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String of Recent Victories in Courthouse News Service Challenges to Delays in Court Record Access

By Rachel Matteo-Boehm, Heather Goldman, and Katherine Keating

During a six-week period in January and February 2020, just before the COVID-19 pandemic hit the United States, federal courts in California and Virginia decided three important cases addressing the requirement that access to court records be "contemporaneous" or, as the Ninth Circuit puts it, "timely." Collectively, these decisions – which together represent almost a decade of litigation – create a framework for challenging delays in access to court records.

All three lawsuits were filed by Courthouse News Service ("CNS"), which reports on civil litigation in state and federal courts throughout the country. The decisions are CNS v. Planet, 947 F.3d 581 (9th Cir. Jan. 17, 2020) ("Planet III"); CNS v. Schaefer, 2020 WL 863516 (E.D. Va. Feb. 21, 2020), and CNS v. Yamasaki, 950 F.3d 640 (9th Cir. Feb. 24, 2020).

Ninth Circuit: CNS v. Planet ("Planet III")
947 F.3d 581 (9th Cir. Jan. 17, 2020)

In 2011, CNS sued Michael Planet, in his official capacity as the Clerk of the Ventura County Superior Court, seeking declaratory and injunctive relief under 42 U.S.C. § 1983 to address Planet's practice and policy of withholding newly-filed civil complaints from press view until they had been administratively "processed" by court clerks, which took days or weeks.

The Central District of California granted Planet's motion to dismiss on federal abstention grounds (Pullman and Younger/O'Shea). In 2014, the Ninth Circuit reversed, concluding that the "novel and important" First Amendment issues CNS presented in the case "may be adjudicated on the merits in federal court, where they belong." CNS v. Planet, 750 F.3d 776 (9th Cir. 2014) ("Planet I") (subject of report in April 2014 MediaLawLetter).

Planet I also discussed certain key issues that would continue to be litigated for the next six years. While it did not apply the Press-Enterprise II "experience" and "logic" test to determine whether a First Amendment right of access applies to civil complaints, Planet I concluded there was "no question" that CNS had "alleged a cognizable injury caused by the [clerk's] denial of timely access to newly filed complaints." Planet I also made clear that CNS' access claim "implicates the same fundamental First Amendment interests as a free expression claim, and ... equally commands the respect and attention of the federal courts."

Shortly after the Ninth Circuit's decision in Planet I – three years after CNS filed suit – Ventura announced it would begin making scanned versions of new complaints available on public access terminals "prior to processing" in the court's Records Department during business hours (8:00 a.m. to 3:00 p.m.), and that complaints filed by 3:00 would typically be made available the same business day, with complaints filed after 3:00 typically available the next business day.

Meanwhile, back in the Central District of California, on remand from Planet I, Planet again sought dismissal, this time for failure to state a claim. Concluding that neither the "experience" nor "logic" prong of the Press-Enterprise II test "support[ed] CNS's claimed right of same-day access to ... civil ... complaints before they had been minimally processed," the district court dismissed the complaint. The district court also stated: "[W]hile civil complaints may someday be the subject of a 'hearing to which the public has a First Amendment right of access, it does not follow that the public should necessarily have access to information before that time.'" CNS v. Planet, 2014 WL 12740134 (C.D. Cal. Aug. 28, 2014).

CNS again appealed. In 2015, the Ninth Circuit again reversed, finding that the district court "disregarded [the Ninth Circuit's] mandate by erroneously ruling as a matter of law that filed civil complaints which have not yet been the subject of a hearing are outside the scope of the First Amendment right of access." CNS v. Planet, 614 Fed. Appx. 912 (9th Cir. 2015) ("Planet II").

On remand back to the district court for the second time, the case was assigned to a different judge, and the parties filed cross motions for summary judgment. Planet focused on his post-Planet I scanning policy, claiming the adoption of that policy had mooted the controversy over its earlier no-access-before-processing policy.

