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Wednesday, March 27, 2024 | Back issues
Courthouse News Service Courthouse News Service

Virginia check for $2.4 million received by Courthouse News

A campaign over First Amendment access to new court filings has brought a win in Virginia and multimillion-dollar check to Courthouse News for its attorney fees.

Courthouse News on Friday received a $2.4 million check from the Virginia Commonwealth, representing attorney fees spent pursuing a First Amendment action against state court clerks.

The check for attorney fees came as the result of a declaratory judgment won after a four-day trial last year, and the successful defense of that victory in the U.S. Fourth Circuit Court of Appeals.

The issue at trial was an old one that is being fought all around the nation — the practice by state court clerks of blocking access to new e-filed complaints until after clerical work is finished. The federal courts and a growing number of state courts provide access as soon as the new filings are received, which matches traditional access in the days of paper.

The Virginia clerks fought the First Amendment action by Courthouse News with every possible trick, including denying the existence of internal statistics on delay which in fact existed and were revealed after repeated requests and repeated evasions or denials.

“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,” wrote U.S. Judge Henry Coke Morgan in ruling for Courthouse News. “The First Amendment requires that such documents be made available contemporaneously with their filing.”

On the bench, Morgan in the Eastern District of Virginia compared the old news made from delayed access to “stale bread.”

The $2.4 million check from the Virginia Commonwealth follows attorney fee awards in 2010 after Courthouse News won an injunction against the court clerk in Houston for $253,000 and in 2018 after winning an injunction against the court clerk in Manhattan for $335,000. But the litigation in those earlier times was not the all-out war that it has become.

The granddaddy of all those conflicts is the 10 years of litigation between this news service and the Judicial Council of California backing the court clerk in Ventura, California, Michael Planet, who was enforcing and defending a no-access-before-process policy.

Filed in 2011, the Planet case went up to the Ninth Circuit Court of Appeals three times until a final ruling by U.S. Judge Dolly Gee in Los Angeles where she enjoined Planet’s policy and said specifically that he could not withhold access while clerical processing was under way.

“There is a qualified First Amendment right of timely access to newly filed civil complaints,” wrote Gee in the amended judgment. “This qualified right of timely access attaches when new complaints are received by a court, rather than after they are ‘processed’ — i.e., rather than after the performance of administrative tasks that follow the court’s receipt of a new complaint.”

As a result of that grueling campaign and ultimate victory, Courthouse News made a request for $6.5 million in attorney fees. The fee petition was submitted in March and remains pending.

Similar First Amendment challenges over no-access-before-process policies by state court clerks are under way in Oregon, Idaho, New Mexico, Texas, Missouri, Maine and Vermont.

In September, this news service won an injunction against court administrators in New Mexico who are also holding back the new cases while they run through clerical tasks.  The injunction has been appealed to the 10th U.S. Circuit Court of Appeals.

A summer ruling in Maine against Courthouse News is currently on appeal in the First Circuit, while a Missouri ruling, saying federal courts should abstain from hearing a First Amendment challenge against state court officials, is currently on appeal in the Eighth Circuit.

Meanwhile, a challenge to the no-access-before-process policy of court administrators in Texas, which is within the Fifth Circuit, has been sitting before Magistrate Judge Susan Hightower since February, waiting for a report on abstention.  A similar policy enforced by Vermont’s civil servants was the subject of a hearing just before Halloween, in U.S. District Court in Vermont, which is within the Second Circuit, with a decision now pending.

Before the check for $2.4 million was deposited on Friday, a Courthouse News photographer took a photo in order to frame it and add it to the images of checks from the State of New York and from the Harris County Treasurer in Houston, already hanging on the wall in the news service’s Pasadena office.

In an early version of this story, the author violated the first rule preached to young journalists, which is to get the names spelled right, and misspelled Judge Gee's first name. The author regrets the error.

Categories / Civil Rights, Courts, Media

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