Appeals Court Revives First Amendment Lawsuit Against Maine’s Court System
Courthouse News Service, as its name would imply, relies heavily on court documents to create content. Over the past few years, however, random court clerks around the nation have suddenly decided the old way of doing things was no longer acceptable.
For years, reporters have been given access to filings the day that they're filed. That method never resulted in lawsuits. The move towards electronic filing and processing has somehow been turned into an excuse to withhold filings until days after the documents were filed. This prevents Courthouse News and other journalists from reporting on filings until well after they're newsworthy.
Courthouse News has sued several state court systems over these delays. Last summer, it obtained a precedential ruling in the Fourth Circuit. The Virginia court clerks being sued argued there was no right to access filed complaints until a judge had taken action on them. Not so, said the Appeals Court. It ruled that the First Amendment right to access documents begins when they've been filed.
A similar lawsuit targeting Maine court clerks has been revived by the First Circuit Court of Appeals.
The federal court of appeals for New England on Monday reversed a lower court's dismissal of a case brought by Courthouse News over the Bangor clerk's policy of withholding new court filings until clerical work is finished. The clerk in Bangor was holding new complaints for up to three days, by which time the news they contained was as stale as old bread.
As the Appeals Court opinion [PDF] notes, the move to electronic filing was used as an excuse to introduce new delays in providing access to the public.
When the Maine Supreme Judicial Court (SJC) piloted an electronic case filing system for the state's trial courts, its original rules required court clerks to withhold public access to new civil complaints until three business days after at least one defendant had been served, resulting in delayed access, possibly for months.
That change led to this lawsuit. This led to the SJC changing the rules, presumably in hopes of having the lawsuit dropped. The alteration wasn't much better.
Instead of delineating a new deadline, it now allows the public to access newly filed civil complaints after court clerks process them. The rules do not specify how quickly that processing must occur.
This new rule was interpreted by certain clerks to mean they could still withhold documents for days to weeks because of processing." Seeking access to documents resulted in some reporters receiving automated emails informing them documents would not be available for up to 24 business hours," a potential three business day wait.
The Appeals Court says the lawsuit can proceed. Enough has been alleged to move it forward, contrary to the lower court's opinion. Whether more fact-finding will ultimately result in a win for the journalists is unclear. And the Appeals Court suggests abstention may actually be the way to go - sending this to the state court system to suss out.
But one comment from an Eighth Circuit Appeals Court judge handling another Courthouse News lawsuit sums up what defendants in multiple cases are arguing:
During the argument, U.S. Circuit Judge Ralph Erickson stated the case for traditional access better than any lawyer has.
What we're saying is, Oh for about 230 years you could walk into a Missouri courthouse, into the clerk's office, and say, Hey, can I see what's been filed today,' and now all of a sudden you can't, right?" Erickson said.
That's what has been happening all over the nation. The fact that it's only certain court clerks deciding it's permissible to delay access suggests this isn't about following the rules governing electronic processing. It's about some clerks turning their offices into petty fiefdoms where the public serves the court system, rather than the other way around. The peasants will get their documents whenever their not-so-benevolent betters decide they can have them.