COURTHOUSE NEWS SERVICE, et al., and BANGOR PUBLISHING COMPANY v. JAMES T. GLESSNER et al.
Docket No. 1:21-cv-00040-NT
July 16, 2021
PageID #: 911
ORDER ON DEFENDANTS’ MOTION TO DISMISS AND PLAINTIFFS’ SECOND MOTION FOR PRELIMINARY INJUNCTION
Plaintiffs Courthouse News Service, MTM Acquisition, Inc., and SJ Acquisition, Inc. (“Courthouse News Plaintiffs“) and Plaintiff-Intervenor Bangor Publishing Company (collectively, “Plaintiffs“) filed complaints (ECF Nos. 14-15) seeking declaratory and injunctive relief that would allow them access to civil complaints the moment they are received by Maine‘s state courts. Along with their respective complaints, the Plaintiffs filed motions seeking a preliminary injunction (ECF Nos. 23, 25). The Defendants, the State Court Administrator for the State of Maine Judicial
BACKGROUND
I. The Maine Courts’ Implementation of Electronic Filing Rules and the Courthouse News Plaintiffs’ First Challenge to the Rules
In 2020, the Maine Supreme Judicial Court (“SJC“) initiated a pilot e-filing project for the Maine state court system in Penobscot County Superior Court, in the Bangor District Court, and for the Business and Consumer Docket. Decl. of James T. Glessner (“Glessner Decl.“) ¶¶ 5-6 (ECF No. 16-1). In conjunction with the e-filing pilot project, the SJC adopted the Maine Rules of Electronic Court System (“RECS“), which have been amended several times since their adoption in August of 2020. Glessner Decl. ¶¶ 4, 8. According to their preamble, the RECS “are intended to facilitate public access to and use of the courts in the electronic environment, while providing maximum reasonable public access to court records and minimizing the risk of harm to individuals and entities involved in court proceedings.” RECS Preamble (ECF No. 23-2). In developing the RECS, the SJC “carefully considered and weighed the importance of both public access and protection of privacy in court records in the context of an electronic case management and filing system.” RECS Preamble.
In mid-December 2020, the SJC amended Rule 4(A)(1) of the RECS (the “December RECS“) to provide that no civil court record would be accessible to the public until three business days after the court clerk had accepted both the case-initiating documents and proof of service of process on at least one defendant. Compl. ¶ 4 (ECF No. 1); Glessner Decl. ¶ 8; RECS Rule 4(A)(1). On February 3, 2021, the Courthouse News Plaintiffs filed suit alleging that the December version of Rule 4(A)(1) denied them access to newly filed civil complaints at the Penobscot County Superior Court. Compl. ¶¶ 5, 29. The Courthouse News Plaintiffs alleged that the adoption of electronic filing substantially delayed their access to newly filed complaints, in some instances by several weeks from the date of filing, so they asked me to declare that they had a “First Amendment right of access to civil complaints and other civil judicial records” that “attaches upon receipt of such records by the court” and that RECS Rule 4 violated their “right of contemporaneous access to court records.” Compl. ¶ 29, Prayer for Relief. They also asked me to enjoin the Defendants from “continuing their policy of denying immediate access to civil complaints and associated court records.” Compl. Prayer for Relief.
With their Complaint, the Courthouse News Plaintiffs also moved for a preliminary injunction, seeking to enjoin the Defendants from enforcing the December version of Rule 4 and requiring that the Defendants make civil litigation records available immediately upon receipt. Pls.’ Mot. for Prelim. Inj. 20 (ECF No. 3).1
II. The Maine Courts’ Revision of the Electronic Filing Rules
On February 22, 2021, about three weeks after the Courthouse News Plaintiffs
Because the March RECS have only been in effect for about four months, there is not much of a track record about how long it will take the court clerks to enter complaints into the electronic case file, thereby making them available to the public. The Defendants claim that the process is “ministerial” and essentially “the equivalent of the examination of paper submissions that occurs in other Maine courts.” Glessner Decl. ¶ 12. The SJC expects that, “except in extraordinary circumstances,” the clerk‘s office review will be completed within four business hours. Glessner Decl. ¶ 12.
III. The Plaintiffs’ Amended Complaints and the Pending Motions
After the RECS were amended in February and before they went into effect on March 15, 2021, the Plaintiffs filed amended complaints (the “Amended Complaints“). Pls.’ First Am. Compl. (ECF No. 14); Intervenor-Pl.‘s First Am. Compl. (ECF No. 15). The Plaintiffs seek the same relief that they did in their original complaints-declarations that (1) there is a First Amendment right of access to civil complaints and other civil judicial records that attaches upon receipt of such records by the court and (2) the March RECS violate the Plaintiffs’ First Amendment right of contemporaneous access to court records, and a permanent injunction prohibiting the “Defendants from continuing their policy of denying immediate access to civil complaints and associated court records.” Pls.’ First Am. Compl. Prayer for Relief; Intervenor-Pl.‘s First Am. Compl. Prayer for Relief.
