Over four days of trial earlier this month, Virginia court clerks used public funds and private attorneys to fight tooth and nail against public access. They wound up with a thumping defeat last week, as a federal judge’s opinion affirmed the First Amendment right to see new court complaints on the day they are filed.

Included in their hard-core opposition, the court clerks, who are elected politicians, simply denied that they were withholding access and then covered up evidence to the contrary.

But, after persistent requests and depositions under oath, the evidence of delay was extracted from the executive secretary of the Virginia Supreme Court. And that data was poured into the opinion by U.S. District Judge Henry Coke Morgan Jr. as its foundation.

With his law clerks, the judge even drew a line graph based on the data to illustrate the delays in Prince William and Norfolk superior courts where the new cases are still filed across the counter in paper form.

The origins of the litigation lay in the decision by the clerks to hold back the new civil complaints, which are a traditional source of news, at times heralding major conflicts brought into the public courts. Instead the clerks sent news reporters to computer terminals to look at the new complaints after they had been docketed and scanned into images. The effect of the clerks’ policy was to hold up the news, make it stale, like old bread.

“Plaintiff, and other members of the press and public, have historically enjoyed a tradition of court clerks making most newly filed civil complaints publicly available on the day that they are filed,” wrote the judge.

The case was brought by Courthouse News in late July 2018 against the clerks for Prince William County near Washington, D.C., and Norfolk, a major naval center located on Chesapeake Bay.

In his 45-page written opinion, Morgan rejected the clerks’ defenses and found that the First Amendment guarantees a qualified right of access to newly filed civil complaints contemporaneous with their filing.

Crucially he found the clerks had “deprived Plaintiff of that right.”

The opinion represents a big step forward in the evolution of First Amendment law as applied to court records. It follows a decade of litigation against state court clerks in Texas, California, Illinois and New York who have used public funds to fight against public access.

Federal courts, in a contrast like that between night and day, have welcomed press and public access. That was true when new court filings were made in paper form and true now that a great majority of those courts have moved to electronic filing.

A great swath of state court clerks – whose power largely flows from control of the public record – have not followed that policy. They have instead used the electronic technologies of efiling and scanning to push the press back along the timeline of a new case, behind clerical tasks.

Those contrasting attitudes have morphed into two separate standards for access to court records, one top-class, the other debased by delay.

The trial against the Virginia court clerks proceeded in U.S. District Court in Norfolk earlier this month. Courthouse News was represented by William Hibsher, Heather Goldman and Bryan Harrison with the firm of Bryan Cave, in addition to Conrad Shumadine with the Willcox Savage firm.

The clerks were represented by William Prince IV and Michael Matheson with the firm of Thompson McMullan.

In his opinion, the judge rejected a concerted effort by the clerks to show that press access was fine in both courts. “The levels in access prior to this lawsuit are so inadequate as to constitute a practice or custom of making newly filed civil complaints publicly available in a manner that is not contemporaneous with filing.”

The legal standard he applied says in shortened form that access to the complaints must be on the day of filing unless the court has a really good reason. Because Courthouse News had shown delays past the day of filing, then the clerks needed to come forward with a good reason.

“Therefore, the burden shifts to the Defendant to prove their polices, practices, and customs are narrowly tailored to serve compelling government interests,” wrote Morgan.

“Defendants cannot do so.”

The judge’s opinion rejected two standard defenses by state court clerks fighting access: that providing press access would create chaos — translated into legalese as ‘disrupt the orderly administration of justice’ — and two, that they are just trying to protect privacy.

Both defenses withered under the strain of fact.

“Defendants claim that their interests in the orderly administration of their office and protecting confidential information outweigh the public’s First Amendment right to contemporaneous access. The Court first observes that under Virginia law, the filer is responsible for redacting confidential information.”

Nearly every state in the nation places the responsibility for reviewing the content of new public filings on the lawyer filing the document, not the clerks. The additional reality is that clerks do not read through the documents coming across the counter, because they don’t have the time.

The judge also knocked down the second common argument from clerks who say press access would cause great disruption. He noted that after they were sued, the clerks changed their policy and began providing the media with same-day access to the new complaints.

The obvious conclusion was they could in fact let the press see the new complaints promptly, without chaos ensuing. The judge said testimony by court officials simply showed that “both clerks refuse to accept the reality that they are fully capable of providing contemporaneous access.”

The court clerks of Virginia form a powerful political network. They were organized as political agents and transformed into constitutional officers by Governor Harry Byrd, a former newspaper publisher who ran the Democratic machine in Virginia for four decades after he was elected governor in 1948.

Still today, when a local candidate runs for office, he or she often seeks the blessing of the clerk.

