Sunshine through the fog

Last week, the Ninth Circuit heard Idaho’s appeal of a First Amendment ruling in our favor. The ruling enjoined Idaho’s policy of blacking out new pleadings until they are processed by a clerk.

There are a set of truths on the topic — that I have sometimes had to argue internally with our lawyers — that were expressed from the bench in that hearing. From where I was watching, in the first row of the small public section at the Pioneer Courthouse, those simple truths were heard as tidings of great joy.

Well, at the least, with relief.

The lawyer for Idaho had been asked how the state could fulfill the district court judge’s injunction against withholding access. She put out her hands, palms up, and told the panel, “We don’t know.”

Judge Margaret McKeown jumped in: “In most courts, certainly in the federal courts, once something is filed, absent sealing, it’s immediately available to the public and to the press. So I think it’s a little bit disingenuous to say, ‘We don’t know what to do.’”

Hear hear. Or in the modern way of saying the same thing, a fist is pumped (not in the courtroom) as one shouts, “Yes!”

That’s right. The federal courts are the best example of how public access can be provided. And for reasons I have never fully understood, that point is often underplayed by us and ignored by our state court opponents.

McKeown continued: “It seems to me the question we have to decide is, what is the First Amendment right, has that been violated, and if so, leave to Idaho to figure out how to then respond, and not for us in the courts to figure it out.”

Yes, indeed.

Moving on.

Judge Jennifer Sung: “Technical question. So the complaint gets lodged, electronically submitted for filing into the system, and there is some period of time for the process of reviewing. It’s deemed filed as of the moment they actually lodged it, is that correct?”

Yes!

Idaho is not alone in relying on internal definitions of when something is filed (California tried to define the moment of access as when the filings were considered “official”) to defend an access blackout. The rock state court officials have always crashed upon is that central fact highlighted by Sung.

The filing stamp on a new complaint bears the date when the filing crossed the clerk’s physical counter in paper days and crossed the virtual counter in these electronic times. The alternative, right, is that the right of access would attach at some ever-shifting point after receipt. I have seen courts in California stretch to three months for processing new pleadings.

Moving on:

Idaho argued, as has done just about every clerk who persists in refusing access, that a case might be rejected and it would be terrible for the public to see such a complaint.

Sung: “Even the filing of a complaint that is ultimately not accepted, or has problems, is arguably newsworthy. It’s newsworthy as of the time it was lodged, arguably, and not contingent on whether it ultimately has dots on all its i’s and crosses on all its t’s”

Yes!

A similar point — that the attempt at filing could be news — was made by Judge Henry Coke-Morgan Jr. in the Eastern District of Virginia. He ruled in our favor some years ago over delays in access caused by the same blackout policy as Idaho’s, which McKeown succinctly summarized as, “Wait ’til the clerks look at it.”

Moving on.

Sung: “It’s lodged and court staff are able to print it out, right. And review it and decide whether to accept it. Couldn’t they just print out the one that is lodged and put it in the press box and say, ‘If you want to look at it go ahead, it hasn’t been accepted yet, but there’s the box of stuff that got lodged today.'"

Well, yes, exactly. That’s how it worked in the old days.

Moving on.

McKeown: “On the question of confidentiality, isn’t it the responsibility of the filer to redact. It’s not the clerk or the court, it’s the filer. So that’s why it’s confusing to me that that is raised as an issue, because it’s the filer’s responsibility, not the courts, is that right?”

Yes! Yes! Yes!

Funny. Judge Morgan said the same thing. The sunshine of rationality is breaking through the fog of obfuscation, at last.