On June 9, Federal District Court Judge Nancy Torrensen effectively questioned advocates about their clients’ positions relative to the claims raised by the media challenging the Maine State Court system’s court record access rules. Judge Torrensen’s questions were fair, crisp, and evidence that she has done her research (probably with the help of some high-quality law clerks) into these issues.

Consistent with their pleadings, the media entities (plaintiffs) took the position that there was a Constitutional Right (First Amendment) of access to civil complaints on the day of submission. The Maine Judicial Branch challenged the notion that a First Amendment right attached to civil complaints, but noted that submission by the party was not the same as acceptance for filing by the clerk. This point is key to determining whether there is a public interest in the writings of a filer prior to the pleading being ripe for judicial action. In addition to considering the nature of the documents being sought, the Judge will need to determine how quickly any documents must be made available to the public (if there is a first amendment right). In this regard, the Judge was quick to note that the she was being asked to impose a standard of access upon the state courts which is much more rigorous than the standard currently in place in the federal court system.

Torrensen took the full matter under advisement. Of particular note, although leaning toward allowing the issue to fade, she is still considering whether the court itself will analyze the concept of abstention, which could require the federal court to refrain from issuing direction to the state court.

From CTAP’s perspective, this is a critical issue related to the notions of independence of the state courts and notions of comity and amity between the state and federal judiciaries. It is our hope that she issues a briefing order and does consider this important issue.

As the issue of First Amendment access to civil complaints has not been resolved by the United States Supreme Court. It is expected that Judge Torrensen’s ruling will be appealed to the First Circuit Court of Appeals. When the First Circuit Court of Appeals considers the First Amendment issue, it will be joining a number of federal circuits who have reached differing opinions (see our Court Records (Gen) section for more information:

Court Record Access in the U.S. Courts

Perhaps its entry into this growing body of law will help inch this important jurisprudential issue toward Supreme Court review.

June 9 Media accounts of the hearing can be found on the Bangor Daily News website:

The Portland Press Herald website:

https://www.pressherald.com/2021/06/09/newspapers-push-for-immediate-electronic-access-to-new-civil-filings/

The Courthouse News Service website:

The Maine Judicial Branch entered a fee sharing arrangement with Tyler technologies to make electronic records available to the public. In addition to reducing access to court records (a value that the MJB has elevated over personal privacy), fees for access to public court records will have a disproportionate negative impact on non-lawyers who do not have the funds to pay for record searches.

According to the Maine Sunday Telegram Article:

The current Odyssey system allows free searches by name or docket number. Under the new platform called re:Search there will be paid subscriptions for extra features, like the ability to save searches or get alerts about certain cases, costing $99 and $900 a year.

The MJB set the fees at the same rates users pay to make paper copies at a courthouse: $2 for the first page and $1 for each subsequent page. Most states with digital court records charge lower fees, and a small number provide access for free.

The rules waive fees for parties and attorneys of record, who can access documents in their own cases at no cost. Also, a court can grant a waiver if cost is a barrier, but the process to request waiver is not clear.

By way of comparison, federal courts use a digital document system that charges 10 cents per page and typically has a cap of $3 for documents.

See Maine Sunday Telegram article from May 30, 2021:

https://www.pressherald.com/2021/05/30/high-fees-could-hurt-public-access-as-maine-court-records-go-digital/

Here is a pdf of that same article from the MST:

https://docs.google.com/document/d/1CFV9OB8dpumnaF9QO3_9o0JodhloPeKIvfPW6HAYf2Y/edit?usp=sharing

Judge Nancy Torrenson will hear the Motion to Dismiss for lack of subject-matter jurisdiction and for failure to state a claim, Motion Dismiss Intervenor Plaintiff’s First Amended Complaint,  Second Motion for Preliminary Injunction and SecondMotion for Injunctive Relief on 6/9/2021 at 11:00.

Editor Bill Girdner critiques, the Maine Judicial Branch’s revenue sharing arrangement with its technology vendor, Tyler Technologies. Under the agreement, the MJB obtains services from Tyler and in exchange shares revenue from court record searches. The result is disproportionately high fees for court users and those seeking what the court has deemed “public information.”

“In Maine the court bureaucracy is hiding behind a contract with a vendor that is onerous indeed, and should serve as a lesson to other state courts. I keep bringing it up in Maine because the judiciary’s deal is so bad. Public servants are getting into bed with a huge and highly profitable company and they are being abused.”

The full column can be found on Courthouse News Service Website (May 11, 2021):

LD 1096 would have added the following language to 4 M.R.S. section § 8-C:

“After the effective date of the rules as adopted or amended, all laws in conflict with the rules are of no further effect.”