The district court granted in part and denied in part CNS' motion for summary judgment. CNS v. Planet, 2016 WL 4157210 (C.D. Cal. May 26, 2016). While finding no "universal" or "unyielding" First Amendment right of same-day access to newly filed complaints, the district court nevertheless concluded: (1) there was a First Amendment right of access to complaints that attaches when the complaint is received by a court, rather than after it is "processed;" and (2) both Planet's original no-access-before-processing policy (which had not been rendered moot by the post-lawsuit scanning policy) and the scanning policy (which was still causing delays) violated the First Amendment because Planet failed to meet his burden of justifying them. The district court thus permanently enjoined Planet "from refusing to make newly filed unlimited civil complaints ... available to the public and press until after such complaints and associated exhibits are "processed," and directed him "to make such complaints ... accessible to the public and press in a timely manner from the moment they are received by the court, regardless of whether such complaints are scanned, e-filed, or made available in any other format." CNS v. Planet, 2016 WL 4157354 (C.D. Cal. June 14, 2016) (judgment for CNS).

Planet appealed, and on January 17, 2020, the Ninth Circuit affirmed in part and reversed in part. Planet III, 947 F.3d 581. Key holdings from Planet III include:

The First Amendment Right of Access Applies to Newly-Filed Civil Complaints, And The Right of Access Attaches on Filing – "We conclude that the press has a qualified right of timely access to newly filed civil nonconfidential complaints that attaches when the complaint is filed."

The Right of Access Not Contingent on Judicial Action – The court rejected Planet's contention that "the right of access to civil complaints attaches only at the moment 'they become the subject of some type of judicial action.'"

The Right of Access Includes a Right to "Timely" Access – Planet III recognized that "a necessary corollary of the right to access is a right to timely access" and that "the public interest in obtaining news is an interest in obtaining contemporaneous news."

With these principles established, the court addressed how access delays should be tested. Though Planet III says Ventura's access policies "resemble time, place, and manner restrictions," the court did not apply time, place and manner analysis. It instead concluded that delays should be tested under "Press-Enterprise II's two-prong balancing test," under which access "may be restricted only if 'closure is essential to preserve higher values and is narrowly tailored to serve those interests.'" The court characterized this scrutiny as "'rigorous,' but not strict" scrutiny.

Applying this test to the two policies at issue – the no-access-before-processing policy that was the basis of the suit, and the scanning policy adopted after Planet I, the Ninth Circuit said that to justify the delays resulting from these two policies, Planet must demonstrate (1) "that there is a 'substantial probability' that [Ventura's] interest in the fair and orderly administration of justice would be impaired by immediate access" and (2) "that no reasonable alternatives exist to 'adequately protect' that government interest."

The Ninth Circuit found Ventura's no-access-before-processing policy failed both prongs of the test. Despite having "a substantial interest in the orderly administration and processing of new complaints," Planet did not show the "real relationship" between Ventura's policy and "legitimate administrative concerns" necessary under the first prong. As for the second prong, the policy "caused far greater delays than were necessary to adequately protect [Ventura's] interests given the reasonable alternatives available."

The scanning policy, however, survived scrutiny. The Ninth Circuit found that the measures Ventura had chosen to comply with the injunction in 2016 (keeping the clerk's office open later and changing the filing deadline so new complaints would no longer be scanned into a room the press was no longer permitted to enter) were "not a reasonable alternative available to Ventura" when it adopted the Scanning Policy in 2014, due to "severe" budget constraints. This conclusion is problematic in at least two respects. First, the alternative selected by the Ventura clerk to comply with the injunction was not the only alternative available – other alternatives included closing the filing counter at 3:00 but leaving the Records Room open so that reporters could continue using public access terminals. Second, Planet III's statement that "nothing ... indicate[s] that Ventura ... considered but rejected reasonable alternatives" to the post-lawsuit scanning policy suggests that clerks could evade the narrow tailoring prong simply by failing to consider reasonable alternatives – a result that would render narrow tailoring meaningless.

Certain other aspects of Planet III are noteworthy:

It confirmed Planet I's holding that CNS' First Amendment right of access claim fully implicated the right of free expression.

It rejected the argument that Ventura's adoption of the Scanning Policy mooted CNS' challenge to the prior no-access-before-processing policy.

