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Judge: Clerks must allow prompt access to new suits

clerks_mainA Virginia federal judge says the pub­lic and press have a constitutional right to inspect newly filed lawsuits within a day of filing.

The decision by U.S. District Judge Henry Coke Morgan Jr. is a win for a national news service that said its reporters were unable to review fresh filings at two Vir­ginia courthouses. The ruling could help attorneys looking for information at a courthouse.

Two federal appellate courts have rendered similar rulings, but it’s the first such judicial pronouncement in the Fourth Circuit.

Morgan’s decision is Courthouse News Service v. Schaefer (VLW 020-3-105).

Historic practice

California-based Courthouse News Service says it offers a variety of daily “new litigation reports” to subscribers us­ing information gathered from more than 2,000 courts around the country.

“The new litigation reports serve an es­sential news-delivery function for a spe­cialized but large audience: the lawyers and law firms based across the nation who are subscribers to these reports,” the company says on its website.

But CNS reporters were rebuffed at two Virginia courts, the company said. They were told by circuit court staff in Norfolk and Prince William County they had to wait until paper complaints were logged into computer systems and scanned.

The delays broke with longstanding courthouse traditions.

“There is no dispute that, historically, courts have openly provided the press and general public with access to civil complaints. All parties agree that a civil complaint is the ‘opening bell’ of civil liti­gation,” Morgan wrote.

Norfolk Circuit Court Clerk George E. Schaefer testified it had always been the unwritten policy of his office and that of his predecessor to make new civil filings available “behind the counter.” Morgan said there was evidence the same practice was used previously in Prince William.

Feeding the computers

Paradoxically, it seemed that technolo­gy led to delays.

Morgan’s opinion describes the myriad of computer systems that must be updat­ed with data every time a new case hits a state circuit court clerk’s office. There is the Circuit Case Management System, the Case Imaging System, Officer of the Court Remote Access, the Financial Ac­counting System and the Virginia Judi­ciary E-Filing System.

Clerks now use public access terminals to allow the press and public to review fil­ings scanned into CIS.

The defendant clerks started to delay making new filings available, Morgan said.

“Defendants maintained a practice or custom of scanning complaints only after they were fully indexed and docketed,” the judge said after a Jan. 31 bench trial.

In Prince William, a sign said the clerk’s office was “dedicated to scanning all new civil filings into our digital sys­tem within ten days of receipt.”

After hearing testimony and doing his own review of court data, Morgan con­cluded the level of access was deficient at both clerks’ offices in the six months before the lawsuit was filed in July 2018.

Access notably improved after suit was filed, the judge said. Statistics showed dramatic improvement in Nor­folk after a September 2018 meeting be­tween Schaefer’s staff and the CNS staff, Morgan said.

Constitutional analysis

Although every federal court present­ed with the question has found that the First Amendment applies to access to new filings. Morgan undertook his own analysis.

He noted the history of common first-day access to new lawsuits. He reasoned that logic supports access because a com­plaint frames the issues for trial and pro­vides the context for all other events and filings in the judicial process.

Morgan concluded that the court-man­dated requirement of “contemporaneous” access means on the same day as filing when practicable and, otherwise, within one court day following.

Although Morgan prescribed a strict scrutiny, rather than an intermediate, standard of review, he said the defen­dants could not satisfy their burden of proof under either test.

The clerks contended their interests in orderly office administration and protec­tion of privacy outweighed the public’s First Amendment right to contempora­neous access, but Morgan said the argu­ment was undercut by performance sta­tistics that showed the defendants could provide timely access without any change in staff or procedures.

While Morgan issued a declaratory judgment that the press and public have a qualified right of contemporaneous ac­cess to newly filed civil complaints, he de­clined to impose a federal injunction on the elected state court clerks. He said he would retain jurisdiction for six months to monitor the levels of access provided.

Roadblocks in discovery

Courthouse News Service Editor Bill Girdner said his company has spent roughly $30 million litigating for prompt access to newly filed court documents. The company has a string of victories, but only about $585,000 in recovered fees and costs, he said.

“It’s the principle,” he said Feb. 25. “It’s just a belief in the principle of access.”

In an essay on Morgan’s decision, Gird­ner said the clerks and an official with the Virginia Supreme Court’s administrative office fought to avoid disclosure of the elec­tronic scan dates for new complaints. He said it took a subpoena and a deposition of a high court staffer to confirm that scan dates did exist in the computer system.

The revelation uncovered data that helped prove the delays, Girdner said.

Courthouse News was represented by William J. Hibsher and other attorneys with the Bryan Cave Leighton Paisner law firm. Local counsel was Conrad M. Shumadine of Norfolk. Hibsher was not available for comment.

The clerks were represented by William D. Prince IV and Michael G. Matheson of Richmond. Prince was not available for comment.

VLW 020-3-105