Constitutional – Court officials fail to dismiss lawsuit over access to civil court records

Where Virginia court officials moved to dismiss a lawsuit brought by a legal news service and publishers of various local Virginia newspapers, challenging the constitutionality of a Virginia statute that restricts the dissemination of non-confidential civil court records obtained through the state’s remote online access system, their motion was denied.

Background

A legal news service and publishers of various local Virginia newspapers challenge the constitutionality of a Virginia statute that restricts the dissemination of non-confidential civil court records obtained through the state’s remote online access system. The defendants, Virginia court officials, have moved to dismiss the case for lack of subject-matter jurisdiction and failure to state an actionable claim.

Sovereign immunity

The Eleventh Amendment generally immunizes states from being sued in federal court by private parties. This immunity also extends to state officers sued in their official capacity. But private parties may sue state officials for prospective, injunctive relief to prevent them from enforcing state laws that run afoul to federal law.

Karl R. Hade, the Executive Secretary of the Office of Executive Secretary, or OES, of the Supreme Court of Virginia, argues that he lacks the requisite authority to enforce the challenged statute. However the complaint alleges that OES “created, provides, supports and maintains OCRA for Virginia court clerks,” requires circuit court clerks include the dissemination restriction in Officer of the Court Remote Access, or OCRA, system subscription agreements, and that Hade is the administrator of the Virginia circuit court system. These facts plausibly allege that defendant Hade has a special relation to the dissemination restriction.

With respect to whether defendant Hade has acted or threatened to enforce the restriction, I find that the plaintiffs “have alleged an actual and well-founded fear that the law will be enforced against them” given that David Lacy, a Virginia-licensed attorney, has informed them on several occasions that he is prohibited from disseminating the information he obtains through OCRA. Thus, sovereign immunity does not bar the current suit against Hade.

Similarly, the defendant clerks argue that they lack the requisite authority to enforce the dissemination restriction. Alternatively, they argue that any authority they have to revoke OCRA access is discretionary and thus falls outside the scope of state actions subject to suit. However the complaint contains several factual allegations that plausibly establish the defendant clerks’ enforcement authority.

For example, the plaintiffs allege that the defendant clerks are charged with the maintenance and dissemination of non-confidential court records, and that circuit court clerks are authorized to make such records available for viewing – both in person and online – for the press and public. On the corollary, the complaint asserts that circuit court clerks “may deny secure remote access to ensure compliance” with the Virginia Code.

Thus, even though the Ex parte Young exception generally does not apply to court clerks because they are not normally charged with enforcing state laws, I find that the plaintiffs have sufficiently alleged that the defendant clerks maintain a special relation to the dissemination restriction, and that they “have alleged an actual and well-founded fear” of enforcement.

I also find unpersuasive the defendant clerks’ argument that any authority they have to revoke OCRA access is discretionary and thus not subject to the Ex parte Young exception. The plaintiffs are not challenging the defendant clerks’ discretion to revoke OCRA access for certain subscribers over others. Rather, they are challenging the dissemination restriction as a violation of federal law. I find that sovereign immunity does not prohibit the present suit against the defendant clerks.

Standing

The complaint alleges that the plaintiffs have asked Mr. Lacy on several occasions to provide them with copies of civil complaints from his OCRA account, but that he has informed them that the dissemination restriction prevents him from doing so. Therefore, the plaintiffs have plausibly alleged that the restriction infringes on their right to receive information.

Moreover, they have sufficiently alleged causality in that, but for the restriction, Mr. Lacy would have provided the plaintiffs with the requested information and have also asserted that a favorable decision would redress the alleged burden imposed by the dissemination restriction.

Ripeness

The defendant clerks contend that the as-applied challenge to the dissemination restriction is unripe because the complaint has failed to allege that they revoked any OCRA subscriber’s access, including Mr. Lacy’s. But, as explained above, the plaintiffs have sufficiently alleged that, but for the threat of having his OCRA access revoked, Mr. Lacy would have provided them with copies of records he obtained via OCRA. The present action is ripe for review.

Defendants’ motion to dismiss denied.

Courthouse News Service v. Hade, Case No. 1:25-cv-00075, May 5, 2026. WDVA at Abingdon (Moon). VLW 026-3-199. 16 pp.

Full-Text Opinion
VLW 026-3-199