A Ninth Circuit opinion handed down in January affirmed the First Amendment principle that the right of public access to new court filings attaches as soon as the clerk receives them.

But during the preceding oral argument at the Ninth Circuits Pasadena courthouse, Judge Mary Murguia asked a natural question: Doesnt Ventura County have to docket those physical files first?

I remembered the question because earlier this year, on the other side of the country, Judge Henry Coke Morgan Jr. asked in essence the same question.

Well, the thing of it is, the clerk has got to make some record of the case being filed before they put it in the box, said Morgan on the federal bench in Norfolk, Virginia. I mean, somebody could walk off with a newly filed case, and if the clerk hadnt entered it somehow

Being in the audience, I could not answer Murguia, but, being in the witness box, I could answer Morgan. Your Honor, there was a, usually like in federal court in Los Angeles, there was an intake log with the case numbers, and the intake clerk did put a case number on the case.

So there was some form of processing before it was placed in the box.

Yes, sir. And the stamping and processing of the check.

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Those procedures are part of intake, the actual filing of a legal document, not the later work of putting that filing into the courts docket. Rulings in both cases one against a clerk in California, the other against two clerks in Virginia affirmed a First Amendment right of access at the point of the clerks receipt. But both cases also involved courts based on paper, a medium that is fast disappearing in the rearview mirror of history.

So the same question will be asked by a judge in the future about a digital court: Doesnt the court need to docket those electronic files first?

The answer is more simple in the digital era.

A new document sent electronically from a lawyer to the clerk is filed on its receipt. It is automatically given a number, either a case number or a transaction number, and housed on a server controlled by the court.

Nobody can walk off with it.

In that digital world, the arguments against press access get tougher. Because the e-filed document itself is secure and accounted for. That answers the doubt expressed by both judges.

At that point, the matter of access-on-receipt is no longer a practical one. It is now purely a matter of First Amendment interpretation.

Should the press have access at the point of receipt.

The answer from restrictionist clerks will, based on experience, not rely on facts, because the facts are inconvenient. The answer will instead rely on an analogy that I call The Ghost of Williamsburg.

At a conference on public access organized by the Conference of State Court Administrators that took place in Williamsburg from 2013 to 2016, the overriding theme was that public access to public records in electronic form should be restricted.

In the course of panel discussions, an analogy emerged to combat the notion of press access on receipt. It went like this: You reporters want to go up to people waiting in line and ask them what they are about to file.

In the years since the conference, that old ghost of an analogy keeps popping up. I believe it hangs around because it has a purpose. It allows restrictionists to suggest that the press is asking for something new and crazy, While theyre in line! Ridiculous!

But the analogy is false.

The point of filing was at the clerks counter in the paper world, and the press saw the new cases after they crossed over the counter. It is the same in the electronic world.

The point of filing is the clerks virtual counter where the documents are received and automatically given a number. The press corps wants to see the new cases after they have crossed that virtual counter, not, as the old ghost says, before.

As I have observed, it lurks only in the halls of state courts and has never been seen in a federal courthouse.

When it does show up, the Ghost of Williamsburg almost never comes alone. It is accompanied by a kind of illusion that involves redefining the word filing to mean the point at which the document is placed into the docket.

It goes like this: The document is not really filed until it is put in the case management system by the clerk and then it is backdated to the time it was received. The word backdated is used brazenly by clerks in this context.

But the illusion bumps up against the reality that court rules throughout America, state and federal courts, without exception, say an electronic document is filed when it is tendered or received. Not at the later point when it is placed in the docket.

So at some time in the future, a judge, faced with a First Amendment action over access to electronic filings, will surely ask the question: Doesnt the court need to docket those electronic files first?

And the answer will be: No. It does not.

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More stories and columns on the Virginia trial:

First Amendment Bright Line in the Digital Age * National Press Corps Enter First Amendment Fray to See Court Filings on Same Day*U.S. Judge Slaps Virginia Clerks With $2 Million Fee Award in First Amendment Case*E-Filing and the First Amendment* Matter of Choice *The Dicta: Guesswork About Press Access * Presumption and Fact: The Ask for Access *CNSs View Accurately Told*Access Solution: The E-Inbox *Access Law in the Electronic Age * Bread and News * Flip Side of Court Tech * First Amendment Right to See Court Documents on Day of Filing * Tradition of Same-Day Access * The News Cycle

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Two Judges and the Williamsburg Ghost - Courthouse News Service