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:
The Courthouse News Service website: