440 F.Supp.3d 532
E.D. Va.2020Background:
- Courthouse News Service (CNS) is a national legal news service that depends on contemporaneous access to newly-filed general civil complaints to prepare daily litigation reports and online coverage.
- Defendants are the elected Circuit Court Clerks for Norfolk and Prince William Counties (Virginia) and control intake, indexing (CCMS), and scanning (CIS) of filings; clerks historically allowed press review of filings the day they were filed.
- From January–June 2018 CNS reporters were restricted from viewing many newly-filed general civil complaints until after full processing (indexing and scanning), causing frequent same-day access failures documented in OES data.
- After CNS filed suit in July 2018 access rates at both offices improved dramatically without evidence of staffing or formal policy changes; defendants deny prior wrongdoing and claim no ongoing obligation.
- CNS sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, arguing defendants violated a qualified First Amendment right of contemporaneous access; the bench trial found a First Amendment right and that defendants deprived CNS of that right during the relevant period.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness | Lawsuit remains live because defendants may revert; voluntary cessation exception applies | Now providing access, case is moot | Not moot; voluntary cessation exception prevents mooting absent clear assurance access won’t recur |
| §1983 liability (who) | Clerks sued in official capacity qualify as "persons" for prospective equitable relief under Ex parte Young | Official-capacity suits are barred by Eleventh Amendment | Official-capacity defendants are subject to §1983 injunctive/declaratory relief; Ex parte Young applies |
| Existence & scope of First Amendment right | Qualified First Amendment right to contemporaneous access to newly-filed general civil complaints (same day, or next court day if impracticable) | First Amendment doesn’t extend to mere filing receipt or pre-scanning records | Court: First Amendment (experience-and-logic test) guarantees qualified contemporaneous access to newly-filed general civil complaints |
| Standard and violation | Delays cannot be justified by administrative burdens or confidentiality; strict scrutiny applies | Any incidental delays are permitted for court administration; asserted interests include orderly office administration and protecting confidential data | Court applied strict scrutiny (and noted intermediate standard would also fail): defendants did not justify delays; constitutional violation found for Jan–Jun 2018 and thereafter until improvements |
| Remedy | Seek declaratory judgment and injunction to ensure continuing compliance | Argues injunction unnecessary and would disrupt elected clerks' duties | Declaratory judgment granted; injunction denied without prejudice but court retained jurisdiction and ordered a 6-month monitoring/status report before CNS may renew injunctive relief |
Key Cases Cited
- Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (U.S. 1980) (recognizing a First Amendment right of public access to criminal trials)
- Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (U.S. 1986) (experience-and-logic test and narrow tailoring for closure of proceedings)
- Doe v. Public Citizen, 749 F.3d 246 (4th Cir. 2014) (First Amendment access to particular judicial records; strict scrutiny when applied)
- Monell v. Dept. of Social Services, 436 U.S. 658 (U.S. 1978) (municipal/official-capacity §1983 liability based on policy, custom, or practice)
- Will v. Michigan Dept. of State Police, 491 U.S. 58 (U.S. 1989) (official-capacity suits for damages barred, but prospective relief under Ex parte Young is permitted)
- Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. 2020) (Ninth Circuit recognizing a qualified First Amendment right to timely access to newly-filed civil complaints)
- Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132 (2d Cir. 2016) (Second Circuit recognizing First Amendment access to complaints)
- Already, LLC v. Nike, Inc., 568 U.S. 85 (U.S. 2013) (voluntary cessation does not automatically moot a case)