APPELLATE ISSUES OF INTEREST
Within these appellate cases, we are watching two themes: Abstention (federalism, comity, and equity) and the evolution of the First Amendment jurisprudence in the context of access to electronic civil state court records. Regarding abstention, author Jessica O’Brien has provided a concise analysis of the competing trends: Jessica O’Brien, To Abstain, or Not To Abstain, That Is the Question: The Seventh and Ninth Circuits’ Divergent Approaches to Younger Abstention, 98 N.C. L. Rev. 191 (2019).
Available at: https://scholarship.law.unc.edu/nclr/vol98/iss1/7
APPEALS IN PROGRESS
SECOND CIRCUIT–UNDER ADVISEMENT–ORAL ARGUMENTS HEARD April 10, 2023
Courthouse News Serv. v. Corsones (f/k/a Gabel), 0:21-cv-03098 (2nd Cir.)
CNS other national and state media sued superior court clerks and state court administrator regarding actions taken pursuant to Vermont Supreme Court Rules and statutes. District court held qualified First Amendment right attaches when complaint is received by court
District court specifically enjoined VT Courts from undertaking any pre-access review in civil cases. On Appeal, Attorney General and Amicus (CCJ ) raised abstention issues.
Oral Argument can be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/aeece88d-8297-40a0-abd0-cfeed1e56a76/526/doc/21-3098.mp3
FOURTH CIRCUIT–UNDER ADVISEMENT–ORAL ARGUMENTS HEARD December 7, 2023
Courthouse News Serv. v. Smith (f/k/a Hade), 3:21-cv-00460 (4th Cir.)
CNS as Appellant is challenging the district court’s grant of summary judgment (on two counts) to defendants. The district court found that the Virginia court’s policy of allowing electronic access to attorneys only did not violate the first amendment because there were other methods of access available to the public for accessing records, that there was a substantial governmental interest in protecting the privacy of the citizens, and that the restrictions were narrowly tailored to protect those interests.
Oral Argument can be heard here: https://www.ca4.uscourts.gov/OAarchive/mp3/22-2110-20231207.mp3
APPEALS RESOLVED
FIRST CIRCUIT
Courthouse News Serv. v. Quinlan (formerly Glessner), 32 F.4th 15 (1st Cir. 2022)
CNS, other national and state media sued state court administrator and county clerk regarding actions under Supreme Judicial Court Rules of Electronic Court Systems
Amicus (Conference of Chief Justices) raised abstention on appeal.
Court noted defendants may raise abstention at later stage of proceeding.
Court reversed district court’s dismissal of First Amendment claim and remanded case to district court for development of factual record.
After remand: CNS decided to dismiss district court lawsuit without prejudice.
April 6, 2022 Oral Argument: http://media.ca1.uscourts.gov/files/audio/21-1624.mp3
Opinion: http://media.ca1.uscourts.gov/pdf.opinions/21-1624P-01A.pdf
See Court Records (ME) For More Details
FOURTH CIRCUIT
Courthouse News Serv. v. Schaefer, 2 F.4th 318 (4th Cir. 2021)
CNS other national media sued circuit court clerks in two counties over their specific access policies
Court affirmed district court’s refusal to abstain.
Court held defendants violated First Amendment.
Court found same day access required, if practicable; when not practicable, on the next day.
March 9, 2022 Oral Argument: https://www.ca4.uscourts.gov/OAarchive/mp3/20-1290-20210309.mp3
Opinion: https://www.ca4.uscourts.gov/Opinions/201290.P.pdf
SEVENTH CIRCUIT
Courthouse News Serv. v. Brown, 908 F.3d 1063 (7th Cir. 2018), cert. denied, __U.S. __, 140 S. Ct. 384, 205 L.Ed.2d 213 (2019)
CNS and other media sued county clerk regarding actions taken under mandates of Illinois Supreme Court and the Chief Judge of Circuit Court.