The current generation of courts clerks in Virginia banded together to fight the action by Courthouse News. Through emails obtained in the course of the lawsuit, that opposition was pushed by Prince William Clerk Jacqueline Smith, a former plaintiff lawyer before she ran for election.

But Judge Morgan calmly savaged her factual claims.

“After Plaintiff filed this lawsuit, the Prince William Clerk denied that the delays in this case ever occurred; has maintained that her office is under no legal obligation to provide the level of access it began to provide only after this lawsuit was filed; and has asserted that her office could not provide same-day access to complaints without disrupting business operations even though it is now, on a post-lawsuit basis, doing just that.”

One of the battle lines in the case had formed around the experts, with the clerks hiring a local professor, Dr. David Harless, who concluded that they were in fact providing access to 97% of the new cases on the day of filing.

In taking up his testimony, Judge Morgan relied on the data extracted from the Virginia Supreme Court’s Office of the Executive Secretary.

“The Court FINDS that Dr. Harless’s opinions are of no value to this case. Dr. Harless’s generalized statistical finding were based upon erroneous assumptions and entirely inconsistent with OES’s own data.”

He then favorably compared the conclusion of the statistical expert hired by Courthouse News, Amita Kancherla, although he did not accept one of her conclusions about the enormity of delay in Norfolk.

“The Court FINDS that Ms. Kancherla’s opinions are entitled to significant weight and are reasonably consistent with the OES statistics,” said the opinion.

One of the other centers of conflict involved the request by a Courthouse News bureau chief for better access. He had asked and been rejected. In both courts, he was directed to computer screens to look over the new cases after they had been docketed and scanned, often well after they were filed.

“Civil Division Supervisor Brenda Elford informed Plaintiff’s Southeast Regional Bureau Chief Ryan Abbott that Plaintiff could not see new complaints until they were available on the public access terminals – after intake, CCMS data entry, and scanning,” the opinion noted.

Signs posted at the courthouses also played an important role in the evidence, since they represented the only written policies on access.

“A sign was posted in various locations in the Prince William Clerk’s Office, including at the public access terminals, which stated: ‘We are dedicated to scanning all new civil filings into our digital system within ten (10) days of receipt in this office.’ That sign remains posted,” the opinion noted.

The bureau chief ran into a very similar rejection in Norfolk.

“Mr. Abbott was referred to Norfolk Circuit Court civil deputy clerk Sonya Turner. After introducing himself as a reporter and bureau chief for Plaintiff, Mr. Abbott requested access to civil complaints that had been filed but not yet fully processed and scanned. Ms. Turner informed Mr. Abbott that Plaintiff had to wait to see new complaints until they were available on the public access terminals – after initial intake, CCMS data entry, and scanning – pointing as she spoke to a sign on the clerks’ inner office door which read ‘Officers of the Court.’”

After he ran through the facts, the judge laid out his legal reasoning. He based his analysis on a standard that reviews First Amendment violations in strict terms, called “strict scrutiny.” But he said the clerks had also violated the First Amendment under the lesser standard of “intermediate” review.

“Defendants have proven that they are capable of attaining constitutionally adequate access without impairing their interests in the orderly administration of their office and their interest in preventing public disclosure of confidential information. Accordingly, under either strict or intermediate review, Defendants’ practices and customs fail constitutional scrutiny,” the opinion concluded.

He then made the critical finding that the clerks had violated the civil rights of Courthouse News under the First Amendment. “Accordingly, Plaintiff proved that the deprivation of a federally protected right was the result of a practice or custom pursuant to section 1983. Therefore, the Court FINDS that Plaintiff has proved the elements to establish liability under 42 U.S.C. § 1983.”

After 45 pages that included a detailed and thorough review of the facts and a lengthy legal analysis, the judge concluded:

“1. 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.

“2. That ‘contemporaneous’ in this context means ‘the same day on which the complaint is filed, insofar as is practicable;’ and, when not practicable, on the next court date.”

“Media, in all of its forms, is the instrument through which the public, as well as public and private institutions, receive the information upon which the rely in making well informed everyday decisions,” wrote Morgan. “To efficiently inform the public, the media must have complete and timely access in our increasingly data-driven decision making.”

While Morgan declined to issue an injunction, his declaratory order bore many of those markings.

He ordered the parties to monitor levels of access for six months and provide a status report in August. If the parties could not agree that the access had remained adequate, Courthouse News could renew its request for an injunction.

Morgan also certified his ruling for appeal to the Fourth Circuit Court of Appeals. Lawyers for the clerks said in open court that they are likely to appeal.

Finally, the judge confirmed a timetable for the application by Courthouse News for attorney fees.