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Courthouse News Service
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The judge’s questions, part 2

October 17, 2023

In the many First Amendment cases brought by Courthouse News, comments and questions from the bench represent the judges unplugged, revealing their thoughts on the conflict before them and possibly suggesting where they might be headed.

Bill Girdner

By Bill Girdner

Editor of Courthouse News Service.

A judge’s questions and comments from the bench can show where the judge is going with our First Amendment claim and shine a lantern on the path ahead for the next case over the common clerk practice of restricting access to new electronic pleadings.

In the last column, I talked about the judge’s questions to government counsel in our case against the state court administrator in Idaho. But the judge certainly had some questions for the Courthouse News lawyer, as well.

At the hearing, held earlier this year in Boise, the judge is focused on apparent contradictions within the Ninth Circuit’s Planet III ruling, the culmination of our mega-case against the Ventura clerk. The 2020 opinion says the press does not have a right of “immediate access.” But it also says the clerks must meet the Press Enterprise II standard for restricting access, which states that access can only be restricted if it “is essential to protect higher values and is narrowly tailored to serve those interests.”


Judge David Nye: The way I read Planet III, the Circuit said that some of the — some steps of delay were allowed. I hear you saying that no steps of delay are allowed. How do you balance those two?

Jon Fetterly with the Bryan Cave law firm: If you reduce it to its core holding and the test that it provides, what it is saying is that some amount of delay is allowed if the defendant is able to satisfy their burden. That’s what makes this a qualified right of access. We’re not talking about a per se right. The test that the Ninth Circuit gives us here specifically contemplates immediate access by saying that the defendant must demonstrate that there’s a substantial probability that its interests — I’m paraphrasing — that its interests would be impaired by immediate access. Our position is, and at all points has been, defendant cannot satisfy this burden.


The scene shifts to a federal courtroom in Albuquerque in December of 2021. Judge James Browning had issued a decision giving the clerks five hours to process cases before the press and public must have access, a standard which would allow a majority of the pleadings to be withheld until the following day. Courthouse News asked Browning to reconsider that standard because it did not follow the test of Press Enterprise II requiring that any restriction on the right of access must be essential to preserve higher values and narrowly tailored.

Browning and the lawyer for Courthouse News, John Edwards with Jackson Walker, are talking about an injunction issued a month earlier by U.S. Judge Christina Reiss in Vermont. Her November 2021 opinion in Courthouse News v. Gabel is the most lucid analysis of the issues common to more than twenty cases brought by Courthouse News. Those cases attack the clerk practice of blocking access to new electronic pleadings until they are docketed, which regularly results in 1-3 days of delay.


Edwards: I think it’s important to note that she did make the same findings that you did about when the right attaches.

Browning: Well, she quoted us. She seemed to go, and you can tell me if I’m wrong, she went with the traditional First Amendment analysis: Here’s the right. To overrule the right, you have to have a narrowly tailored exception or compelling state interest, and then you have to have — and she just didn’t find either one of those. Reading the transcript and reading her opinion, she was extremely skeptical of the State doing all this screening, and things like that. She didn’t put much value in that.  And I think that’s partly the problem that federal judges are having with these states, they’re just not quite sure why they’re doing this. But then, not only did she have that skepticism, she just didn’t see it was narrowly tailored. And so she just went off, it seemed to me, with a traditional First Amendment analysis. She didn’t spend a lot of time with whatever the traditional right was.

Edwards: Well, I think the Gabel decision is a good road map, Your Honor, because it does emphasize the Press Enterprise II test. And I think it is a proper application of that test in the court records access arena, and it’s not just Judge Reiss that has used it. Other courts have used it as well, including Tingling, including Jackson, decisions we’ve cited to you before where the exact same issue is being presented.


So the judges in both hearings, in Idaho and New Mexico, are asking about the standard they should apply in judging a Courthouse News attack on the clerk’s practice of withholding access to new pleadings when they are received. In both hearings, the judges are being asked to follow the guidelines of Press Enterprise II requiring an overriding justification — essential to the preservation of higher values — and narrow tailoring to serve those interests.

The discussion in Browning’s courtroom continued and will continue here in the next column.

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