Amicus (Judicial Council of California) filed amicus brief in support of defendants.
Court noted need to avoid having federal courts dictating in the first instance how state court clerks manage their filing procedures and the timing of press access and the problems such intrusion might cause.
Court invoked abstention and dismissed lawsuit leaving it to state courts to resolve issues of when First Amendment right attaches and when delays are so long as to be tantamount to a denial of the right.
September 14, 2018 Oral Argument: https://cdn.ca9.uscourts.gov/datastore/media/2018/06/28/16-55977.mp3
EIGHTH CIRCUIT
Courthouse News Serv v. Gilmer, 0:21-cv-02632 (8th Cir.)
CNS and other media sued county clerk regarding policies relating to delays in access.
District court adopted approach taken by 7th Cir. in Brown and invoked abstention.
April 14, 2022 Oral argument :http://media-oa.ca8.uscourts.gov/OAaudio/2022/4/212632.MP3
Eight Circuit Ruled in Favor of Party CNS on September 19, 2022: https://ecf.ca8.uscourts.gov/opndir/22/09/212632P.pdf
NINTH CIRCUIT
Courthouse News Serv. v. Planet, (cases 2014-2022 9th Cir.)
- Planet I, 750 F.3d 776 (9th Cir. 2014);
CNS and other media sued county clerk regarding clerk policies related to access.
Court noted injunctions serve as bright-line rules that do not require ongoing monitoring/auditing, or an intrusion into the state’s administration of justice, or monitoring individual cases.
Court reversed district court’s decision to abstain and remanded case to district court to determine the merits of CNS’s claims.
- Planet II, 614 F. App’x 912 (9th Cir. 2015)
Reversed district court’s dismissal of complaint for failure to state a claim and remanded the case for reassignment to a different district court judge);
- Planet III, 947 F.3d 581 (9th Cir. 2020)
Concluded media has a qualified right of timely access to newly filed civil nonconfidential complaints that attaches when the complaint is file; however, reasonable restrictions resembling time, place, and manner regulations that result in incidental delays in access are constitutionally permitted.
Court held that clerk’s pre-access processing policy violated First Amendment, but that its scanning policy passes constitutional scrutiny.
- Planet 2022, 2022 WL 2062467 (C.D. Cal. Jan. 24, 2022)
Final award of fees and costs: District Court awarded CNS $2,833,735.04 in attorneys’ fees and $52,893.98 in costs.
June 28, 2018 Oral Argument: https://cdn.ca9.uscourts.gov/datastore/media/2018/06/28/16-55977.mp3
Opinion: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/01/17/16-55977.pdf
Courthouse News Serv. v. Yamasaki, 950 F.3d 640 (9th Cir. 2020) (remanded for further proceedings consistent with Planet III.)
June 28, 2018 Oral Argument: https://cdn.ca9.uscourts.gov/datastore/media/2018/06/28/17-56331.mp3
Opinion: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/02/24/17-56331.pdf
TENTH CIRCUIT
Courthouse News Serv. v. New Mexico Admin. Office, 0:21-cv-02135 (10th Cir.)–Opinion and Judgment Issued November 23, 2022. https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110773402.pdf
District court held that: “The state of New Mexico violates Courthouse News’ right of timely access when it does not provide access to newly filed confidential civil complaints within 5 business hours”. CNS and other media sued AOC and local clerks. Tenth Circuit affirmed in part and reversed in part–finding against abstention, finding a first amendment right, but determining that using “tradition” prong of Press Enterprise Test to create a 5 hour rule was error.
https://www.ca10.uscourts.gov/sites/ca10/files/oralarguments/21-2135.mp3
Eleventh Circuit
Courthouse News Serv. v. Forman (& Rushing), 4:22-cv-00106-MW-MAF (11th Cir)–Appeal filed by defendant Rushing (e-filing Authority) on July 11, 2022. PARTIES SETTLED AND APPEAL WITHDRAWN ON SEPTEMBER 7, 2022.