PITTSBURGH – A magistrate judge has recommended that a presiding federal court throw out a motion to dismiss from the Clerk of the Allegheny County Court of Common Pleas, in a legal dispute centered on transparency and access to case filings in that very same state court.
Courthouse News Service first filed suit in the U.S. District Court for the Western District of Pennsylvania on Aug. 15 versus Michael McGeever (in his official capacity as Clerk of the Allegheny County Court of Common Pleas). Both parties are of Pittsburgh.
“Since time beyond memory, state and federal courts across the country have provided timely access to new, non-confidential, civil complaints (‘new complaints’), which was when the clerk of court received the new filing. Pennsylvania’s federal and state courts shared in that tradition of timely on-receipt access. Traditional on-receipt access meant that the press and public could review new complaints when they were filed, when the paper filing crossed the intake counter in the Clerk of Court’s office,” the suit said.
“That tradition was perhaps best described by Eighth Circuit Judge Bobby Shepherd in oral arguments in 2022 on a case involving the identical issues at issue here: ‘There was a time when – and some in this room may remember it – when you sent a pleading to the courthouse and the clerk stamped it physically and it went into different bins and it was available immediately.’ In the transition from paper filing to electronic filing, the federal courts and many state courts kept the tradition of on-receipt access in place. The Allegheny County Court of Common Pleas did not.”
The suit added that when the defendant first implemented e-filing at the Allegheny County Court of Common Pleas, he “continued to allow the press to review new complaints after intake but before they were fully docketed…but as the voluntary e-filing system became more widely used, the defendant pushed press access behind docketing, now commonly called ‘processing’, thereby failing to maintain the tradition of timely, on-receipt access [and] has since refused to reinstate it.”
“The First Amendment to the United States Constitution provides the press and public with a qualified right of access to new complaints. Once this qualified right of access attaches, any restriction of access is a restriction of the press’s and public’s First Amendment rights, unless constitutional scrutiny is satisfied. Whether new civil complaints are paper-filed or e-filed, this right of access attaches on receipt, which is when a new filing is delivered to, or deposited with, the clerk. In other words, the press and public have a constitutional right to access new complaints when the clerk receives them. Any delay in access thereafter that results from defendant’s processing policy is an unconstitutional restriction of the press’s and public’s First Amendment rights, unless the defendant can show that such policy satisfies constitutional scrutiny,” the suit stated.
“Courthouse News has a First Amendment right of access to new complaints filed with defendant at the Allegheny County Court of Common Pleas. Such access is fundamental and essential to accurate and fair news reporting of civil court actions, and, thus, vital to the public’s ability to monitor the activities of the judicial branch of government. Any unjustifiable delays in access result in unconstitutional restrictions of the press’s and public’s performance of that important role. When a complaint is withheld, the news it contains grows stale. The public is left unaware that a civil action has commenced and has invoked the power of the judicial branch of government. Many state courts and most federal courts throughout the country provide the press and public with on-receipt access to newly e-filed complaints. E-Filing software can provide the virtual equivalent of the bin on the counter holding the new civil complaints. Defendant, however, enforces a policy of withholding access to newly received civil complaints until after processing is completed.”
According to the suit, the defendant has implemented a “no-access-before-process” policy that delays access to newly e-filed, non-confidential complaints, which is reflected in Rule 205.04(£)(1) of the Local Rules of the Civil and Family Division of the Allegheny County Court of Common Pleas, Pennsylvania –and that through the policy, the defendant is withholding access to newly e-filed complaints, effectively sealing them, in order to review the new case information entered into defendant’s e-filing system by the filer.
“These delays are unnecessary, as demonstrated by the federal and state courts across the country that provide access to new complaints on receipt and before processing. But for defendant’s no-access-before-process policy, there would be no delay. Defendant is capable of providing on-receipt access; he has just chosen not to. Since April 25, 2023, Courthouse News has attempted to correspond with defendant in hopes of resolving these delays in access. However, timely on-receipt access is not forthcoming, as defendant rejected Courthouse News’ request that defendant stop enforcing his no-access-before-process policy that withholds access to new civil complaints until after processing, thereby resulting in continued and significant delays in access to new civil complaints e-filed at the Allegheny County Court of Common Pleas. Courthouse News brings this action to end the pervasive and ongoing deprivations of the First Amendment right of access, seeking both declaratory and injunctive relief,” the suit said.
