After we won a sweeping written decision in federal court in Virginia last week, a reporter called me and asked why I spent all the money on lawyers to fight the battles over access. I told him it was the principle. I do really believe the courts should be open as part of our form of government and, I told him, the documents are part of that.
That openness can be seen through the lens of time. For decades past, and I think long before that, reporters throughout the U.S. would head down to the clerk’s office at the end of the day to see what new matters the river of litigation brought that day.
Our lawyer, William Hibsher with Bryan Cave, asked me about the tradition during the Virginia trial that preceded last week’s opinion by Judge Henry Coke Morgan Jr. At times during the testimony, the judge jumped in with questions. Hibsher began:
Q. When you were covering the federal courthouse in Los Angeles in the mid ‘80s, were there other reporters also covering the courts?
A. There were about seven reporters. It got more crowded when there was a big trial, but on a day-to-day basis there were seven reporters.
Q. So how did you and the other members of the press see newly filed civil litigation in those days?
A. When I started working there, I found a tradition which was that all of us would troop downstairs to the clerk’s office around 4:30, and we would go up to the intake clerk and we would ask her for the stack of new civil complaints from that day, and we would also check the stack of rulings and opinions for that day. And the result was that we book-ended the work of the court: We saw the new business on the one end, and we saw the conclusion, the judgments, the rulings and the opinions at the other end.
Here the questioning moves to the expansion of Courthouse News.
A. I went to Chicago. The big markets first. Chicago, New York, Boston, Washington D.C., and kept going to Miami, Dallas, Houston, Phoenix, Portland, Seattle, all the big cities.
Q. And did other press reporters cover those courts at that time?
A. Yes. I found the same tradition that I found in Los Angeles in federal court. That was nearly universal. There was either a wood box or a metal tray that was on the counter or behind the counter that reporters looked at the end of the day, and that tray or that box contained the new civil complaints filed that day.
Q. And have you had an opportunity to observe how clerks typically process or docket new cases in these courts?
A. Yes. At times I have asked the clerks to take me through the process. To actually pretend that I was a complaint.
Q. And how would you describe in broad strokes what indexing, processing look like in these courts?
A. There’s a basic commonality to all the paper courts. It’s a two-step process. The first step is the intake process, where the intake clerk receives the new complaint, receives a check, normally, and it’s followed by a flurry of stamping. The clerk leafs through the complaint, she gives a receipt for the check, and often will provide a stamped copy for the filer to take away, the receipt. The intake clerk will then put it in the box I talked about, either the tray or the wood box, and there it sits for the rest of the day. Another clerk, the docketing clerk, would come pick up the new complaints from that box the following morning and enter them into a docket.
Q. So at what stage of this two-step process were you and other reporters allowed to see the complaint?
A. Yeah. Right after they crossed the counter.
THE COURT: This is in California?
THE WITNESS: No, Your Honor. That’s everywhere. It was in Boston, in New York, in Chicago. In all the cities I mentioned. In Dallas. In Houston. Miami. It was common. This tray? They had one in Prince William. It’s everywhere.
THE COURT: All right.
MR. PRINCE: [William Prince represents Prince William] Your Honor, if I may, we’re going to object to the relevance of this. You know, he’s talking about courts and clerks outside the Commonwealth, not in Virginia, not in Prince William and not in Norfolk.
THE COURT: Well, I think it bears on the First Amendment issue, Counsel. And all these other states that you’re mentioning have decided cases. So I think it is relevant. I’ll permit the question.
MR. HIBSHER: If I may, the tradition of access across the country is very much an element of the First Amendment —
THE COURT: Well, that doesn’t mean that you can testify, Counsel.
THE WITNESS: Your Honor, if I could answer your question? It may have been aimed at that two-step process, and that two-step process was in place, I saw it repeatedly, where the intake clerk brings it in, then the docketing clerk does it later.
THE COURT: Right. And you’ve seen it in the states you’ve mentioned?
THE WITNESS: Yes, sir.
THE COURT: Okay.
What the testimony was showing was that news reporters would see the new cases as soon as they crossed the counter. That was before the cases were docketed, an old word for what now is alternatively called “indexing,” “processing,” or “creation,” depending on the clerk’s sense of self-empowerment.
What the clerks in Virginia were doing was pushing the news reporters down the timeline for a new civil case until after that later set of administrative tasks now most commonly called processing. Judge Morgan correctly summarized our position when he leaned back in his high-backed chair and said day-old news was like “stale bread.”
The judge ultimately ordered the clerks to let the reporters see the new cases on the day they were filed when practicable.