On March 4, 2021, the Courthouse News Plaintiffs withdrew their first motion for preliminary injunction because the SJC had issued a temporary order allowing court clerks to provide paper copies of newly filed complaints to those requesting access. Pls.’ Notice of Withdrawal of Mot. for Prelim. Inj. and Notice of New Judicial Branch Standing Order 1 (ECF No. 18), Ex. A (ECF No. 18-1).7
The Defendants moved to dismiss the Amended Complaints on the grounds that (1) the challenge to the abrogated December version of Rule 4(A)(1) is moot, and (2) the challenge to the March version of Rule 4(A)(1) is not ripe for adjudication and fails as a matter of law. Mot. to Dismiss First Am. Compl. (“Defs.’ Mot. to Dismiss“) 2, 6-9 (ECF No. 16); Mot. to Dismiss Intervenor- Pl.‘s Bangor Publishing Company‘s First Am. Compl. 1 (ECF No. 22).8
On June 9, 2021, I held oral argument (ECF No. 36) on both the Plaintiffs’ motion for preliminary injunction and the Defendants’ motion to dismiss. Because counsel for Courthouse News indicated at oral argument that the challenge was primarily a facial challenge to the existing RECS, following the argument, I directed the Plaintiffs to notify the Court as to whether they were still pursuing an as-applied challenge, and, if so, to supplement the record with evidence relating to the existence and duration of any access delays to newly filed complaints. Order (ECF No. 37). The Defendants were given an opportunity to respond with evidence of their own.
On June 14, 2021, the Courthouse News Plaintiffs filed their notice clarifying that-in addition to their facial challenge-they also “are pursuing an as-applied challenge to the RECS.” Notice of As-Applied Challenge Pursuant to Order Dated June 9, 2021 (“Pls.’ Notice“) (ECF No. 38). In support of their contention that the current March RECS policy has resulted in delays in access, the Plaintiffs filed a declaration stating that, out of twenty-six complaints filed since the March RECS went into effect, six were not available to the public until the day after the filing and one was not available until two days after filing. Third Decl. of Adam Angione ¶ 6 (ECF No. 38-1).
The Defendants’ responsive declaration indicated that the complaints in all but one of the cases cited by the Plaintiffs were available to the public online and in-person within the SJC‘s four-business-hour expectation, and the six next-day-available complaints were all filed either outside of the court‘s business hours or within the last hour. Third Decl. of James T. Glessner in Supp. of Defs.’ Opp‘n to Mots. for Prelim. Inj. (“Third Glessner Decl.“) ¶ 6(a)-(f) (ECF No. 40). The one complaint that was not available until two days later was transferred to the Penobscot County Superior Court after originally being filed in paper in another county‘s court, and the clerk‘s office manually entered all docket entries from that case file into the electronic system. Third Glessner Decl. ¶ 7. The paper complaint in that case had been made publicly available in the originating court months earlier. Third Glessner Decl. ¶ 7.
DISCUSSION
Before me are the Defendants’ motions to dismiss the Amended Complaints and the Plaintiffs’ motions for a preliminary injunction. I begin with the Defendants’ motions to dismiss because, if they are successful, the Plaintiffs’ motions for injunctive relief necessarily fail.
The Defendants assert that this action should be dismissed under
A. Rule 12(b)(1) Ripeness
The Defendants argue that the Plaintiffs’ challenge to the March RECS is not ripe for adjudication because the Plaintiffs can only speculate about the potential delay that might occur. Without information about any actual delays, the Defendants say it is impossible to assess the March RECS’ burden on First Amendment rights. Defs.’ Mot. to Dismiss 9. The Plaintiffs admit that the magnitude of post-March 15 delay is “undefined,” see Defs.’ Mot. to Dismiss 8 (quoting First Am. Compl. ¶ 39), but they respond that their claim is ripe because the amended rule is currently in effect and operates to delay access to the news, and because the Plaintiffs’ request for access on receipt has been denied, Pls.’ Opp‘n 8, 10. They further argue that the Defendants’ previous practice of long delays in processing documents and their refusal to employ alternatives that would provide contemporaneous access, such as “press review queue” software, show that the controversy is sufficiently definite for judicial review. Pls.’ Opp‘n 8-10.
1. Legal Standards
District courts have an obligation to ensure that they have jurisdiction over a case before proceeding to the merits. Olsen v. Hamilton, 330 F. Supp. 3d 545, 551 (D. Me. 2018) (citing Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 88-89 (1998)). A motion to dismiss under
One strand of Article III‘s justiciability requirement is ripeness. Reddy, 845 F.3d at 499. “Whereas standing asks ‘who’ may bring a claim, ripeness concerns
[I]t is fair to say that [the] basic rationale [of the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.
Abbott Labʼys v. Gardner, 387 U.S. 136, 148-49 (1967) (footnote omitted), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).
There are two branches to the ripeness test: “[1] the fitness of the issues for judicial decision and [2] the hardship to the parties of withholding court consideration.” Id. at 149. The fitness prong “typically involves subsidiary queries concerning finality, definiteness, and the extent to which resolution of the challenge depends upon facts that may not yet be sufficiently developed.” Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995). The inquiry contains “both jurisdictional and prudential components.” Reddy, 845 F.3d at 501 (quoting Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89 (1st Cir. 2013)).