It shot down the notion, advanced by Planet, that a requester's commercial interest in obtaining court records is relevant to the access analysis.

It did not say budget constraints would satisfy Press-Enterprise II scrutiny, as a general matter. Rather, it concluded Press-Enterprise II scrutiny was met for the post-lawsuit scanning policy only under a fact-specific analysis based on the "circumstances existing at the time."

It did not hold "incidental" delays are allowed as a matter of course. Rather, it held such delays are permitted only if they are justified under the two-part Press-Enterprise II "rigorous" scrutiny test.

Ninth Circuit: CNS v. Yamasaki
950 F.3d 640 (9th Cir. Feb. 24, 2020).

In January 2017, the year after the Planet district court issued its summary judgment ruling, CNS filed another 42 U.S.C. § 1983 action in the Central District of California, this time against the clerk of Orange County Superior Court, David Yamasaki. As in Planet, CNS sought declaratory and injunctive relief to address Yamasaki's practice and policy of withholding new civil complaints from public or press review until after administrative processing, which resulted in delays in access. Yamasaki was assigned to a different Central District judge than the one who had decided Planet.

Unlike Ventura, Orange County is a mandatory e-filing court. Yamasaki's principal argument was that clerks must process complaints before the press and public can see them because processing includes a review for confidential information. CNS countered with evidence of alternatives that would protect confidential complaints at least as effectively as Orange County's procedures without delaying access.

Following denial of CNS' motion for a preliminary injunction, CNS v. Yamasaki, 2017 WL 3610481 (C.D. Cal. Aug. 7, 2017), Yamasaki moved for summary judgment, which the district court granted for the most part. CNS v. Yamasaki, 312 F. Supp. 3d 844 (C.D. Cal. 2018). Starting with the dubious assertion that the First Amendment right of access is "not coextensive with the First Amendment's protection of free speech," the district court went on to dismiss CNS' arguments as to "the purported benefits of access." Among other things, the district court said "the interest in 'informed public discussion of ongoing judicial proceedings' isn't triggered by the mere submission of a complaint to a court," that "newsworthiness has no effect on whether or when a right of access attaches," and that "access to complaints is [not] imperative for the public to learn about important claims."

The district court also said that a party's subjective interest in seeking court records is relevant to an access claim:

Does it matter ... if an organization seeks a right of access not to disseminate information on the functioning of government to the general public, but to share revenue-generating data with a select few? The answer is probably no – unless, as here, there's no evidence that the right of access sought also meaningfully promotes the free discussion of governmental affairs.

The Yamasaki district court then reached a series of additional conclusions that were in clear conflict with what the Ninth Circuit ultimately decided in Planet III, including that delays should be tested under time, place and manner analysis, and that, under the experience and logic test, "timely access is provided – at a minimum – when complaints are released the calendar day after they're submitted." In other words, according to the Yamasaki district court, a state court clerk could withhold new complaints for no reason at all until at least the end of the day after the day of filing.

Finding that differences in the parties' delay statistics "prevent[ed] the Court from determining that no delay involved in this case violates the First Amendment right of access," however, the district court left the question of the constitutionality of delays of two or more court days for trial. In a summary trial on a stipulated written record, the district court in August 2018 concluded that only about 2% of civil complaints filed in a fourteen-month period had been delayed for two or more court days, and since only delays of two or more days mattered, those delays satisfied time, place and manner analysis.

Predictably, following entry of judgment, delays at Orange County increased dramatically. In one week tracked by CNS in late 2018, only 6% of complaints were available the day of filing, and 76% were delayed for two or more days after filing.

On February 24, 2020, five weeks after Planet III was decided, the Ninth Circuit vacated the Yamasaki district court's preliminary injunction order, summary judgment order, and order entering final judgment, and remanded "for further proceedings consistent with" Planet III. Because the district court judge who decided Yamasaki retired in January 2020, the case will proceed not only under the new legal framework established by Planet III, but also before a new judge.

