(CN) — A federal judge in Virginia awarded $2 million in attorney fees against two Virginia court clerks on Wednesday in a First Amendment action brought by Courthouse News on behalf of the press corps.
The fee award came as the result of a verdict in favor of the press after a four-day trial in late January. U.S. Judge Henry Coke Morgan Jr. in the Eastern District of Virginia ruled that the press has the right under the First Amendment to see new case filings on the day they are filed.
“The First Amendment requires that such documents be made available contemporaneously with their filing. Contemporaneously means the same day unless that’s not practicable,” said the judge, ruling from the bench at the trial’s conclusion.
The defending clerks in Prince William and Norfolk had pushed journalists back behind a series of clerical tasks that included setting up a docket and scanning the filings. Reporters were then directed to computer screens to view new cases a day or two after they crossed the counter.
Despite a series of federal rulings saying the practice of delaying access violates the First Amendment, a large swath of state court clerks continue to withhold same-day access, relying on their powerful positions and the state’s money to fight off access requests by journalists.
At the same time, the federal courts and an ever-larger number of state courts now grant journalists access to new electronically filed matters, ahead of the tasks often lumped together as “processing.” That prompt access to new e-filings is in line with decades of tradition in the paper era.
“Plaintiff, and other members of the press and public, have historically enjoyed a tradition of court clerks making most newly filed civil complaints publicly available on the day that they are filed,” said the judge in his written ruling.
He noted there the standard defense used by clerks who say that “protecting confidential information outweigh the public’s First Amendment right to contemporaneous access.” But the judge then swatted that defense away: “The Court observes that under Virginia law, the filer is responsible for redacting confidential information.”
The court clerks of Virginia form a powerful political network. They were organized as political agents and transformed into constitutional officers by Governor Harry Byrd, a former newspaper publisher who ran the Democratic machine in Virginia for four decades.
The current generation of courts clerks in Virginia banded together to fight the action by Courthouse News in a manner common among clerks in many states, as though the battle against press access were an existential struggle. They fought with scorched-earth tactics, working in collusion with state Supreme Court's Office of the Executive Secretary to withhold electronic evidence of delays.
The tactic necessitated the extraordinary step of a subpoena and deposition of an official in the state Supreme Court’s administrative office in order to extract the evidence. During the trial, Judge Morgan called that defense tactic “an exercise in obfuscation.”
The electronic evidence of delay turned out to be pivotal in the trial. The case docket, a record of the various pleadings, hearings and rulings, ran to 120 entries.
Judge Morgan noted on Wednesday that, “The defense counsel frequently mentioned the effect the case may have on the rest of the state, which may explain why they, in words that the Court used in another case, fought to the last ditch. Which they did.”
But they lost.
As a result, lawyers for Courthouse News asked for $2.25 million in fees as the winning party. The news service was represented by William Hibsher, Heather Goldman and Bryan Harrison with Bryan Cave, and Conrad Shumadine with Willcox Savage.
Opposing them, and representing the Virginia clerks in Prince William and Fairfax were William Prince III and Michael Matheson of Thompson McMullan. They asked for a cut of two thirds.
“CNS chose to hire lawyers from New York and D.C. but the defendants shouldn't be responsible for paying for extrajurisdictional rates because CNS decided to retain Bryan Cave when they could have hired someone local,” argued Prince.
He said the law required only that the clerks pay local rates. He also argued that Courthouse News failed to win an injunction, and should be docked for the time spent on that effort. He said too much time was spent on the case, overall.
Representing Courthouse News, Hibsher argued during a video hearing, “CNS has become a surrogate for other press because it's the press's destination in recent years and Courthouse News is among the very few media outlets known to extend the resources to address a constitutional violation that affects the press's right to know.”
Arguing his points, Hibsher said that clerks had fought to the last breath, and the time spent by Courthouse News was brought on by their tactics.
“At trial, the clerks' counsel stated that he was proud of the aggressive defense he provided, that he wore it as a badge of honor,” Hibsher said to the judge. “That may be, but as Your Honor ruled in another case, a defendant can't fight a case to its last breath and then complain that too much time was spent on the case.”
When it came time to rule Wednesday afternoon, Judge Morgan agreed with the defense in saying he did not grant summary judgment to Courthouse News. But he did narrow the issues at the summary judgment hearing in favor of the news service, and foreshadowed the clerks’ defeat.
“The Court, itself, reviewed all of the statistical information, which apparently was difficult to obtain, but the Court reviewed all the statistical information, and it indicated that the defendants were fully capable of doing exactly what the case asked them to do, and, in fact, did it.
“I don't understand why evidence was presented that the clerk couldn't do it when they, in fact, did it, which was clearly shown by the statistical evidence. So the clerks did fight the case to the last ditch, and having done so, I don't think that they can make a legitimate claim that too much time was spent by counsel for the plaintiff in pursuing the case.”
Judge Morgan went to comment on the key issue of hourly rates, employing a local inflection that the parties became accustomed to during the trial. “I do think that the hourly rates charged by the plaintiff's counsel are more than comparable hourly rates charged in this part of Virginia,” he said. “They're more like the hourly rates charged in Northern Virginia.”
However, he said, the difference between local and out-of-town rates was made up by the familiarity of Courthouse News lawyers with the factual and legal landscape, having fought similar battles many times before.
“But I think the difference was made up by the fact that we had counsel who had tried the same case a number of times before, who was regular counsel for the plaintiff, understood the plaintiff's operations very well, understood the operations of the local clerk's offices very well through its own employees,” said Morgan. “So I think that an exception applies, as the Fourth Circuit said, when counsel is particularly familiar with the case, is regular counsel for the client, and when the amount of the fee has been paid in full.”
By the same logic, he found excessive the amount billed for the attorney fee petition. “I simply don't understand why it should have been so much when it's been done — virtually the same thing that has been done so many times before.”
So he reduced the amount sought for the attorney fee petition from $135,000 to $50,000. He also reduced by 10% the much larger amount sought for the trial and surrounding litigation, based on the fact that summary judgment was not achieved.
“I don't believe any reduction is appropriate in the costs sought, which is $232,559.83. So the Court will award $1,978,738.48,” Morgan ruled.
In line with their tactics during the trial, the clerks appealed the judge’s trial ruling, and declared their intention to now appeal the fee award. The judge stayed enforcement of the fee award on condition the clerks post a bond.
The question has often been asked as to why so many state court clerks find it so important to deny First Amendment access that they fight with every possible excuse and tactic to the last ditch, the last breath and the last court.
Judges and lawyers have surmised that the clerks act as though they “own” the public documents. Journalists have theorized that control of the documents, all the stamping and entering, is the very thing that gives the clerks power, that makes them important.
Judge Morgan also wondered.
“So it seems to me that I have a question in my mind, what was the necessity or justification for taking the case to trial and going to the last ditch when the clerks were almost doing exactly what they were requested to do?”
But he was unable to answer that question.
More stories and columns on the Virginia trial:
E-Filing and the First Amendment * Matter of Choice * The Dicta: Guesswork About Press Access * Presumption and Fact: The Ask for Access * ‘CNS’s View’ Accurately Told * Access Solution: The E-Inbox * Access Law in the Electronic Age * Bread and News * Flip Side of Court Tech * First Amendment Right to See Court Documents on Day of Filing * Tradition of Same-Day Access * The News Cycle
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