The jurisdictional component of the fitness prong concerns timing-“whether there is a sufficiently live case or controversy, at the time of the proceedings, to create jurisdiction in the federal courts.” Roman Catholic Bishop, 724 F.3d at 89. The key question of this component is ” ‘whether the claim involves uncertain and contingent events that may not occur as anticipated or may not occur at all,’ thus rendering any opinion [the court] might offer advisory.” Algonquin Gas Transmission, LLC. v. Weymouth, 919 F.3d 54, 62 (1st Cir. 2019) (quoting Ernst & Young, 45 F.3d at 536); see Mangual v. Rotger-Sabat, 317 F.3d 45, 59 (1st Cir. 2003) (“The constitutional inquiry, grounded in the prohibition against advisory opinions, is one of timing.“).
The prudential component of the fitness prong concerns judicial restraint- “whether resolution of the dispute should be postponed in the name of ‘judicial restraint from unnecessary decision of constitutional issues‘; if elements of the case are uncertain, delay may see the dissipation of the legal dispute without need for decision.” Mangual, 317 F.3d at 59 (internal citation omitted) (quoting Reg‘l Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974)). On the other hand, if the case “turn[s] on legal issues not likely to be significantly affected by further factual development,” the court may find the case fit for review even if events “have not yet fully unfolded.” Ernst & Young, 45 F.3d at 536.
Turning to the hardship prong of the ripeness analysis, which is “wholly prudential,” the court must ask “whether the challenged action creates a direct and immediate dilemma for the parties.” Roman Catholic Bishop, 724 F.3d at 90 (internal quotations omitted). “Generally, a mere possibility of future injury, unless it is the cause of some present detriment, does not
Both the fitness and hardship prongs ordinarily must be satisfied for a claim to be ripe. Id. at 89. It is the burden of the party seeking jurisdiction to prove ripeness. Labor Rels. Div. of Constr. Indus. of Mass., Inc. v. Healey, 844 F.3d 318, 326 (1st Cir. 2016). “Whether a challenge is facial or as-applied can bear on whether it is ripe.” Project Veritas Action Fund v. Rollins, 982 F.3d 813, 826 (1st Cir. 2020). A facial challenge “implicating First Amendment values[] customarily works a relaxation of the ripeness criteria.” El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 495-96 (1st Cir. 1992). “First Amendment rights of free expression and association are particularly apt to be found ripe for immediate protection[ ] because of the fear of irretrievable loss.” 13B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3532.3 (3d ed. 2008).
2. Application
The Plaintiffs here are challenging the RECS both facially and as they have been applied to the Plaintiffs’ efforts to access civil complaints in state court. See Pls.’ Notice 1. I look first to whether the facial challenge is ripe and then consider the as-applied challenge.
a. Facial Challenge to the RECS
In assessing whether the Plaintiffs have met their burden under the fitness prong of the ripeness inquiry, I consider the timing-based questions of finality, definiteness, and the extent to which resolution depends on yet-to-be-developed facts to the Plaintiffs’ facial challenge. At the time the Defendants filed their Motion to Dismiss, on March 1, 2021, the amended version of RECS Rule 4(A)(1)-removing the requirement that the clerk‘s office receive proof of service on one defendant before making a complaint available to the public-had been announced but had not yet taken effect. But now, the March RECS have been in effect since March 15, 2021, and because they are being applied they are sufficiently final and definite for ripeness purposes.12 Further, because this is a facial challenge, it is not dependent on facts that are yet to be developed.
Although the prudential component of the fitness prong sometimes calls for judicial restraint where postponing resolution prevents the Court from unnecessarily deciding constitutional issues, here I find the facial challenge to the March RECS to be fit for my review. See Project Veritas, 982 F.3d at 829 (“A facial constitutional challenge presents only a legal issue-the quintessentially ‘fit’ issue for present judicial resolution.“).
I also find that the Plaintiffs’ claim satisfies the standard under the hardship prong of the ripeness inquiry. Because their claim implicates free speech, the ripeness requirements are relaxed. The Plaintiffs allege that they are being deprived of their First Amendment rights and injured by the March RECS provisions that delay press access to complaints until after entry by the clerk. Assuming this to be true, this creates a direct and immediate dilemma for the parties and hardship to the Plaintiffs looms. For these reasons, I conclude that the Plaintiffs’ facial challenge to the March RECS is ripe for my review.
b. As-Applied Challenge
The Plaintiffs also bring an as-applied challenge to the March RECS. See Pls.’
