State Court Clerks In New Mexico Delay Access To Court Records In Violation Of The First Amendment, But An Adequate Remedy Proves Elusive -…

On October 8, 2021, after a preliminary injunction hearing heldon September 28, 2021, Judge James O. Browning of the U.S. DistrictCourt for the District of New Mexico issued a 92-page opinion inwhich he found that the New Mexico Administrative Office of theCourts and the First Judicial District Clerk's Office violatedthe First Amendment right of timely public and press access tonewly filed state civil, non-confidential complaints. While afavorable ruling in many respects, the resulting preliminaryinjunction does not, for now, fully remedy the constitutionalviolation.

The lawsuit was brought by Courthouse News Service (CNS), led byits founder and publisher, William Girdner, asserting that FirstAmendment and common law precedent - viewed through the lens oftraditional access - established a right to contemporaneous accessto new civil complaints when filed, before administrativeprocessing, largely derived from the influential case of Press-Enterprise Co. v. Superior Court,478 U.S. 1 (1986) (known as Press-Enterprise II). Theheart of the argument was that the district clerks, who are thecustodian of court records, were unconstitutionally delaying accessto new complaints in a way that departed from the traditionalaccess that existed in the world of paper filings before the adventof electronic filing (or e-filing). Recent statistics showed thatover 30% of newly filed complaints were delayed one or more daysstatewide, and over 67% in the Santa Fe court, before the press andpublic could see them.

Intuitively, one would think that under mandatory e-filing,access delays would decrease, not increase. Indeed, federal courtsusing PACER and many other state courts throughout the countryusing a variety of e-filing systems provide traditional, on-receiptaccess within minutes of an e-filing transaction. Yet, New Mexicoand many other states now delay access until after administrativeprocessing-also called docketing-which can vary in time, but oftenresults in access being delayed until the next day or longer. Thisis not traditional access where, the undisputed evidence showed,new complaints were made available to CNS and other members of thepress within minutes of receipt of paper filings by clerks atin-take counters, and virtually all on the same day of filing.Instead of speeding up access, certain courts and clerks havechosen to slow down access to e-filed complaints throughadministrative processing "requirements," whichdetrimentally affects reporting on newsworthy case filings in aprompt manner. As Mr. Girdner aptly described it, news is likebread - fresh the day it is made, stale the next.

Out of the gate in New Mexico, as tried elsewhere, thedefendants challenged the federal court's jurisdiction to evenhear 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 Circuitprecedent made clear that abstention did not apply because therewas no concurrent state court proceeding involving CNS seeking thesame relief that would be subject to interference by a federalcourt ruling. Judge Browning ruled that abstention did not applyand, thus, rejected the defensive move.

On the merits, the key holdings were that the press and publichave a constitutionally protected right to timely access to newcivil complaints, and, importantly, the right attaches at the timeof "filing" - that is, when submitted by the e-filer tothe clerk. This ruling is valuable because many clerks argue, asthey did here, that a complaint is not "filed" untilafter administrative processing is completed, which is comprised ofpurely clerical tasks. The Court rightfully rejected this argument.Any other conclusion would mean that state court bureaucraciescould unilaterally, and arbitrarily, define for themselves whenFirst Amendment access rights spring into existence.

After reviewing precedent and analyzing access delay statisticsin the New Mexico state courts, Judge Browning created a "fivebusiness hour" rule; that is, defendants are required to makenew civil complaints available within five business hours offiling. Essentially, this rule allows a time period of acceptabledelay based on what current access data reflects is within thecapability of the clerk's office to achieve using existingprocessing procedures without much additional effort. As a resultof this rule, statistics show that access to over 60% of filings ona given day can be delayed until the next business day. This resultis not aligned with traditional access when complaints were filedin paper form by hand. More importantly, the "five businesshour" rule is not a narrowly tailored means to achieve acompelling or substantial state interest where the interest inadministrative processing undisputedly involves clerical tasks.While clerks cite concerns over sealed or confidential documentsbeing made public with more contemporaneous access, the evidenceshowed that sealed complaints cannot be e-filed, and in any event,this interest can be protected by commonly used safeguards providedby software and e-filer obligations, as evidenced by PACER andother systems, without curtailing the constitutional right ofaccess. Thus, the "five business hour" rule does notreturn what was taken away - traditional access - and fails toremedy the constitutional violation.

Several other important challenges brought by CNS are pendingacross the country, including a federal lawsuit filed in TravisCounty, Texas, where a motion to dismiss based on abstentionremains pending after the case was filed late in 2020. Given therecent New Mexico district court opinion rejecting abstention,coupled with Ninth and Fourth Circuit consensus on the issue, themotion will hopefully suffer a similar fate, allowing the case toproceed to the merits of the constitutional claim. How the meritswill be addressed remains to be seen, but First Amendmentprecedent, the history of traditional access, and a substantialpublic interest fully supports an obligation to providecontemporaneous, on-receipt access without unnecessary andarbitrary clerical delay. The less workable approach of fashioninga time window of acceptable processing delay, in reliance on localclerk practices, effectively dispenses with traditional access,allowing the contours of an important constitutional right to beshaped on an ad hoc, inconsistent basis throughout thecountry - to the public's detriment. Technological advancementsshould be used to improve, not delay, press and public access.

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State Court Clerks In New Mexico Delay Access To Court Records In Violation Of The First Amendment, But An Adequate Remedy Proves Elusive -...