Tradition is at heart of First Amendment action against South Dakota

Since time beyond memory, the courts of the Midwest have stood as constitutional bulwarks protecting the right of access by the people of their regions.

The federal courts set a wooden drawer on the counter where new pleadings were put as soon as they crossed into court. The state courts in the region were open too.

That Midwestern way of democracy was at the heart of a hearing two years ago in the 8th Circuit Court of Appeals. The court covers a great swath of seven Midwestern states, including Missouri, Iowa, Minnesota and the Dakotas.

In its makeup, the court has come from the conservative side of the political aisle with a dominating 16 out of 17 judges appointed by a Bush or Reagan. It has been a staunch defender of traditional constitutional liberties.

The hearing in 2022 involved an appeal by Courthouse News in a First Amendment case over access to electronic pleadings in Missouri. A lower court judge had dismissed the case, saying it had no business in federal court.

During the hearing, two members of the three-judge panel described the tradition of public access to the courts. 

“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 Judge Bobby Shepherd.

"What we're saying is that, oh, for about 230 years, you can walk into a courthouse, into the clerk's office, and say, 'Hey, can I see what's been filed today,’” said Judge Ralph Erickson

The panel then reversed the district court judge, finding that a First Amendment case does belong in the federal courts. The ruling also opened the door to First Amendment challenges against other Midwestern states that also cut off traditional access in the switch from paper to electronic filing.

On Friday, Courthouse News filed a First Amendment complaint against court officials in South Dakota where they are sealing new pleadings when they first arrive in court. The case was assigned to U.S. District Judge Lawrence Piersol and made public on the remote PACER system on Friday.

“Despite its reach, Courthouse News remains a small company,” said the complaint. “At great expense, it has undertaken litigation against large state bureaucracies that are using publicly funded legal teams to deny the tradition and the right of access.”

South Dakota, like many states, leases privately coded software from Tyler Technologies for its electronic filing system. Tyler gives its court customers three alternatives for old-fashioned public access at the time new pleadings arrive in the clerk’s office.

One is an electronic inbox, the equivalent of the wood drawer on the counter. Another is automatic processing of new pleadings into the public docket. A third is a programming interface that allows court IT personnel to set up the electronic inbox themselves.

But court officials in South Dakota refuse to use any of those alternatives

Despite the clear run of rulings that protect traditional access, a group of state court bureaucracies have used their size and their publicly funded budgets to fight the tradition described by judges Shepherd and Klein.

Based on deposition testimony in other Courthouse News cases, state court administrators work together through the national Conference of State Court Administrators to pursue a common legal strategy. They use an institution meant to aid the state courts, the National Center for State Courts, to develop that strategy, and then use publicly paid lawyers to engage in legal trench warfare.

In contrast to that dog-with-a-bone denial, two other states within the 8th Circuit, Missouri and Iowa, have recently agreed to give public access at the time of receipt — what the South Dakota complaint is asking for — on a statewide basis. They are using two of the alternatives, in Iowa an electronic inbox, and in Missouri the automatic push of new pleadings into the public docket.

However, along with South Dakota, another state within the circuit, Minnesota, has also decided to fight public access and appears to be hunkering down for trench war. Its state court director, Jeff Shorba, became president of the national Conference of State Court Administrators in 2021 and vice president of the National Center for State Courts.

Organized in Williamsburg, Virginia, the two publicly supported institutions have developed a justifying mantra called “practical obscurity,” which argues that court records in paper form were obscure so electronic records should also be obscure.

In fact, as Shepherd and Klein pointed out from the bench, new pleadings in paper form were not obscure. They were on the counter for all to see as they came into court.

The framework for the First Amendment war over electronic filing — which is being fought all across the nation — is the seminal opinion by the U.S. Supreme Court in Press Enterprise II which was about access to pretrial hearings in a notorious criminal case prosecuted in Riverside, California.

In that opinion, the high court said, “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values, and is narrowly tailored to serve that interest.”

The status of new pleadings as documents protected by the First Amendment right of access has been cemented into place by federal court opinions in California, Florida, Illinois, Ohio, New Mexico, New York, Vermont, Virginia, and in the Ninth, Fourth and Tenth Circuit Courts of Appeal.

Once that right is established, court administrators are then forced by Press Enterprise and related rulings to justify the restriction — they must identify the higher value being protected and explain why the alternatives don’t work. Generalities won’t do, they must be specific.

“Without Defendants’ no-access-before-processing policy, there would be no restriction and no delay,” said the introductory section of the Courthouse News complaint against South Dakota. “The restriction is unnecessary, as demonstrated by the many state and federal courts across the country that provide access to new complaints on receipt, regardless of whether court staff have completed administrative processing. Defendants are capable of providing such access but have chosen not to.”

Courthouse News is represented by Herbert Giorgio and Aaron Yuratovich with Bryan Cave in St. Louis and Brendan Johnson with Robins Kaplan in Sioux Falls. The defending North Dakota state court administrator, Greg Sattizahn, is not yet represented, but his lawyers will be paid by the public. He became president of the national conference of administrators, COSCA, in 2023 and is a past president of the National Center for State Courts.

The action against him pleads one single count for a violation of the First Amendment of the U.S. Constitution. It asks for an injunction against the no-access-before-process policy.

The single count reads: “Defendants’ actions, including their policies and practices of withholding newly filed, non-confidential civil complaints from press and public view until after administrative processing, and the resulting denial of timely access to new civil complaints upon receipt for filing, deprives Courthouse News, and by extension its subscribers, of their right of access to public court records secured by the First Amendment to the United States Constitution.”

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