Ripeness is “peculiarly a question of timing,” and a case can become ripe for adjudication over the course of the case even if it is initially premature. See Reg‘l Rail Reorganization, 419 U.S. at 140. While there are instances where “adjudication might be postponed until a better factual record might be available,” Project Veritas, 982 F.3d at 828 (internal quotations omitted), here the Plaintiffs and the Defendants have documented the access delays during the three months since the March RECS went into effect.13 Applying the fitness and hardship inquiries to this aspect of the
Plaintiffs’ claim, I find that the as-applied challenge is also ripe for judicial review.14
B. Rule 12(b)(6) Failure to State to a Claim
The Plaintiffs allege that they have a First Amendment right of access to civil
1. Legal Standards
a. Rule 12(b)(6)
A motion to dismiss under
To determine whether a complaint states a claim, courts in the First Circuit follow a two-step analysis. First, the court must “isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements.” Carrero-Ojeda v. Autoridad de Energía Eléctrica, 755 F.3d 711, 717 (1st Cir. 2014) (internal quotations omitted). Then, taking all well-pleaded facts as true and “drawing all reasonable inferences in plaintiff‘s favor,” the court must determine whether the complaint “plausibly narrate[s] a claim for relief.” Id. (internal quotations omitted). “Plausible” means “more than merely possible” but does not require all facts necessary to establish a prima facie case. Id. at 717-18 (internal quotations omitted). Distinguishing sufficient from insufficient pleadings is a “context-specific task.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Dismissal for failure to state a claim is appropriate where the complaint fails to set forth “factual allegations, either direct or inferential, respecting
b. First Amendment Right of Access
Whether the Plaintiffs have stated a claim depends on whether there is a First Amendment right for the public and the press16 to access a civil complaint immediately upon the court‘s receipt of the document. Although the public has “a qualified First Amendment right of access to certain judicial proceedings and documents,” In re Bos. Herald, Inc., 321 F.3d 174, 182 (1st Cir. 2003), the exact contours of this First Amendment right are still being defined. Neither the Supreme
Court nor the First Circuit has yet addressed whether there exists a right of public access to civil complaints, so background on this developing body of law is helpful.
i. Development of the First Amendment Right of Access by the Supreme and Appellate Courts
The First Amendment, which applies to the states through the Fourteenth Amendment, prohibits any law “abridging the freedom of speech, or of the press.”
In Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 598, 602 (1982), the Supreme Court again held that the public and press have a presumptive right to access criminal proceedings, this time striking down as a violation of the First Amendment a Massachusetts law that provided for exclusion of the public from sex offense trials involving minor victims. Again, the Court focused on the historical openness of criminal trials and the importance of public scrutiny of criminal trials to “the functioning of the judicial process and the government as a whole.” Id. at 605-06. The Court instructed that the right of access is not absolute but that it can be denied only if “the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.” Id. at 606-07.
This two-part inquiry, which has come to be known as the “experience and logic” test, was endorsed as the appropriate framework for analyzing First Amendment claims over access to judicial proceedings in Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501 (1984) (“Press-Enterprise I“). There, the Supreme Court held that the right of access extended to pretrial voir dire proceedings in a case involving the rape and murder of a teenage girl. See generally id. The Court noted that jury selection was historically
experience-and-logic analysis in Press-Enterprise Co. v. Superior Court of California for Riverside County, to conclude that the qualified First Amendment right of access to criminal proceedings also applied to the transcript of a preliminary hearing in a state criminal prosecution. See generally 478 U.S. 1 (1986) (“Press-Enterprise II”).
In the wake of these Supreme Court cases, the First Circuit has used the experience-and-logic framework, which has come to be known as the Press-Enterprise test, to analyze whether the public has a First Amendment right of access to specific judicial proceedings. But “[t]he full scope of the constitutional right of access is not settled in the law.” In re Boston Herald, 321 F.3d at 182. Using a case-by-case process, id., the First Circuit has found a qualified First Amendment right to:
- Access pretrial bail hearings and the documents filed in connection with the bail determination in a criminal case. In re Globe Newspaper Co., 729 F.2d 47, 59 (1st Cir. 1984) (recognizing right but holding that defendant’s right to a fair trial and privacy outweighed the public’s right of access).
- Access the records of completed criminal cases that ended without conviction. Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 510–11 (1st Cir. 1989) (noting that right applies to records in cases ending in acquittal, dismissal, nolle prosequi, or a finding of no probable cause, but does not extend to records in cases where grand jury opts not to indict).
- Access legal memoranda that are filed with motions in criminal cases on which the court is meant to rely in determining the parties’ substantive rights. In re Providence J. Co., 293 F.3d 1, 12–13, 16 (1st Cir. 2002) (holding that court’s “blanket nonfiling policy”—a practice of not placing memoranda submitted with motions in publicly available case file—violated First Amendment).
Conversely, the First Circuit has found no First Amendment right to:
- Access pretrial subpoenas and related documents filed under seal during pretrial proceedings in a criminal case. United States v. Kravetz, 706 F.3d 47, 56 (1st Cir. 2013).
- Access financial documents submitted in a criminal case to demonstrate the defendant’s eligibility for Criminal Justice Act funds. In re Boston Herald, 321 F.3d at 189.
In Anderson v. Cryovac, Inc., the First Circuit applied the Press-Enterprise test to a civil tort action where an intervenor newspaper sought discovery materials that were submitted to the district court under protective orders in connection with motions to compel the production of documents and a motion to quash a deposition subpoena. See generally 805 F.2d 1 (1st Cir. 1986). Noting that courts in other jurisdictions had recognized a public right of access to civil trials and some pretrial civil proceedings, the First Circuit determined that it “need not decide” whether it agreed “with those courts extending a right of public access to documents considered in rulings on dispositive pretrial motions” or “whether there is a public right of access to civil trials in general” because neither of those questions was before the court. Id. at 11. Instead, the First Circuit stated: “We think it is clear and hold that there is no right of public access to documents considered in civil discovery motions.” Id. Because “discovery proceedings are fundamentally different from proceedings to which the courts have recognized a public right of access,” the First Circuit held that “[h]istory and logic” led to the conclusion “that there is no presumptive first amendment public right of access to documents submitted to a court in connection with discovery motions.” Id. at 11, 13.