The Virginia Litigation and Trial: CNS v. Schaefer
2020 WL 863516 (E.D. Va. Feb. 21, 2020)

In July 2018, CNS brought a § 1983 action in the Eastern District of Virginia against the clerk of the Norfolk Circuit Court, George Schaefer, and the clerk of the Prince William County Circuit Court, Jacqueline Smith, in their official capacities. CNS sought declaratory and injunctive relief to address the Virginia clerks' practices and policies of withholding new civil complaints from public or press review until they had been posted to public access terminals – after administrative processing and scanning – which, as in Planet and Yamasaki, resulted in delayed access.

The Norfolk and Prince William Circuit Courts are voluntary e-filing courts, but the majority of new complaints are still filed in paper.

The Virginia Clerks responded to the suit by moving to dismiss for failure to join a necessary party – the Office of Executive Secretary of the Supreme Court of Virginia ("OES") – and for misjoinder and lack of venue over the Prince William clerk. Five months later, in January 2019, the Virginia clerks filed a motion for abstention. Both motions were denied in March 2019. CNS v. Schaefer, 429 F. Supp. 3d 196 (E.D. Va. 2019).

Throughout the litigation, a primary defense of the Virginia clerks was that there were no delays in access. Their denial of delays required extensive discovery to locate documentation to rebut that claim. Third-party discovery from OES ultimately revealed metadata showing when a complaint was scanned and made available on public access terminals in the clerks' offices. Both parties also hired experts to analyze the data.

Using the OES data, CNS' expert found that, for the relevant period, only 5% of complaints were made available on the same day as filing in Norfolk and only 38% were made available on the same day in Prince William. The Virginia Clerks' expert also calculated delays, but he used a different data set (all civil filings instead of just civil complaints), used a different end point, and based his calculation on what had been made available "within one court day of filing." Their expert found that 89.7% (Norfolk) and 94.3% (Prince William) of new filings had been made available "within one court day" of filing.

Although virtually unheard of in access litigation, a four-day bench trial was held from January 31 through February 5, 2020. Witnesses included CNS' founder and editor, its Southeast Bureau Chief, the Virginia Clerks, supervising clerks in each of the Virginia Clerk's offices, and the parties' experts. On February 5, 2020, the last day of trial, in a ruling from the bench, the court granted CNS a declaratory judgment. Two weeks later, on February 21, 2020, Judge Morgan's written opinion and order was issued. Key holdings include:

There is a First Amendment Right of Access to Civil Complaints – The district court first observed that "each federal court to reach this question have found that the First Amendment applies in similar cases filed by this Plaintiff and another." In making this observation, the court cited several decisions: Planet III, CNS v. Tingling, 2016 WL 8739010 (S.D.N.Y. Dec. 16, 2016) (subject of report in January 2017 MediaLawLetter); CNS v. Jackson, 2009 WL 2163609 (S.D. Tex. July 20, 2009) (subject of reports in July 2009 and March 2010 MediaLawLetters), and Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 2016 WL 1071107 (S.D.N.Y. March 18, 2016), aff'd, 814 F.3d 132 (2d Cir. 2016).

While the court found that "the federal courts' unanimity is good evidence that the First Amendment applies to this case," it also undertook its own analysis. Applying Press- Enterprise II experience and logic, the court agreed with these prior cases and found that there is a First Amendment right to access civil complaints.

"Contemporaneous" Means Same Day Where Practicable – Having determined that there is a First Amendment right of access to civil complaints, the court turned to the issue of timing. Quoting the Fourth Circuit's decision in Doe v. Public Citizen, 749 F.3d 246, 264 (4th Cir. 2014), the court held that "[w]hen the First Amendment applies to the public's right of access to a particular court document or procedure, the public and press generally have a 'contemporaneous right of access.'"

Noting that the Fourth Circuit had not defined "contemporaneous," the court concluded that "the word 'contemporaneous' means in this context: on the same day of filing, insofar as practicable." In reaching this conclusion, the court looked at how "contemporaneous" was defined in both Black's Law Dictionary (which "defines 'contemporaneous' as '[l]iving, occurring, or existing at the same time'") and Webster's Dictionary (which "defines 'contemporaneously' as 'at or near the same time'").

