The way back

The check was for $13,000 and it represented almost the entire amount of attorney fees spent by Courthouse News in obtaining a return of First Amendment access to new pleadings filed in Cleveland.

It was a big deal because the clerk was reasonable.

As soon as we filed a First Amendment complaint, the clerk agreed to let press and public see electronic pleadings as they are come across the virtual counter. The settlement brings back a tradition from the days of paper in Cuyahoga Court of Common Pleas.

In contrast, today we received a motion to dismiss from the clerk in Akron who is going a different route, claiming sovereign immunity. That tactic, basically throwing every possible legal argument against the wall to see what sticks, is more familiar.

It is a tactic that resulted in checks for millions of dollars delivered by California and Virginia after losing scorched earth litigation to Courthouse News.

The difference is explained by the reasonable approach to questions of public access taken by individual clerks in some state courts and hardcore resistance by others. Intense litigation is currently underway in Maryland, for example, and approaching that level in Minnesota and Iowa.

In the big picture, courts all around America used to keep a wire basket or wood box on the counter where new civil complaints were put as soon as they crossed the counter. The press and public could check the box and see what was new any time during the day.

What happened was that in the switch to electronic records many state court clerks adopted a restrictive view of First Amendment access. They pushed a theory called “practical obscurity,” arguing falsely that paper records were traditionally difficult to find.

Under that credo, they withheld access to new civil complaints and other pleadings until clerks entered them into the docket. That inserted delay — sometimes a day but other times weeks — into the ability to look over and report on new pleadings, which often generate big news.

The restrictive ideology is defended by the Conference of State Court Administrators and supported by the National Center for State Courts.

The war against it has produced what is in essence testimony from the folks in black robes. Federal judges often remember the old basket on the counter.

“There was a time when — and some in this room may remember it — when you took a pleading to the courthouse and the clerk stamped it physically and it went into different bins and it was available immediately,” said 8th Circuit Judge Bobby Shepherd last year.

That was the way it was throughout Ohio, in Cincinnati, Cleveland, Columbus and Youngstown, when paper was the lawyers’ medium. And that is the way it is again in Cleveland, except in electronic form.

The small check was the final piece of the settlement with Cuyahoga Court of Common Pleas Clerk Nailah Byrd. The old wire or wood basket on the counter is now a virtual basket on the clerk’s website.

According to the settlement, “The County Defendants have modified their previous practice and procedures such that newly filed and nonconfidential civil complaints filed with the Cuyahoga County Clerk of Courts are posted on the Clerk’s website immediately upon their receipt and prior to review or redaction by staff in the Clerk’s Office.”

Remote access is turning into another front in the long war over access to new electronic pleadings.

Protected through a username, password and other requirements, remote access allows for reporting on cases filed late in the day, after the wood-and-concrete courthouse has closed. The modern electronic reality is that new pleadings are filed, clerks work, and judges issue rulings outside courthouse hours.

Fully 36 states now give remote access in at least one court in the state if not the entire state, and federal courts throughout the U.S. give remote access to records through the PACER system. In contrast, a minority of courts continue to limit public access to terminals in the clerk’s office during courthouse hours, which cuts off a big chunk of pleadings.

The long war continues.

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