In another civil case, Siedle v. Putnam Investments, Inc., the First Circuit was initially presented with the question of whether the press “had an independent right of access to judicial materials, secured by the First Amendment.” 147 F.3d 7, 9 n.4 (1st Cir. 1998). But because the New York Times (the intervenor that had advanced the argument) had voluntarily withdrawn from the litigation, the First Circuit bypassed “this nettlesome constitutional issue” and instead analyzed whether the common-law presumption of access attached to the documents in question. Id.17
In In re Providence Journal Co., a newspaper filed mandamus petitions seeking access to materials submitted in connection with the criminal trial of the mayor of Providence. 293 F.3d at 5–6. The First Circuit held that the district court’s longstanding practice of not filing legal memoranda submitted in connection with motions in the publicly accessible case file violated the First Amendment. Id. at 12–13. In a footnote, the First Circuit stated:
Although the Supreme Court has not established whether the constitutional right of access attaches to civil cases in general, the common-law right of access extends to judicial records in civil proceedings. As said, that right encompasses legal memoranda. Because none of the respondent’s rationales for rendering legal memoranda presumptively nonpublic rise to the level of a compelling reason sufficient to justify the nondisclosure of those documents, our invalidation of the District of Rhode Island’s blanket nonfiling policy vis-à-vis legal memoranda applies in civil as well as criminal proceedings.
Id. at 13 n.5 (internal citation omitted). While not entirely clear, this footnote suggests that the First Circuit relied on the common-law right of access in recognizing, in dicta, a right to access memoranda filed in civil cases. See id.
Other than this limited precedent, I am without Supreme Court and First Circuit directive on whether a qualified right of access under the First Amendment extends to civil complaints. There are, however, many circuits that have concluded that the constitutional right of access applies to civil proceedings. See, e.g., N.Y.C.L. Union v. N.Y.C. Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) (“[T]he First Amendment guarantees a qualified right of access not only to criminal but also to civil trials and to their related proceedings and records.”); Republic of Phil. v. Westinghouse Elec. Corp., 949 F.2d 653, 659 (3d Cir. 1991) (“[T]he First Amendment protects the public’s right of access to the records of civil proceedings.”); Rushford v. New Yorker Mag., Inc., 846 F.2d 249, 253 (4th Cir. 1988) (recognizing First Amendment right to access documents submitted with summary judgment motion); Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1178 (6th Cir. 1983) (“The Supreme Court’s analysis of the justifications for access to the criminal courtroom apply as well to the civil trial.”); In re Cont’l Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984) (“[W]e agree with the Sixth Circuit that the policy reasons for granting public access to criminal proceedings apply to civil cases as well.”).
ii. Courthouse News Service Cases
The parties discuss several additional cases recently brought by Courthouse News Service in other jurisdictions that address the issue of access to civil proceedings, which are also instructive.
In Courthouse News Service v. Planet, the plaintiff sought same-day access to newly filed civil complaints in a California county court. 947 F.3d 581, 587 (9th Cir. 2020) (“Planet III”). The case involved paper filings, and the court provided the press access by placing new complaints in a media bin in the clerk’s office. Id. at 586. Before a complaint made it to the media bin, however, court staff undertook a seven-step processing procedure18 followed by a supervisor quality control review, which often took several days to complete. Id. The court’s process resulted in “significant delays”: more than half of the complaints
On appeal, the Ninth Circuit applied Press-Enterprise II and held that the press enjoys “a qualified right of timely access to newly filed civil nonconfidential complaints that attaches when the complaint is filed.” Id. at 585. But it went on to hold that “this right does not entitle the press to immediate access to those complaints.” Id. The majority opinion determined that “[s]ome reasonable restrictions resembling time, place, and manner regulations that result in incidental delays in access are constitutionally permitted where they are content-neutral, narrowly tailored and necessary to preserve the court’s important interest in the fair and orderly administration of justice.” Id. The Ninth Circuit applied a balancing test, requiring the county clerk to “demonstrate first that there is a ‘substantial probability’ that its interest in the fair and orderly administration of justice would be impaired by immediate access, and second, that no reasonable alternatives exist to ‘adequately protect’ that government interest.” Id. at 596 (quoting Press-Enterprise II, 478 U.S. at 14). The Ninth Circuit found that the state court’s former no-access-before-process policy did not pass constitutional muster but that the scanning policy was constitutional, because the state court “demonstrated that the overnight delay in access to complaints filed during the last ninety minutes of the court’s public hours was no greater than essential to manage necessary court operations under the circumstances existing at the time.” Id. at 598–600.
The concurring judge in Planet III reasoned that limitations on the right of access (as opposed to outright denials of access) should be subjected to the time, place, and manner standard, which permits government regulations that are not content-based to survive if “ ‘they are narrowly tailored to serve a significant governmental interest, and . . . they leave open ample alternative channels for communication of the information.’ ” Id. at 600–01 (Smith, J., concurring) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). The concurring judge ultimately reached the same conclusion as the majority for slightly different reasons: the no-access-before-process policy violated the First Amendment right of access (because it did not “reasonably regulate public access to civil complaints”), but the scanning policy did not violate the First Amendment (because it was content-neutral, narrowly tailored to serve a significant governmental interest, and the “minor delays” left open ample alternative channels for communication where reporters were still able to access complaints “in a timely enough manner to report on newsworthy issues”). Id. at 604–06.