McGeever filed a motion to dismiss the complaint on Oct. 24, arguing it failed to state a claim upon which relief may be granted on the grounds that an abstention applies due to federalism, comity and equity, that declaratory and injunctive relief is not proper as to Rule 205.4(f)(1) and that there was no First Amendment right of access violation.
“CNS has filed suit demanding instantaneous access to electronically-submitted non-confidential civil complaints at the moment of their electronic submission, before Department of Court Records personnel have the ability to undertake administrative processing to ensure complaints are properly filed and paid for before being accepted and released to the public. CNS, in turn, is asking this Court to hold the Allegheny County Court of Common Pleas to a standard that is not followed by the Supreme Court of the United States. The U.S. Supreme Court does not allow for instantaneous access to case-initiating documents. CNS’s claims are brought forth without regard to the duty defendant McGeever has to protect confidential information from being unnecessarily released to the public, or to ensure that complaints are properly filed and paid for before the court exercises its jurisdiction over the matter. CNS has now engaged the federal courts on an effort to compel a state court to impose a new system for processing and providing public access to cases without consideration to the cost, technical aspects of the e-filing system or the effect it would have on the ability of courts to regulate their own dockets. CNS’s claims put the federal courts in direct conflict with Pennsylvania courts before Pennsylvania courts have had the opportunity to address them,” per the dismissal motion, in part.
“Furthermore, the relief CNS is seeking would put this Court in a supervisory role over the Allegheny County Court of Common Pleas and potentially the entirety of Pennsylvania’s Judicial System. This action challenges the policy and procedures of Allegheny County Department of Court Records stemming from local rules of court and Unified Judicial System of Pennsylvania regulations. Federal courts should abstain where, as here, a plaintiff requests injunctive relief that would intrude on sensitive state activities such as the administration of its judicial system. State courts have a significant interest in running their own clerks’ offices and setting their own filing procedures. When these procedures are challenged as they have been here, the state courts should be given the first opportunity to determine precisely what level of press access is required, appropriate and feasible in a state court. The abstention doctrine recognizes that ‘the State’s interests are paramount and that a dispute would best be adjudicated in a state forum.’ CNS is advocating for an access rule that impairs trial courts’ right and interest to inspect, secure, and manage documents prior to being disseminated to the public. CNS’s insistence upon a constitutional requirement that all trial courts provide instantaneous public access to civil complaints the moment they are submitted disregards the rights and expectations of litigants, as well as the traditional discretion granted to court clerks to regulate the manner and timing of public inspection of court records. Understanding abstention is the exception, not the rule, defendant does not invoke this doctrine lightly. However, this Court is in position to allow Pennsylvania to address a state issue and should exercise its right to abstain in order to preserve the principles of comity, equity, and federalism.”
“Even if this Honorable Court were to rule that First Amendment right of access applies to electronically submitted, pre-processed, non-confidential civil complaint, CNS has not pled a constitutional violation. The U.S. Supreme Court has historically recognized that access to courthouse records is subject to the control of the trial court. Any delay to access caused by clerk review of submitted complaints are necessary to preserve Allegheny County Court of Common Pleas’ interest in fair and orderly administration of justice. Defendant Michael McGeever has an important interest in reviewing a submitted pleading for compliance with privacy and Pennsylvania filing rules before accepting the pleading for filing and disclosing its contents to the public. CNS avers that because the responsibility for including accurate information in filings, or omitting confidential information, rests solely with the filer, defendant has no interest in processing complaints before making them public. This is not the case. A clerk or custodian is not prohibited from reviewing or redacting documents containing confidential information. The processing of submitted complaints prior to disclosing their contents to the public protects the privacy interests of pro se litigants, plaintiffs, defendants, third parties and minors.”
The motion added that CNS “has not pled a specific instance in which it was harmed by an electronic complaint not being made timely available because of the ‘no-access-before-process’ policy” and that “CNS only alleges that it experiences access ‘blackouts’ at the Allegheny County Court of Common Pleas that result in newly-submitted civil complaints not being made publicly available for one to three days.”
