New battlefield in war over First Amendment access to courts across … – Courthouse News Service

(CN) After a federal judge ordered the court clerk in Columbus to stop blocking access to new complaints an age-old source of news this news service asked another Ohio clerk to stop blocking access.

But the Cleveland clerk kept doing exactly as she had been. As a result, journalists must wait to report on the new filings for a day or more, at which point they have become old news.

The federal injunction against Maryellen OShaughnessy in Columbus was clear. Ms. OShaughnessy is hereby ENJOINED from restricting public access to newly e-filed, non-confidential, civil complaints until after such complaints are processed. Ms. OShaughnessy is DIRECTED to make such complaints available upon receipt.

The author of the order, U.S. District Judge Sarah Morrison, had worked as a lawyer in the courts and she had seen the journalists checking the new filings at the end of the day as part of their beat coverage. She described them in a cubicle behind the counter going through a stack of new cases that had just crossed the counter.

When they were going down and looking at them in a stack, I mean, I remember those days, when they had them there, some sitting in the little cubicle, said the Donald Trump appointee during a status conference. They were there, and thats thats what they did.

That is also what they did in Cleveland, Cincinnati and Youngstown and in courts all around the United States.

But the switch from paper documents to electronic documents allowed the clerk in Cleveland, and many others, to hold the new court complaints in an electronic database until the clerk is ready to release them to the public. The Cleveland clerk, Nailah Byrd, still follows that practice even after the Columbus ruling.

On Tuesday, Courthouse News filed a First Amendment complaint filed against Byrd. It gives a panoramic view of the American tradition of access to court records and the attacks coming in the electronic era.

Since time beyond memory, state and federal courts across the country have provided access to new, non-confidential, civil complaints when the court received the new complaint, said the complaint. Ohios federal and state courts followed that tradition.

The complaint quoted an appellate judge who also remembered how access used to work. There was a time when and some in this room may remember it when you took a pleading to the courthouse and the clerk stamped it physically and it went into different bins and it was available immediately, said Judge Bobby Shepherd from the Eighth Circuit bench last year.

The tradition described by Shepherd was in place throughout Ohio during the era of paper documents filed in person across the clerks counter. In Clevelands state court, the Cuyahoga Court of Common Pleas, reporters would work at an empty desk behind the counter to report on the news in those filings. They could also stay after the filing window closed to make sure they saw the last of the late-filed complaints, which often contained the most meaty of controversies.

Those two basic practices letting the reporters work behind the counter and letting them stay late after the counter closed were common in courts across America. But as electronic filing and then software redaction came on the scene, the tradition was broken in many state courts.

The events in Cleveland are like a diorama of the nationwide battle to defend First Amendment access for the press and the public. And the tactic used by the clerk continuing to block access contrary to federal rulings saying the right attaches on receipt is used by government officials in most cities and states where those battles are underway.

Judge Shepherd, for example, is on the federal court of appeals that covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota. His panel of judges ruled last year that Courthouse News can proceed in its First Amendment action against the court administrator in Missouri.

The ruling did not change Missouris policy of, in effect, sealing new cases for days and sometimes weeks. It also did not change the same sealing policy enforced by clerks in Iowa, Minnesota and South Dakota, even though they are within the Eighth Circuit.

Another federal court of appeals, the Ninth Circuit, covering much of the West, ruled in 2020 that the right of public access attaches on receipt. As a result, all California courts that require e-filing now give the press and public access when new civil complaints are received in other words, traditional access. Those courts cover 87% of the population in the biggest state in the nation.

Despite that Ninth Circuit ruling, called Planet III, court directors in Oregon and Idaho, both within the Ninth Circuit, continue to deny access on receipt. They block access to the new cases for a day or more until routine clerical work is completed. The clerks and directors do not pay for their defense because it is handled by their states attorney general, who is paid by the public, and if they lose, the public pays any fees connected to the loss.

In other words, the public pays for the officials fight against public access.

Other fields of First Amendment battle are located in Vermont, where the state has appealed a loss to the Second Circuit; Maryland; Virginia, where Courthouse News appealed a loss to the Fourth Circuit; North Carolina; Texas; Missouri, where Courthouse News lost and won reversal; Iowa; New Mexico; Oregon; and Idaho.

On the most recent field of contest, the complaint filed Tuesday in Cleveland fires the big gun of the First Amendment. Its broad and powerful reach includes a constitutional right of access to public records filed in the courts of America at the time they cross into court hands.

In the transition from paper filing to electronic filing ('e-filing'), the federal courts and many state courts have kept the tradition of on-receipt access in place, said the complaint. Defendant has not. Defendant restricts access to new complaints until they have been completely processed. Defendants no-access-before-process policy results in access delays of one day or longer for a substantial portion of new complaints, turning them into old news.

The lawyers who filed the complaint are Jack Greiner and Darren Ford with the litigation firm of Faruki PLL in Cleveland. The matter was assigned to Senior U.S. Judge James Gwin who worked in private practice before he was appointed to the state court in Canton and then to the federal bench by President Bill Clinton.

The press and public have a constitutional right to access new complaints when the clerk receives them, said the Courthouse News complaint. Any restriction on access thereafter is an unconstitutional restriction of the presss and publics First Amendment right, unless Defendant shows the restriction satisfies constitutional scrutiny.

That scrutiny is based on the test laid out in a Supreme Court case, referred to as Press Enterprise II, that says a restriction on the First Amendment right of access must be essential to preserve higher values, and narrowly tailored to serve that interest.

The policy blocking access is not essential to preserve higher values and it is not narrowly tailored because there are less restrictive alternatives, the complaint says. Alternatives include allowing public access and making any clerical corrections afterwards. That is the policy, for example, in federal courts.

To illustrate the speed of access in federal court, Tuesdays complaint in the U.S. Court for the Northern District of Ohio could be read on the courts public access system within roughly a minute of Greiners submission. The view is free at the courthouse and requires registration and payment online. Clerical corrections, which are not uncommon, can be made afterwards.

On-receipt access is the practice followed in almost all federal courts and a growing number of state courts, in New York, Connecticut, Vermont, Georgia (Atlanta courts), Florida, Texas (Austin), Arizona, Utah, California and Hawaii.

In Ohio, however, the courts have put in place a particularly restrictive variation on the black-out policy. The Cuyahoga Court of Common Pleas in Cleveland adopted a local rule that declares all new complaints confidential until clerical processing is complete. In many courts, the de facto policy of blacking out new filings is not so boldly declared.

Defendant is not permitted to make judicial decisions, rulings, or findings and is, therefore, not capable of making new complaints confidential, or sealing them, said the Courthouse News complaint, using a second piece of artillery in its arsenal of argument. By marking new complaints as confidential and restricting access thereto, Defendant is thus sealing a document from public viewing without prior court order.

Pointing to the ruling in Columbus against clerk OShaughnessy, the Courthouse News complaint highlighted the fact that OShaugnessy quickly, and without difficulty, complied with the injunction. Journalists now have traditional on receipt access to new electronic complaints filed in the Franklin County Court of Common Pleas in Columbus.

When a complaint is withheld in effect sealed the news it contains grows stale. The public is left unaware that a civil action has commenced and has invoked the power of the judicial branch of government. Courts that do not withhold public access for processing allow new civil actions to be read and reported when they are received by the court, when the new action is still newsworthy and capable of commanding public attention, the complaint concluded, as reporters and the public did in Cuyahoga County Court of Common Pleas in the paper past.

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New battlefield in war over First Amendment access to courts across ... - Courthouse News Service