In Courthouse News Service v. Schaefer, Courthouse News Service alleged delays caused by clerk’s office intake procedures in two Virginia county courts over a seven-month period. No. 20-1290, --- F.4th ----, 2021 WL 2583389, at *1 (4th Cir. June 24, 2021). Following a four-day bench trial, the district court made detailed findings of fact about the percentages of newly filed civil complaints that were made available the same day, the day after, and two or more days after the day of filing. Id. at *1; see Courthouse News Serv. v. Schaefer, 440 F. Supp. 3d 532, 546–50 (E.D. Va. 2020).19 For example, in one month, a state court only made 19% of civil complaints available the same day as filing; in another month in a different court, 41.5% of the complaints were not available until two or more court days after filing. Schaefer, 2021 WL 2583389, at *1. Based on these facts, the district court determined that the state court had violated the public’s qualified First Amendment right of “contemporaneous” access to newly filed civil complaints. Schaefer, 440 F. Supp. 3d at 558–60. The court entered a declaratory judgment to that effect but denied Courthouse News Service’s motion for injunctive relief. Id. at 561–63.
On appeal, the Fourth Circuit affirmed. Applying Press-Enterprise, the Fourth Circuit held that because the experience and logic prongs were satisfied, there was a qualified First Amendment right of access to newly filed civil complaints. Schaefer, 2021 WL 2583389, at *4, *6. Turning to whether the clerk’s office had violated the public’s First Amendment right of access, the Fourth Circuit first addressed the level of scrutiny to be applied. After noting that strict scrutiny ordinarily applies to an asserted infringement of a First Amendment right of access, the court explained:
But the Supreme Court has instructed that “limitations on the right of access that resemble ‘time, place, and manner’ restrictions on protected speech will not be subjected to such strict scrutiny.” Globe Newspaper Co., 457 U.S. at 607 n.17. The Clerks’ practices do indeed resemble time, place, and manner restrictions, so we apply more relaxed scrutiny. See Planet III, 947 F.3d at 595. In the context of this case, this requires that delays in access be “content-neutral, narrowly tailored and necessary to preserve the court’s important interest in the fair and orderly administration of justice.” Id. at 585.
2021 WL 2583389, at *7. The Fourth Circuit held that “[t]his flexible standard does not require perfect or instantaneous access. Rather, it provides courts with some leeway where same-day access would be impracticable, and fully exempts inconsequential delays and those caused by extraordinary circumstances.” Id.20 This flexibility, according to the Fourth Circuit, “accords with precedent in recognizing that the Constitution does not require the impossible.” Id. The court then upheld the district court’s “grant of a careful, nuanced declaratory judgment” that the state court defendants had violated the First Amendment right to “contemporaneous” public access, which was based on the district court’s post-trial finding “that it was both possible and practicable to provide same-day access to most newly filed civil complaints.” Id. at *7–8.
In Courthouse News Service v. Tingling, the district court granted Courthouse News Service’s motion for a preliminary injunction. 16 Civ. 8742 (ER), 2016 WL 8505086, at *1 (S.D.N.Y. Dec. 16, 2016).
Finally, in Courthouse News Service v. Jackson, the district court granted Courthouse News Service’s motion for a preliminary injunction after finding that delays in access to newly filed civil complaints ranged from 24-72 business hours (three to nine days) after filing. Civil Action No. H-09-1844, 2009 WL 2163609, at *1–2 (S.D. Tex. July 20, 2009). There, the defendants admitted that Courthouse News Service had a right of access to new civil complaints but argued that the access delay was a reasonable time, place, or manner restriction. Id. at *2. The court disagreed and found that the 24-to-72-business-hour delay “is effectively an access denial and is, therefore, unconstitutional.” Id. at *4. The court concluded that Courthouse News Service was likely to prevail on the merits because the state court defendants failed to demonstrate that the delay in access “is narrowly tailored to serve [an overriding] interest and that no less restrictive means of achieving that interest exists.” Id.
2. Application
a. Whether there is a First Amendment Qualified Right of Access to Civil Complaints
Press-Enterprise II provides the test for determining whether a First Amendment right of access exists in this context. See In re Bos. Herald, 321 F.3d at 184 (“[C]ourts must apply the Press-Enterprise II standards to a particular class of documents or proceedings and determine whether the right attaches to that class.”). Under the Press-Enterprise test, I consider “ ‘whether [civil complaints] have historically been open to the press and general public’ (the ‘experience’ prong), and ‘whether public access plays a significant positive role in the functioning of the particular process in question’ (the ‘logic’ prong).” See Kravetz, 706 F.3d at 53–54 (quoting Press-Enterprise II, 478 U.S. at 8–9).
i. Experience
Under the experience prong of Press-Enterprise II, I “look at whether materials like these . . . documents have been open to the public in the past, ‘because a tradition of accessibility implies the favorable judgment of experience.’ ” In re Boston Herald, 321 F.3d at 182 (quoting Press-Enterprise II, 478 U.S. at 8).