See full bill at http://www.mainelegislature.org/legis/bills/getPDF.asp?paper=SP0357&item=1&snum=130

At a work session on April 16, 2021, the Judiciary Committee issued a divided report almost certainly insuring failure of the bill. See more on the Legislative Website http://legislature.maine.gov/LawMakerWeb/summary.asp?ID=280079631

LD 1096 An Act To Clarify the Rule-making Authority of the Supreme Judicial Court Concerning Electronic Records and Filing will be taken up at a public hearing before the Judiciary Committee on April 14, 2021 at 10 am in Statehouse room 438

See text of proposed legislation here:

http://www.mainelegislature.org/legis/bills/getPDF.asp?paper=SP0357&item=1&snum=130

See also Me. Const. art. VI, § 1 (vesting judicial power (except impeachment) exclusively in the Supreme Judicial Court).  https://www.maine.gov/legis/const/#a6

and 4 M.R.S. section 7 (Supreme Judicial Court “has control of all records and document in the custody of its clerks.”) http://legislature.maine.gov/legis/statutes/4/title4sec7.html

Proponents of the bills urge those convicted of crimes of former crimes should not be punished by having their prospects for employment hampered or suffering other consequences.

Opponents Opponents of the measure, including the Media, claim a blanket sealing of conviction records from the public would lead to a less transparent government and court system.

The courts system spokesperson explained that some convictions, before 2001, would have to be redacted from paper docket books and detailed the technical challenges the law change could present.

See Portland Press Herald Article from March 18, 2021

https://www.pressherald.com/2021/03/18/bill-would-seal-minor-marijuana-convictions-in-maine/

See Bill Pending with Legislative Judiciary Committee (LD 216)

http://www.mainelegislature.org/legis/bills/getPDF.asp?paper=HP0151&item=1&snum=130

MEDIA REPORTS ON ITS OWN LAWSUIT

SEE Portland Press Herald Article March 20, 2021

https://www.pressherald.com/2021/03/19/press-herald-and-other-media-companies-say-courts-still-delay-access-to-records-illegally/

See more details from our March 18, 2021 post below

In its second request for an injunction, the Media challenges the clerks’ ability to review records under Civil Rule 5. This long standing practice requires clerks to check records (in paper form and now in the electronic age) for procedural compliance before posting them to the official record. It will be up to the court to decide —now that the paper-practice has been imported into the digital arena, does the media have the chance to succeed on its argument that there is a history of same day access?

See Plaintiff’s Second Motion for Preliminary Injunction filed March 17, 2021.

https://docs.google.com/document/d/1VgizLtIFuF3ZC5MpTFIs7AHe1Q80fMMtq1aQ0KF6LAI/edit?usp=sharing

The Maine State Court system defendants filed a motion asking the federal court to dismiss a lawsuit filed by Courthouse News Service, the Portland Press Herald, the Bangor Daily News and other publications over delayed access to documents in the judicial branch’s new e-filing system. In its motion, the defendants urged that the Media’ complaint should be dismissed because changes that will be implemented March 15 will do away with the delay. The media filed a response.

See Bangor Daily News 3/3/21 article on its website:

Defendant (Glessner and Schleck)’s Motion to Dismiss can be found here:

https://drive.google.com/file/d/1S0lpXOF-8Nc46zyU9nLEQ8gdWKBtF1lI/view?usp=sharing

with its attachment, which can be found here:

https://drive.google.com/file/d/1B6_1KbGLvbdrwy07tDAI9mMkUS-SPfiX/view?usp=sharing

The Media filed its Response to the Motion, which can be found here:

https://drive.google.com/file/d/1KQPvXVtSnEerv3G2hHBnCstlVUSpNkqQ/view?usp=sharing

A national news service and parent companies of Maine based media amended their lawsuit to challenge the Courts’ most recent iteration of its Court Record Access Policy. As noted in previous posts, the Court modified the Judicial Branch’s policy last week allowing quicker access to unprotected civil complaints starting in March, but leaving in place a buffer for clerks to undertake a standard review. Media said that’s not enough access and amended its complaint to challenge the “new” old policy urging that the First Amendment applies to civil court record access.

Let’s see what happens in this long and winding round. The Press Herald’s story from 2/26/21 appears on its website at:

https://www.pressherald.com/2021/02/25/lawsuit-amended-to-challenge-new-rules-on-court-filings/

A copy of the Maine Federal District Court complaint in the matter of CNS v. Glessner can be found here:

https://docs.google.com/document/d/1OWP_LcjXpPQFvzqGzWyV6S8LGw2KhcJA4QOUEVDxGHM/edit?usp=sharing