On October 8, 2021, after a preliminary injunction hearing held on September 28, 2021, Judge James O. Browning of the U.S. District Court for the District of New Mexico issued a 92-page opinion in which he found that the New Mexico Administrative Office of the Courts and the First Judicial District Clerk’s Office violated the First Amendment right of timely public and press access to newly filed state civil, non-confidential complaints. While a favorable ruling in many respects, the resulting preliminary injunction does not, for now, fully remedy the constitutional violation.
The lawsuit was brought by Courthouse News Service (CNS), led by its founder and publisher, William Girdner, asserting that First Amendment and common law precedent – viewed through the lens of traditional access – established a right to contemporaneous access to new civil complaints when filed, before administrative processing, largely derived from the influential case of Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (known as Press-Enterprise II). The heart of the argument was that the district clerks, who are the custodian of court records, were unconstitutionally delaying access to new complaints in a way that departed from the traditional access that existed in the world of paper filings before the advent of electronic filing (or e-filing). Recent statistics showed that over 30% of newly filed complaints were delayed one or more days statewide, and over 67% in the Santa Fe court, before the press and public could see them.
Intuitively, one would think that under mandatory e-filing, access delays would decrease, not increase. Indeed, federal courts using PACER and many other state courts throughout the country using a variety of e-filing systems provide traditional, on-receipt access within minutes of an e-filing transaction. Yet, New Mexico and many other states now delay access until after administrative processing—also called docketing—which can vary in time, but often results in access being delayed until the next day or longer. This is not traditional access where, the undisputed evidence showed, new complaints were made available to CNS and other members of the press within minutes of receipt of paper filings by clerks at in-take counters, and virtually all on the same day of filing. Instead of speeding up access, certain courts and clerks have chosen to slow down access to e-filed complaints through administrative processing “requirements,” which detrimentally affects reporting on newsworthy case filings in a prompt manner. As Mr. Girdner aptly described it, news is like bread – fresh the day it is made, stale the next.
Out of the gate in New Mexico, as tried elsewhere, the defendants challenged the federal court’s jurisdiction to even hear the constitutional claim based on the abstention doctrine. However, U.S. Supreme Court precedent, including Sprint v. Sprint Communications, Inc. v. Jacobs, 571 U.S. 69 (2013), as well as Tenth Circuit precedent made clear that abstention did not apply because there was no concurrent state court proceeding involving CNS seeking the same relief that would be subject to interference by a federal court ruling. Judge Browning ruled that abstention did not apply and, thus, rejected the defensive move.
On the merits, the key holdings were that the press and public have a constitutionally protected right to timely access to new civil complaints, and, importantly, the right attaches at the time of “filing” – that is, when submitted by the e-filer to the clerk. This ruling is valuable because many clerks argue, as they did here, that a complaint is not “filed” until after administrative processing is completed, which is comprised of purely clerical tasks. The Court rightfully rejected this argument. Any other conclusion would mean that state court bureaucracies could unilaterally, and arbitrarily, define for themselves when First Amendment access rights spring into existence.
After reviewing precedent and analyzing access delay statistics in the New Mexico state courts, Judge Browning created a “five business hour” rule; that is, defendants are required to make new civil complaints available within five business hours of filing. Essentially, this rule allows a time period of acceptable delay based on what current access data reflects is within the capability of the clerk’s office to achieve using existing processing procedures without much additional effort. As a result of this rule, statistics show that access to over 60% of filings on a given day can be delayed until the next business day. This result is not aligned with traditional access when complaints were filed in paper form by hand. More importantly, the “five business hour” rule is not a narrowly tailored means to achieve a compelling or substantial state interest where the interest in administrative processing undisputedly involves clerical tasks. While clerks cite concerns over sealed or confidential documents being made public with more contemporaneous access, the evidence showed that sealed complaints cannot be e-filed, and in any event, this interest can be protected by commonly used safeguards provided by software and e-filer obligations, as evidenced by PACER and other systems, without curtailing the constitutional right of access. Thus, the “five business hour” rule does not return what was taken away – traditional access – and fails to remedy the constitutional violation.
Several other important challenges brought by CNS are pending across the country, including a federal lawsuit filed in Travis County, Texas, where a motion to dismiss based on abstention remains pending after the case was filed late in 2020. Given the recent New Mexico district court opinion rejecting abstention, coupled with Ninth and Fourth Circuit consensus on the issue, the motion will hopefully suffer a similar fate, allowing the case to proceed to the merits of the constitutional claim. How the merits will be addressed remains to be seen, but First Amendment precedent, the history of traditional access, and a substantial public interest fully supports an obligation to provide contemporaneous, on-receipt access without unnecessary and arbitrary clerical delay. The less workable approach of fashioning a time window of acceptable processing delay, in reliance on local clerk practices, effectively dispenses with traditional access, allowing the contours of an important constitutional right to be shaped on an ad hoc, inconsistent basis throughout the country – to the public’s detriment. Technological advancements should be used to improve, not delay, press and public access.
John K. Edwards represents clients in complex commercial/tort litigation and arbitrations on a national basis, focusing on media and entertainment, government procurement and contracts, and employment law. John has routinely represented broadcast and print media companies in a wide variety of areas implicating the First Amendment, including defense of defamation and related speech-based claims, obtaining media access to government documents and court proceedings under state open court and public information laws, and defending against civil and criminal subpoenas issued to members of the media. John is lead counsel representing Courthouse News Service in the New Mexico and Texas lawsuits discussed in the article.
The opinions expressed are strictly those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.