Other courts have found that “[c]omplaints have historically been publicly accessible by default.” Bernstein, 814 F.3d at 141; see Schaefer, 2021 WL 2583389, at *5 (“[T]he experience prong supports a First Amendment right of access to civil complaints.”); Planet III, 947 F.3d at 591 (“[A]lthough ‘the First Amendment does not explicitly mention a right of access to court proceedings and documents, the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents,’
Prior to the RECS, nonconfidential civil complaints filed on paper in Maine state courts were made available to the public and the press. See Pls.’ First Am. Compl. ¶ 32; Second Decl. of James T. Glessner in Supp. of Defs.’ Opp’n to Mots. for Prelim. Inj. ¶ 10 (ECF No. 30-1); cf. Schaefer, 440 F. Supp. 3d at 538 (“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.”).21 The experience prong of the Press-Enterprise test supports a finding of a public right of access to civil complaints.
ii. Logic
Under the logic prong of the test, I consider “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, 478 U.S. at 8. “Courts have long recognized that public monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system.” Kravetz, 706 F.3d at 52 (quoting In re Providence J., 293 F.3d at 9). Although Kravetz was a criminal case and the First Circuit has yet to recognize a right of access to civil judicial documents, the same values are involved, perhaps to a slightly diminished degree, in civil cases. “[W]ithout access to documents the public often would not have a ‘full understanding’ of the proceeding and therefore would not always be in a position to serve as an effective check on the system.” Pokaski, 868 F.2d at 502 (citing In re Globe Newspaper, 729 F.2d at 52). In a civil case, the complaint provides the subject matter of a filed lawsuit and sets the framework for all subsequent court action. Allowing access to these initiating records allows the public to understand the litigation and puts the public in a position where it can evaluate the quality and honesty of the judiciary. Such access therefore plays a significant positive role in the court system. Under the experience and logic test, I conclude that there is a qualified First Amendment right of public access to civil complaints.
b. Deciding and Applying the Appropriate Level of Scrutiny
The Plaintiffs assert that “[t]he Defendants’ policy of denying access to complaints and other judicial records until after clerk office processing is the sort of ‘blanket prohibition on the disclosure of records’ that ‘implicates the First Amendment.’ ” Pls.’ Opp’n 13 (quoting Pokaski, 868 F.2d at 505–06). But the March RECS
The distinction makes a difference. Strict scrutiny has been applied to denials of the right of access to judicial records or proceedings. See Globe Newspaper Co., 457 U.S. at 606–07 (holding that “to deny the right of access in order to inhibit the disclosure of sensitive information” the state court must show “that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest”) (courtroom closed to public for “entire” sex-offense trial involving minors); Press-Enterprise II, 478 U.S. at 14–15 (“complete closure” of preliminary hearing on murder complaint and transcript of proceedings sealed); Press-Enterprise I, 464 U.S. at 509–10, 513 (closure of courtroom to public for six weeks of voir dire and “total suppression of the transcript”); Richmond Newspapers, 448 U.S. at 580–81 (courtroom closed to public during murder trial). But “limitations on the right of access that resemble ‘time, place, and manner’ restrictions on protected speech would not be subjected to such strict scrutiny.” Globe Newspaper Co., 457 U.S. at 607 n.17 (emphasis added) (internal citation omitted); see also Richmond Newspapers, 448 U.S. at 581 n.18 (“Just as a government may impose reasonable time, place, and manner restrictions upon the use of its streets in the interest of such objectives as the free flow of traffic, so may a trial judge, in the interest of the fair administration of justice, impose reasonable limitations on access to a trial” (internal citation omitted)).23
The First Circuit has also noted the distinction. In Pokaski, the First Circuit held that “a blanket prohibition on the disclosure of records” in a court case “implicates” First Amendment rights and triggers “heightened scrutiny.” Pokaski, 868 F.2d at 505. But the First Circuit was analyzing a Massachusetts statute that automatically sealed criminal cases that ended without a conviction. It did not squarely address the timing of access to court records. In fact, quite the opposite. The Pokaski court explained that the challenged statute was “not a time, place, or manner
To fall under a time-place-manner analysis, the challenged limitation must be a content-neutral restriction. Here, the March RECS apply to all new civil complaints without regard to their content. The parties agree that the March RECS are content neutral. Oral Argument Hr’g Tr. 15:10–12 (ECF No. 39) (counsel for the Plaintiffs conceding that “[t]here is nothing about the rules that is content based” and that “they apply to all complaints in a blanket fashion”), 38:10–13 (Defendants’ counsel agreeing that “[t]his is not a content-based rule.”).
Because I conclude that the content-neutral March RECS most resemble time, place, and manner restrictions on the public right of access to newly filed civil complaints, I apply the more relaxed form of scrutiny. Under this intermediate standard, a restriction is constitutional if it is “narrowly tailored to serve a significant governmental interest” and “leave[s] open ample alternative channels for communication of the information.” March v. Mills, 867 F.3d 46, 54 (1st Cir. 2017).
