District Judge Christina Reiss of the District of Vermont.

At another point in the hearing, Briscoe suggested Courthouse News was being hard on local clerks.

Briscoe: I mean, I'm from Kansas and I can relate. There are places that are very small, very understaffed and to slam in a rule that's going to apply across the state, shouldn't there be some leeway?

Fetterly: I don't believe so. And here's what I mean by that. We're not being unsympathetic to the court clerks and their need to do their jobs. What we're saying is they cannot restrict and withhold access while they do their jobs unless there's some compelling reason and no reasonable alternatives. That’s the second part of the Press Enterprise II test and the district court failed to apply it faithfully.

Briscoe: How about a snowstorm, dust storm, I don’t know what.

Fetterly: I think the opinion out of Vermont —

Briscoe: Do you see any reason at all? There should be absolute access in your view. No, no leeway.

Fetterly: It hinges on the alternatives. If there are alternatives that would provide access while also addressing the courts administrative concerns and their interests without delaying it in an e-filing world. The fact that a court clerk is unable to come to a courthouse because of a snowstorm doesn't have to preclude access. This is the federal court. This is Pacer. We file the document, it's automatically accepted. Once the document is filed and submitted, it's immediately available, there could be snow on the filer's end and on the court's end but it's not going to affect the fact that a document has been filed. A right of access has attached and access should be made available.

Briscoe: Computer down, software not working. We don't care.

Fetterly: We're not asking for something that would be so unyielding to account for —

Briscoe: Isn't the five-hour business rule unyielding.

Fetterly: I think it's unyielding on the First Amendment because it allows for a grace period that shouldn't exist under the second part of the Press Enterprise II test.

The third judge on the panel, Gregory Phillips, then threw a different question at the lawyer, aimed at the fact that New Mexico appealed the ruling below but Courthouse News did not, opting instead to ask for a reconsideration and stay in the trial court.

Phillips: To challenge the five-hour period, did you have to cross-appeal?

Fetterly: Well, you're correct that we did not cross-appeal. We don't think that precludes us from agreeing with defendants that the five-hour rule is erroneous and that the district court should simply try again. What we would ask this court to do is simply provide some clear instructions for the district court going forward.

Next to the lectern where the lawyers stood to make their arguments, the Tenth Circuit had set up a large monitor, the size of a substantial television screen, with a green background that counted down the time as they argued, with a time limit of 15 minutes.

When there was three minutes left, the screen turned yellow. And when time was up, the screen turned red. But the panel of judges allowed Fetterly to make his final argument as the screen turned red and the overtime ticked above two minutes.

“It's not the court's job to divine the correct amount of time of permissible delay,” Fetterly argued in the red zone. “Judge Reiss addresses this in her order out of Vermont, It's the court's job to determine whether any delay can be justified under the Press Enterprise II test and if the defendants cannot satisfy their burden, then Courthouse News should be entitled to on receipt, undelayed access.”

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