“CNS has filed lawsuits throughout the country demanding instantaneous, pre-processing, access to civil complaints. Defendant has thus far not been able to identify a court addressing this First Amendment issue that has required complaints to be made available instantaneously or during times when the courts are not open and staffed. As such, the constitution does not require the Allegheny County Court of Common Pleas to make available documents that have been submitted at times when the Department of Court Records is closed. The Constitution also does not require perfect or instantaneous access. For the foregoing reasons, CNS has not pled a constitutional violation. As such, the amended complaint must be dismissed with prejudice,” the motion concluded.
UPDATE
In a May 23 report and recommendation, U.S. Magistrate Judge Kezia O. Taylor opined that McGeever’s dismissal motion be denied.
“The parties agree that the applicable test for a restriction of the right to access – commonly referred to as the ‘Experience and Logic Test’ – is two-fold: (1) The experience prong asks, ‘Whether the place and process have historically been open to the press and general public,’ and the logic prong asks, ‘Whether public access plays a significant positive role in the functioning of the particular process in question.’” If both prongs are satisfied, ‘a qualified First Amendment right of public access attaches.’ Here, plaintiff alleges that ‘civil complaints … have historically been open to the press and public, and access to such complaints plays a significant role in ensuring that the public is aware that a civil dispute has arisen and the state power has been invoked.’ Accepting plaintiff’s well-pled factual allegations in the complaint, as the court must at this stage of the proceedings, a qualified First Amendment right of access exists in this instance. Having found that a right of access exists to the complaints at issue, the next step is to determine whether ‘the restrictions on access satisfy constitutional scrutiny.’ Plaintiff initially asks that ‘strict scrutiny’ apply to this case, and that defendant be required to ‘show that denial [of access] is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest,” Taylor said.
“However, despite semantic disagreements, and in response to defendant’s motion to dismiss, the parties both agree that a more ‘relaxed’ level of scrutiny applies to limitations on the right of access that resemble ‘time, place, and manner’ restrictions. With this in mind, the question becomes whether defendant’s delay in making the complaints at issue available to the public – specifically to plaintiff – is ‘narrowly tailored and necessary to preserve the court’s important interest in the fair and orderly administration of justice.’ In support of its position that the delay associated with processing new complaints withstands constitutional scrutiny, defendant cites to cases where the courts relied on evidence beyond the pleadings, a benefit that the undersigned does not have at this juncture. For instance, in Courthouse News Service v. Shaffer, 2 F.4th 318 (4th Cir. 2021), the District Court conducted a bench trial, where evidence, including expert testimony, was presented relative to the defendant-Clerk Office’s delay in providing access to newly-filed civil complaints. In Courthouse News Serv. v. New Mexico Admin. Off. of Cts., (10th Cir. 2022), the District Court conducted a hearing on Plaintiff’s motion for preliminary injunction, where evidence, for both sides, was presented to the tribunal. At this stage in the proceedings, it is premature to rule on a fact-intensive query that the applicable level of scrutiny presents. As such, it is respectfully recommended that defendant’s motion to dismiss plaintiff’s right of access claim be denied.”
Taylor continued that in “taking all of plaintiff’s allegations as true and affording plaintiff every favorable inference as the Court must on a motion to dismiss, and having recommended that plaintiff’s First Amendment claim survive defendant’s motion to dismiss, it is respectfully recommended that defendant’s motion to dismiss plaintiff’s claims for declaratory and injunctive relief be denied.”
For violation of the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. Section 1983, the plaintiff is seeking the following relief:
• A declaration that Courthouse News has a qualified First Amendment right of access to new, electronically-submitted, non-confidential civil complaints;
• A declaration that Rule 205.4(£)(1) is unconstitutional on its face under the First and Fourteenth Amendments to the United States Constitution;
• A declaration that defendant’s practice of withholding access to new, electronically-submitted, non-confidential civil complaints until after processing – or “clerk review” and “acceptance”, as referred to by defendant – violates the First and Fourteenth Amendments to the United States Constitution;
• A preliminary and permanent injunction restraining the enforcement of Rule 205.04(£)(1), and defendant’s practice of withholding access to new, electronically-submitted, non-confidential civil complaints until after processing;
• Costs, reasonable attorneys’ fees pursuant to 42 U.S.C. Section 1988 and all other relief the Court deems just and proper.
The plaintiff is represented by Brian T. Must of Metz Lewis Brodman Must O’Keefe, in Pittsburgh.
The defendant is represented by Frances M. Liebenguth of Allegheny County’s Law Department, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-01459
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com