Applying this more flexible standard of scrutiny, it appears on the record before me that the March RECS are narrowly tailored to serve the interest of the state court in “the fair and orderly administration of justice.” See Planet III, 947 F.3d at 596. As the state court implements its new electronic case management and filing system, these interests include ensuring compliance with court rules, minimizing the risk of harm to those involved in court proceedings, and protecting privacy in court records. The March RECS are narrowly tailored to these interests because they expressly provide for public access to civil complaints as soon as they are entered in the case file. Here, the March RECS outline the ministerial compliance review to be followed: ensure that the document is in proper electronic format, has been signed, lists the attorney’s Maine bar number, and is accompanied by any legally required elements, such as a filing fee, registry recording fee, or summary sheet. See RECS Rule 2 March 2021 advisory note. This appears on its face to be a cursory review, no more extensive than what traditionally occurs when a litigant walks up to the clerk’s office window with a paper complaint to file. I find that the March RECS are narrowly drawn to
Moreover, the March RECS leave open ample alternative channels for communication. They do not “deny or unwarrantedly abridge the opportunities for the communication of thought,” see Planet III, 947 F.3d at 605–06 (Smith, J., concurring), because they expressly give the public and press access to newly filed complaints as soon as they are entered in the case file. Communication is abridged only during the ministerial review and entry process, and I have already determined that that process is warranted to protect the court’s interests. See id. at 585 (“[C]ourts undeniably have an important administrative function that requires orderly processing of new filings, and this results in incidental delays to access by the press and public.”); see also Press-Enterprise I, 464 U.S. at 512 (“[T]he constitutional values sought to be protected by holding open proceedings may be satisfied later by making a transcript of the closed proceedings available within a reasonable time.”).25
The Plaintiffs’ position is that anything short of immediate, on-receipt access violates their First Amendment rights. I disagree and so do most courts. The Ninth Circuit held that, although “a necessary corollary of the right to access is a right to timely access,” that right does not entitle the press to “immediate, pre-processing access to newly filed complaints.” Planet III, 947 F.3d at 594. As the Planet III court observed:
Even in this era of electronic filing systems, instantaneous public access to court filings, especially complaints, could impair the orderly filing and processing of cases with which clerk’s offices are charged. After all, litigants are not uploading their complaints to the internet; they are filing them with a court, making them subject to judicial administration. The First Amendment does not require courts, public entities with limited resources, to set aside their judicial operational needs to satisfy the immediate demands of the press.
Id. at 596; see id. at 599–600 (determining that “overnight delay in access to complaints filed during the last ninety minutes of the court’s public hours” did not violate the First Amendment).
Likewise, in Schaefer, the Fourth Circuit determined that time-place-manner scrutiny “does not require perfect or instantaneous access.” 2021 WL 2583389, at *7. The Fourth Circuit did not require immediate access. Id. Instead it held that “the public and press generally have a contemporaneous right of access to court documents and proceedings when the right applies.” Id. (internal quotation marks omitted). And “contemporaneous” means only “the same day on which the complaint is filed” when practicable, “and when not practicable, on the next court date.” Id. (quoting Schaefer, 440 F. Supp. 3d at 562). The Fourth Circuit also recognized an exception to this “flexible standard” where “inconsequential deviations and extraordinary circumstances . . . may, without violating the constitution, delay access.” Id. The Schaefer court thus held that the First Amendment right of access requires that courts “make newly filed civil complaints available as expeditiously as possible.” Id. at *8.
The Plaintiffs’ claims hinge on their allegations that the constitutional
As to the Plaintiffs’ facial challenge, the March RECS are content neutral and are silent as to the amount of time that will elapse between receipt and entry into the publicly accessible electronic case file. That silence does not, however, as the Plaintiffs contend, make the March RECS unconstitutional on their face. To succeed in their facial attack, the Plaintiffs would have to establish (1) that “no set of circumstances exists” under which the March RECS would be valid, or (2) that the March RECS are overbroad by showing that “a substantial number of [their] applications are unconstitutional, judged in relation to the [March RECS]’s plainly legitimate sweep.” See United States v. Stevens, 559 U.S. 460, 472–73 (2010) (internal quotations omitted). The Plaintiffs’ pleadings fall short of these standards. First, they have not shown that no set of circumstances exists under which the March RECS would be valid. Under the March RECS, public access becomes available when the clerk enters the document in the electronic case file, and there are many ways that the March RECS could provide timely, “contemporaneous” access to newly filed complaints such that they do not offend the First Amendment.26 Second, the Plaintiffs fail to establish that the March RECS lack any plainly legitimate sweep. To the contrary, the state court’s new rules are designed to support and promote public access, while balancing privacy concerns and the court’s interests in orderly and efficient administration. Because the Plaintiffs have alleged nothing more than an indeterminate delay between the receipt of a complaint and the time it becomes accessible to the public, the Plaintiffs fail to state a claim upon which relief can be granted.
As to their as-applied challenge, the Amended Complaints assert that there have been delays in access, but the allegations all refer back to the period before the March RECS went into effect. The Amended Complaints fail to allege a single
well-pleaded facts as true, and drawing all reasonable inferences in their favor, I conclude that the Amended Complaints fail to state a claim for an as-applied challenge.
Because the Amended Complaints fail to state a claim upon which relief may be granted, the Defendant’s Motion to Dismiss is granted.
II. The Plaintiffs’ Motion for Preliminary Injunction
Having determined that the Amended Complaints must be dismissed under
CONCLUSION
For the reasons stated above, the Court GRANTS the Defendants’ motions to dismiss and DENIES as moot the Plaintiffs’ motions for a preliminary injunction.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 16th day of July, 2021.