Although the court did not define "practicable," that term is defined by Webster's Dictionary as "capable of being put into practice or of being done or accomplished."

Application of Strict Scrutiny is Required; But Clerks Could Not Satisfy Time, Place or Manner Review Either – Turning next to the determination of whether the Virginia Clerks' customs and practices resulting in delays were justified, the court found that "[b]ecause Fourth Circuit precedent requires the application of strict scrutiny, the Court will apply strict scrutiny," and concluded the Virginia clerks could not satisfy that test. Nor, the court found, could the clerks satisfy intermediate scrutiny time, place or manner analysis. As the court explained: "both standards require Defendants to come forward with evidence, not mere argument, to show that the delays are narrowly tailored to some higher governmental interest. ... Defendants cannot satisfy their burden under either test. Accordingly, the Court FINDS that even if it were to apply intermediate constitutional review, Defendants' actions resulted in constitutionally deficient access during the relevant time period."

The Case was Not Moot – The Virginia Clerks argued that whether CNS received contemporaneous access was a moot issue because they were, at the time of trial, providing the contemporaneous access CNS sought. The court dismissed the argument holding that "there is ample evidence to show that during the relevant time period, Defendants denied Plaintiff its constitutionally protected right of access" and that "[t]here is no evidence of a formal policy or other means to show that the alleged unlawful delays cannot reasonably be expected to reoccur."

In granting CNS a declaratory judgment, the district court thus ordered, adjudged, and decreed:

That the press and public, including Plaintiff, enjoy a qualified right of access to newly-filed civil complaints contemporaneous with the filing of the complaint.

That 'contemporaneous' in this context means 'the same day on which the complaints is filed, insofar as is practicable;' ... Based upon the evidence in this case, including but not limited to the ... statistics, a reasonable expectation is that 85-90% of the new civil filings will be accessible to the public and press on the date of filing."

In its ruling from the bench, the district court emphasized that the 85-90% expectation was based on the evidence and facts in the case at hand, and that the percentage could vary for other courts in other cases. (The authors of this article would note that in an e-filing court, the expectation could be closer to 100%, as the vast majority of federal district courts and many state courts now provide.)

While the court denied CNS' request for injunctive relief, it did so without prejudice. "Based on the record and arguments of counsel, the Court is not persuaded that an injunction is appropriate at this time. However, the Court is persuaded that Plaintiff has made a showing that there is a real risk that Defendants, in the absence of an injunction, could revert to their pre-lawsuit practices and customs." The court also retained jurisdiction over the case and ordered the parties to "monitor the levels of access provided by Defendants for six (6) months following the conclusion of the bench trial" and file a joint status report with the Court. Defendants have appealed to the Fourth Circuit, and that appeal is pending.

CNS was represented in the nearly decade-long Planet case by Bryan Cave Leighton Paisner LLP ("BCLP") attorneys Rachel Matteo-Boehm, Roger Myers, Katherine Keating, and Jonathan Fetterly, and John Amberg, along with other BCLP colleagues. Defendant Michael Planet was represented by Robert Naeve, Erica Reilley, and Nathaniel Garrett from Jones Day and Frederick Hayes of the Hayes Law Office. The Reporters Committee for Freedom of the Press ("RCFP") provided amicus support for CNS at several stages of the Planet case.

CNS was represented in the Yamasaki case by Rachel Matteo-Boehm, Roger Myers, Katherine Keating, Jonathan Fetterly, and John Amberg of BCLP, along other BCLP colleagues. Defendant David Yamasaki was represented by Robert Naeve, Cary Sullivan, and Nathaniel Garrett from Jones Day. RCFP provided amicus support for CNS at several stages of the Yamasaki case.

CNS was represented in the Schaefer case by William Hibsher, Heather Goldman, and Bryan Harrison of BCLP, along with other BCLP colleagues, and Conrad Shumadine of Willcox Savage. Defendants George Schaefer and Jacqueline Smith were represented by William Prince IV and Michael Matheson of Thompson McMullan, P.C.

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