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Op-Ed

The one we were waiting for

December 7, 2021

We had suffered a series of defeats in our campaign over the right of access, and then along came a federal judge in Vermont who put the First Amendment train back on track.

Bill Girdner

By Bill Girdner

Editor of Courthouse News Service.

When, during the holiday season, you are thinking about giving thanks, you might not first think of a legal opinion. But the ruling that came down last month in Vermont was the one we had been waiting for.

Judge Christina Reiss in the federal court in Burlington saw the factual foundation poured over ten years, and to her great credit built her logic on that solid base, using the tools of First Amendment law.

In the last few months, one judge had punted on the same issue, saying that the same state officials denying access should be the ones to decide if it was lawful. Another had undercut First Amendment law in order to rule in favor of the local court bureaucracy. While a third had given us a putative win that allowed more delay than we sued over.

And then along came Reiss with the real deal.

She understood the foundation stone of the argument, that the task done by the old intake clerk is now done by e-filing software. So that access to e-filed complaints could take place on receipt.

And cataclysm, horrors and disaster — most especially public “confusion” — would not follow.

From that stone of truth the judge could then walk through the sequence mandated by 30 years of Supreme Court law. Does that state have an overriding reason for interfering with the right of access and if so, has it used the least restrictive alternative.

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

Our lawyer in the Vermont case, who has won three straight cases for us, used to be a school teacher. And he told me at one point during our Virginia case that he approaches his trials and arguments with the classroom in mind.

William Hibsher with Bryan Cave is teaching in the courtroom just as he was in the classroom, working to get a set of clear simple lessons conveyed, understood and remembered. And his presentations, now that I think of it, are prepared like lesson plans.

The critical part of the lesson plan that I think the judge already knew intuitively was that the person doing the filing, who is almost always a paralegal, has to go through a set of screens that check off information, actually a lot more than the old intake clerk checked for at the counter when cases came across in paper form.

And the second piece was that there is a less restrictive alternative that is in fact just sitting out there waiting to be summoned. E-filing software already has been configured by many vendors to provide access as soon as a new filing is received.

So it’s easy.

Now that has not prevented the state from blowing a truly prodigious amount of smoke into the courtroom. And the Vermont Attorney General was no exception, arguing that access would “interfere with the administration of justice.”

After the opinion itself, the second thing I kept coming back to was the Vermont media, a truly scrappy bunch. In our battles elsewhere, we often fight alone. But in Vermont, a long list of media outlets was on the pleadings.

One of them, called the Vermont Digger, published a story on the ruling reported by Alan Keays who quoted from the 22-page opinion:

“Timely access to documents allows the public to understand the activity of the court system, increases accountability and keeps people informed of matters of public concern.”

The writer then quoted a passage that I had also quoted in my coverage: “Defendants’ pre-access review thwarts these objectives in an inconsistent, unpredictable and unjustifiable manner. Defendants have violated the public’s and plaintiffs’ First Amendment right of access to newly filed complaints.”

Clear and simple, like in class, easy to understand. The judge got it. The journalist got it.

The reporter then paraphrased Mike Donoghue, the head of the Vermont Press Association, saying the issue of delays in access had been around for quite a while in Vermont.

He pointed to the example of a plaintiff’s lawyer giving a press conference to announce the filing of a suit while the same action is being held back for processing inside the clerk’s office.

“It was just a fight that we didn’t take all the way down to the goal line,” said Donoghue. “Courthouse News expressed interest in taking the lead on this, and they had the lawyers.”

We did indeed. Another reason for giving thanks.

Categories / Civil Rights, Media, Op-Ed

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