Fourth Circuit Appeals Court Says Right To Access Court Documents Begins When The Documents Are Filed
from the suck-it,-clerks dept
Courthouse News Service has obtained a significant win in its lawsuit against court clerks in Virginia — one that soundly affirms the First Amendment right to access court documents. This isn’t the only place CNS is fighting for its First Amendment rights, but this decision affects everything in the Fourth Circuit, which covers Maryland, North Carolina, South Carolina, and Virginia.
Here’s the battle Courthouse News Service has been fighting on several fronts, assisted by several other news agencies and First Amendment activists.
The right of access at the core of the legal slug fest, which included attempts by the clerks to hide evidence of delay, is a tradition that goes far back in time. When cases were filed in paper form, news reporters traditionally checked the new civil complaints at the clerk’s counter where they were usually gathered in a box or tray.
That stack of new complaints regularly contained news about major legal disputes in the community covered by the court, ranging from financial wrongdoing to environmental disputes to accidents and disasters.
The intake clerk placed new paper cases in the box when they crossed the counter — in other words, contemporaneously with their filing.
That tradition was carried forward into the electronic age by federal courts and a long list of state courts in Hawaii, California, Nevada, Utah, Georgia, Alabama, New York and Connecticut.
But a similar list of courts broke with tradition. They took advantage of the switch to e-filing and pushed the press and public behind clerical functions that, in St. Louis for example, took between a week and two weeks to complete. Those delayers include courts in Maine, Vermont, Oregon, North Carolina and Texas.
In this particular case, court clerks in Norfolk and Prince William County (both Virginia) decided they no longer needed to provide prompt access to filed lawsuits, claiming the move to electronic filing justified delays that were sometimes measured in weeks. Courthouse News said this was ridiculous. Also, unconstitutional. The district court agreed. The clerks appealed, and now have established precedent [PDF] that forces them to speed up processing of filed lawsuits.
Here’s how things were going before CNS filed its lawsuit:
[I]n May 2018, the City of Norfolk court made only 19% of the complaints available on the day of filing, and 22% of the complaints were not available until two or more court days after filing. Similarly, in July 2018, the Prince William County court only made 42.4% of the complaints available on the day of filing and 41.5% of the complaints were not available until two or more court days after filing.
And here’s what it looked like after its lawsuit was filed:
[B]oth Clerks significantly improved access to documents in their courts without hiring any new employees or changing employee or court hours. By the end of November 2018, the Norfolk City court made 92.3% of newly filed civil complaints available on the day of filing and 100% of complaints available within one court day of filing. Similarly, for the last three months of the tracking period, the Prince William County court made at least 88.1% of the complaints available on the day of filing and approximately 96.5% of complaints were available within one day of filing.
So much for the argument that the intricacies of modern day electronics made it impossible to provide same-day service. Given this new alacrity — one apparently instigated by litigation — the lower court said clerks must make newly-filed complaints available on the same day of filing. Minor deviations were acceptable “due to extraordinary circumstances,” but the baseline was as close to “contemporaneous” as possible.
The Clerks appealed. They raised several procedural arguments, but the Fourth Circuit doesn’t like any of them. To begin with, the case certainly isn’t moot, not without the clerks’ offices not making a formal change in policy that instructs clerks to make filings available the same day they’re filed.
While the Clerks’ improvements in rates of access are commendable, absent the relief Courthouse News sought, “nothing bars [them] from reverting” to the allegedly unconstitutional rates of access in the future. Porter v. Clarke, 852 F.3d 358, 365 (4th Cir. 2017). The case is thus not moot.
They also argued the district court had overstepped by meddling in a case involving city and county officials. Wrong again, says the court. No injunction was granted so the court isn’t setting policy for local officials. Instead, this court — like the court before it — is handing down a declaratory judgment that sets the standard for constitutionality, which even state and local officials must follow.
The clerks also argued that, while there is a presumption of access to court documents, this presumption doesn’t override the clerks’ right to take their time making documents available. According to the clerks, the First Amendment right of access doesn’t attach until a judge takes action in a case. You could not be more wrong, says the Appeals Court.
That argument misreads precedent — the analytical approach complements the experience and logic test without supplanting it. Of course, a First Amendment right of access exists as to some documents “submitted in conjunction with judicial proceedings that themselves would trigger the right to access.” Id.; see also In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986). But that does not mean that the First Amendment right of access to a document never exists independent of and prior to a related judicial proceeding. Rather, the experience and logic test can and sometimes does independently furnish the basis for a First Amendment right of access to a judicial document or to judicial proceedings. See, e.g., In re United States, 707 F.3d 283 (applying the experience and logic test to § 2703(d) orders); Baltimore Sun Co v. Goetz, 886 F.2d 60 (4th Cir. 1989) (same, to search warrant affidavits). And as in a similar case recently decided by the Ninth Circuit, nothing in the record before us demonstrates that the tradition of access to complaints “conditions [that] access on judicial action.” Courthouse News Serv. v. Planet, 947 F.3d 581, 592 (9th Cir. 2020) (“Planet III”). In sum, the experience prong supports a First Amendment right of access to civil complaints, even before any judicial action in the case.
The court holds that in this judicial district, the First Amendment attaches as soon as lawsuits are filed. Excessive delays in making them available is unconstitutional.
The press and public enjoy a First Amendment right of access to newly filed civil complaints. This right requires courts to make newly filed civil complaints available as expeditiously as possible. After considering all of the evidence offered at trial, the district court found that the facts of this case demonstrate that the Clerks did not do so, and so violated the First Amendment.
After months of being jerked around by clerks who obviously had the capability to make filings available nearly immediately, Courthouse News walks away with an affirmed win and some handy precedent that should make its other legal battles run a bit more smoothly.