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Tenth Circuit rejects bid by New Mexico courts to withhold access

The federal appeals court covering six states rejected an appeal by New Mexico’s court administrator who said clerks should be allowed to withhold access to new court records until they are old news.

(CN) — In a consequential opinion on the eve of Thanksgiving, the Tenth Circuit ruled that the public right of access to new court complaints attaches at the time they are submitted. Wednesday’s 55-page opinion falls into a legal battlefield that stretches to every corner of the nation.

In addition to finding the right of access attaches upon submission, the opinion’s author, U.S. Circuit Judge Mary Beck Briscoe, rejected another defense raised by New Mexico’s court administrators who said the federal court should abstain, which roughly translates as the state court administration saying to federal courts, stay out our business.

Critically, the Bill Clinton appointee also overturned a bright-line “five-hour rule” put in place by a federal trial court judge in Albuquerque, who said the clerks could withhold new complaints for five business hours which meant the majority could be held past the day they were submitted.

The Tenth Circuit, based in Denver, covers a wide swath of the West and Midwest including New Mexico, Colorado, Wyoming, Utah, Kansas and Oklahoma. On the panel for the case between Courthouse News and New Mexico’s administrative office were Judges Timothy Tymkovich, a George W. Bush appointee, and Barack Obama appointee Gregory Phillips in addition to Briscoe.

During oral argument this summer in front of that panel, Jon Fetterly with Bryan Cave argued for this news service that there is no need to withhold cases from the public in favor of clerical work because the public can see new cases at the same time that court clerks docket or “accept” them. The federal courts themselves give public access to new complaints when they are submitted and federal clerks do their work, at times correcting the submission, at that same time.

“Here, we conclude that the district court did not err in concluding that a First Amendment right to access civil complaints attaches when the complaint is filed (or submitted) to the court,” wrote Briscoe.

She pounded that point home by adding, “The New Mexico Courts have not cited to any case that supports the proposition that the right of access attaches at the point of acceptance, nor are we aware of any such case.”

The litigation was brought by Courthouse News against the administrator of New Mexico’s courts over their statewide “no-access-before-process” policy which held new complaints back until clerks finished reviewing the new filing and “accepting” them into a public docket. As a result, many of the new complaints — a regular source of news — were delayed until the next day.

“Reporting on complaints must be timely to be newsworthy and to allow for ample and meaningful public discussion regarding the functioning of our nation’s court systems,” wrote Briscoe, quoting from the Ninth Circuit opinion referred to as Planet III.

During a hearing in federal district court in Albuquerque, Courthouse News witnesses testified that the tradition of press and public access was very strong in New Mexico in the days of paper filing. Reporters saw new cases when they crossed the clerk’s intake counter.

Like many state courts when they converted to e-filing, public access went backwards. The clerks held back the new e-filed cases.

A timeline of Courthouse News' fight for public access in state courts. (Taken from a defendant exhibit in Courthouse News Service v. Harris, et al.)

U.S. District Judge James Browning, sitting in Albuquerque, enjoined the administrators after that hearing. But he also set out a bright-line rule that gave them five hours to finish their clerical work. The case then took on an unusual procedural turn. New Mexico appealed on the issues of abstention and when the right of access attaches, while Courthouse News used one answering brief to both defend Browning’s rulings on the first two points but also attack the five-hour withholding window.

In Wednesday’s ruling on that appeal, Briscoe rejected New Mexico’s two main defenses: that the right of access attaches only after the clerks have done their administrative work; and that the federal courts should take a back seat to state courts in a constitutional challenge that affected state courts.

“Contrary to the New Mexico Courts’ assertions, their position that the right of access attaches to complaints only after clerks have completed their review is directly at odds with the principles underlying the First Amendment access right,” wrote Briscoe.

Representing Courthouse News, Katherine Keating with the Bryan Cave law firm said, “This opinion is the nail in the coffin for the notion that the First Amendment right of access does not attach until the court completes administrative processing.” 

Fetterly who argued the case before the Tenth Circuit, added, “It is also the latest circuit opinion to reject abstention as a defense to this important First Amendment right."

Four circuits have now rejected the abstention defense, the Fourth, Eighth, Ninth and Tenth. In addition, district court judges within the Second, Fifth, Sixth and Eleventh circuits have also rejected the defense. The unanimity of those opinions leaves the Seventh Circuit isolated as the lone court to rule in favor of abstention.

Briscoe’s Tenth Circuit 55-page opinion cited to key rulings in favor of Courthouse around the nation, including last year’s ruling by Judge Christina Reiss in the U.S. District of Vermont who enjoined Vermont’s clerks after finding the work of the clerks was what was holding up access to new complaints, and that it need not. The clerks could do their administrative work after or at the same time that public access was granted.

The Tenth Circuit opinion drops into an active and vast field of legal battle with cases on the same basic issues pending in trial courts in Oregon, Idaho, Texas, Ohio, Missouri and Maryland, and on appeal in the New York-based Second Circuit.

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