The judge’s questions, part 1

I usually order a transcript after our hearings. I find that the questions from the bench often give a hint as to where the judge’s decision will fall. They also should be studied to prepare for the next argument on the same subject.

So here are the questions from the bench in our case against the restrictions imposed by Idaho on access to new pleadings at the time of receipt. The questions were asked in two hearings, last year and this year.

The court administrator, represented by Keely Duke, is arguing that a new pleading is not filed until a clerk reviews and accepts it.

Judge David Nye: Tell me how it works if a plaintiff’s lawyer on Friday afternoon files a complaint -- well, submits a complaint under your argument, and that’s the last day of the statute of limitations, but the case isn’t actually filed until Monday when it’s reviewed. Have they lost their statute of limitations argument?

Duke: No. I don’t believe anything in the rules provides that.

Nye: So it is filed when it’s submitted?

Duke: Well, it’s been provided to the court, and we have the specific provision that indicates that it’s effectively accepted with a three-day window for corrections to be made.

Nye: I guess my real question is, is that so for some purposes, the complaint is deemed filed when it is submitted to the court? But for other purposes, including today’s argument, you’re saying it’s not filed until it’s been reviewed and accepted?

....

Nye: If the — if these are Idaho Supreme Court rules and not some clerk’s policy, as you said, and if the Idaho Constitution authorizes the Supreme Court to make these rules, then who oversees the constitutionality of the rules? We can’t let the Idaho Supreme Court review their own rules, can we, for constitutionality?

Duke: Why not? I mean, that’s — that’s the purview of what they’re able to do.

Nye: Well, I’m having a hard time with that.

...

Nye: Doesn’t your argument, though, run counter to the [Tenth] Circuit’s recent decision where they said — and these are my words — once the sender hits send, it’s filed? I mean, isn’t there a big difference there between that and the way the Idaho courts are doing it?

....

Nye: So if I’m understanding, you’re saying in Idaho — how do I say it? It’s not the plaintiff who determines when a complaint is filed, it’s the courts?

Duke: The plaintiff decides they’re going to initiate it, but they need to go through a ministerial review to make sure that they checked the right boxes.

Nye: Well, the only one I’m curious about is, are you aware of any other state out there that uses this, what I’m going to call Idaho’s system of determining when a complaint is filed?

....

The argument moves to a second issue where the defense is arguing along the fine points of Ninth Circuit rulings on access. The most cited, Planet III, says there is no “right to immediate access,” but nevertheless requires that clerks follow Supreme Court precedent saying a restriction on access cannot stand unless it is essential to preserve higher values and is narrowly tailored to serve that interest.

Nye: Am I splitting the hairs too much to say that there’s a difference between providing it immediately and not delaying access? Could I view those as two separate things?

Duke: Of not providing it immediately and of delaying access?

Nye: Not delaying access. Is there a difference between immediate access and not-delayed access?

Nye: I think they may be the same question. I’m not sure. The way I see it, what CNS wants here is what the federal courts already do. If it works here in federal court, what’s the harm with doing it in Idaho? That’s the first question.

And the second question, I have no doubt that the state clerks do great work, why, but why can’t they do the exact same work on the back end, after filing, rather than on the front end?

....

The judge also asked the Courthouse News lawyer about what appear to be contradictions within the Planet III ruling, which I will cover in the next column.

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